Advisory Opinions - Ken Paxton’s Airing of Grievances

Episode Date: September 22, 2022

Texas joins an amici brief in Donald Trump’s Mar-a-Lago case, and Sarah and David ponder… why? Plus: a listener’s astute follow-up question about Yeshiva University gets the full AO treatment. Show Notes: -David’s French Press on “Segregation Academies” -Trump’s response to DOJ’s motion for partial stay -Red states amici brief for Trump v. USA -Class action lawsuit against Ron DeSantis Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at TNVacation.com. Tennessee sounds perfect. Maple syrup, we love you, but Canada is way more. It's poutine mixed with kimchi, maple syrup on hollow hollow, Montreal-style bagels eaten in brandon manitoba here we take the best from

one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got three main topics to cover for you today. So we're going to talk about a sort of a last lingering issue and a question, an intelligent question that was asked about the Yeshiva University case that we touched upon on Tuesday, a very good question from a listener that requires some additional discussion. We're going to talk about the special master hearing that was conducted yesterday in the

Trump-Mar-a-Lago search case that was very interesting, including a little aside about Texas has weighed in and we're not sure why. Well, no, we're pretty sure why, right, Sarah? Yeah, yeah. I think we got the why. We got the why. Legally why. Legally why is different from politically why. And then we're going to talk a bit about old Martha's Vineyard from a legal standpoint, including a class action lawsuit filed against Governor DeSantis by a couple, no, three of the migrants from Venezuela and as class representatives. So we're going to we're going to break that down just a bit. So that's a pretty healthy podcast. So Sarah, let's start with the

Yeshiva slash Bob Jones. And do you have the question in front of you? Yes. So Bill, one of our members in the comment section, and by the way, any of you are welcome to join the comment section. It's for Dispatch members, and you can just go to thedispatch.com. Bill said, how does Bob Jones versus United States not get invoked here? Yeshiva is a tax-exempt university. Well, there's a couple of reasons. One, because nobody has tried to threaten Yeshiva's tax exemption, which is a very important element to this because the way the Bob Jones case worked was that there was an IRS initiative to revoke Bob Jones tax exempt status because of its racially discriminatory policies.

So this is something that originated with the IRS saying you can't be a 501c3 and have explicit racially discriminatory policies. That a 501c3 is just not something that is given to anyone who asks. There has to be a specific charitable purpose for the organization. And that if you're talking about a racially discriminatory organization, then that racially discriminatory organization isn't really a charitable organization. And so this was a really contentious issue that was a furtherance of controversy surrounding so-called segregation academies, Sarah. So what happened if you're looking at the history of segregation and integration in the

American South, is that after the Brown v. Board of Education desegregation order, a number of quote-unquote Christian academies were formed around the South. And these Christian academies were created for the very specific purpose of avoiding desegregation order. So this is where white kids could go to school and have no black classmates. And so these segregation academies sprung up all across the South. Now, if you go, if you're familiar with Christian education now, I would say only a pretty small minority of Christian colleges in the South, Christian schools in the South, I'm sorry, date all the way back to that segregation academy era. But there's still a number of Christian schools in the South that

date back to that segregation academy. So there was an IRS initiative to sort of say, wait a minute, initiative to sort of say, wait a minute, these segregation academies are abusing the 501c3 designation. What they're really trying to do is maintain segregation. That's their principal purpose. Their principal purpose isn't Christian education. It's maintaining segregation. This is an abuse of 501c3 status. And actually, Sarah, not to get too deep into the weeds here, but it's actually super fascinating, interesting, contentious history. Because there are folks who argue that the actual birth of the moral majority and the religious right in the United States is centered around the defense of, quote, religious liberty through the defense of segregation academies. And there is something there, but not as much as people say.

Say more. In other words, okay, I shall say more. I actually wrote an entire Sunday French press about this issue a long time ago, and we'll put it in the show notes. But essentially, it is absolutely true that there were individuals who were deeply concerned about the IRS effort against these segregation academies, and that they were highly organized, and that there was an intense effort to center the defense of segregation academies around religious liberty. Now, the problem with this sort of is the origin story of the religious right is that even those people who were interested in the segregation academy question knew that they didn't have,

the defense of the segregation academies didn't have mass appeal. So in other words, you weren't going to motivate millions upon millions of people to go to the polls to defend these segregation academies. So while there was some initial organization around the defense of segregation academies, that that was not the overriding motivation of the foundation of the religious right. And we'll put that in the show notes, but that was not the overriding motivation of the foundation of the religious right. And we'll put that in the show notes, but that was my conclusion, my argument in my Sunday French Press some time ago. So anyway, these segregation academies included K-12, and they also included Christian colleges that may have predated the Brown v. Board of Education decision, but had legacy racist policies.

