Advisory Opinions - January 6 Committee Alleges ‘Criminal Conspiracy’

Episode Date: March 3, 2022

On today’s episode, David and Sarah start with a Supreme Court update that features cases about adoption and religious freedom before moving on to an extensive discussion of a court filing contesting John Eastman's claims of attorney-client privilege. Does this filing indicate that Donald Trump committed a crime? Also David and Sarah briefly discuss international law and whether European Union membership for Ukraine would mean that the EU would have to fight for Kyiv. Finally, Sarah ends the podcast with the first date story the listeners all wanted to hear.   Show Notes: -Egbert v. Boule oral argument transcript -January 6 court filing -Eastman and Gregory email exchange -SCOTUS-Toons Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. 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. This is David French with Sarah Isger.

And Sarah, I don't want to preview too much of what we're going to talk about later, but I have a word of advice for you. For me? Never. For you. A, well, I don't know. If you ever think about working at Chapman University, never, ever send a personal email or an email not related to Chapman on that server. So it seems. Man, when I read that, yeah, the Chapman warning, that is the lowest amount of personal privacy

I've ever seen on a work system. Amazing. The government has a higher level of personal stuff on your work computer. And that's just a preview? We're not even going to give you more context than that.

Nothing. All Chapman University listeners, be careful how you use That's just a preview. We're not even going to give you more context than that. All Chapman University listeners, be careful how you use your email. Okay. So with that, here's what we're going to talk about today. We're going to talk about some Supreme Court developments, including an adoption case cert grant. We're going to talk about a Bivens oral argument. We're going to talk about an interestingivins oral argument we're going to talk about a interesting ministerial exception uh not really well concurrence from denial of cert and we're

also going to talk about a january 6th filing that is very interesting regarding john eastman uh and my voice is cracking a little bit because of, I think, seasonal allergies. Clubbing. Yeah, clubbing or clubbing. We're going to talk about a little bit of international law regarding Ukraine and Russia. A lot of it tied to defense obligations in the European Union because I've gotten a lot of questions as the EU appears to be ready to extend membership to Ukraine. What does that mean? And Sarah's going to kind of dish on her date with Ben Shapiro. Kind of dish.

So we're going to save that to the end. So you have to listen all the way through to the whole thing. Yeah, but just to be clear, if you're here for a dish about Ben Shapiro, you're going to be very disappointed in my dish. Sarah. I just want to let people know. We just lost 60% of our listeners right there. Apologies. Apologies. All right. You've got Supreme Court updates. I do. So as you said, we have a cert grant, a cert denial, and an oral argument. Let's start with the cert grant. So David, like I've said before, I've already labeled the 2022 October term,

the race term. We have the Harvard admissions affirmative action case. We have the voting rights, packing and cracking using race and redistricting case out of Alabama. And now drum roll, we have adoption related to a federal law about Native American adoption. And on first blush, I think the headlines are a little misleading on this. So it says, you know, basically based on the Indian Child Welfare Act of 1978, states have to preference Native Americans above other families in adoptions. And so the question is, does this violate the Equal Protection Clause? There's actually some nerdier questions in there, but for our purposes, I think that's the more interesting question.

And when I first saw that, I was like, yeah,, it is a little different. This isn't just purely race based. So here's the, here's the fact. If a native American child goes up for adoption, first preference goes to family members. Second preference goes to other tribal members. And nobody's challenging either of those two preferences. Third ranked preference is other Native American people who are not members of the same tribe. That's then the race question. Is that purely a race-based ranking? Now, the government is defending this 1978 law, and I think they're making some pretty good arguments that this is not just a race-based distinction, that they're saying that, you know, actually these tribal distinctions are not as stark and black and white. You can have a mother and father who are from different tribes, even, you know, because

some of the tribes used to be the same, they then broke apart, you know, and because basically the Trail of Tears and everything else, things got kind of muddled along the way, and that someone within a neighboring or similarly situated tribe would still be able to help that child through determining whether they want to maintain their tribal status, whether to apply, how to maintain their culture or not. Now, on the other side, David, as you can guess, there's just like, this is a race-based distinction that deserves strict scrutiny, And what are we even doing here? I think it will be a very, a much more interesting oral argument than I otherwise would have expected. And, you know, we've talked about the Harvard case and the Alabama case.

I think this one is a very, very close call. Texas struck down that portion of the 1978 Indian Child Welfare Act. Now, of course, once the Supreme Court takes it, you have about a 60% chance of it going the other way just on numbers, right? The Supreme Court doesn't take cases that were right all the way down, generally speaking. Circuit splits, there's other reasons they might take it. But just right off the bat, there's a decent chance that they're going to overturn the Fifth Circuit's en banc that was split, actually, down the middle, which then just affirmed the district court. And that would, if the Supreme Court reversed the Fifth Circuit's divided en banc would then uphold the third ranked preference for children going through

adoption who are Native American to be placed with another Native American family that is not a family member or of the same tribe. Yeah, that's a very, very interesting nuance because the first two elements, you can make a very, I mean, the first one family-based obviously is not a race, obviously not. The second one is not race-based because, or not exclusively race-based because there's a kind of a dual sovereignty issue here. This is a complicated area of law involving hundreds of years of treaties, hundreds of years of agreements between Indian tribes and the United States government. So one and two, I think there's a very, very credible argument. Look, this and not as you said, not not an issue. Number three is getting close to a dognaw dog for me, Sarah.

