Advisory Opinions - Is Press Access a Constitutional Right?

Episode Date: September 29, 2026

David French talks to CNN’s chief legal analyst, Elie Honig, at a time when CNN is in the news following President Donald Trump’s ban of the cable network from the White House. Honig takes us through CNN’s lawsuit seeking to regain access and the First Amendment argument media outlets are making. The two also discuss the Supreme Court’s ruling on the Missouri redistricting case, and Sarah Isgur makes a provocative argument that may trigger any true crime fans.  The Agenda: –The third time is not the charm in Missouri redistricting map case  –Can the White House ban the press?  –True Crime entertainment is bad –Thank you, SNL  Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm David French. You don't hear Sarah Isker's voice right now because she is away. This is old school advisory opinions when I used to host before the podcast was good. But I'm going to try to live up to Sarah's example and you're in for a treat this week because both for our Tuesday and our Thursday podcast, I've got Ellie Honick, CNN, chief legal analyst, former prosecutor, Southern. District of New York. And I've got Ellie at a key time when CNN has been the news. So Ellie,

thanks so much for joining us. This is a thrill. First of all, you know I'm an avid listener of A.O. I'll just tell you a quick story, a funny thing about A.O. I was walking through my neighborhood as I do. I was a few blocks away from my house. And a guy was standing maybe 30 years old on his front lawn rocking a baby. You know that feeling of trying to get a baby to go to sleep. And some babies maybe respond better outside. And he says to me in a stage, I don't know, this guy. He goes in a stage whisper. He goes, good job on A.O. the other day when I was on with you guys.

Let the baby sleep quiet. So you have real reach. But yeah, look, I think the pressure is on me, not you, though, because you're always you. I'm the fake Sarah. So I'm the one who has to handle the Sarah rule here. Well, let's just stipulate. We can't fill those shoes, but we'll just do our best. And we actually have some really great stuff to talk about.

So the last podcast, Sarah and I talked about the absolute mess in Missouri. Well, that mess has been straightened out in a very interesting way that I'm going to really look forward to hearing some of your insights on some pretty unusual stuff that happened here. And then we're going to talk about the press ban. We're going to talk about the court ruling lifting the press ban, but we'll get your inside view on all of this. And then the last thing we're going to talk about is true crime. Sarah has a rant

that is going to trigger this conversation and you will want to hear that. So let's start with Missouri. And I'm just going to set the stage. Where we last left off is we had a very puzzling to me ruling from the Eighth Circuit that said, no, no, no, all of this talk we've had about new maps versus old maps, look,

there was a primary race run under the quote, new maps. if you reverse the result, not reverse results of the primary, but you reverse the maps, then millions of people will have voted for a person who is no longer in their district, that there has been chaos, that this is actually a constitutional violation, and that the constitution, the U.S. constitution, not the Missouri constitution, but the U.S. Constitution requires the use of the new maps. We went through all of this, and the Supreme Court not only said no to the Eighth Circuit,

but Ellie and language that I thought was really interesting, they kind of called out both the Missouri Secretary of State and the Eighth Circuit. And so let me go with some of the language here from the Eighth Circuit regarding the Missouri Secretary of State. So here's the key language. Moreover, in this case, the Missouri Supreme Court was not responsible for the Supreme Court. for the late breaking changes in the maps. They're referring to the maps.

On the contrary, in an opinion back in May 26, well before the primary election, the Missouri Supreme Court stated that the 2025 map would not take effect until approved by the voters in an intervening referendum, at least if the referendum was legally sufficient. So in the several-month period before the August primary election,

the Missouri Secretary of State was well aware that conducting the August primary election with the 2025 map carried significant risks. The secretary nonetheless chose to proceed with the 2025 map for the primary. And Ellie, I just want to pause there for a moment. And they don't use the phrase, unclean hands, but this really seems to be a circumstance where the Supreme Court was looking at the conduct of the litigants and was, very displeased with the Secretary of State. And that was one of my first reactions. What posture with the Secretary of State coming into this litigation? And love your thoughts on that.

I was very surprised by this, too, because the U.S. Supreme Court could have ruled as it did in much less colorful, much less sort of confrontational fashion, right? This is the third time this Missouri dispute has reached the Supreme Court. And they went on a little editorial detourable. to lamb based the Missouri Secretary of State. And honestly, in my view, rightly so. I mean, this person played games. This person tried to sit on the petition and run out the clock. And basically, the Supreme Court, to its credit recognizes, you know, sometimes you just have to look at the practicalities, right?

Whatever you want to call them, the exigencies, the Purcell principle, the balance of equities, the balance of harm. And the reality is this is a show. And because you've already voted, Missourians have already voted. using the 2025, 7 to 1 map, but now they have to go back to the 22, 6 to 2 map, 6 to 2 Republican to Democrat, and time has basically run out and everyone's screwed. And the person whose fault it is, above all else,

is the Secretary of State. And let me just say in the bigger picture, David, when the Missouri Supreme Court first ruled on this, this is a couple months ago, when the Missouri Supreme Court first said, no, no, no, it was wrong for us to use the 7 to 1 map. We have to go back to the 6 to 2 map.

It was wrong for us to use the new map. We have to go back to the old map. I had two reactions. And this is exactly what I said, because I was on air an hour later talking about this. I said, you know, the question was, will the U.S. Supreme Court get involved in this? And I said, on the one hand,

this is purely an issue of state law. What are the nuances of Missouri state law say about how many days between this and that and the referendum and all that? And the Supreme Court, U.S. Supreme Court, has done a good job of staying hands off with all this gerrymandering, redistricting stuff. They didn't get involved in Texas. They didn't get involved in California. They didn't get involved in Virginia on down the line.

On the other hand, it seemed to me to use a legal principle to be whack that the voters of Missouri would vote on one map for the primary and then a different map for the general. However, my sense of the whackness of that was changed by listening to you and Sarah last week. And you guys made the point, the very good point, that primaries are not really a constitutionally protected or mandated process. They're basically private political parties, the Democratic Party, the Republican Party, coming up with processes for how they choose their nominees. And as you noted, that process has been very much changed on the fly. See Democrats in 2024. So that made me think about the primary process in much a different light.

And I understand more now why the U.S. Supreme Court did what it did. Yeah, and I do think it would be very interesting, Ellie. How does this case come out if there hadn't been the warning for the Secretary of State? In other words, if the Secretary of State wasn't on notice from the Missouri Supreme Court months ago, that, hey, this won't be a map if the referendum is valid. And the other thing that was interesting about it was the Secretary of State, the grounds on which the Secretary of State rejected the map were grounds that he could have chosen. months ago to contest the referendum. Now, if he had said, for example, what we had to do is validate 300,000 signatures, and that just takes months and months and months, that's one argument. But his actual argument was you can't overturn a redistricting bill with a referendum. That's our

legal conclusion. Well, he could have presented that months and months ago. Yes. And so I do have kind of an open question if the Secretary of State had dotted every eye. and crossed every T, how would the court view this switch up with the primary? Even take into account when Sarah and I said that the primary is kind of a quasi-private exercise to begin with. Yeah, I think the Secretary of State tried to take himself from a clerk-type role, which really a Secretary of State is, into a chief justice of the state Supreme Court role or a solicitor general role of a pining on the validity of it.

