Advisory Opinions - Is It Windbreaker Time, Yet?

Episode Date: January 12, 2023

Following Sarah's personal tribute to the incomparable Will Consovoy, Sarah and David wade through the news about Biden's mishandling of classified documents and wonder about its implications on the Mar-a-Lago case. Then, David checks in the Georgia grand jury about Trump's alleged election interference, and a Sarah reviews two SCOTUS arguments, one concerning attorney-client privilege and union strikes. Finally, Sarah and David joyfully examine the true value of noncompete clauses. Show Notes: In Memory: Will Consovoy NYT: Biden Lawyers Find Classified Material At His Former Office The Dispatch: Dueling Documents Case CNN: Georgia grand jury investigating Trump and 2020 election aftermath completes its work In re Grand Jury argrument transcripts Glacier Northwest, Inc. v. International Brotherhood of Teamsters argument transcripts FTC Proposes Rule To Ban Noncompetes   Learn more about your ad choices. Visit megaphone.fm/adchoices

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Offer ends April 12th. $49 annual fee applies. See home club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And we've got a lot of things to talk to you about today. But we wanted to talk and begin by talking about Will Consovoy,

who passed away this week, who was Sarah's close friend. And Sarah, do you want to talk for a minute about Will? I know it's going to be hard, but he's somebody you knew from your 1L year of law school and was a significant legal presence in our nation. And so, yeah, why don't you talk about him? I am going to try. And just let's just say at the front here, apologies to producer Adam, because this might take a few takes. And unlike most of this podcast, in fact, I'm not sure I've ever done this before, but I've written this down. So I'll be reading because I think it will help me. My friend Will Concevoy passed away this week after a two-year battle with brain cancer. We've talked about him on this pod many times. The Harvard case, Shelby County,

Trump taxes. He argued in front of the Supreme Court. He started his own law firm, but that's not why he mattered to so many people. Will was one of the most important people in my life. I met him after my first year of law school and I never let go. I went to his law firm as a summer associate. I clerked for his judge. I don't think a week went by at DOJ that I didn't talk to him. I've never had to think about the law without Will's voice in my head. So while he may have been done here, I still needed him very much. I know there are a lot of you listening who knew Will and are hoping for a tribute that can live up to Will's legacy.

And to those people, I hope you can forgive me. I won't be able to do that today. I hope in a few months, maybe when the Harvard decision comes out, a case that he loved and poured himself into, I'll be able to share more about Will. But I can't today. And then again, there will never be enough

I can say about Will and to explain what he was. He was the smartest person I'd ever met, but he was also the best. He actually saved my life when I was in law school. A man tried to abduct me from a hotel lobby. He carried me home over a mile that night. I never heard him tell another person about his heroics, not once. Oh gosh, and there are so many funny stories about Will. But I find myself very jealous about memories of Will right now. So forgive me. When he was alive, I wanted everyone I knew to meet Will. Because in my mind, if people knew someone like Will could be friends with me,

then it must mean that I was okay. More than anything that was on my resume or any job I'd ever hold, I knew that the most impressive thing that people could know about me was that Will Concevoy was my friend. And that's not to say Will didn't have his faults. He did. But unlike so many of us, he allowed his faults to bring out true humility and radical kindness to everyone around him. Looking back, I guess I should have known that someone so different and special couldn't stay around very long. But in fairness, no amount of time would have ever been enough. I am so lucky that I got to say my goodbyes over this past year

and tell Will that I loved him. But obviously, I'm still very sad. And I'm angry. In fact, the list of people I'm angry at is long. It even includes Will sometimes. How dare he leave it to those of us who loved him to try to explain who he was in words. He's the words guy. And I'm angry at myself. I want to relive every dinner we ever had

and every conversation, every movie we watched together and all the things he said. So much is lost to time and memory. I guess I should have been taking notes. But there's also a message from Will that is specifically for the people who didn't know him. To the high schoolers, undergrads, and law students especially who listen to this podcast, Will wasn't that guy. He didn't go to Princeton and Harvard. He went to Monmouth, and then he worked for the parole board. He went to George Mason Law School and his first year grades could generously be described as mediocre. But then something changed. Will just said he realized he loved this stuff and it meant

something. He clerked for an Arlington County judge and that judge knew something was different about Will and called Edith Jones and told her she just had to meet this guy and Judge Jones made the same call to Clarence Thomas. I will grant you, life isn't always a meritocracy. But at the same time, it's hard to keep the truly spectacular from succeeding. Will was just a guy from Jersey who found his calling. But most importantly, Will succeeded without sharp elbows. He didn't revel in other people's failures. He wasn't particularly interested in gossip. For those just starting out, Will is proof that you can succeed in the law and be a zealous advocate.