Bob Jones was one of those universities. So the IRS threat to tax exemption wound its way up through the courts all the way up until the early years of the Reagan administration, in which the case was ultimately decided in 1983. And the Supreme Court, by an 8-1 margin, with only Chief Justice Rehnquist in dissent, but this is definitely an older court, Berger, Brennan, White, Marshall, Blackman, Powell, Stevens, and O'Connor are the eight. Rehnquist was the one in dissent. Ratified the decision to revoke the tax exempt status of Bob Jones, a university, and another Christian school, which was a secondary school called Goldsboro Christian School.

Now, Sarah, this will come as no surprise to you. I'm old enough to remember all of this. Whoa. Yes. No. Yes. Nobody's that old. Nobody's that old.

With the Queen of England's passing, nobody is that old. And nobody. Now, to be fair. Yeah, you were like 10. I was 14. Okay. 14 when it was decided. But in this microscopically small religious liberty bar that still exists, that existed in 1991, when I went to law school, it was still a very hot topic in the religious liberty bar as to whether this was the beginning of the weaponization of 501c3 status or a case that was confined to its facts, best sort of viewed in the badges and incidents of slavery category. In other words, that the post-Civil War, more than century-long post-Civil War effort to eliminate the badges and incidents of slavery from American life that is really fit into that category.

And time has demonstrated that really the badges and incidents of slavery sort of analysis of Bob Jones is the governing analysis, that this was not the opening salvo in an effort by the IRS to apply a political litmus test or a religious litmus test to 501c3 categorization. And the evidence of that is you just haven't seen that occur since. And there isn't any indication of a judicial appetite for that to occur. Although the existence of Bob Jones has been used by a number of people to say, but what about if you're going to revoke tax exemption on the basis of race? What about on the basis of sex? Or what about the basis of sexual orientation? Or what about on the basis of gender identity? And this sort of looms out there in the religious conservative world,

like the sword of Damocles in many people's eyes, that it's just right there. And in fact, I believe it was Alito who asked about this in the Obergefell oral argument. And the Obama Solicitor General said, didn't say, no, we're not going to do anything about tax exemptions, but just kind of punted on it, which really raised a lot of alarm bells. But that's a super long answer with some history to it attached to a pretty short but astute question, which is that, well, number one, the C-3 status of Yeshiva is not an issue here. Tax exemption status has not been held aside from the Bob Jones and Goldsboro case to really federal tax exemption to give the government an opportunity to dictate the theological religious practices of religious institutions. And that really isn't on the legal horizon at this point.

So A, we should have talked about Bob Jones. It was like a good question. And like, yep, good point, Bill. Yes, good question, Bill. Thank you. I also think the Bob Jones line of thought is interesting because we've talked about zombie precedents before. Precedents that lurk out there that the current court wouldn't decide, but they're not really looking to overturn it either because that causes waves. And so it just like hovers out there. Bob Jones isn't a zombie precedent in that respect. It is, however, in my view, pretty much held to its facts. And almost by the words, in the opinion, it's been limited to its facts. I just want to read

the money line, if you will. So to back up just a little, you're right. I mean, obviously David's right about the tax exempt status, but they do look at this through a first amendment lens and they apply strict scrutiny because there's no question this is implicating Bob Jones's first amendment rights. But they find in the very rare case that the government has overcome that strict scrutiny barrier. Strict in theory, fatal in fact. Ah ha ha ha. No, but a flesh wound. So here's the quote. Government has a fundamental overriding interest in eradicating racial discrimination in education, which substantially outweighs whatever burden denial of tax benefit places on the university's exercise of their religious beliefs. So there's a few things here that I think are worth pulling apart.