But yeah, you raise an interesting counterfactual. What if there was no time crunch here? What if you just had a scenario? Let's just pretend there's no time problems at all, right? And you have a state that does what Missouri does. They vote on a new map, which favors Republicans by one more seat. And then the Supreme Court of that state says, no, no, no, we should have been voting on the old map. Like putting aside all the time pressure on the fact that midterms are right here and the ballots have already gone out in Missouri.

Yeah. I wonder if the Supreme Court might have looked at this differently, the U.S. Supreme Court. I do wonder as well. I mean, I don't think it is just absolute slam dunk that there is zero constitutional interest in voting for a primary candidate that then you don't have an opportunity to vote for as a general election candidate.

I do think that the Secretary of State's unclean hands, to use that phrase, essentially meant that the Supreme Court didn't even have to weigh into that. He was on notice. He had pushed ahead anyway. But I want to get your translation on a different part of this opinion,

which is actually just as interesting to me. So here's the paragraph. This court, as I'm going back to the Supreme Court's language, this court's September 10th stay order, meant that the 2022 map would be used in the 26th congressional election in Missouri absent further order the court. The election is now begun under the 22 map. But on September 21, 11 days after this court's most recent order,

the U.S. Court of Appeals for the Eighth Circuit ordered the district court to enter a permanent injunction, in effect, requiring use of the 2025 map instead of the 2022 map. Given this court's two prior orders in this litigation, our conclusion that this was error should come as no surprise. Okay. Let me translate that statement by the U.S. Supreme Court to the circuit. What the hell do you think you're doing?

And honestly, that was my reaction when I said, first of all, it was surprising when even the federal district court made a ruling contrary to the Missouri Supreme Court. That was after, right? The Missouri Supreme Court ruled then a few days later. Yeah. And then we had conflicting, squarely conflicting opinions between the Missouri Supreme Court and the federal district court. And I thought, okay, the circuit will straighten this out. The circuit will say we can't have this. The circuit doubled down. And the U.S. Supreme Court said, you've got to be kidding me. We could we have been clearer time number one and two? Now we're going to be super clear. I mean, the tone of the Supreme Court's third ruling on this is almost like,

and I've been there like a frustrated parent. Like, how many times do we have to tell you? Like, how explicit do I need to be? Yeah. So, and, you know, one other point that I think is worth making and keeping in mind is this is yet another point in favor of this is not just a reflexive automatic conservative supermajority, 6-3 Supreme Court that's always going to go Trump's way, that's always going to go Republicans way.

They held really strong and fast here. and they've been very consistent in their jurisprudence when it comes to states and redistricting. Whether you love it or hate it, whether it's Texas or California or Virginia or Missouri, they have been very clear and hands off. We're leaving this to the states. Yeah. And I don't want to get into this world of speculating like what was really going on with the Eighth Circuit. When I saw their decision, I just thought this is head scratching.

This is puzzling. Yeah. And I read the opinion with intense interest because one of my first thoughts, when I see a decision that's on its face, seems weird to me to go and read it to find out why it's not weird, what I'm my missing. Right. And when I read the Eighth Circuit opinion, I still had the view of this is weird. This is weird. This primary, this ruling essentially that once you vote in the primary, you lock in a constitutional interest in your vote, seemed to me kind of a new theory. It felt like a new theory. Right. So I was puzzled from that Eighth Circuit opinion from the get-go, and it wasn't necessarily

even a panel that I would have said, oh, this is a MAGA panel. That wasn't the first thought that I had. And so I'm kind of stumped by it, Ellie. And are you stumped or do you have an explanation? No, I'm stumped as well, but let me try to proffer an explanation for what could have been going through the Eighth Circuit and the Federal District Court's heads here. I think they could have looked at it as, okay. This dispute made its way through the Missouri courts all the way up to the Missouri Supreme Court on a very specific nuanced issue of Missouri state law.

Did you have the signatures and the petitions and all that? That's a state question. But there is a separate and distinct federal interest, a due process, the equal protection type interest in allowing voters to vote for the candidates who they already voted for for the primaries. And similarly, in allowing candidates who ran for and won the whatever. number third district C to run in the same district in the general. And that's a sort of countervailing, or I guess I should say Trump card, no pun intended, like a Trump card of a federal interest that Trump's or is separate from the state interest. And so, you know, originally, again, I thought that would be more of a concern. But now that I've sort of

reconsidered what a primary really is, I think the Missouri Supreme Court got it right. And I think the U.S. Supreme Court got a right to leave it to the Missouri Supreme Court. But I think maybe that was what was animating the lower federal courts, like just. this feeling of how can you have a primary with map A and then a general with map B. All right. We have settled Missouri. Missouri is over. It's not going back.

It's not coming back. It's not coming back. Okay. But when we get back, we're going to talk about the latest drama from the White House, the targeting of CNN. And I just interpreted it as the targeting of Ellie personally. This was about you, Ellie. This is the targeting of you.

So when we get back, we're going to talk about press access to the White House, and do you have a constitutional right to it? What? Hi, everyone. This is Zach Shemtob, the executive editor of Scotus Blog. Scotus Blog is hosting its first ever live AMA on Monday, October 5th, the first day of the new term at 7.30 Eastern Time with Sarah, Amy Howe, and myself. We'll be taking your questions about the court and what we're likely to see this upcoming term. The AMA is one of the perks of being a SCOTUSBlog plus founding member, which is open through October 9th. So sign up before October 5th to join us live at scotusblog.com slash join.

Hope to see you there. All right, we're back, and I'm so glad to have Ellie here. I don't want to do too much factual setup because we've got CNN legal analyst right here with us. And so, Ellie, if you could give us the setup for the court case that we're going to talk about, that put the members of the press back in the White House. You're at CNN. CNN was targeted. Just kind of give us a, you know, you don't have to get too granular, but kind of a blow-by-blow of what happened here.

Yep. So two quick disclaimers. First of all, we here at advisory opinions had planned for this before the ban ever happened. This wasn't like, oh, the CNN ban happened. This will be a hot issue. Let's get Ellie in here, right? Maybe you can confirm that. Yes, exactly.