And let me be clear, Will was zealous while being good, kind, and gracious to those around you. Andy Oldham was one of Will's best friends. Judge Oldham has been on this podcast before as well and Will loved Andy he reveled in every bit of Andy's success and Andy wrote a wonderful tribute to Will that I'll put in the show notes but this one line stuck out to me it's it's both beautiful and just incredibly true Judge Oldham wrote he was the man we dream of being while being the lawyer we couldn't imagine. We miss you, Will. Well, I'm so sorry, Sarah. And we were talking beforehand

that this is a really, it's a sad week in our little corner of the world because in the legal side of our world, we lost Will Consvoy. In the journalism side of the world. Blake Hounschel died on Tuesday, who's at New York, the New York times. And it was the, the amount of outpouring of love for him online. I didn't get a chance to know him, knew of him and the outpouring of love for him online was really remarkable. And so it's just crushingly sad to see, see all of this happen. And, uh, I'm glad what you said that we will be talking about him again, uh, and, and given some time, uh, given a few months for certain. And I'm just very, very sorry, Sarah.

And it feels kind of strange to move on to talk about law and politics. You know what Will would love? Talking about law and politics. He absolutely lit up. All right, Sarah. So let's talk about some of the more, I guess, unexpected or maybe should at this point, we expect this kind of news where somebody has mishandled classified

information again. So we're going to talk about the Biden classified document issue. We're going to talk about the law of that and kind of a frame for analyzing it. And same frame, spoiler alert, that we should analyze all of the classified documents, candles through. We're going to talk a little bit about SCOTUS arguments. We're going to talk about non-competes, but non-competes is really only the entree into a much bigger topic about contracts that govern our lives, maybe in unenforceable ways.

And then if we've got time, we're going to talk a little bit about the Georgia grand jury investigating Trump. Now, that might seem strange as to why would that be at the end? And the answer is because we don't know much about it. But we're going to give a grand jury update about Trump and then we're going to call it a podcast. So, Sarah, let's start talking about Biden documents. I'll read a couple of paragraphs here from a New York Times report and then just throw it over to you to get the ball rolling. President Biden's lawyers discovered a, quote, small number, unquote, of classified documents in his former office at a Washington think tank last fall, the White House said on Monday, prompting the Justice Department to scrutinize the situation to determine how to proceed. The inquiry, according to two people familiar with the matter, is a type aimed at helping Attorney General Merrick Garland decide whether to appoint a special counsel like the one investigating former President Donald J. Trump's hoarding of sensitive documents and failure to

return all of them. The documents found in Mr. Biden's former office, which date to his time as vice president, were found by his personal lawyers on November 2nd when they were packing files at the Penn-Biden Center for Diplomacy and Global Engagement. Officials did not describe precisely how many documents were involved, what kind of information they included, or their level of classification. And since this report was issued, we do know that the level of classification of at least a small number of those documents was similar to the classification level at issue with some of the Trump documents and the Hillary Clinton documents, that top secret SCI level. So, Sarah, initial thoughts.

Donald Trump just lives under some sort of blessed star. A special counsel gets appointed to move forward on the investigation into three pieces, right? January 6th, part of the investigation dealing with Donald Trump, the mishandling of classified information at Mar-a-Lago and the obstruction-related investigation into that Mar-a-Lago investigation. And wow, in comes Joe Biden,

really helping him out there. I understand that there are distinctions, but at least at what we know right now, those distinctions aren't nearly enough to allow the Department of Justice to move forward with only one investigation. Right. Now, of course, the Department of Justice has said

that they've appointed John Lausch, the U.S. Attorney for Now, of course, the Department of Justice has said that they've appointed John Lausch, the U.S. attorney for Northern District of Illinois, Trump holdover U.S. attorney. So he was appointed by Donald Trump. I worked with him a lot when I was at the Department of Justice. He's fantastic, by the way. Just one of the most competent lawyers I've ever met. And if that sounds like a backhanded compliment, I mean it in quite the opposite. There's a lot of lawyers out there who are, you know, you can be brilliantly smart and just not very competent. And John Lausch is the opposite. When he gets his hands around a problem, it's just going to get handled efficiently, effectively, and everyone can trust that he's doing it all in the right way. He just brings a lot of credibility to everything he touches.

And so he basically is looking into this to then brief the attorney general on whether an additional special counsel is needed about the Biden part of this. Now, it doesn't matter, David. It doesn't matter. Biden part of this now. It doesn't matter, David. It doesn't matter. We're not indicting President Biden. And we're not indicting President Trump at this part at this point, not for the mishandling of classified information and the related charges in that category. Now, look, it doesn't touch the January 6th stuff. But I've already said that I didn't think they had the January 6th stuff, you feel a little differently, but not much.

And then on the obstruction point, okay, but now you get into the prudential concerns about charging a former U.S. president with obstruction of justice. It's just a little messy. So I think this is hugely impactful that the Department of Justice, by and large, the decision is now out of their hands. And I don't mean that literally, of course it is still in their hands of whether to bring charges against Donald Trump, but not really.

The distinctions aren't gonna be there. You know, yep, there were more documents at Mar-a-Lago. Okay, but not that many more. Maybe they were were more documents at Mar-a-Lago. Okay, but not that many more. Maybe they were more important documents at Mar-a-Lago. Okay. The documents were in a locked storage closet at Mar-a-Lago, but also in Trump's personal office. The documents in Biden's vice presidential office were in a locked storage closet. Do you disagree, David? I would put it like this.