It's getting close to a gnaw dog. When I read their sir petition, I was like, well, that's a better argument than I thought you had. But I agree that it's still a stretch. Yeah. I mean, if you're saying so, for example, if you had, say, maybe some tribal arrangements in the Pacific Northwest where there was different tribes in the Pacific Northwest where there was a lot of intermingling and sort of that sovereignty issue is extremely, extremely confused. But if that's in the same standing as, say, somebody who's, you know, like Chickamauga Cherokee from Tennessee. Yeah. So this is the problem, like with so many things. If they had narrowly tailored it Tennessee. Yeah. So this is the problem with so many things. If they had narrowly

tailored it more, then they would actually meet the least restrictive means potentially under strict scrutiny. But here we do have a tailoring problem. I think their argument about neighboring tribes being very similar to that second rank about being within the tribe and the reasons for that, but it doesn't actually say that. It just says any other Native American family. And so that's the tension. That's the real problem because it's not like you are going into, and I get the idea that you're not talking about a continent governed by the Treaty of Westphalia with distinct national borders and completely distinct in all circumstances boundaries. I get that. But again, if you're talking about, say, somebody who's Cherokee from Tennessee and has a superior

footing simply because they're Cherokee, when adopting, say, somebody from Alaska, the narrow tailoring there is a yikes. It's a yikes. Okay. So then we have a cert denial. This is coming out of the ministerial exception cases that we've talked about before. And I mean, it's a ministerial exception now for what? 10 years, David, that we've been trying to, to narrow down what the ministerial exception really is. And as I said, the courts like to set out what is black on one side and what is white on the other and move into the shades of gray over time. And here we are. Cert denial about a case related to a college where there was no, this person was not in any way teaching something religious, but had signed in their contract that they would infuse their teaching with their Christian faith. And the cert denial,

interestingly, David, not at all on the merits, but rather on the posture. And we've talked about this before. The Supreme Court looks a lot at the procedural history of the case and whether it's a good vehicle for getting to the merits. In this case, a big question over whether this is a final judgment of any kind, because we're basically still in the middle of the case. It's now going to go to trial. And we had a four-justice statement on the denial of cert. And guess how many justices it will take after the trial is completed to take this case on cert then oh four four yes four now here's my turn for major disclosure guess who's a former client of mine gordon college um on related to some of these same issues, Sarah. So I am in no way neutral on this question. So listeners should just go ahead and know that right off the top. In fact, I've advised an

awful lot of religious institutions on this very question back in my former days. on this very question back in my former days. And the advice was dealing with specifically, what do we do if you're a religious college and how do we communicate? And this is one of the key questions. How do we communicate to a court how thoroughly important it is that all members of our faculty concur in our statements of faith and how important it is that degree by the faith of the faculty members for the purpose of explaining that they should be subject to the ministerial exception. And so I think this case is very, very interesting to me. I've been watching it for a long time. Like a lot of cases, it's been winding through the system. And where I stand is pretty clear. I think Gordon has articulated at least to pretty clear

the satisfaction of four justices that the ministerial exception would apply here. But here's what's interesting to me, Sarah. This gets sent back for trial with this, this concurral from denial of dissent. I mean, concurral for denial of cert, just hanging over everything. It almost feels like, you know, they're going through the motions in a way going forward because you already know four justices are watching this case. What is if you're a lawyer, if you're if you're a lawyer on this case, one thing, if you're an attorney for the school, you're kind of thinking, I'm I'm not settling this sucker.

For sure. I'm not. I'm riding settling this sucker. For sure. I'm riding this one out. If you're an attorney for the professor, where's your head at right now? Because you've got a giant pile of work ahead of you. You've got a trial. You've got appeals. And you've got four justices breathing down your neck that says, this is probably a cert grant.

And if I know anything about the current court and I've read these ministerial exception cases, I don't like my chances. Wow. So here's a line from, by the way, you've coined a new term, concurl, which you have said a couple of times. Did I say that? You said concurl several times. Here's a line from- Did I really? Yeah, here's a line. Oh my gosh. What's weird is that you started to correct yourself and I thought you were going to correct concurl. Concurrence. But then, no. I said concurl. Corrected.

Yeah, it was funny. Don't old yeller me yet. Here's a line from the concurl. That conclusion reflects a troubling and narrow view of religious education. What many faiths conceive of as religious education includes much more than instruction in explicitly religious doctrine or theology. Now, David, taking that just sentence to its logical extreme would mean that basically any school that claims a religious basis for the school's existence can now ministerial exempt

the vast, anyone who's teaching basically, regardless of subject, regardless of, of anything else, you may still have arguments over the janitors or the kitchen staff, but this would be a big expansion, even given the cases that we've had recently, I think of the ministerial exception, almost a blanket. If you say you're a religious school, a blanket. If you say you're a religious school, anyone teaching at that school now will not be protected by anti-discrimination laws. I would say if you've done the things that Gordon has done, yes. Oh, I agree that Gordon maybe is clearer than most, but that's not really what that sentence means to me. What many faiths conceive of as religious education includes much more than instruction in explicitly religious doctrine or

theology. So to be clear, you do not need to be instructing in explicitly religious doctrine or theology as long as you say that at your college, you will be receiving a religious education. That's a pretty broad expansion. Yeah, I under-read that. I don't read that sentence as much because of how much time they spent before that sentence talking about all of the ways that Gordon has sort of said, look, this is a top-to-bottom, start-to-finish infusion of sort of historic evangelical biblical faith into

the educational process. And there are a lot of Christian nominally Christian schools out there. They don't do that at all. Now they may start doing that. They may start saying that we are now infusing everything. They may do that. Now that would be interesting if what's the faculty reaction. Huge incentive to do so if you can now cut down on a whole bunch of lawsuits and all the employment discrimination laws no longer apply, so you would really save some money on your legal bills. We'll see. Yeah. Yeah. But I'm just still interested in this. What do I do if I'm the... You litigate it and you win at trial because now you're going to get to have some facts on your side, which will help. Okay. Then we had