A, you still apply strict scrutiny. B, like you said, David, the badges and incidents of slavery, it's what's helping this overcome it, not general discrimination. And lastly, and this is the part that I find very interesting, you know, on the would this get decided the same way today? Certainly wouldn't be A1, I'll put it to you that way. But you notice here it says, which substantially outweighs whatever burden denial of tax benefits places on the universities exercise their religious beliefs. So it is still the case that that court never questioned the sincerity of the religious beliefs, something that courts us, everyone's struggling with now of like, yeah, but what if the religious beliefs are total BS. Even back then on something that, I mean, I'm not going to call

those religious beliefs BS, but like... Can I? Okay, great. That would be great. Yes. Thank you. The court is not saying, we've looked at your religious beliefs, we've checked out, you know, the Bible and some Old Testament, some New Testament, and it's just not there, man. And mainstream Christians don't believe this, and that's why it overcomes your religious beliefs. They're basically saying, nope, we're going to take everything you said about your religious beliefs as fact, and then we're going to look at the government's interest, and not the government's interest in preventing discrimination, by the way. It's the government's interest in giving a tax benefit to an organization that promotes discrimination.

And I think that's really key when you're looking at Yeshiva and the tax-exempt part. On the one hand, I think that Bob Jones is a relevant precedent and one we should have talked about. On the other hand, it's quite different from saying you will have a government taxpayer funded benefit. Taxpayer-funded is weird because it's like you just don't pay taxes. It's not like you get money. But on the other hand, like everyone else owes the money.

Y'all get it. Just call it a tax benefit. I'm going to call it. I think it's a tax benefit. I think you are getting money in a sense. That's very anti-libertarian of me. It is. But very different from that benefit analysis

to we're simply going to make you do this. That's where I think you see the strict scrutiny balances shift pretty dramatically. And that's why the tax benefit status makes Bob Jones a relevant precedent, but why we didn't talk about it the first time. Yeah, right. Exactly. There's a big difference between saying, you can keep your policy, but you can't keep your tax benefit,

versus saying, you can't keep your policy. Now, one note is that the court in Bob Jones was, they limit it to its facts, sort of. Certainly, it was limited to racial discrimination just by the whole opinion. And it was limited, quote, only with religious schools, not with churches or other purely religious institutions, which is very interesting and, of course, has been meaningful moving forward. And it's why, David, that's the part that I find difficult to square with current precedent in a sense. And some of these employment discrimination cases,

stuff like that, is there really some bright line between religious schools and religious institutions? Because now the court's saying that there's not a bright line when it comes to employment discrimination. But Bob Jones says that there is a legal distinction. Well, and especially since, and I don't know if you followed this, Sarah, a number of religious institutions are now reclassifying themselves as churches. Right. Even though they're not churches. What's a church? You're not churches. They know they're not churches. What's a church? You're not churches.

They know they're not churches. A lot of the Yeshiva case turned around whether their charter listed them as a religious institution, which is sort of the most formalistic joke that I've ever seen. You're wondering whether Yeshiva is a religious institution?

And you need to look it up on a piece of paper. Surely, surely not court, but that's sort of what they hung some of that opinion on. Anyway, overall fascinating case. I think Bob Jones is a fascinating case, especially when you think about the current court. And it does, I will tell you, it does show how far the current court has moved to the more conservative side. I don't want to say right, because that implies almost a political, like a partisan valence to it. And that's not what I mean. People can argue that that's also the case, but it's not what I mean here. I mean, legally conservative, where there's just an extra weight on the side of religious organizations, religious

freedom. I mean, you've talked about this plenty, David, that religious liberty has skyrocketed since 1983. And I look at the makeup of that court, like you said, Berger, Brennan, White, Marshall, Blackmun, Stevens, O'Connor. Boy, look at the current makeup of that court and do sort of that one-to-one analysis of who's replacing who on religious liberty. And yeah, I think, I don't know if Bob Jones comes out differently, but the reasoning would look different. Yeah. And there'd be, Chief Justice Rehnquist would not have been so lonely in his dissent. Yeah. I have had a long, because I've, I supported the Bob. He was not the chief justice there then, by the way, just he was an associate justice,

about to be. About to be. So I have had a long running discussion with some of my religious liberty comrades over Bob Jones and going all the way back to law school. I was like, no, this is the right decision. This is the right decision. If there exists a compelling governmental interest, it's going to be rooted in the issue

that almost destroyed the United States of America. Such a good point. And did y'all have such a also debate? This is like the name that shall not be spoken. It's like saying Macbeth at a theater. Brown v. Board. Yeah, you know that that's one of those late night dorm room conversations in a lot of law schools, uh, is Brown V board. And, you know, again, a number, you know, this is folks were all over the map on it. You know, my view on it was Brown V board was a equal protection case,