I would say to indict Donald Trump at this point or anywhere near this point for the mishandling of classified information would require a special counsel to be able to articulate in a way that is completely clear to every rational person in the United States of America, an obvious distinction between Biden and Trump. Now, depending on what they find with Biden, right? and Trump. Now, depending on what they find with Biden, right? So I do think from a prudential standpoint, what you just said, Sarah, it's really hard to disagree. There would have to be something. And this is something that I've said about, by the way, about Trump with regard to the

distinguishing him from the Hillary Clinton situation. And this is something I wrote months ago and holds just with Biden. And that is, look, you're going to have to satisfy the Hillary Clinton standard to indict Donald Trump. Now, when I say that, as I've said before, when I say you're gonna have to satisfy the Hillary Clinton standard, you'll notice that I did not say you're going to have to satisfy the statutory standard

because those are two different things. All right. If you go all the way back to the Hillary Clinton controversy where there was highly classified information in an insecure location, highly classified information in an insecure location. The statute at issue, 18 U.S.C. section 793 paragraph F, says, and I'll read it, whoever being entrusted with or having lawful possession or control of any document, writing, et cetera, et cetera, et cetera, relating to the national defense through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust

or to be lost, stolen, abstracted, or destroyed, shall be fined under this title or imprisoned not more than 10 years. So the standard is, did you, through gross negligence, that's the statutory standard, remove information pertaining to the national defense from its location, its lawful location, its proper place of custody? That's the statutory definition. Now, when the FBI made a decision not to recommend prosecution for Hillary Clinton, here's what James Comey said about when has the DOJ or the FBI recommended charges in previous circumstances. So he says, in looking back at our investigations into mishandling or removal

of classified information, we cannot find a case that would support bringing criminal charges on these facts, these facts meaning Hillary Clinton. All of the cases prosecuted involve some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice. So what I put and the way I argued about this, Sarah, was that's your standard.

That's your standard. That's your standard. If that was the standard about Hillary Clinton, that should be your standard about Donald Trump. That should be your standard about Joe Biden. And that means, was it clearly intentional and willful? Were there vast quantities? We don't have any indications of disloyalty to the United States. So were there efforts to obstruct justice? And you're going to not just have to show those things. You're going to have to be able to explain quite clearly, in my view, why the situation with, say, Donald Trump differs in a material way from these other situations. And that's where I'm pretty much, I might not be all the way with you, but I'm pretty much with you, Sarah, that unless've seen this in the past, right, about, for instance, things related to Bill Clinton's actions while in office, that, you know, 20 years later, it's like, you know what, looking back, that was a mistake. So it's not that we're creating a double standard. It's that there's a new standard. And if Bill

Clinton happened today, we would hold him to that standard as well. But we can't go back in time. And so on the one hand, I think there's a very practical difference in saying, yep, maybe we should have charged Hillary Clinton, but we can't go back in time. So starting now, this is the standard. And so Donald Trump meets that standard. That's where I think the Joe Biden thing,

you're exactly right that legally, I think there may be some important distinctions. But the second part is a different practical consideration and one that may frustrate people because it's not purely the law, but it is in a way, which is when you're dealing with a former president of the United States or a current president of the United States, you have to think about the good of the country as well. And I think when you have both presidents mishandling classified information, the legal distinctions between the two,

there is a practicality there that I think you have to take into account. And that's where I think it's done. Yeah. The obstruction point is the one point where I might put a pin in and say, hmm, let's wait and see the facts. You know, if there's evidence that Trump lied to the DOJ, that he moved and shifted and concealed documents in a way that was trying to evade the subpoena, that's something that is substantially different, but we don't have all of that information yet. We have some of that information. We don't have all of that information. I think that's exactly true. And it's certainly worth underlining. But I will say is like slight

pushback here that, you know, they became aware that Donald Trump might have classified information at Mar-a-Lago that talking about the archives here when they sent that letter a year or so after his presidency ended. Joe Biden stopped being vice president. Right. In January of 2017. And those documents might have been moved before then, by the way, but we know that they had to have been moved before January of 2017. So they were just sitting there for that long. No one bothered to look or if they did see it, they didn't say anything. So I hear you that like we know a lot more about the like very obstruction-y obstruction stuff from Mar-a-Lago. But the Biden stuff isn't great.

No, no, it is not great. It is not great. And, you know, I look at classified information issues through my, with my, wearing my military hat. And, you know, this is one thing that was frustrating to me at the Hillary Clinton stage of things, frustrating to me in the Donald Trump stage of things, frustrating to me at the Joe Biden stage of things. It's pretty clear to me at this point, Sarah, that there is a civilian

military divide in the seriousness with which people treat classified documents, because I couldn't have done any of this. There would be actual legal consequences for this, certainly with the Hillary situation, certainly with the Trump. I mean, no question Hillary and Trump. With Biden, there are not enough facts yet to know where personal responsibility lies. We don't have enough of those facts. But with the Hillary situation, with the Trump situation, I have never talked to a member of the military I have never talked to a member of the military who has been able to say that had they done what Hillary did or what Trump did, that they would not have been prosecuted. They would have been an immediate plea bargaining type situation. didn't really see too many people saying that Comey was wrong about that additional standard that he announced where he said the willfulness, the obstruction, that that's when the FBI as

opposed to the military has prosecuted. So it's pretty clear to me, it's growing frustratingly clear to me that there seems to be, at least in some sectors of American government, a different way and a different degree of seriousness with which civilian authorities treat classified information. And that's really troubling. To be clear, if I had several classified documents that I had kept locked in my closet for the last five years, I'd be in some trouble. Yeah. Yeah. I guess it depends on how high up the chain. And you were pretty high. You were pretty high, but. They would come with handcuffs.