an oral argument, David, yesterday in a case called Egbert versus Bowie. And I just, I don't know why, but I love the name Egbert. I just, it's really, it's hitting me in all the right places. So this is a Bivens case, David. Now we've talked a lot about 1983 and qualified immunity, suing a state officer or someone acting under the color of state law who violates your civil rights or constitutional rights and getting damages. But we haven't talked a lot about what happens if a federal officer, someone acting under color of federal law, violates your constitutional rights, because that's Bivens and that's messy. It's very interesting, I think, if you're just someone out there, like, why do you care if that police officer was FBI or Houston PD? But it makes a

big difference in terms of your ability to go to court and recover anything or just go to court at all. So if it's a state officer because of the 14th Amendment and the reasons behind the 14th Amendment, right, that states were out there violating people's civil rights, yeah, you get to sue state officers because there was a greater concern that states were not abiding by the federal constitution. And so they gave a private right of action for that through Congress. But then the Supreme Court created a federal cause of action called Bivens. And then the Supreme Court was like, oh, I wish we hadn't done that.

And so Bivens, over the last 40 years- Boy, isn't that true? They haven't shrunk it. They've just refused to expand it. And so Bivens is kept to two very little small islands. Basically a Fourth Amendment island and an Eighth Amendment island. Excessive force, I believe, is the Fourth Amendment Island, and then the Eighth Amendment Island won't be important for our purposes. So over the past 40 years, I believe

they've had 10 Bivens cases, and they've nod-dogged all of them. And in fact, they've said, and look, if we could redo this, we probably wouldn't do Bivens in the first place because it's a judge-created remedy, and that's to be disfavored. And that's why we're not going to extend it. And so here comes Mr. Egbert and Mr. Bowie. Okay. So Egbert is a member of border patrol. Bowie owns the smugglers in on the Canadian border. And lest you think that the name is just like, haha, ironic. No, no. Smugglers Inn is what it sounds like. It's in a hotbed of illegal activity at the Canadian border. And in fact, they've made several arrests at Smugglers Inn through the years of people smuggling things, humans, drugs, whatever. And so Egbert goes to try to arrest someone

at Smuggler's Inn. The owner of Smuggler's Inn tries to get in the way. A little tussle ensues. The owner sues Egbert, personally claiming Bivens violation. Oral argument. So Sarah Harris argued for Egbert from Williams and Connolly, went to law school with Sarah, big fan. Also, there were three people arguing in this argument. Two were women. And look, there's been a lot of complaints about not enough women arguing at the court. But I got to say, in the last term and a half, two terms, we've had a lot more female advocates. And it's a treat.

So yay, Sarah. And we've interviewed at least one on this podcast. Yes. Yeah. I think more than one. But so look, all signs point in Sarah's favor, in Egbert's favor, because Bivens getting expanded seems unlikely. The interesting thing here is that it is a Fourth Amendment claim, but their argument is, sure, maybe the constitutional violation is the same, but the context is totally different. This is at the border. This is national

security. This is immigration. You'd still be extending Bivens. Don't do it. By the way, please overturn Bivens. The court declined to take that question presented to oral argument. So this probably won't overturn Bivens, but it could cabinet even more and make that an even more disfavored remedy for your constitutional rights. And I'm curious, David, because you're anti-qualified immunity, whether you're pro-expanding Bivens so that you can have more remedies at federal level. I've always been uncomfortable with Bivens because it's just made up. Yeah. I mean, I'm anti-qualified immunity because it's made up. It's not what the statute says. Interestingly enough, Sarah, I have filed a Bivens action before. Like you personally? Well, not me as plaintiff, but as attorney. Got it.

Yeah. A First Amendment Bivens claim. So this was also a First Amendment Bivens claim, which I thought was just, I didn't even mention it because it was, I think, a laughable idea that they're going to extend Bivens to the First Amendment when they won't even extend it to other parts of the Fourth or Fifth Amendment. Yeah. Yeah. There was a reason, I believe, if I go back and look at that lawsuit, that the Bivens cause of action might have been the very last cause of action presented. You got to throw it in there. Yeah. You're throwing causes of action onto complaints like croutons on a salad sometimes. And we'll get to that on the January 6th filing next, by the way.

Yes, it's actually, I was just going to say, hive mind at work. This is a perfect segue into the January 6th filing. But yeah, I don't see an expansion of Bivens on the horizon. Bivens itself, I think, is something that will continue to survive in its very, very limited form. But it's just kind of made up. And the interesting thing is it does not mean that there's no way to recover against the government if Bivens goes away, the government has put together a number of ways in which you can recover against the government if the government violates your rights. So that is not the only way to deal with governmental misconduct is through this judge-made Bivens doctrine. So yeah, I have

a high degree of suspicion towards completely judge made legal doctrines. And Bivens is no exception, right along with qualified immunity. All right. Well, that brings us to the filing from the January 6th select committee that they made in California. Important to talk about why. So this is actually to get the communications between John Eastman and former president Donald Trump that are on the Chapman university servers, which is where John Eastman was a law professor. So John Eastman has already taken, invoked his fifth amendment privilege against self-incrimination

after the committee sent him questions. And so the committee, as you said, David, it's not that you're throwing the kitchen sink of claims out of weakness. It's actually your job as a lawyer to present the court as many plausible, non-frivolous arguments for why you win. If not this, then this. If not this, then this. If not this, then this. So I'm going to run through the ones that nobody cared about, and then we'll get to

the one that made all the headlines. Yes. Because all of these came first, and that's kind of the point, right? So first, Eastman doesn't have an attorney-client relationship with Donald Trump. I think he could win on that. Maybe that's a little bit of a reach, but that was pretty persuasive. Just because someone is a lawyer, just because someone is talking to someone and providing legal advice does not automatically create that attorney-client relationship. Yeah. And can we just press pause on that for a minute? Because I've actually found that part of the brief really interesting because as they were saying, prove to us, prove it, that you were an attorney in an actual attorney-client relationship as opposed to I'm just an attorney volleying legal ideas at you, an outside attorney volleying legal ideas at you. volleying legal ideas at you. They couldn't produce any attorney client. They couldn't produce any agreement other than Eastman. Eastman couldn't produce any agreement other than an