Number two, I do want people to understand. I am CNN's senior legal analyst, meaning I go on T. and talk about and analyze these cases. I am not, however, our actual lawyer who represents CNN. And I think that's actually a distinction worth making. I think your listeners probably mostly understand that. But I think a lot of people in the real world don't. They think I'm in court arguing for CNN.

No, we have our lawyers. We have our in-house people. We have Ted Boutros from Gibson Dunn is sort of leading the charge for CNN and MS now and Politico in the court. Okay, those two distinctions. So here's the quick, and I'll give you a little bit of BTS behind the scenes. So I take my daughter back to college on Thursday the 17th of September. And whenever you're out of pocket, you're like, please let nothing big happen, right?

Thursday's wonderful, no legal news, no nothing. Friday, we're cruising through Friday. I'm thinking, oh my God, what a lucky stroke, right? Friday late afternoon, mid-afternoon, the president posts on true social. I am hereby, I'm paraphrasing. I am here by banning CNNMS now and Politico. Thank you for your attention to this. Because their coverage is so horrible and mean and unfavorable.

thank you for your attention to this matter. And I'm thinking, okay, however, at that point, I'm thinking, eh, it's one of these things where he just pops off, but nobody really actually follows it and it'll be forgotten. And in fact, that day, that Friday, our CNN's team was permitted to stay at the White House, long hours and hours beyond when Trump makes that post. And I'm thinking, fine, it's nothing. It's just him having a tantrum or whatever. Saturday morning, however, CNN's reporters are blocked. They're denied entry and their passes are taking the hard pass, which gives a reporter access to all of the sort of media areas of the White House, and it gets real. And so last week, early last week on Monday, our lawyers, the real lawyers, Ted Boutros,

and those guys file lawsuit seeking a temporary restraining order. And the argument that CNN makes it's twofold. One, which ends up carrying the day for now, is due process. Forget it before we even get to the First Amendment, there is a due process, liberty and property interest in journalists being able to report on the White House. That's well established. And if you're going to take away those rights, there has to be some process here. The entirety of the process was Donald Trump posting on true social.

That's not process at all. Argument two was First Amendment. This is viewpoint-based discrimination. The three media entities explicitly are being singled out because their coverage is viewed by the president as negative, unfair, slanted, biased, whatever you want. Okay. The response then comes in from Trump's team. And on the due, their response is so interesting.

Yeah. On the due process point, this is a brand new phrase for me, David. The Trump White House argues we are going to give them, and I quote, post deprivation process, meaning first we're going to deprive you, then we'll give you process. The judge seemed underwhelmed by that argument given that due process is really, you know, in an ideal world, supposed to happen before you take the thing away. And then on the First Amendment point, there was a bit of revisionist history where the lawyer said, well, the real concern here, it's not so much the coverage is unfavorable or mean, but it's national security. A couple problems with that. Problem number one, for the first three days of the ban, all that Trump and J.D. Vance and Marco Rubio were saying was it's because they're content. It's because they're mean.

It's because they're unfair. It's because they're negative. Nobody said anything about national security until the fourth or fifth day of this ban. it was obviously a pretext. And second of all, the articles that the White House attached saying, here's what we mean by them violating national security. One of them was an article by CNN about how the Republican midterm convention was lame. Like it had bad vibes and was poorly attended.

What does that have to do with national security? Not to mention that some of the other articles that they cite were based on public documents, documents that have been disclosed by the Department of State or war or DOJ or whatever. So the judge then, and by the way, I should. say the judge who's handling this case, district court judge in D.C. Timothy Kelly is a 2017 Trump appointee. Judge Kelly looks at these arguments. He has a hearing on Wednesday. And at 1 a.m., Wednesday into Thursday, Judge Kelly issues a TRO, a temporary restraining order. And he says, it's based on due process, actually. He says no due process was given here. And there has to be due

process. Now, he does not address the First Amendment point. However, he does give a big hint as to the First Amendment because in considering the irreparable harm factor that you have to consider when there's a temporary restraining order, Judge Kelly flatly rejects the national security argument. He says, that's not what the record shows, is the true motivator here? And the documents and articles they've cited, some of them don't even really implicate national security. So to me, that's a pretty good tip off of where he stands on the First Amendment claim. If it's not national security, it's clearly then viewpoint-based and going to violate the First

Amendment. Now we're in the process of a couple things are happening now. First of all, over the weekend and Friday night, the White House tried to sort of parse words a little and say, well, CNN, okay, the judge said we have to restore your hard pass, but we're still not letting you do the pool coverage, which is the sort of group coverage when the president goes on the road. That may be litigated. I mean, CNN's lawyers might well say, come on, that's within the scope of the order.

And then we're now in the process of turning the TRO, the temporary restraining order, into a more permanent injunction somewhere. You're really supposed to wait until that's over to appeal to the Court of Appeals, but there's ways you can do it. So at some point in the next week or so, expect the Trump team to appeal to the D.C. Circuit, and maybe it goes to the Supreme Court from there. So there's an overview of where we are. Yeah, and I want to back up and I want to give listeners a little bit of a, you know,

constitutional civics lesson here because, you know, one of the interesting things is when CNN initially filed suit and the argument, were made, I saw a stir online over the idea that CNN would argue that they have a liberty or property interest in access to the White House. Like, what? And so let's just go back. So the Fifth Amendment to the United States prohibits a person from being deprived of life, liberty, or property without due process of law. So often when you have, let's say, one of the areas where, for example, this has been very, very, very, very salient is if you're a college student and you've been accused of, say, sexual harassment or sexual abuse in a Title IX process,

and a lot of college students have said, okay, who've been accused, that, wait a minute, before you expel me from college under Title IX, I have to have a certain kind of process. I have to have an impartial tribunal. I have to have a right to cross-execis. and witnesses against me, et cetera. And one of the big arguments has been, while that might sound, okay, yeah, that's obviously true. Before you're going to be expelled, shouldn't there be a process? But a lot of the courts have said, wait a minute, before we even get into whether a process

has been due, we have to determine, do you have a liberty or property interest in being a college student at this school? And not all courts have said, for example, that you do. But do you have a liberty interest in your admission? Do you have a liberty interest in your continued presence? And so when CNN was making its Fifth Amendment argument, this is how you sort of escape the argument that says, look, nobody has a right to a press pass that, you know, if I'm just walking around as an American citizen, I can't just go to the White House and say, where's my press pass? And I just get a press pass. So I don't have a liberty

interest in just in receiving the press pass, that's not a right that I possess. But once I have the press pass, sort of like once I'm admitted to the college, in other words, you know, I don't have a right to admission to the University of Michigan. But once I'm there, does a liberty interest lock in, that I can't be deprived of that liberty interest without due process. And that's what the judge was dealing with. It's not that you necessarily have the liberty interest. have a freestanding right to have access to the White House. But once I've been given the access, I have a liberty interest in the continued access. And that's where the due process part of this locks in. And that is, I think that that helps people understand more clearly because there was a lot