Yeah. It would be 6 a.m. They'd be wearing their windbreakers, the yellow FBI on the Navy windbreakers, and there'd be handcuffs. Like it wouldn't take long. It'd be quick. It would be windbreaker time.

That should be the new phrase. Is it windbreaker time yet, Sarah? Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback

MasterCard. Oh, and the broccoli boots that are over the line. What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. So let's just skip forward a little bit because we just talked about Trump and briefly about Trump and January 6th. Talked more about Trump and documents. Now, Trump and Georgia, the grand jury, the special grand jury that was convened. And I'll read this. And this will be short because we just don't know much.

This is CNN report. And this will be short because we just don't know much. This is a CNN report. The Atlanta area special grand jury investigating whether former Donald Trump, former President Donald Trump, and his allies violated the law in their efforts to overturn the 2020 election has completed its work. Quote, given the special purpose grand jury's delivery of its final report, the undersigned recommendation in the Superior Court bench vote, it is the order of

this court that the special purpose grand jury now stands dissolved. Judge Robert McBurney, who has been overseeing the Fulton County special grand jury investigation, wrote in Monday's short court order. So the question is, special grand juries in Georgia, they're not authorized to issue indictments. They do do a final report that can serve as a mechanism for the special grand jury to recommend whether the district attorney should pursue indictments in her election interference investigation. Willis can then go to a regularly impaneled grand jury to seek the indictments. So the question is, special grand jury has done its report.

Question is, will it be public? And what's very important about this, this is under Georgia state law regarding the efforts criminal solicitation statute in the elections code, where it says a person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct. And so as we've talked about before, there are really kind of two questions. One is, did Trump's conduct violate Georgia election law? And the other issue, Sarah, which you brought up is, can Georgia indict Trump at all? Do you want to kind of refresh the folks just a bit on that? Yeah. So not that former presidents are above

the law, but rather that current presidents may be immune from state and local prosecution for actions, for official acts that they took while in office. And I don't mean official acts like signing a bill, of course. And the problem is that we don't have a great definition of what official acts are, I think. But that, for instance, calling a member of the Senate and telling them how you think they should vote on something,

clearly that's an official act. You know, going to a campaign rally, we don't consider an official act for all sorts of purposes in terms of like who pays for it. The president has to pay for the transportation and stuff if he's taking Air Force One to a purely campaign event. So in that sense, it's not an official act, but certainly he is still president of the United States,

acting as president of the United States while he's doing that. And so in in the context that we're talking about here, I think that would be an official act. Were those taken sort of under the auspices of being president of the United States? And if so, I think there is a very strong constitutional argument that state and local prosecutors can't bring charges on that. And I can't point to any particular text. It is sort of a separation of powers structural argument. You can imagine a scenario where the floodgates open and all of a sudden, you know, former presidents or current presidents are being dragged before all sorts of tribunals because there's sort of these charges that someone has come up with. You know, they violated some

blue law in the state or, you know, imagine far less serious things. And we, you know, again, have that separation of powers for a reason and for the efficiency and functioning of government. But boy, I mean, none of this has ever been litigated before. There's, of course, going back to Nixon, the very interesting question that hasn't been resolved. It's a far more basic question, not an issue here. But, you know, we still don't know whether a sitting president can be charged with a crime. Right. You know, my personal take on the Constitution is that no, in fact, a sitting president must be impeached. And then you can charge them with a crime, they must be, you know, articles of impeachment, and then convicted in the Senate removed from office, and then you can charge them with the underlying crime. But, you know, these are the sort of very basic questions

we don't have answers to, let alone the, can state or federal or local prosecutors bring charges? I certainly think federal prosecutors could, by the way. Now, and then the question, if they're a sitting president, could they then go ahead and pardon themselves from federal-

I mean, right, you just go down this, it's, David, you've said something very, uh, poignant on this subject before. Um, it's why it's pretty important to elect good people into office. We have this impeachment emergency lever, but frankly, we don't have a whole lot of other stuff built out to deal with crooks in office. Right, right. Exactly. We really, we really don't. And it's, you know, I think one of the reasons why it's not built out or specified, not delineated with much specificity about what to do about it is because I quite frankly think that the framers miscalculated

on two fronts. Miscalculation number one was that the Congress would act as an independent check on the president, that perhaps partisanship wouldn't prevail as much as it has. And then if there is that failure of the impeachment process because it becomes so completely partisan that it's pretty clear at this point that you're not impeaching somebody and convicting them in the Oval Office unless you have a congressional supermajority coalition. Andrew Johnson couldn't even get convicted. Yeah, yeah. I mean, if you're talking about it took until Donald Trump