unsigned agreement. No signature by either party that contained language that essentially said, hey, wait, the attorney client privilege commences with the signing of this agreement. Whoopsie. So when I saw that as number one, I was questioning the order because normally you lead with your best argument. But if you can establish no attorney-client privilege at all, the rest is easy. Okay, so there was no attorney-client relationship but if there was an attorney-client relationship eastman hasn't established that the communication was privileged

in that attorney-client relationship and if he has established that it's privileged he can't invoke attorney-client privilege on these documents because they're on chapman's server we'll get back to that in a second. Chapman, basically Chapman University in bright, bold letters saying you have no privacy interest in anything you do on the server. Do not do legal communications. You have no attorney client privilege here. Okay. But if they lose on that, they said President Trump waived any privilege by expressly asking Eastman to talk about his advice to third parties. Absolutely a big problem, I think, for the Eastman side. And if not that, then there's also no work product here. This isn't protected by work product. Okay,

but if not that, if they lose on all of those, then and only then do you get to their sixth argument, which is, I'm going to start reading now. Documents is warranted when the party seeking production has provided. In camera, by the way, means that the judge alone would look at these documents. They wouldn't be provided in discovery. The judge gets to review them and decide whether they should fit under discovery. So it's a much more narrow win than if they won under any of the previous arguments where they just get the documents. An in-camera review of the documents is warranted when the party seeking production has provided a factual basis adequate to support a good faith belief by a reasonable person that in-camera review of the materials may reveal evidence to establish the claim the crime fraud

exception applies that standard has plainly been met here. As discussed in the background section, evidence and information available to the committee establishes a good faith belief that Mr. Trump and others may have engaged in criminal and or fraudulent acts and that plaintiff's legal assistance was used in furtherance of those activities. So let's break that down as best we can, David. There is an exception. Even if you have attorney-client relationship, it was a privileged communication. You didn't waive that communication. It's work product.

It is protected on Chapman's server. If your client used your advice, with or without your knowledge, by the way, to help them commit a crime, then the judge is going to review all those attorney-client communications and pick out the ones that are part of the crime fraud exception and then hand those over, maybe with redactions,

this limited number of documents that are an exception to attorney-client privilege and hand those over to, in this case, the committee. So in order to meet this, they need to say that Donald Trump may have committed crimes and they have to be specific about it. It has to be in good faith. And David, you raised this example last night when we were talking.

Think of this like the search warrant. You know, you have to have, there has to be a fair probability that what you find in that search, that you think what you find in that search will show evidence of a crime. But it's not that you need to meet the standard for trial or that you need to be able to go to trial tomorrow. The whole point is like, no, no, no, that's why we need to search. We think there is more likely than not evidence of a crime if we do this search. if we do this search. Similar here, we have a good faith belief that if you review these documents,

Your Honor, you may find evidence that Donald Trump used these communications to commit one of these crimes. And I'll just go over the crimes really quickly. 18 USC 1512. The elements of this offense are the defendant obstructed, number two, an official proceeding of the United States, number three, and that the defendant did so corruptly. Their evidence here is that the president repeatedly asked the vice president to exercise unilateral authority illegally as presiding officer of the joint session to refuse to count electoral votes. In the service of this effort, Trump and plaintiff, sorry, Eastman, Trump and Eastman met with the vice president and his staff several times. The president Eastman engaged in

an extensive public and private campaign to convince the vice president to reject certain Biden electors. Had this effort succeeded, the electoral count would have been obstructed. There is no genuine question that the president and Eastman attempted to accomplish this specific illegal result. Crime number two, very similar to crime number one. Conspiracy to defraud the United States, 18 U.S.C. 371. An individual defrauds the government if he interferes with or obstructs one of its lawful government functions by deceit, craft, or trickery. So you need to show one, the defendant entered into agreement, two, to obstruct a lawful function of the government, three, by deceitful or dishonest means, and that, four, a member of

the conspiracy engaged in at least one overt act. And then number three was common law fraud, a false representation in reference to material fact made with knowledge of its falsity with the intent to deceive. Action is taken in reliance upon that representation. For that one, by the way, they are only using Donald Trump's statements about the election being stolen. And they do rely to bring this all into the AO world

on Judge Mehta's District of Columbia District Court opinion about the incitement. Their argument being Judge Mehta and the District of Columbia specifically found that it was plausible to believe that the president entered into a conspiracy with the rioters of January 6th to disrupt the certification of the electoral votes through forced intimidation or threats, and that that would meet the defrauding the government elements. Okay, David, I think just to start that they win on several of the one through five arguments, several of them. In fact, I think they went on one and two and we're done. But if you want to get to three, which, well, actually the waiver is maybe then their strongest. But regardless, there are so many alternative ways that they win on one through five. I don't see how the judge gets to six unless the judge wants to get to six, which I think would be a mistake because sixth is dangerous to me.