of confusion. You could just see it happening. A lot of can, wait a minute, I don't, you know, from the right who was supporting the ban. You don't have a right to just walk in and cover the White House, but once you've given the pass, then some additional liberty interests lock it. You know, I listen to the oral argument in the D.C. District Court in front of Judge Kelly. And by the way, good job. Kudos and thank you to the district court for streaming the audio. You know, obviously the U.S. Supreme Court now streams audio since COVID and a lot of the circuit courts of appeals. But I can't remember. I'm sure it's happened, but I can't remember an example of a district

court allowing an audio stream. It's very rare, but it should be done more. So you were able to listen to. The argument was short. It was maybe a half hour and it was not explosive. But the first thing Judge Kelly said, basically the first thing out of his mouth is when it comes to due process, I don't have a lot of work to do here because there's existing DC Circuit precedent in a case called Cheryl. And so the judge came out right out of the shoot and said, look, like we can argue about due process here, if it's a good idea, if it's fair, if journalistic enterprises deserve to have a due process interest in maintaining their credentials. But they do because I'm bound by precedent, and there is a case from this circuit from 1977 called Cheryl. So yeah, it's not the most obvious due process

interest, and I understand what the argument might be against it, but it exists, and it is recognized law that, yes, there is a due process interest in maintaining that press access. So, Ellie, let me ask you this, because, you know, we have the Missouri case where there is in there lurking in that case an interesting constitutional issue. And the interesting constitutional issue is once you voted in a primary, what kind of constitutional interest do you have in sort of the preservation of the integrity of that specific vote? There is lurking an interesting constitutional issue here. Let's imagine, let's steal man it, and let's imagine that instead of Trump going to truth social and others going and publicly saying, well, this was all about, you know, the lying, you know, fake news,

you know, all of this stuff. What if the actual punishment, and let's put aside the due process issue for a moment. We're talking now more about the retaliation First Amendment issue. What if the actual complaint is, well, they did publish classified information that we did in good faith deemed to put American soldiers, say, at risk in the Middle East or whatever. And so therefore, because they did publish classified information that we believe put American soldiers, we're going to restrict their access to government officials, including in the White House. And this is a prophylactic measure to pride to preserve national security. And we know from Pentagon papers that, you know, once you get, once you get that information, we can't block you from publishing it.

But we can take some additional steps. We can make some additional efforts to prevent you from having that access. Is that something, Ellie, that you think would fly or could fly? It's an interesting counterfactual, right? So let's say, again, we're moving out of due process now into more of the First Amendment. And what if, let's assume against reality, but again, for your steelman argument here, that it is the case, let's say that you had a media outlet that was actively and repeatedly publishing national security sensitive, dangerous national security information of the White House

said, based on that, we want to ban you from the White House. Would they have a better First Amendment argument? I guess so. I think so. Yes, they would have a better First Amendment argument because it's more palatable under the First Amendment to say the concern here is genuine national security, as opposed to what we have in the CNN case, where it's genuine just substance and tenor of the reporting, negativity of the reporting. So I think there would be a better First Amendment argument by the banners, by the White House. I think if I was representing CNN, though, I'd still argue that that's, that is still constitutionally protected. And if you're drawing distinctions based on the nature of the reporting, the substance of the reporting, that I would still argue that that type of exclusion is unconstitutional under the First Amendment.

And can I just make this point? It's somewhat related to this. Sure. We keep hearing the president and the vice president. We heard the Attorney General, Todd Blanche, over the weekend, went on one of the Sunday morning shows, and they keep on saying, no, no, no, we respect the First Amendment. It's not because their coverage is too negative. It's just that the First Amendment requires fair and balanced and honest reporting. No, it doesn't.

I mean, we, I believe we do that. I believe we do offer fair and balanced and honest reporting. But you're still protected by the First Amendment if you're newsmax. You're still protected by the First Amendment. if you're the onion or, I mean, onions's a little different because it's satire, but, you know, if you're TMZ or if you're Midas touch or whatever, you're not, there is no constitutional obligation to be certainly balanced or even-handed or fair. You can be hard left. You could be hard, right. The First Amendment even protects many falsehoods, right? There's defamation limits on it.

But gosh, they keep on starting off their sentences. And when I say they, I mean the AG and the president with no, no, this has nothing to do with content. And then they go, but, but it has everything to do with content. But they just say it in a little bit of a different way. So that makes me baddie. Yeah, it makes me baddie as well. And, you know, when you've been in the First Amendment game for long enough, you see that there is nothing new under the sun.

Like there's like no new arguments for censorship. And we support the First Amendment, but your speech has to, to be a certain quality. That's the heart of the university speech code. I mean, that is for 20 years of litigation. I litigated people against people who said, well, we really appreciate the First Amendment. We love free speech. Free speech is our favorite thing at the world, calm up but. And I've told this, I've said this many times, whenever I hear I love free speech, but it reminds me of a southerner saying, bless your heart. Or, you know, Ricky Bobby and Talladega Knights.

With all due respect, like one thing you know. No offense, but. No offense, but every single human being on the planet when discussing the First Amendment always starts with, look, I'm a big First Amendment person. I am so infa-like, has anyone ever actually started a sentence by, you know, look, I'm a narrow First Amendment guy.

Like, I don't know what to tell you. Yeah. Like, everyone claims to be the broadest First Amendment advocate possible, and then they get into, And it always shades into, like, unless I don't like the speech. You know, that always tends, that's the perpetual trap of the First Amendment. Yeah, it actually is. And it's an interesting thing to debate because when you're walking into courtrooms and you have all of the precedent and you have all of the, you know, all of the historical failures of censorship efforts, like laying before you, when someone makes the I like free speech but argument, you know you've won.

As a litigator, you have one. As a debater in the public square, it is a very difficult argument to address because people can very successfully say, I love free speech, but free speech doesn't mean dot, dot, dot. And what they essentially try to do is they say, I can actually construct the free speech utopia. Right. I can construct a set of rules where we're arguing on all the good and virtuous terms, all the good and virtuous ideas, and all those awful, toxic bad people are out of it. And in fact, getting all those terrible and awful and toxic bad people out of it will make the discourse better.

And this is a very popular kind of free speech argument to make, one that is difficult to rebut because your rebuttal tends to be something along the lines of a law professor I knew. years ago made this really wonderful point. He said, think of free speech is like a factory, and that the factory produces a good, and that's our democracy, that's our constitutional republic, but the factory also produces some pollution. And that pollution is the craptastic speech that also exists right alongside all of that really wonderful, and the Lincoln Douglas debates, right alongside trash reality TV. You know what I mean?