in the year of our Lord 2019 for the first senator in American history to cross the aisle for conviction and impeachment of a president, then you're not looking at a really effective remedy. And because that remedy has been rendered ineffective and it was the primary firewall outlined in the constitution against presidential misconduct,

we're kind of at sea a little bit. And so therefore we have all of these legal questions that have not been litigated. And the reason why I think it's really important to put a pin on Georgia, and I think this is something, Sarah, you and I have been in agreement on for a while, is that if you're just going to look at the legal standards, he has much more jeopardy in Georgia than he has related to January 6th. Absolutely agree. As awful as January 6th was, he has more clear jeopardy in Georgia. And there are two aspects to it. One is the fake elector scheme. And then the other one is,

which we don't know as much about, quite frankly. And the other one is just the taped phone call. And here's the key language. This is Donald Trump to Brad Raffensperger, Secretary of State of Georgia. And you're going to find that they are, which is totally illegal. It is more illegal for you than it is for them because you know what they did and you're not reporting it.

That's a criminal. That's a criminal offense and you can't let that happen. That's a big risk to you and to Ryan, your lawyer. And that's a big risk. I'm notifying you that you're letting it happen. So look, all I want to do is this. I just want to find 11,780 votes,

which is one more than we have because we won the state. So he's saying, look, you're under criminal risk. I'm notifying you that you're under criminal risk. Now give me votes. And it's worth noting that the person who would determine that you're under criminal risk. Now give me votes. And it's worth noting that the person who would determine whether you're under criminal risk is in fact the executive branch of the United States. So it's not just that he's like,

hey, I'm looking at this and I think you could be in trouble. He's the one who would be directing the Department of Justice who has the power to go execute that. Yes. So that's your key. That's your key fact there. And then there's a lot we don't know about sort of the alternate slate of electors, which could be its own level of fraud, depending on what they've discovered.

So that is coming. And there are going to be arguments about whether the special grand jury report should be unsealed and publicly available. So buckle up there. I would be surprised if there wasn't at least a partial unsealing. So that's coming. David, I've got a fun little tidbit for you. Okay.

Do you know why it's called a grand jury? Okay. There is a time in which I knew this and it is not this time. So... Okay. What's the other type of jury called? A jury jury? Yeah.

Oh. A petty jury. Yeah. Petit jury. Petty jury. It's not petite. It's petty. It's spelled petite though.

And that's your clue. So we pronounce them grand jury and petty jury. Yeah. But in fact, it is grand jury and petite jury. And it's taken from French that was came in through the Norman conquest. And this goes back to, you know, the 1200s or so from our common law that we inherited from across the pond. And it was because the grand jury is larger. The grand jury, you know, of course, doesn't hear both sides. It's sort of an investigatory body that's fact finding. And back in the day, you know, you didn't have the same type of police force and prosecutors. And

so you would convene this grand jury to do the fact finding on whether a crime was committed. And then the petite jury was a smaller group of people and they would actually determine guilt or innocence. And we've just kept those terms, even though we've mostly dropped petty jury. Most of the time you just refer to it as a trial jury, but you'll hear it sometimes. And so if you hear a petty jury has been convened or something, or the petty jury is sitting, that's referring to the trial jury. And the grand jury is still largely that investigatory body. And it is made up of more people. Usually there's different forms of a trial jury. And the grand jury is still largely that investigatory body. And it is made up of more people. Usually, there's different forms of a grand jury. And of course, and you

know what, funny enough, I learned this from Will Concevoy. He was telling me one of his screener questions that you would do for someone before they could interview with Justice Thomas. And he's when he was asking me what is the what hasn't been incorporated from the Bill of Rights. And that was one of the two answers. Grand jury has not been incorporated against the states. The other one at the time, of course, was unanimous jury burdens. That's a good segue into a pronunciation problem that I had

because we just talked about the pronunciation of petty jury, which is not insulting the jury, which is not insulting the jury. It is not calling the jury petty, but it's a mispronunciation of petite. So I called Hamlin University, Hamline, during the podcast. Now, Hamlin is the place that has fired a lecturer because she showed an image of the prophet Muhammad. Egregious academic freedom violation. But also an egregious mispronunciation. And what's so funny is I was, remember when I asked you,

I was like, oh, I'd never heard of that. I'd heard of Hamlin. Yeah. It just didn't occur to me. I was like, what's Hamline? That's a weird name for a school. But it's spelled Hamline. Okay.

You're so literal, David. A-M-L-I-N-E. Stop misspelling your school if you're going to call it Hamlin. But Hamline is Hamlin. Same problem with Belknap and Belknap. Okay. Belknap, if you're going to pronounce it Belknap,

spell it B-E-L-N-A-P, not B-E-L-K-N-A-P. Don't forget banal. Banal, banal. Anyway, I've got problems. I apologize for my pronunciation problems. So we'll chalk another one. Put that in the ledger. Put that in the ledger.