I would say, you know, I use a search warrant example as sort of a to help folks understand internally that this is not a show. You don't have to create a showing that a crime was actually committed to get a search warrant. You don't have to create a showing that a crime was actually committed to get an in-camera review of allegedly attorney-client privileged information. But it is harder to do this. This is harder than a search warrant. This is not something that is terribly common. So I agree with you that if Eastman's going to lose, he's going to lose on one, two, three,

going down the list before he loses on crime fraud. I do not think it was a mistake to include crime fraud in there. No. I think it had two purposes. I think it had two purposes. When you're in a high profile case, you know that there's more than one audience in reading your brief. So I do think it had a judicial audience purpose. I think it had a public audience purpose. And here's what I think is interesting about the public audience. For those who are reading this in very closely, which is you and I, Sarah, and all advisory opinions listeners, here's what stood out to me. Because if you go back and you re-listen to some of our previous advisory opinions where we talk about these very broad federal statutes that will look like on their

face, they apply to all kinds of stuff. But then to really know what they apply to, you have to go to precedent. What does the precedent say that they apply to? And here's what was interesting to me, is that on both conspiracy to defraud the United States and obstruction of the official proceeding, they point to court cases related to January 6th, court case, United States v. DeCarlo. They talk about how they're multiple. Here's the quote. Rather than adding a sixth written opinion to those already excellent opinions written by my colleagues, he's going to refuse to dismiss a claim against January 6th rioters of obstruction of official proceedings. So what they're trying to do here is very interesting to me. They're trying to now say, look, we're already building a body of case law that says that the January 6th events are encompassed within these statutes.

That from the meta opinion, which is less strong to DiCarlo and others, that the January 6th proceedings, there's a body of case law that is saying that these events, that what happened on January 6th, or that obstructing of the January 6th of the events under the Electoral Count Act, they're encompassed within this law. And that was the main thing that was interesting to me. And it wasn't super, super interesting. I would call it, I raised half an eyebrow at it. But I agree with one of your initial takes, and I can't remember if it was Green Room or Twitter, which was essentially slow down everybody. This was not laying out what would ultimately be or what would in any way be the foundation of an indictment against Trump. That is not what is happening

here at all. And I would go so far as to say, if you never get anything more than this, anything more than this, it would really, I would really be shocked to ever see an indictment of Trump. If this is, if this is the guts of the case right here, it would, I would fall out of my chair in surprise. Think about how dangerous this would be to say that. And again, I hope if you know, we'll get into how shocked and appalled we are in a minute. Yeah. Right. Like I, If you know, we'll get into how shocked and appalled we are in a minute. Yeah, right. Like, yeah, it goes without saying all of that. But if you're going to make new law, if you're going to expand criminal statutes into a new area, you have to think about other situations that that same theory would apply in. And this is so broad that in my view would apply to any time the president tries to strong arm a member of Congress into doing what they want. So, I mean, LBJ is guilty of all of this every day of his life. Vice versa,

I think it could apply. So, for instance, defendant attempted to impede an official proceeding of the United States that the defendant did so corruptly. So when John McCain tried to convince George W. Bush not to veto the Bipartisan Campaign Reform Act, George Bush believed that it was not constitutional. Courts, by the way, ended up agreeing with George Bush on several counts. John McCain tried to convince him not to veto it, saying that it was clearly constitutional. Did John McCain violate 18 U.S.C. 1512? Of course not. Now, you may say that he wasn't doing so corruptly. He really believed that it was constitutional.

I happen to believe that John Eastman truly believes the insanely unconstitutional arguments he's making. So again, I just, I don't think you want to apply this kind of obstruction law to a sitting executive or member of the legislative branch engaged in a core executive or legislative function. I don't like this executive function that they were trying to do. But calling someone on a different branch, and remember the vice president's acting sort of as a member of the Senate, he's presiding over the Senate in this case, which is why I'm sort of using the legislative versus executive example. But calling a member of a different branch and trying to persuade them to your view of the law, as wrong as that view may be, that is a core function, David. And so to say that we're going to now encompass that in criminal law, that's bonkers to me. Well, you know what that reminds me of?

Remember the prosecution of Governor, oh gosh, why am I blanking? Lagojeving? No, no, no. In Texas, Travis County prosecutor indicts Perry. Yeah. Governor Perry over what was it?

A veto threat. Yep. Yeah. Same exact argument that like, this is too much persuasion, too much cajoling. No, that is a,

a core log rolling function of two branches trying to work something out. I don't like what this was. I just want to repeat that over and over again. But you would have to apply it to other situations. And I, I, oof. I can hate something with every fiber and molecule of my being and not believe it's criminal. Yeah, to me, this is defending the Nazis and Skokie. Damn right I'm going to defend the Nazis and Skokie. And you're hating the Nazis the whole time. The whole time. The whole time. And I just keep going back to this.

I'm sitting here. I'm waving my Georgia flag. What is a lot more problematic than anything laid out here was Trump calling Raffensperger and saying, find me 11,780 votes. And oh, by the way, this could go really bad for you criminally if you don't. Agreed. Totally different case.

Totally different case, which is why I pull what is left of my hair out. There's no hair there. No, there's a little, there's a tiny bit that we're not talking more about that. I don't know what else I can do to get us to talk more about that, but we need to. By the way, David, fun fact, friend of the pod, Michelle Kalin, former solicitor general for Virginia, who we had on to discuss the equal rights amendment lawsuit. She is a counsel of record on that filing. Oh, interesting. She's working for Doug Letter over at the January 6th committee. What a small pod world.

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Sarah, we would be remiss if we moved on from this topic of John Eastman without raising some of the emails that just came out. And these are emails between John Eastman and Gregory Jacob, and Gregory Jacob with the vice president's office on the day of January 6th. And so the context here is, if readers recall, Eastman had delivered advice to the president that included an assertion that Pence had the actual power to reverse the outcome of the election. Eastman claims that that was not actually the advice that he gave, that the advice that he gave was that Pence should reject certification and send the question back to the states so that the states would have 10 days or so to recertify new slates of electors and then have Donald Trump win in essence.