My view on it was Brown v. Board was a equal protection case, flat out equal protection case. Obviously came out the right way, probably best analyzed purely through that equal protection lens. But yeah, I think that if you're talking about equal protection of the law, if you're talking about privileges or immunities, my goodness. And then this is one of the areas where a lot of people criticized Brown for really emphasizing the facts of the case about how factually the segregated schools had such broadly disparate quality and said that the real violation wasn't the separate, it was the equal. Whereas I think what Brown does is it very forcefully argues that separate cannot be equal, that separate does not mean equal. And so I thought that that's a very compelling analysis that by its very nature, that separate can't be equal. So I thought that would-

Brown, I bring it up because Brown is another case that would be written so much differently today, but absolutely comes out the same way. Absolutely. Same outcome. And to your point, David, I love the way you just put that. What can be a more compelling governmental interest

than the very thing that, not just almost tore the country apart, it did tear the country apart. It was mended back together through amendments. And is it fully mended? I mean, like, so I really like the way you phrase that. Anyway, great question. And one of the ways it was mended was by throwing black Americans under the bus for a century post-Reconstruction. So yeah, yeah. No, and one other thing about this church issue, because I just have a bee in my bonnet

about that. I'm picturing you with a bonnet. I know. Have I used that twice already today? Anyway, FRC, Family Research Council, which is a conservative family policy activist organization, has obtained church status. Well, essentially that it's an association of churches. Essentially, what does this mean if you attain church status? What it does is it shields you from having to file a 990. So a 990 is this document, and anyone who's listening in the nonprofit world knows, and this is something I became acquainted with when I was president of FIRE back in the day.

And what it does is it requires certain disclosures about donors, and it requires, critically, Sarah, certain disclosures about donors and it requires, critically, Sarah, certain disclosures about salaries. And so you're required to disclose high earners in your organization. And how can I put this? That's embarrassing information for some large Christian nonprofits. And how shall I also put this? If people knew how much money some leading figures in American Christendom are making in their capacities as leading figures in American Christendom, a lot of decisions that are made about protecting status and privilege would start to make even more sense than they already make. And so when you're seeing these institutions reaching for church status, one of the first things that you should think is,

huh, what is it that they are not wanting to be transparent about? And one of those things is quite often money, salaries that are paid to leading figures. Many of these organizations, which are funded by small dollar donations, often by people on fixed incomes who are quite frankly scared to death by the fundraising tactics of these organizations and are funneling large sums of money collectively and sometimes large sums of money compared to their own personal budgets to pay very handsome salaries to a small group of individuals to then turn around and use some of that money to scare them into paying for more pay increases. But that's a little bit of cynicism coming through. That was quite the bee stuck in your bonnet. Did it escape? That's quite a bee. That might be a hornet.

That might be a hornet. Yeah. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it.

Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. All right, lots more to get through. Yes, lots more.

Okay, special master. Woo, exciting things afoot. So a few things to hit here. One, we have the 11th Circuit appeal. The Trump team has filed their brief pretty much as expected. The one thing that's sort of worth an interesting note is the Trump team arguing that you can't appeal this to the 11th Circuit because you can't appeal a special master order. It's just not one of those interlocutory appeal decisions. Fascinating. We will get to more of that as this gets fully briefed at the 11th Circuit, but I could see that being a meaningful point. Second up was an amicus brief from the state of Texas, just siding with Trump.

Like, David, it was pretty weird. I mean, as you said at the beginning of this, like, we know why, but to be an amicus, a friend of the court, you have to have an interest in the case. Like, hey, we're weighing in here because we something. And let me read you some of what they said was their interest in the case. Throughout this litigation, the Biden administration has attempted to trade on the reputation of the Department of Justice and the intelligence community to thwart the appointment of a neutral special master. The district court twice rejected that gambit and this court should too. Amici states have been frequent litigants against the Biden administration and they offer

this amicus brief to highlight how the administration's conduct in connection with this case is of a piece with the gamesmanship and other questionable conduct that have become the hallmarks of its litigating, policymaking, and public relations efforts. At a minimum, this court should view the administration's assertions of good faith, neutrality, and objectivity through jaundiced eyes. Consequently, this court should reject the administration's request to stay the district court's order pending appeal and instead permit this dispute to proceed before a special master. Again, I just haven't seen something like this, David, where it's like, hey, weighing in here because we also litigate against these guys and they suck.