So yeah, grand jury report. All or part of it should be made public. And we'll have a lot to say when we see what is public. So in the meantime, do you want to talk about a couple of SCOTUS arguments? And we'll close out with a discussion of contracts that is going to be better than advertised. Sure. So we did have Supreme Court arguments this week. They were back in session. And yeah, we probably aren't going to talk about these a lot again. But I wanted to mention a couple that were interesting to me. One of which was just called NRA grand jury.

Dun, dun, dun. So fun about this case, we don't know any of the parties involved. We don't know the law firm. We don't know the person because this is coming up from a grand jury proceeding, which you know is secret. And the question is about

the scope of attorney-client privilege. So basically, a client has a conversation with his law firm. Some of the conversation is legal. Some of the conversation is not legal advice. Is it protected? And this, so fun, was about expatriation. The guy wanted to expatriate for tax reasons.

Turns out that's not easy. And so, yeah, he was looking for advice. Up till now, the test from the Supreme Court has been a primary purpose test. It has to be the client's primary purpose in seeking out, you know, their lawyers to get legal advice. But if in the course of that conversation, some non-legal advice gets tossed in there, it doesn't vitiate privilege for the whole conversation, of course. But what's a primary purpose?

What if like the purpose was legal advice? Like that was the only purpose that you called. But then in the end, the majority of the conversation was about something else because it turned out that that question was just very quick to answer from a time standpoint. And so this was a discussion over whether they should change the primary purpose test into significant purpose.

And the concern should be sort of obvious, right? That basically, if you change it from primary purpose, all of a sudden, you know, you just put a lawyer in the room, talk about whatever you want. And the lawyer says, I don't know, legally that may not work. And now the whole conversation's privileged. Congratulations. I think based on these arguments that this,

it's interesting. I mean, they took the case. And as we know, if you take the case, you actually have a much higher chance of it reversing the lower court opinion. But yeah, so this is coming out of the Ninth Circuit. And basically, the law firm refused to hand over these documents claiming that they were privileged because a significant purpose of the conversation was a legal issue. They were held in contempt, the law firm was. They appealed it to the Ninth Circuit. The Ninth Circuit affirmed the contempt order. That's what's going up to the Supreme Court. So by virtue of them taking it, and I'll get the number slightly wrong, but you know, it's like in the 60 percentile that you're going to get whatever that circuit court opinion was reversed. But I just didn't see a lot of eagerness to suddenly expand attorney-client privilege.

So I think this one's going to fall in the 30 plus percent category of, yeah, it went up, but we're going to stick with primary purpose. That's interesting. When you said interesting, you brought the goods. And you've got another case. Is it as interesting? I think it's as interesting. Not more, but I don't think it's less. So this is about a union that goes on strike and they work at a cement mixing company. You know, a big transportation.

They truck cement around. And maybe it's just because i have a two and a half year old who really likes cement mixers but when they went on strike i mean who doesn't though really they're very cool they are very cool right okay so it's possible that's what makes this case the most the most interesting part of this case involves the cement mixers they went on strike they didn't stop the cement mixers because obviously that would have broken the trucks. But even though they left the cement mixers churning, the cement in them couldn't be used.

And so all of that cement in all of the trucks then had to be discarded at significant loss to the company. And the question is, can the company sue under state tort law or is that preempted by the national labor relations act because this was a lawful strike um so and the the question really turns on like this was an intentional destruction of property they knew that if they left the cement in these trucks that it would be unusable. And so the, you know, the argument was interesting, not as clear cut, I thought, as the attorney client privilege argument, in part, because remember, they've had some of these union cases before, about, you know, letting, for instance, union

representatives onto your land, and whether that was a taking under California law. And so this court, not surprisingly, hasn't been terribly union friendly. But here, what's interesting is the intentional destruction of employer property as opposed to, for instance, economic losses. Obviously, a strike causes economic losses. losses obviously a strike causes economic losses and so i think you may see some splitting of the baby or at least some clarification that maybe yes you can sue under state tort law for intentional destruction of property and that's not preempted but that does not in any way cover economic loss and all the things that like are the point of a strike and so you saw some sort of heated agreement if you will between various justices on that point.

But mostly the cement mixers are cool. But that's interesting as well. I mean, that's an interesting fact pattern. So you delivered two interesting cases. And we'll, as I said, we'll have more about them when they're done, when the cases are over. 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.

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Use code ADVISORY at checkout to save. Terms and conditions apply. Let's turn over and talk about non-competes. And this is interesting. And it's more interesting than I thought it would be. But essentially, here's what we're going to do. We're going to talk about what the FTC is proposing. And we're going to shelve and table for the moment whether it can do this because that's a complicated question that quite frankly I'm not ready to answer yet Sarah so we'll shelve it for the moment but this is a this is a an action the FTC that is is taking that is very interesting and some interesting for some reasons

that we'll explain that relate beyond this topic. So it says that the FTC has issued a notice of proposed rulemaking that would ban all worker non-compete agreements. This would overrule, this was from a Twitter thread from a Michigan law professor, Daniel Crane, would overrule 600 years of common law, which made validity dependent upon reasonableness. If I leave the employment of one company, say a law firm, I can't join a competing law firm for X amount of time. There are a number of different ways in which non-competes are drafted. Sometimes they involve a time limitation. They can be broader or narrower based on sort of how they define what a competitive organization is or competitive company is. But they've long been pretty disfavored in the law. So in some states, a non-compete's just not, it's just not enforceable

under the law of that state. They just, they're unlawful. And then there's this thread, this really interesting thread from a Dave Hoffman, who's a Penn Law professor, where he says this. Until very recently, non-competes and employment contracts were rare, even for the employment contracts of non-wage employees. That's because written contracts for all employees were extremely rare, excepting unionized employees and non-competes in collective bargaining agreements are all but unheard of. And that was a really, I never, do you know what, Sarah, until I became a journalist, I never had an employment contract. Hmm. I'm trying to think if I had.