And so there's this fascinating exchange between Eastman and a member of Pence's staff on January 6th while January 6th is unfolding. And I'll just read some key parts of this exchange. So Eastman is responding to some pushback from Greg Jacob and he says, I'm sorry, Greg, but this is small minded. You're sticking with minor procedural statutes while the constitution is being shredded. I gave you the Lincoln example yesterday. Again, this is referring to suspension of habeas corpus. Here's another. In the situation room at the White House during the first Iraq war, the Secretary of Interior said the law required

an environmental impact assessment before the president could order the bombing of Iraq oil fields. Technically true, but nonsense. Luckily, Bush got statesmanship advice and ignored that statutory requirement. I have questions about that example, Sarah. Well, but even setting that aside, what's fascinating is that's coming in at 1.33 PM. Yes. Eastman is still pushing Jacobs, and he's going to push him even harder as the afternoon wears on to have the vice president act. The vice president is now in a bunker underneath the Capitol. And at one point, read the money line. Well, let me read the paragraph to the very first paragraph in the

response and then the money line. So this is Greg Jacob at first paragraph in response. I don't in the end believe there is a single justice on the United States Supreme Court or a single judge on any of our courts of appeals who is as, quote, broad-minded as you when it comes to the irrelevance of statutes enacted by the United States Congress and followed without exception by more than 130 years. years. And then he goes on to provide more context to Lincoln, et cetera. And then the money line is, and it's a very firm pushback, but it's very professional. And then here's the money line. And thanks to your bullshit, we are now under siege. We are now under siege. To which Eastman replies, my bullshit, seriously? Yes, John Eastman, seriously. You think you can't adjourn the session because the ECA says no adjournment while the compelling evidence that the election was stolen continues to build and is already overwhelming? The siege is because you, all caps, and your boss did not do what was necessary to allow this to be aired

in a public way so the American people can see for themselves what happened. He's blaming the siege on the besieged at this point. And so Jacob responds, I do apologize for that particular language, which was unbecoming of me and reflective of a man whose wife and three young children are currently glued to news reports as I am moved about to locations where we will be safe from people, mostly peaceful, as CNN might say, who believe with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day. Please forgive me for that. It's just really something, you know? Yeah.

Jacob is definitely the Zelinsky here, and Eastman is cartoonishly villain, like Putin, at that 30-foot table, you know, barking out orders that don't make any sense. I mean, right, Jacob writes back and is like, Lincoln suspended the writ when the body entrusted with that authority was out of session and submitted it to them as soon as they returned. I understand your argument that several state legislatures were out of session, but the role for state legislatures has for our entire history ended at the time that electoral certificates are submitted to Congress. I respect your heart here. I share your concerns about what Democrats will do once in power. I want election integrity fixed,

but I have run down every legal trail placed before me to its conclusion. And I respectfully conclude that as a legal framework, it is results oriented position that you would never support if attempted by the opposition and essentially entirely made up. To type that on your phone while you're being moved by the Secret Service to different locations because people are screaming, hang Mike Pence. And I had a good friend who was down there with them and I was texting with at that time. They had some gallows humor down there. They weren't sitting there crying and saying goodbye to their families or anything but make no mistake they were aware of what was going on yeah and so for him to be typing this out on his phone thoughtfully and without

typos i will note i don't understand how amazing amazing uh so yeah i mean, truly, this is my a lot of really clutch, clutch legal reasoning and legal argumentation going on to squelch some really dangerous stuff. And this is a prime example of this. This might be some of the most clutch legal iPhone typing in history. And it's just a devastating rebuttal to Eastman. It's just a devastating rebuttal. I mean, Eastman's running around bleeding and bleeding about cancel culture. But here's my view. If you are running a panel discussion or want to get a learned professor to talk about the nuances and the reality of law, do you trust anything that John Eastman says has intellectual integrity after this point? No.

The emails continue. 9.44 p.m. is another email we have that night where Eastman, still trying to pressure Jacob, hasn't given up. The Senate and House have both violated the Electoral Count Act this evening. They debated the Arizona objections for more than two hours, violation of 3 U.S.C. 17. And the vice president allowed further debate or statements by leadership after the question had been voted upon, violation of 3 U.S.C. 17. And they had that debate upon motion approved by the vice president in violation of the requirements in 3 U.S.C. 15 that after the vote in separate houses, they shall immediately again meet. So now that the precedent has been set that the electoral

countout is not so quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow their legislatures to finish their investigation, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here. If none of that moves the needle, at least a good portion of the 75 million people who supported Donald Trump will have seen a process that allowed the illegality to be aired. Amazing stuff. Amazing stuff. And this quote, the massive amount of illegal activity that has occurred here, that's made up. Well, it had already been litigated pre-January 6th. It had been dismissed by every court who had heard it and not just on

standing, but on merits. That Wisconsin hearing was two days long. So yeah, I mean, and you know what, David, another thing that goes to our current debates that we're having on law school campuses, these are two people who could not be more fundamentally opposed. And here they are emailing back and forth. You know what? Thoughtfully and respectfully and with arguments. Again, I think Eastman's arguments are crazy town, but you don't see Jacob saying, you know, sticking his fingers in his ears and saying, I won't talk to you. And you don't see Eastman saying, you rhino, I'm not going to make my arguments to you. I want to make them to someone better who agrees with me. I'm taking my talents to

Sean Hannity. Right? As strange as it may seem, it did work. Well, it did work. And one of the reasons why the whole system worked, and this is something I want to impress upon all of those, if you're listening and you're a FedSoc hater and you're hating everyone who's FedSoc adjacent and all of that language you hear on campuses, look, I mean, there were FedSoc folks and conservative attorneys who helped literally save this republic from a constitutional crisis because they were willing to uphold the rule of law to see their own party lose. law to see their own party lose. And against other FedSoc folks. Let's be clear. It was FedSoc folks arguing for unconstitutional action, and it was FedSoc folks who stood up against them. Yes, correct.