Yeah. We have no interest in the merits, facts, or anything else of this case. But boy, do we dislike those guys. And that's what the whole brief is. I mean, that's what the whole brief is. It is an airing of litigation grievances. Number one, take the administration's resort to procedural gamesmanship to overcome adverse judicial decisions. And they go through the migrant protections protocol case.

The Biden administration appealed that final judgment, but just two business days before oral argument in the fifth circuit, it issued two new memoranda purporting to supersede the already vacated ones. Hours later, it filed a 26 page motion arguing that the case was moot and that the administration was entitled to vacature of the district court's order, the precise remedy it had hoped to obtain on appeal. I hear, I actually do, and I'm somewhat sympathetic because we have seen this in other cases of, for instance, that original New York gun case, David, where they get themselves a mootness. They lose, and then they withdraw the law. And they're like, well, let's not go to the Supreme Court. And the Supreme Court's like, yeah, I guess so. But that's not, by the way, the Biden administration. That was state

government. And that's a super common litigation tactic, by the way. And it's a super common litigation tactic to try to fix the problem that has caused the litigation. That's what this was, the two new memorandum that were superseding these old memoranda. Yep, the old memoranda were found to be unlawful. So they were like, okay, we'll try a new memoranda that we hope are lawful. That's, I don't know, I see why one sees that as gamesmanship, but also that's kind of what we want in our litigation system. We want people to try to fix the problems. We want them to settle where they can.

So yeah, airing of grievances. And fascinating, David, lots of states signed on to this, of course. Yeah. Let me, let me read you some. These are all the attorneys general, Florida, Indiana, Kentucky, Louisiana, Mississippi, Missouri, Montana, South Carolina, Utah. And then of course, respectfully submitted by the Attorney General of Texas. I mean, this brief is hilarious. They're upset that the Biden administration was emailing social

media companies about alleged disinformation around the pandemic. They're upset that the Biden administration has said that they didn't fund gain-of-function research. They're upset that Kamala Harris said the southern border is secure. That's literally listed here. I don't... It's literally listed. I don't understand why that's legally relevant to whether Donald Trump should have a special master appointed to review the 11,000 documents.

What? It says, and just last week, Vice President Kamala Harris, by the way, Vice President is hyphenated in this. Is that a thing? I don't know. I'm fascinated. I don't think so.

Last week, Vice President Kamala Harris in a nationally televised interview on Meet the Press asserted that the United States southern border is secure. Yet the facts gathered by her own administration

are decidedly contrary to this puzzling statement. Last year, Customs and Border Patrol recorded 1.7 million illegal crossings, a level not seen since the 1960s. And this year, illegal border crossings are all but certain to surpass 2 million. The end. That's the end of that. What? Why? Why did I just read that? What does that have to do with anything? It doesn't even say why that's anything. Like gamesmanship, like why that means, I don't... Yeah. Yeah. Very strange. Well, that's all a sideshow and a very amusing sideshow, but a sideshow nonetheless. Well, it's politically relevant.

When we think about 2024, when we think about Trump's legacy within the Republican Party, and for that matter, it's trickling down into the legal conservative movement. Yes. And this is now going to be example number one that I have. But yes, the special master actually held his first hearing. And David, just right off the bat, can I tell you something that I find really strange about this? Yes, please do. You could have been appointed special master, by which I mean, you know, you're a person out there in the world, and you would convene the parties at your house or over Zoom and, like, you know, like, make a plan with the parties.

The special master who happened to be appointed is a sitting judge in the Eastern District of New York. Yeah. And what this overwhelmingly felt like is that for no legal judicial reason, this entire case has been transferred to the Eastern District of New York. Right. Yeah. This was like a court hearing. He referred to himself as the court. And this would come relevant and may become relevant, by the way, because you, David, can't hold anyone in contempt.

Contempt of what? Contempt of David? No, I hold many people in contempt, Sarah. But can the judge on the Eastern District of New York hold people in contempt, even though he's acting as a special master, but he is a federal judge? And again, I fear this might become relevant based on some of the merits of what was here.

Also, a side note to the merits, you were supposed to be able to call into this hearing. They set up an Eastern District of New York phone line piped in so that everyone could hear everything. And it turned into, it descended into actual Lord of the Flies. But like, Lord of the Flies looks way more organized. Proving something, by the way, about how a few people can just ruin any public space. Maybe, David, it's particularly meaningful to me because of the social media lawsuit that we talked about last week, earlier this week.