Yeah. You're just hired. You show them your citizenship documents. I guess we had an employee handbook on Romney part two. Right. Right. You're shown your employee handbook. Yeah.

And you might sign that you've read the employee handbook. Yeah. That's not the same thing as an employment contract. Yeah. Which an employment contract is usually for a defined term and then renewable upon agreement of the parties. Oh, I was very at will my whole life.

Super at will. Super at will. And sometimes the will ended. Yeah. On their end, to be clear. So I'll keep reading. In fact, there was a whole struggle in the back half of the 20th century by employers to escape written contractualization, to argue that employee manuals were not contracts

giving rise to rights that at-will employment did not convey. And again, this has been my experience. I read employee handbooks that said, this is not a contract. It is changeable at-will by the employer. And it should not be construed as modifying the terms of your at-will employment. That would be phrases that you would see in the employee handbook. And says, but technology, rapidly falling costs of securing and documenting

assent to form contracts and some changes in arbitration law combine to make written contracts much more attractive. The result is that the incidence of non-competes skyrocketed in the 21st century for wage and non-wage employees alike. And the problem with having so many contracts is that ex-post-court solutions don't work very well to clean the market. Contracts contain unenforceable terms all the time. They have behavioral effects, even though they wouldn't necessarily stand up in court. And the more unenforceable terms there are, the less effective the court policing regimes are. We're being overwhelmed in a tide of cheap form contracts. This is the part that's so super interesting. 100 and 200 and 300 years ago, the common law looked at individually dickered contracts and courts evaluated the party's choices

for what they were, bargains. But now we've got cheap copies with non-competes pulled across industries and people and distributed frictionless on iPads without tailoring. This is, in my opinion, primarily a transactions cost story, not a legal one, and it supports the FTC's proposal. And what I found interesting about this is it was an insight as to the way we do contracts now. A lot of things that you see, whether it might be the terms of

your employment contract, where it might be the terms of your refrigerator warranty, which is a contract, or you name it, has a voluminous list of provisions that you didn't bargain for. It's not like you can sit there and go, okay, I'm going to sign, but I'm going to strike out paragraph 7b. I don't agree with that. And then now I'm signing. And you often wonder, where did this contract come from? And the answer is often quite a bit more disappointing than you might wish that the contract was might have been just pulled from a form online, might not be enforceable in your state, all or part of it. feel bound to it, even though a, and you're not a lawyer, you don't know that maybe you're in a state that has banned non-competes and you just signed a non-compete and it's going to influence your behavior. I thought that was fascinating, Sarah. Yeah. So two things. One, I really question whether the FTC has authority to do this. Yes, that's, we're tabling that, but we can dive there a little bit. We are going to table that.

Yeah. So this is not a conversation about the FTC's regulatory authority under the Administrative Procedure Act and their congressional delegation and all of that, which I think is tricky for them. This is a conversation about non-competes. And I don't have a particular beef with non-competes. What I have a beef with is exactly what you just said, that actually a lot of employees don't know that their non-compete is unenforceable and they act in compliance with an unenforceable contract. That hurts the market. And, and I, you know, I've actually had this conversation with young people before, where they'll say, Oh, I've, you know, I hate this job, I got this other job offer, but I have a non compete, so I can't go and I'm like,

send me your contract that doesn't even, that's not really how that works. But, you know, not only do the employees think that they have an enforceable contract, oftentimes, so do the employers. They're not, they're not being evil. They think that it's enforceable. And so if you have the employee break this unenforceable non-compete clause, the employer is going to sue you because they think it's enforceable. And so it's hard for me to tell you to ignore the non-compete when it could cost you legal fees and time and hassle and sort of bad blood or bad publicity. Whereas if everyone knew what the rules actually are and what the law is around non-competes and some of these employment contracts, including clauses that aren't non-competes that are also

unenforceable, we would be way better off. And, you know, as someone was talking about, Megan McArdle actually on Twitter, she's like, I mean, so the problem that you're trying to fix is that you spend all this time training an employee for your widget company. And then after you do all this time training them and invest all this money in them, they go across the street to Widgets R Us

who will pay them higher salaries because they don't train anyone. They just steal from Widgets Acme. Just steal. And Widgets Acme is paying lower wages because they're spending all this time training you. And so that's what you're trying to prevent. But should that apply to someone at Wendy's

who wants to go to McDonald's? Is training on the fryer enough to create a non-compete? No. Right, right. Well, you know, and I'll just put in another plug for Professor Hoffman. He's got, he was at the very end of it, you know, how when a thread goes viral, someone will say, check out my Spotify. His version of check out my Spotify,

which just sings the song that a legal nerd loves to hear, is defeating the empire of forms with this one neat trick. He's got a new, I can't tell if it's a book. He says, I want to know more. I'm getting closer to releasing the Kraken. Just need to fill approximately 125,000 footnote holes. And it is called Defeating the Empire Forms with this one neat trick.