Correct. And it's not an unblemished story here. Yeah, but the point is, if all the FedSoc folks had decided they were a tribe and would simply go in one direction to seize more power, the country would be in big trouble. It's important not to be tribal. Yes. Amen to that. All right. Speaking of tribal, the EU, it's a tribe. Yes. Well, here's the question. There have been reports that the EU might extend immediate membership to Ukraine. I promise you, Sarah, this Cold Warness of me is

constantly coming out, which is I'm always tempted to say the Ukraine, and I'm always tempted to say Kiev instead of Kiev. So just forgive me. Well, that one's actually not quite as wrong as you think. The transliteration there isn't. It's not Kiev and it's not Kiev. It's in between. So either one you go with is actually fine. So it's more accurate than concurral is what you're saying. No, concurral I'm now using for everything. Okay.

All right. So here's the question. The question is really pretty simple. Okay. All right. So here's the question. The question is really pretty simple. If Ukraine joins the EU, does the EU have to defend Ukraine? And it's not a crazy question to ask because Article 42.7 of the EU agreement says, if a member state is the victim of armed aggression on its territory, the other member states shall have toward it an obligation of aid and assistance by all the means in their power in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defense policy of

certain member states. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organization, NATO, which for those states which are members of it remains the foundation of their collective defense and the forum for its implementation. their collective defense and the forum for its implementation. Okay, what does that mean? Because if you read it on its face, it kind of means that there is an obligation by all the means in their power to aid and assist Ukraine if Ukraine is part of the EU by all the means and their power. But here's the key language in accordance with Article 51 of the United Nations Charter. Okay, let's get into the weeds a little bit here.

Article 51 of the United Nations Charter, which I will pull up and read. It's just a short couple of sentences. Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. All right. What does this mean in plain English? It means that an EU member is going to be obligated to give aid and assistance. That can be humanitarian aid, that can mean providing weapons, and they're going to have a right to engage in military action under Article 51, but not an obligation to.

Okay. The UN is set up so that there is a right of self-defense, including a right of collective self-defense, but there is not an obligation of collective self-defense, if that makes sense. Rights and obligations, they are different. They are very different. So if a member of the EU wanted to deploy troops to Ukraine that was not a NATO member, then it would have the right to do so under Article 51 in the EU agreements. It would not have the obligation. Now, where do obligations come from? NATO.

NATO. Article 5, the parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all. And consequently, they agree that if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense, will assist the parties or parties so attacked by taking forthwith, individually and in concert with the other parties, such action it deems necessary, including the use of armed force. Now, this is also interesting.

necessary, including the use of armed force. Now, this is also interesting. There's an obligation of assistance and a right to use armed force. But again, while the moral weight of Article 5 is greater, not everyone who is in NATO is necessarily going to be legally obligated to deploy troops. It's just a stronger, it's just a stronger, um, admonition. And because it's what it is saying is that an attack on one is an attack on all. Uh, so we have, you know, after nine 11, an attack on the United States was an attack on Great Britain, was an attack on France. So there's a difference between a right to intervene and an obligation to intervene. And there might even be some wiggle room in Article 5 of the NATO Charter. Article 5 of the NATO Charter, when it says, such action as it deems necessary to restore and maintain the security of the North Atlantic area. So one of the things to learn about international law is there's a lot of wiggle room. in our constitution article 1 section 8 clause 11 the congress shall have power to declare war grant letters of mark and reprisal and make rules considering captures on land and water

so representative lance gooden republican from texas introduced hr 6869 that would quote authorize the president united states to issue letters of mark and reprisal for the purpose of seizing the assets of certain russian citizens The idea here is a bunch of these Russian oligarchs are getting their yachts into places that we can't get them. So two weeks, by the way, before the invasion of Ukraine, Biden, sorry, Putin moved his absurd, to call it a yacht is actually kind of an understatement, his, you know, continent-sized floating vessel to Kaliningrad, a Russian naval base, two weeks beforehand. So anyway, the idea is like, if we don't have time for our government to go find all of these Russian oligarch yachts. Let's just let American citizens

do it and crowdsource some of this. Anyway, great write-up. David Latt of Original Jurisdiction did an interview with a law professor, Ingrid Wirth of Vanderbilt Law School, where she explains very calmly why that's actually a terrible idea, but that it is legal. In fact, you do not have to have a declaration of war to do that. And it's gotten us into some messy situations before. But her overall sort of fun point was constitutionally, it shows you that Congress had a big role in not just declaring war, but the actual prosecution of that war as well. It's not just commander in chief powers by itself and Congress could flex some muscles here, but this is her ending. I just want to underscore

again what an awful idea this is. It would be understood as an act of hostility, belligerency, and war, and we should absolutely stay away from that here. Thank you, Professor Wirth. Yeah, this is the difference between a pirate and a privateer. I mean, it's awesome. Letters of Mark and Replaisal are super fun time. And look, before we had a particularly large naval force, it did make some sense.

The problem is that when you set up incentives where you get to keep basically a bounty on anything you take, the government takes a cut of it. You'd go get the ship, bring it back to the United States, and we'd deal with some logistics. You'd pay the government 20 grand and you'd keep an $11 million ship or whatever it is. Cool. If that's the incentive, people are going to start seizing a lot of yachts that may or may not be owned by Russian oligarchs. And they're all going to get dragged back to the United States like your dog going to fetch random tennis balls out in the park. I could just see everyone in the Cajun Navy, the Cajun Navy, you know, the Cajun Navy that was humanitarian and that's, you know, saved lives and floods now becomes a collection of privateers.

Yes. And they grab all of their ARs and start heading out across the Atlantic going yacht hunting. That'd be fun. Yeah. It'd be really fun. It would also be the instant the first shot was fired by a member of the Cajun Navy. That would be, let me put it this way, Russia would not say, oh, they're just operating under letters of mark and reprisal. No, probably not.