It's like, yep, this is what happens when you can't moderate a platform. There's people, you know, the clerk would come on and ask everyone to mute their phones really nicely, which should have been quickly realized was not the problem here. It's not that they didn't know how to mute the phones. It's that they wanted to troll the whole thing.

And at one point, someone says, I don't want an explicit rating on this, but two of the three words are potty words. F-U-B. Okay. Yeah, so that's what's going on in this call. And this isn't for three minutes. I had one friend dial in every 10 minutes,

and it never got better. So they're going to need to figure that out if we're going to do this. But thankfully, Josh Gerstein of Politico, and perhaps you might recognize that name because he's the one who broke the story about the leaked Dobbs draft. He made his way up to EDNY, David, and he was sitting there giving us the play-by-play. One issue in dispute that's fascinating. Is it properly before Judge Cannon, that's the Florida judge who appointed the special master, or should it have been brought first to Judge Reinhart, who issued the search warrant? Special Master Deary has flagged this as a potential question in the fight. Again, not actually a question for the special master. Definitely a

question for a judge. Definitely a question for the 11th Circuit, for instance, potentially. Fascinating. It's also interesting, this judge, just a little few biographical details. This judge is a Reagan appointee. He's 78 years old. He's also a veteran, I believe, of the FISA court. So this is a judge who is, A, extremely experienced, B, experienced in handling of classified information, and C, how should we put this, Sarah? The FISA court is not known for being incredibly skeptical of state classification. Yeah. Yeah. It's kind of underpins their entire existence.

Right. Right. So anyway, keep going about the area. It's a weird, it was a weird choice. And remember, this was the Trump team's pick. Right. I still haven't figured out why. I can totally see why the DOJ said, yeah. Yeah. Let's do this. Judge Deary, let's go. Yeah. So other notes from Josh Gerstein's reporting, Judge Deary seems to brush back Trump team by saying that, quote, litigation strategy isn't going to affect his resolution of recommendations to Judge Cannon,

seemingly and almost certainly referring to the Trump team pushing back on the idea that they will discuss whether they have any argument that the documents in question have been declassified. They said that they shouldn't have any argument that the documents in question are, have been declassified. They said that they shouldn't have to do that because that, um, would be a defense at trial, which is by the way, whoa, whoa, we're at a special master stage. But anyway, even if that's true, says judge Deary, um, honey badger don't care in this case because it's not relevant to his special master role in sort of sorting these documents. The only thing that could be relevant, if you want to make an argument that those documents aren't classified for some reason,

feel free. And I may put them in a different bucket of papers. But if you have no argument that you want to present at this point, so be it. Moving on. So that's where that got left pretty much. Yeah, there was a real, and what was his actual quote? You can't have your cake and eat it. In other words, you can't sort of raise the specter of declassification without producing any evidence of declassification or even any specification, regardless of evidence of which documents

have been declassified. Or even say that you would argue, right? There has still never been someone from the Trump team stand up in court and say, we believe these arguments are declassified. We're unwilling to present you evidence of that right now. That has not happened. Right, which is extraordinary, by the way, considering the extent to which it has

permeated much of the right-wing public that these documents are all declassified. This was a preliminary hearing, so we don't have decisions from the judge, by the way. And so I say this withholding judgment until we get some of those decisions to see what his reasoning is, where he falls on some of this stuff. But boy, he was just not pulling punches here. He's asking what his role would be about the marked classified documents. How am I going to verify the classification? What business is it of the court? By the way, that's where he refers to himself as the court. And I was like, oh, the special master, but okay. Habit, he's 78.

Yeah, fair enough. And so the Trump lawyer says simply that he stands by the position that they don't want to detail what may have been declassified or when. We're not in a position, nor should we be in a position at this juncture to fully disclose a substantive defense. It's not gamesmanship. It's about not having seen the documents. And then he goes off against the National Archives,

calls it highly politicized, talks about Sandy Berger stuffing things into his underwear. And Judge Deary says that's a broad brush, but that he doesn't have plans to talk to the National Archives right now, and he'll let them know if that changes. Overall, fascinating. Two things, David. One, the classification stuff and the Trump team unwilling to even put forward the argument that these documents might be declassified. Two, they feel like this is all moving a little too fast. Yes. They'd like to slow this train down. Yes. Judge Deary starts by saying, like, we're going to move, you know, with all,

he had a nice phrase, but fast. Yeah. And the Trump team's like, well, now, look at those beautiful flowers. We should give them a smell. And sir, you know, you don't need to be jogging here. A nice stroll would be fine. Yeah. Big tap the brakes energy going on. But the problem is, from the judge's perspective,

you're not talking about a large number of documents. I mean, this is not like rolling into Enron and seizing tractor trailers full of documents. This is a relatively small universe of documents. And here's the other thing, and just sort of putting on my litigator hat, I'm Trump's attorney. I come in and I've not seen, if you're talking about his litigation counsel right now, they probably hadn't seen the documents that were taken. They don't know what was taken. How would they know what is taken?