So you have the good and the bad, and he says you will never, ever have the factory without the pollution. That is just going to, that the two things are just going to have to go side by side. And the way you control the pollution when it comes to free speech is culturally, not legally, legislatively.

And I've always thought that that was an interesting kind of analogy. But when you floated Ellie in the court of public opinion, And everyone's like, no, I want the goods without the pollution. Right. And that's why you always have to be making that free speech argument in a way that gets people accustomed to the idea that I'm going to have to be comfortable with speech that makes me uncomfortable. And I think the way to put a point on that is who's deciding, though, what's good and what's bad? What's the goods and what's the pollution, right? Because there's some stuff that's obvious, right?

The Lincoln Douglas debates on this hand and, you know, whatever reality show on this hand. but there's a lot of stuff where people, there are people who argue the reality show is perfectly good and should be, you know, I mean, it is, of course, constitutionally protected. But, you know, news coverage, it's always just fairness is in the eye of the subject. Fairness is in the eye of the beholder. What's unduly unfavorable or favorable.

And so, you know, what this president loves or hates is going to be the exact opposite potentially of what the next president or certainly the next Democratic president loves or hates. And once you get into the game of labeling speech, good, bad product or pollution, that can shift on a dime. And that's subjective. And when you go down that road, it's a very dangerous thing. All right. When we get back, we're going to have a appearance by one Sarah Isker who has a bit of a rant. And just to give you a preview, just to give you a taste, to come back through this commercial break, we're going to be talking about true crime, true crime podcast, conspiracy theories, and why we at advisory opinions didn't really talk about the Lindsay

Clancy case much at all. And longtime listeners may know the reason for that. Newer listeners might have been puzzled. So when we get back, a guest appearance from our host, Sarah Isker. Hi, everyone. This is Zach Shamptop, the executive editor of SCOTUSB, the gold standard for independent insights and analyses of the Supreme Court. I want to invite you to sign a up for a recently launched SCOTUSBlog Plus. This gives you access to, among other things, our daily newsletter, Scotus Today, extra deep dives on the court, live insight behind our coverage from those reporters and experts most familiar with SCOTUS, super interesting stats on the court you won't be able to get

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True crime entertainment is bad. The people who feed it are bad, albeit usually unintentionally, and it's almost all women. Number one. The purpose of true crime is to entertain. And the entertainment comes from the sense that the system got it wrong, and only you can actually solve it. A trial may have taken weeks with 80 hours of testimony, but they pick out the four best pieces of evidence for the defense that make it seem

like the person who was convicted might not have done it. This is why we have an adversarial system and a jury. You're only hearing that one side, and you're hearing it from people who not only want to make money off your attention, but their goal is to entertain you, not justice. I mean, this is the whole plot of the TV show The Undoing, right? It's Hugh Grant, and at the beginning, you're like, oh, he definitely did it. And then the whole series is to try to show you things that are accurate about how he might not have done it. And then in the end, you find out, of course he did it. Like, it's mocking true crime fans. My favorite show. Number two, it has real life horrible effects. The viewers forget this is all for their entertainment. And

believe that only they consult the crime, leading them to harass co-victims and family members in really cruel and awful ways the whole time believing that they are the good guys because they're better equipped to do this work than, say, the defense attorney. Number three, this isn't spread out evenly across America. It's almost all women. By one study, it's 80% female viewers. Why? probably because we have a much more deep-seated fear of this kind of violence. After all, almost all of the victims are women in these stories. And like an immune system response, it also triggers an empathy reaction, but that is totally out of control because it's a parisocial relationship that doesn't exist in real life. So the immune response is real, but like allergies,

it's misfiring. Okay, there are exceptions to my resolution. Missing persons are the biggest exception and to a lesser extent unsolved cold cases. The idea being here that actually no justice really was done. The system never took effect because they never were able to solve the crime, especially when it comes to missing persons. By all means, let's all work to find the missing person. I will also say it does make for hilarious Saturday Night Live skits. Victoria, can you play a few bars? I have the whole night to unwind And do a little self-care

The only way I know how I'm gonna watch a murder show Murder show I'm gonna watch a murder show Netflix showtime HBO and daylight Murder show murder show I'm gonna watch a murder show YouTube Boo-loo That's my favorite thing to do

Twitistas got killed on a cruise in the Bahamas I'm gonna half watch it while I fold my pyjamas Severed limbs found on a beach and chula vista, but I just kind of stare while I eat a piece of pizza. All right, gentlemen, what say you is true crime entertainment bad? Ellie, provocative, provocative from Sarah. And especially she's taken shots fired at women, Ellie, shots fired at women. So what's your initial take on that? She's such a button pusher, isn't she, David?

I mean, the only way Sarah could have taken on a less popular position is if she had come out publicly against Taylor Swift, basically. I mean, look, she's right. I mean, if you just glance at the top podcast on any listing or the top shows on any streaming, it's like nine-tenths of them are true crime. So, as always, I largely agree with Sarah. But let me disagree with her on one aspect of why there's a sort of. good here. Anything to me that draws wider mainstream public attention to any of our governmental entities, whether it's something that draws attention to Congress or the White House or in this case, the courts, I think it's a good thing for just civic engagement. Now,

are you getting a distorted view? Yes. And I agree with Sarah on that. But I would bet that way more people are way more interested in our trial process, our criminal process, our investigative process, because of these true crime shows, than otherwise would be. And I think that's probably a good thing. And if it's driving more students to study this stuff, to go to law school, driving more people to follow what happens in the law, then I think there's a social good in that. But it does it, as Sarah correctly notes, in a very slanted way. So that's my initial pushback. But I'm 70% on board with Sarah here. Yeah, I think I'm 70%, but I would parse it in three ways.

Okay. So post-trial true crime, mid-trial true crime, and no trial true crime. Okay, so post-trial true crime, I would say, is like the Murdoch murders. Right. Show that I saw in Hulu that was really fascinating and interesting. And this was after the convictions, and it really was not questioning the convictions, but looking back at this very long and sordid tale of the Murdoch family. And I thought that was just, I mean, nothing is like entirely good, but almost entirely interesting and good because what it did actually

was unveil and show something that I've known from childhood growing up in a small town in the South is how justice is often not done in small towns and how powerful families can get away with terrible things for a really long time. And sometimes true crime is the best at that because you have trial-tested evidence to rely on. It's not just, you know, this is, I talked to so-and-so, and they said they heard this or that. You've got stuff that's been tested in court. You've got expert testimony. You've got cross-examination. You've got documentary evidence. You've got all of the things that lead a conviction that can really help tell a story. So that's the post-trial. And then the part that Sarah's talking about is the no trial, like the cold case.