Yeah. All right, to the potpourri. First potpourri, David, I'm going to put in the show notes. Shout out to SCOTUS Tunes. They turn SCOTUS arguments, they put them on YouTube with cartoon characters for each of the justices and the advocates. Someone sent me the SCOTUS Tunes

of Husband of the Pod and the NFIB argument and it looks exactly like him. Super cool. So if you want to watch SCOTUS arguments with cute little cartoon justices making little eyes at each other, it's pretty fun.

Second potpourri, Tucker Carlson suggested that Judge Katonji Brown Jackson should release her LSAT score to prove that she is qualified to serve in the Supreme Court. Just worth a couple notes here. One, no, this is not something that any Supreme Court justice has ever done before. But even if it's not, maybe we should start. Okay. Yeah. Look, am I curious? Sure. I would like every Supreme Court justice's LSAT score.

I really would. I'm very curious. Just out of pure curiosity. Yeah, I want their SAT score too. Like, let's get it all. Do I think it has any bearing on what kind of Supreme Court justice you will make? No, no, none, none. And this is why I thought, you know, Michelle Child was just as qualified to be on the Supreme Court despite not going to Harvard. I think it's fair to assume,

although may not be the case, but we'll assume for the sake of this argument that Judge Jackson's LSAT score is higher than Judge Child's LSAT score because she went to Harvard, presumably, has no bearing. Once you actually have a career, clerkships, briefs that you've written, anything else, not a metric at all. I say this, David, as someone who got a 178. So if anyone wants to have the LSAT determine the rest of your life, it's me. And I'm looking forward to my nomination to the Supreme Court. Put this woman on the Supreme Court now. Immediately.

Immediately. Yeah, it's so, it's absurd. This is not something that's been done before. Kind of makes me wonder why he's raising it. Oh, you know why he's raising it. The idea is that she got into Harvard because of affirmative action and showing her LSAT score will prove that her LSAT score was lower than everyone else's.

I'm just saying, you know the rule for attorneys, David, don't ask a question on cross that you don't know the answer to. Yep. Wouldn't bet on it. Wouldn't bet on it. Wouldn't bet on it. And the irrelevance of the LSAT only just increases over time. You know, you don't get, you don't come, you don't walk into court, deliver a terrible, terrible oral argument.

And then as the judge is berating you, say, well, wait a minute, judge. Your honor. Can I share with you my LSAT score? Oh, please counsel. So there was one judge on the circuit court that would ask for LSAT scores for clerkships. But this was back when you were getting clerkships like one L year. So actually your LSAT score was pretty relevant because you'd just taken it usually. And you didn't have a lot of grades to go on. There was also a judge, by the way, who gave you a quiz. This was kind of pre-Google days or pre-Google being very good days. And that quiz was hard. Like I'm really good at trivia. I earned all my beer money in college with trivia nights.

And this was very difficult quiz. All right. Last potpourri. So I mentioned that I went on a date with Ben Shapiro in law school. And I just want to clarify, I was talking about my policy, the pay it forward policy of dating, where if someone asked you out on a first date, you just say yes as a policy because you want men to feel encouraged to ask out more women on dates because then, you know, some other guy will ask you out on a date. But I want to be clear, these aren't pity dates in any sense of that term. It's rather having humility about your own ability to judge someone else who you have never been on a date with and do not know, and humility about knowing yourself and who you'll actually click with. Because my God, you're 22, you're 26.

Just go on a first date. If for no other reason, I went on so many first dates in my 20s based on this principle, as you can imagine, David, I made lots of friends. I had fun conversations. I never actually had some terrible first date experience. The closest I came is the guy in high school who took me to Taco Bell and South Park as the date. That wasn't ideal. But you know what? I had actually never gotten to eat at a Taco Bell. I was a vegetarian, so it made it a little hard. But those Taco Bell salsas are pretty tasty. And South Park turned out to be a great movie,

maybe not a romantic movie, but a great movie nevertheless. So not pity dates. In fact, don't do it out of pity at all. That's like rude and condescending and frankly, like humiliating for the other person. No, my date with Ben Shapiro, we went and got hot chocolate at a place in Cambridge that was walking distance from the law school. This was not a big fancy date. Talked about our future ambitions, shook hands. Well, so when I said dish about the date and you downplayed the dish aspect, you were quite correct. But you know what, Ben, for those who are curious, he knew exactly what he was going to be when he grew up. He basically has described his future career to me when he was 24 or whatever we were.

Pretty impressive. Yeah. Interesting. Well, in the green room, we were describing this whole process and saying it's not a pity date. It's more like a filing of a complaint in court with the judge is going to hear the complaint. You're going to get a fair hearing. Yeah, absolutely. And maybe you'll be surprised by the quality of the advocate. That's right. Many, many a time I was. Yeah. Well, fascinating. All right. Well, we just have now asked or answered by far the number one listener question after the last podcast.

But y'all are asking the wrong question, right? Like I just said, I went on so many first dates in my 20s. Yes. And we've already talked, David, about, I mean, right, that like I know a lot of people like y'all are asking the wrong question. You should be asking who else I went on first dates with. Oh, I won't answer that question. That's not it. We're not, we're not producing discovery on this one. Okay. All right. All right. Well, wow. We hit a lot of topics today. Um, and we still have judge Jackson's hearing coming up now announced on the 21st. We'll talk about some of her opinions in the run up to that hearing. Yes, absolutely. We have not forgotten the Judge Jackson opinions that is on the list.

So good pod, if I don't say so myself. And if you agree, please go rate us on Apple Podcasts. Please subscribe on Apple Podcasts or wherever you get your podcasts. And please check out thedispatch.comcom and we will talk to you again on Monday.