They're going to have to ask their client. So they're going to say- Who is certainly not going to know 11,000 documents or even the 100 classified documents. Let's be realistic. Yeah, he might remember seven or eight or nine of the 100 classified documents. But when it comes to what are the actual contents of these 100 documents, guarantee you he didn't have some sort of itemized list. He didn't have an index on a Google Doc,

none of that stuff. And so they're saying, okay, what was taken? They don't know. And the government is saying, I mean, they are going to get to see the 10,900, certainly. The government is, I guess, digitizing them right now. But there's still some dispute over that 100 because the government's argument was there's still some DOJ lawyers who haven't gotten, who did not get to review the contents of those documents because they're so highly classified. And trustees number two, I don't know if she's his number two, but another lawyer on the Trump team

does not have her, you know, clearance yet. And so he was asking for that to be expedited. And the government's sort of like, okay, but like, let's make real sure. What if she doesn't qualify? I know. Fascinating. Also, another funny thing where the judge actually did side with the Trump team in this hearing on one not important point, but maybe telling point. So they have to pick a vendor to digitize all these documents, I guess. And the government says they are ready to pick a vendor by tomorrow.

The Trump team says that he wants until Friday. The judge initially says, great, we'll do it tomorrow. But then eventually he says, okay, Friday. Now that's two extra days, not a big delay. Yeah. I'm going to give you this before I drop the hammer, but. But I actually think it goes to his want for speed and at the same time, reasonableness. 48 hours is, it may be a tactic, like every little delay helps, but 48 hours to actually review vendors, you know, okay. Yeah, yeah, absolutely.

But I, you know, I just am placing myself, a lot of times when you have people doing legal analysis, no one places themselves in the position of the lawyers. And, you know, the lawyers are, Trump's lawyers are in a real box here because if they say, well, of the lawyers are, Trump's lawyers are in a real box here because if they say, well, of the hundred documents, 73 are declassified. Well, what have you just said?

27 or not. So you're in a box right there. Well, you're also in a box because I guarantee you they don't know what the documents are. They're also in a box because I guarantee you there is not one centilla of a paper trail of declassification. And what they're wanting to avoid at all costs right now is some sort of definitive statement or definitive declaration that there was no declassification. So it's all holding action. It's all delaying action. It's all, you know, it's one of those things where you're just trying to live another day. It's essentially the mode that they're in right now.

And the government, so at one point, Judge Deary asked the DOJ side, what should he be doing with these classified documents if the 11th Circuit doesn't step in. And the government says, we will most likely consider other appellate options at that point. I'm just laughing because there's only one appellate option. Now, like, could they go on bonk, I guess? But I think the judge here is actually contemplating that the 11th Circuit does nothing, not that they simply rule against them. Anyway, it was a funny exchange. Yeah.

And Josh Gerstein sort of dryly notes, I think only option is SCOTUS. Josh, not a lawyer, but ever the wit. Yes, yeah. No, it's, I mean, it remains to be seen how he, you know, what he determines here remains to be seen if you're going to have appellate intervention here. But that is not speaking as somebody who's been in hearings that did not go the way I wanted. If you're Trump's team, that is not what they wanted when they went into that hearing.

But again, we'll see what it what ends up happening. when they went into that hearing. But again, we'll see what ends up happening. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app,

you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night.

I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Time flies, Sarah. Time flies. We haven't even gotten to the migrant issue. Yeah, class action lawsuit. Fascinating. Yes.

This is interesting. I said this on Dispatch Live, but one of the funny things that I saw online was after this class action lawsuit was filed and really soon after the migrants landed, you had these press conferences being held by attorneys for the migrants that were incredibly like compelling, polished accounts from, you know, from their perspective, from their perspective about what occurred. And someone said, well, this is what happens when you dump,

uh, migrants on Lawyer Island. It was a nice bit of humor in an otherwise fraught situation. Yeah. But yeah, calling Martha's Vineyard Lawyer Island, I think is what I will refer to it from now on. I've never been, have you? I have never been. I've watched TV shows about it. I know people who have been,

but that's about my experience with Martha's Vineyard. Oh, you know what? I have. In January of 1992, we had a... And I remember it because we had... It was cold? No, January of 1993. I remember it because we had... It was cold? No, January of 1993. I remember it because we had a law school Christian fellowship retreat.