I'm going to try to reopen the cold case and try to figure this out. And I think that can also be very, very interesting. What I find almost always toxic is mid-trial. In other words, I'm watching the O.J. Simpson trial and I know better than the jury. Or I'm following the Lindsay Clancy trial, or I'm following, you know, the pre-trial stuff around the, just a horrible obsession with trying to find the quote real killer of Charlie Kirk when we know almost beyond a shadow of a doubt who the real killer is and just wait for all of that trial evidence to come in but instead we get this unfolding while the trial is being before there's even a trial like an

unfolding true crime investigation of the Charlie Kirk murder which has been gross and repugnant And so what we shun at advisory opinions is the mid-trial analysis because of a couple of reasons, Ellie. One, it is so difficult to separate out what the jury hears only from what everyone else is talking about the case when you're doing the mid-trial coverage. But the only stuff that really matters for analyzing the trial is the stuff that only the jury hears. everything else doesn't matter. And this is a thing that led a lot of people astray in O.J. Simpson. If you could have been self-disciplined to where only thing you watched was the presentation to the jury and not all the other stuff to the judge and not all the suppression motions and not all of the other stuff,

you would have gotten a very different picture of the case. The other thing is it is impossible. It is impossible. And I'm super curious about how you try to do this. because this is so hard. How do you sum up eight hours of testimony in a day or six, seven, eight hours of testimony in a short TV hit or even a longer podcast

that cannot capture all the nuances? And so how is it possible to cover a trial in the kind of depth necessary to give a listener a really informed opinion on guilt or innocence? And so you're covering everything. You're covering from SCOTUS, You're covering big legal developments on the ground.

How do you do that? That seems really hard. We tried one time, Ellie. We tried to weigh into Johnny Depp Amber Hurd. It was like touching a hot stove. It was like the people who had been obsessive about it were like, you had this nuance, this nuance, this nuance. And we were just like slowly backing into the shrubbery. So how do you do it?

How do you approach it? Okay. So let me answer that question first. You know, I've been involved in rolling real-time coverage of trials that I would say fall into several categories based on the way that we're able to broadcast them. First of all, there's the mostly state trials, right? There's never going to be federal cameras in federal courtrooms. But in a lot of states, it varies by state. But in the Derek Chauvin trial in Minnesota state court, right, in 2020 or 21 or whatever it was, the murder

of George Floyd, we carried that feed basically live through the day. And what they would do is we would all be sitting there watching the live feed. And if there was a sidebar, they would come, they would go, okay, we were coming to you and you go, what could they be discussing now? And I would go, well, it seems they're discussing this evidentiary issue. And then it breaks, we would analyze. That's actually easier to cover because you're bringing the trial, start to finish, gavel to gavel into people's homes. But to your point, our viewers are seeing things that the jurors are not seeing,

evidence that's been excluded, evidence that both sides agree is extraneous, things about priors, that kind of stuff. So it's important to draw that distinction. Model number two is the Trump trial, which was in Manhattan federal court, New York County, district attorney tried that case. There was no camera feed and no audio feed. And so we invented a sort of almost like a running Twitter feed, right? If you watched our coverage, we had updates being typed by our reporters in the courtroom. And then they would pop up on our screen as if you were watching someone cover a Supreme Court argument on Twitter. It would be Todd Blanche. It was,

remember Todd Blanche was Trump's lawyer on that. Blanche just asked Michael Cohen if you remember to call on July 1st, and we would have to talk about that. And then while we were talking, another bubble would pop up. Cohen says no. And we go, okay,

he doesn't. You know, so you had to sort of react and anticipate. And I think we kind of invented that type of coverage, which I think was effective. I mean, we got a lot of praise and plaudits for doing it that way. And then there's the trial that's not being covered live at all,

carried live at all. We didn't carry really the Lindsay Clans. trial until the very end, maybe the closing arguments. The Johnny Depp, Amber Heard thing, we didn't really carry live much of, maybe a snippet here or there. And the challenge you have in covering those trials is the same you have in covering any other complex development, which is how do I make this digestible and understandable to the audience in a very, very short snippet, but in a way that's also not dumbed down. That's not inaccurate.

And there's no, it's an art. You know, it's an art. It's not a science. I do want to say a couple other things. I have worked on a case, on a couple cases that have been touched on by reality TV, but one in particular. And I don't really want to say which case it is, but I will tell you this. It is so damn easy to just present the yeah but or the what if or the alternate theory.

So this case involved a killing. And the evidence, this never went to trial, it was just, but it was a case where there was a conclusion. that it was a murder, suicide, and there have been several subsequent true crime podcasts and things that basically just ignore all the facts that suggest that was the right conclusion and include all the facts that suggest it was the wrong conclusion. And it's like, you can completely manipulate. Imagine if I said to any defense lawyer, the history of criminal law, just give us your side. Like, you could easily convince a viewer that this is a huge, a huge cover up. And the other things I want to say is having picked juries a bunch of times, right?

I mean, when I was a federal prosecutor, and by the way, I have jury duty this week. So I'm going to report back in the next episode how this goes. I'm a potential juror. I don't think I'll get chosen, but I'll tell you in the next episode. Anyway, having picked juries, a question that you almost always ask, sometimes in a written questionnaire, sometimes just verbally from the bench, but almost every potential juror gets asked, you know, people are surprised. You get asked, like, who are public figures who you most and least admire, which actually

can be quite telling. And one of the questions that you could ask is like, what do you watch or read or listen to for fun? And this is a little bit before the massive explosion of true crime, but very common. The most common response was anything from cops to true crime, you know, to reality to America's most wanted. Like people love this stuff. And as a prosecutor on a case, that is a big red X for me. I'm not going to automatically exclude you, but man, that is a point against. you when it comes times to use my jury strikes because I don't want someone there thinking,

A, I know better, or B, I'm going to find a conspiracy and C, going off on their own, which they're told not to do, but of course they do it, and going on Reddit and finding the conspiracy theory. So that's a big negative for me. I struck people because of that. Well, let me ask you this, because that's a great question because you've been prosecuting and you've prosecuted. I mean, you're saying, like, maybe the error of true crime was not exactly fully upon us, but one era definitely was CSI. Yep. Oh, 100%. In other words, the DNA

evidence and the sort of notion that they're sort of waiting out there the scientific conclusion or that piece of evidence that's going to, the hair follicle, the whatever, the thing that's going to absolutely do it. Okay, I love that you raise this point. So that to me

was also toxic in selecting jurors for, no pun intended, toxic. I mean, toxicology is a part of the CSI think. But Yeah, because A, they will expect that decisive forensic hit. The blood spatter shows this. The DNA was left. The hair follicles, the what have you. And you don't usually have that.