And I, for one, am going to read that when it comes out because I find that fascinating. And you know where I find it fascinating, this sort of Empire Forms concept. It's not just in the non-compete arena, which is not super interesting to me. It is, I think, of real consequence, but it's not an issue I've tracked closely. But you know, Sarah, when you go on vacation and you show up for like a whitewater rafting expedition.

And there's this guy there and he's like, hey, welcome everybody. Here's a liability waiver. Could you go ahead and sign this and let's go. And I've always looked at these liability waivers and I'm thinking, huh, I don't know anything about Colorado tort law, but I really do wonder. It's so funny you say that.

I am so willing to sign those all the time because I know that the vast majority of that form is totally void. Yeah, exactly. The idea that I can't sue you for, you know, intentional gross negligence because I signed a form. No, sorry. I didn't waive that. I can't waive that. I especially like it when the form, you know, they'll pass it around

and you might tap an iPad, but the actual piece of paper they're passing around is like yellowed, torn on the edges. You're thinking, wait just a minute. I am not so sure about that. Now on the flip side of that, in terms of tyranny of forms,

are these arbitration clauses, which have been enforced. And you don't even know you're citing that because you're not reading to the bottom of it. And even if you are, your eyes are glazing over by the time you get to the very bottom where it says choice of law shall be and this shall go to arbitration before you can go

to court in the first place. And so you can't even get into court because you've got to arbitrate the whole thing first. Of course, that has been turned on its head in a very interesting way in the case we talked about involving Uber, where they've tried to enforce a thousand, you know, whatever it was, more than, you know, 10,000 arbitration clauses. And Uber said, wait, wait, wait, wait. Well, that's not fair. That's, that creates a huge mess for us because we have to pay these arbitration costs. So we don't want that. And they're like, no, no, you're the one who wanted the arbitration clause because you thought it was in your interest. is a one-sided form so while we talk about a bunch of these forms not being

enforceable it is worth mentioning by no means are they all unenforceable and you should just be willy-nilly signing things right exactly you should be reading them and understanding them but it is there is something about this whole concept of signing. I read and understand and agree to the following and, or the, the foregoing and you know, you cannot negotiate one syllable of it, not one syllable. But what, one of my, one of my favorite moments is, um, you know, when you close a house, you are given a stack of documents and you're just signing one after the other after the other. I remember attending a house closing with my dad, Sarah, and he got the documents and he looked down at the signature page and it said, I have read and understand and agree to these provisions. And he goes, well, I need to start reading.

So he read it all. He read it all at the closing. Couldn't negotiate any of it, but at least he could say I read and understand the provisions when he signed it. So we have several things we're gonna be talking about in the future. Grand jury, we're gonna be talking about

the interesting court opinions, Georgia grand jury, interesting court opinions when they come out. We're going to talk about the empire of forms when it comes out. And so, yeah. And whether or not the FTC can actually do what it seems like it's about to do. And I've got a topic for next episode. Already, the Supreme Court just kept in place the Second Circuit, keeping in place New York's new gun law that they put in place

after the Supreme Court ruled in the Bruin case. So this is temporary, of course, but interesting development on that Second Amendment front we'll have to dive into. Oh, absolutely. Okay, so that's just breaking news while we're recording. David's eyes have lit up. Excellent. Oh, my eyes have totally lit up.

I'm extremely intrigued here. So we've got a lot to talk about. We've already got a topic for next week. Also, another topic for next week, unless huge things intrude. There was a lawsuit actually filed against social media companies by a school district. by a school district.

And that was the Seattle Public Schools sued social media platforms for intentionally harming children. I don't disagree. Of course, we've also got the investigation that the Virginia Attorney General has launched into Thomas Jefferson High School about not timely informing students about what do you call it? National Merit Scholarships. Yeah. Yeah. Awards and things that they've recognitions that they've won. That's a wild story.

And looking into whether that was a race based decision on the school's part. And of course, we've talked about this poor high school so many times, but frankly, for good reason, it's become really an epicenter of this conversation over how we think about quote unquote merit in schools and in admission and in education. So more to do on that too. Yeah, yeah.

So lots to talk about, but we really appreciate you tuning in. Really appreciate and would ask you to, you know, pray and think about Will's family, Blake Hounschel's family. And there are other individuals we talked about before. There's just a lot of suffering out there right now and would really appreciate some prayers

and compassion for these families that have suffered such unbelievable loss. And so thank you for hanging with us in this podcast. As always, you know, please feel free to rate us or to subscribe wherever you get your podcasts. Please check out thedispatch.com and we'll be back next week.