If you do have that, the case isn't going to go to trial. It will have pled. And the expectation of having some forensics grew palpably during my time as a prosecutor. So from 2004 to 2018 to the point where, towards the end, end of that time period, David, we would have to call, or we wouldn't have to, but we would strategically decide to call the witness to explain to jurors that you might not necessarily find DNA. In other words, if you had a crime scene and you didn't have DNA, we would actually have to call the forensic expert to go, well, it's just, just by touching a cell phone,

doesn't mean you're going to leave your DNA on it. There has to be something, and certain surfaces don't retain DNA. And, you know, so, like, we would have to call almost like anti-phorensics experts so that a jury could understand and accept, well, we don't have a print, a fingerprint here. We don't have a hair follicle here. We don't have a shell casing that exactly matches, you know, a spent bullet or whatever. So that's how you're, you're absolutely right. The CSI is sort of a precursor of the true.

It is true crime, really, but that also is dangerous in selecting a jury. And the other thing that has happened that is more complicated this, when I first started trying cases in 0405-06 on, judges would give the standard jury instruction of, of you are to ignore anything you might see in the media about this case. And they would literally say these two things, which neither of which apply anymore. If you see it on TV, change the channel,

who watches, you know, that kind of TV anymore. Yeah, right. And if you read it in the newspaper, turn the page. Now it's like injected into your bloodstream through your Twitter, Instagram, whatever feed, and you can't avoid it. So I don't know how they deal with that now. Yeah, it's got to be incredibly difficult.

And then there's another factor here that I think was really salient in the Lindsay Clancy trial, which was failure to understand the quirks of state law and burdens of proof. And so, for example, there was a lot of conversation about how everyone was being too credulous of the mental incapacity, not guilty by reason of insanity defense, that she offered. And that, but what a lot of people were missing is that in Massachusetts, once that defense was raised, you had a beyond a reasonable doubt burden. This is not every state. You had a essentially beyond reasonable doubt burden to disprove the insanity defense, which is a heavy, hard burden for a prosecution to prove. So it was not necessarily so much a matter of wokenness or sympathy for postpartum depression as it was.

Once that not guilty by reason of insanity defense was raised, you had to do a lot of work as a prosecution to overcome it, maybe more so than in other states. And that seemed to be just lost in a lot of the conversation. Yeah, Professor Jed Rubenfeld from Yale wrote a really good piece about this after the verdict, explaining that every state does that burden shifting differently. And if you look at Massachusetts law, I think Massachusetts is a minority of states. But yeah, essentially as a prosecutor, once the defendant claims insanity, you essentially have to affirmatively prove sanity beyond a reasonable doubt. And given that burden, like, it's no wonder that the jury hung as they did. So, yeah, and that gets lost as well. The other thing I think that was honestly happening with Lindsay Clancy is like, when we get obsessed with one of these cases, we try to find some nicer justification than just we're all gawkers and rubberneckers and we're all fascinated by things that horrify us.

And so we sort of start casting about for some broader social significance. Oh, well, it's not just because this is horrifying and I'm riveted. It's because of some broader social issue. And in Lindsay Clancy, I mean, look, the postpartum and mental health issues are real. But I think they were sort of imported later on to justify our fascination with it. Oh, totally. All of a sudden, what is a case about psychosis? In other words, I can't discern reality from, you know, what's real, what's right, what's wrong, becomes one about

postpartum depression, which is a totally different thing. And how we got conflated, I mean, it was shocking to see these things get conflated. And I feel like part of the way that Lindsay Clancy became sort of a phenomenon was by that artificial conflation. No, she was not a stand-in for every woman who's had a baby and has had really struggled afterwards. This is not that. That has like nothing to do with this case. And it's much more like a million other cases that have occurred where male defendants have pled not guilty by reason of insanity. We didn't have legions of men rallying to the male defendants who make that defense because there isn't, you know, you couldn't also turn that into some sort of like general male related depressive

issue. But this was a weird quirk of this case. where it got conflated with postpartum depression that had nothing to do with it. And I guess this really gets to some of the challenges as covering, because I love the way we talked about where you have the live feed and then you cut in during the breaks,

which reminds me of watching a football game and then going to the studio at halftime and saying, this was the key play, you know, and I feel like that's valuable coverage. But gosh, how do you, if you see, like let's suppose you're covering the Lindsay Clancy trial and you see this weird kind of pop cultural thing taking off, how much do you and your coverage say, it's not about postpartum depression, guys, it's about this not guilty by reason of insanity and burdens of proof, etc.

Do you try to monitor that kind of pop culture stuff that's taking off? Or is that something that's sort of outside the scope of the analysis of the trial? We at CNN do try to take account of the broader perspective. of what's going on, what's the conversation around this trial. And I think we try to keep that separate from coverage of the trial itself. Now, Lindsay Clancy, the way at CNN was sort of like for weeks and weeks, it was sort of like mentioned in passing, you know, would be the 30 seconds at the end of an hour. And also in Massachusetts, this case carries on until the last couple days when it really sort of started to take over more.

We do have people who are sort of like Gene Casaris is a reporter for us who's a true I would consider her a true crime special. She's great at it. She's been doing this forever. And she has a nice ability to, A, to. describe what's going on in the courtroom, but be also to place it in the larger context. I don't end up doing a lot of what I would consider just true crime at CNN. I will do big trials like the Derek Chauvin trial, like the Donald Trump trial.

And so, yes, I do think that it's important to put these cases into the broader context. And also, like, there's a distinction between watching true crime stuff on Netflix because it's fun and interesting and entertaining. And then how, though, separately does it fit into our news diets and our journalistic diets? And I'm not saying there's no place for it, but I think we need to be clear on there are different functions being served here. And I also think, and this is something we learned during the Depp Hurd, like, fiasco. I just need to refer to that as the A.O. Depp Heard fiasco from now on. Because it was such a waste of time for us to engage with that.

And actually, I think, in some ways, hurt us with the audience a little bit. And here's why. a trial, the amount of information that comes into a trial is mind-boggling. Like a trial record for a three-week, four-week, five-week, six-week trial is massive. Thousands of pages, hundreds of exhibits. Sometimes the exhibits are hundreds of pages for just one exhibit. And so if you're covering something and someone's obsessed with the trial, one thing you know about them, even if they're obsessed with the trial, they are not familiar with the

whole record. They're not. The only people are basically familiar with the whole record are going to be the prosecuting attorney, the defense attorney, and the judge and the judge's clerks if they've done all their homework, which is not always the case. But even the most obsessed person is going to be maybe a familiar with 10% of the record. Yeah. But then we walk in and we talk about one percent of the record. And then all of a sudden, they're like, well, you didn't talk about this. You didn't talk about this. You didn't talk about this. And that makes you, at least in their eyes, like, well, like this person has no idea what they're talking about. But you have that challenge.

You might be familiar with the whole record or a big chunk of the record covering it, not the whole record, but the big chunk. And you've still got three minutes to summarize, like, what you think is the biggest, what you think is the most important. You know, how do you go about that? Like, what is and what's the kind of feedback you get in the moment when that occurs? I like your analogy to NFL announcers, especially even the play-by-play and the commentary, right, like when you're doing a certain type of trial because there will be natural sort of bursts of activity and then a lull. Burst of activity, lull, and that sort of matches the NFL mode. I have a talk that I give to bar associations and law firms and stuff, and one of the things I say

is trying a case actually involves many of the same skills as covering the case. A lot of those skills are transferable, which is in both instances, you are taking this massive amount of facts and complex law and theory and trying to ultimately boil it down to its essence and then present it in a manner that is understandable, A, to your audience, whether that's a jury or a TV audience, and B, that they care about and give a crap about. In one case, you're advocating for one side. In the media case, you're not advocating for one side or the other, but you want it to be something that's compelling. The big difference, though, is that in a jury address, you might have three hours, you might have 20 minutes, you might have an hour,

15, whatever it may be, on TV you have maybe three minutes, maybe four minutes. And it's just getting down to that like concentrated, concentrated form of, you know, like orange juice, right? Like it gets more and more concentrated as you go down. There's benefits to two types of coverage. So you do have to give the big picture. You do have to talk about what the big thematic elements are. But the best coverage is always in specifics. And so if you can pull a key moment, okay, there was a really important moment where this witness said this quote or there was an exhibit, there was a document that came in and that was really devastating. Like that will help bring your audience inside the courtroom.

But it's really hard and it takes experience. Let me tell you real quick, the one thing that I think true crime gets wrong, it's hard to watch. The same way that I imagine if you're a doctor, it's really hard to watch ER because you're always that would never happen, right? Or whatever you may do. And my wife was a prosecutor as well for a long. time. So watching true crime stuff like is just us sitting there cracking lies the whole time on how this would never happen and that would never be done and whatever, um, is true crime distorts

the public's view on the prevalence and normalcy and importance of cooperating witness testimony. Almost no true crime as a co-conspirator taking the stand and saying, well, here's how we did it. Here's what we did. It's always based on lab magic. It's always based on some, you know, some like, maybe I'm talking more about CSI here, but that's true crime. It's always based on some gorgeous lab technician who has, you know, has seen that the blood spatter disproves this theory or whatever. Even like, the thing that does make me nuts is like profilers. Like, that's not a thing. There's no profilers. If I was in AUSA and so, and we were trying to figure out who did a case and I said to an, a real FBI agent, why don't we ask a profiler?

They would laugh at me, like in my face. So, you know, but there was, wasn't her famous show like in the 90s called The Profiler or something and he could look into people's souls or she could look into people's souls or whatever. But, but yeah, I mean, the meat and potatoes of federal prosecution in particular is cooperators. And maybe it's not as sexy for media packages, but virtually every trial I did, certainly 90% of the trial. I can think of a couple where we didn't. but where the case basically rose or fell on the cooperator's testimony. And maybe that's not super media friendly or TV sexy, but that's reality. You know, it's funny.

You mentioned the cooperator. And we'll close with this. One of my favorite law school stories was I took a class called the Ethics of the Criminal Defense lawyer from Alan Dershowitz. And that class was a hoot for two reasons. One, Dersh did not prep for that class. Like, he walked in, and he just, it was like, it should have been called Alan Dershowitz and Friends, because he would always just bring in, like, a guest defense attorney who would just tell war stories. Right.

And one of those war stories was from a mob lawyer who used to get paid in paper bags of cash. And, you know, he talked about how he would count the cash and report it all to the, you know, to the IRS and all of this stuff. But one of his favorite story was he talked about how. He somehow was able to use Martin Luther King's letter from a Birmingham jail in connection with a trial of a hitman to talk about the pain of betrayal from the cooperating witness. Oh, my goodness. And he said, the good news from my perspective is when I ended my closing argument, talking about betrayal and calling back to Martin Luther King,

the jury was in tears. and the bad news was they convicted my client anyway. Right, right, right. That's amazing. Can I just tell you one story of mine that brings to mind, the mob-ish lawyer getting paid in cash? So I had a great cooperator. I mean, not a bad guy, but he was an excellent, productive cooperator named Michael

Di Leonardo. This is all public. And Michael DiLenardo was a Capo in the Gambino family, meaning he rose up the ranks from a maid guy, soldier, up to Capo, very influential guy. Mikey Scars was his street name, and he would always stress it's because he got bit by a dog as a kid and he had scars. So he wasn't like necessarily an inflictor of scars, although he did kill people. So yeah. Yeah, yeah.

Anyway, there's a standard bit at the beginning of any cross-examination of a mob cooperator or any cooperator, right? So the prosecutor, I have just finished hours, maybe days of direct exam with this cooperating witness. And the defense lawyers love to stand up and say, okay, Mr. Cooperator, okay, Mr. Dealey, How many days did you spend with Mr. Honing, the prosecutor here? And the guy would go, they would know this was coming. They would go, you know, we spent maybe 10 or 12 prep days. How many hours, six, seven hours? So 70 hours.

You sat with him. Yes. They would always go, did you rehearse? And they would go, well, we prepared. Yeah, yeah, yeah. And then they would go, and how about me? You've never met me, have you, right? Now, in this instance, the lawyer who was doing the questioning, I won't say his name,

but he was mob adjacent. Okay. And there had been a lot of testimony about this club, this social club, where all the gangsters hung out and where the boss sat in the back and where the orders would be given and they would play cards in the front. You know, the club was their main hub. And so Michael D.

Leonardo finishes his direct exam from me. And then the defense lawyer gets up and goes, you spent 10,000 hours with Mr. Honick, didn't you? Yep. Yes, yes, I did. And you and I have never met, have you? And DeLonardo goes, no, I used to see you.

You come into club all the time. I'd seen you. I know who you are. And the jury was just like, oh, my God. I actually felt bad for the lawyer because now the jury's thinking, this guy's half a gangster, which he was, by the way. So, yeah, I mean, at that point, you're putting the lawyer in the cast of the Sopranos, basically, at that point.

To this day, I don't know how the lawyer asked that question. He had to have known he was at the club and saw Michael, but, yeah, exactly. Now he's in the cast of the Sopranos. And by the way, in this instance, rightly so. Well, Ellie, thanks. We're not done with you yet. We've got a whole other podcast. And I'll just go ahead and tease a little bit of that.

We're going to talk about, of course, the most recent legal developments. and Star Wars. Star Wars. And we're going to connect it to law, and it's going to be fun, I promise. As all things Star Wars are all the time, with the exception of Phantom Menace, Attack of the Clones, and Rise of Skywalker. But we're not in that category. We're in the good category, and or Rogue One.

That's what we're going to bring to you. And so, Ellie, thanks. And listeners, we'll see you on Thursday. Thanks, David. This is great.