It was freezing. And that may or may not be the event that led me to ask a roommate of mine or to declare to a roommate of mine, I don't know how a single pilgrim lived. So, yeah, freezing. Anyway. so yeah freezing anyway in fairness i um from law school drove to the cape in may it was freezing because i was like i want to see cape cod and i was like oh my god this is so cold yeah yeah um all right the complaint itself i'm really curious about your views on the complaint itself.

It tells a story of the facts that is, if you've been following this closely, none of it is really surprising, that essentially what occurred is that you had migrants coming from Venezuela to Texas, not to Florida. This is really important because sort of, you know, in talking to some of my friends who are not super, you know, following all the twists and turns of everything have said, well, I see why DeSantis would want to get migrants out of Florida that aren't supposed to be here.

No, these were in Texas, recruited in Texas. And the allegation is they were promised, they were given certain inducements. There's a reference to a brochure talking about refugee resettlement is its own thing. People who enter the United States from another country and request asylum are not refugees under a refugee resettlement program. That's a really important thing to indicate. So the essential argument is they're in Texas,

they were given McDonald's gift cards as one of the elements of the complaint that they were sort of wooed to go to Massachusetts. They did not know they were going to Martha's Vineyard, didn't know where they were going. Being told that they were going to receive benefits that are part of refugee resettlement. They're not eligible for any of those benefits. Brought on the plans on false pretenses, flown to Martha's Vineyard. And then, so all of that is pretty, these allegations are pretty well known. And Sarah, I don't know, have you seen any definitive refutation of those allegations from the DeSantis camp?

I haven't seen any. It doesn't mean that it hasn't happened. I haven't seen any. He did answer some questions at a press conference this week in which high level sort of political argument that he didn't hear any of this pushback when the Biden administration was putting any of this pushback when the Biden administration was putting migrants on planes and flying them late at night to, you know, destinations, which is all true. Um, and then notes that all of this is getting attention because it was Martha's vineyard. Uh, that's true, but maybe not for the reasons he thinks. And, you know, I have talked about this a little bit before

on the other podcast. But politically, this was a huge win for DeSantis. His name is in the news every single day right now in a position in which conservatives, he is against the Biden administration, and so conservatives feel defensive of him. And so it's upping his name ID in a, I'm fighting against the Biden administration posture. That's perfect for him. And the details and even how this lawsuit comes out doesn't matter.

If anything, it helps because it will keep his name top of the headlines repeatedly. And that's not to pass any judgment on either the law or the moral side of this, but simply politically, I haven't seen any downside yet. Yeah, I mean, I would agree with you. I mean, not even sort of the San Antonio, was it Bexar County Sheriff? Am I saying that correct, Texan Sarah?

Oh God, Bexar? Is that what you just said? I didn't even know what you were talking about. Behar. Bexar. Spelled B-E-X-A-R. Yeah. Okay.

Did you not take Spanish at any point? Never. Okay, well then that is a pretty good excuse. You take French? What did you take? What do you speak? I took French. I was a French minor in college.

Is it because of your last name? Yes, entirely, which is the dumbest thing in the world. So here I am, a young high schooler, and you had to take a foreign language. And my two choices were French or Spanish. And had I taken Spanish, that could actually be useful here in the United States of America in the year of our Lord 2022 when podcasting about a county spelled B-E-X-A-R. Whatever. But instead I go, my name is David French.

I'm going to take French. Anyway. So likely. Okay. So I am not an expert on class actions, David. on class actions, David. And so I have no thoughts on the class action-y part of this and whether they have met

the necessary qualifications to bring a class action lawsuit instead of simply bringing a lawsuit on behalf of these three potential plaintiffs and one minor, I believe, as well. Mm-hmm. I don't know if you do. Yeah, I don't really either.

It's a small class. Right. I mean, the largest the class can be is you do. Yeah, I don't really either. It's a small class. Right, I mean, the largest the class can be is 50 people. Yeah. But class actions are a whole other thing that isn't really that relevant because regardless, they certainly have standing on behalf of the plaintiffs. Now, there's an organization as well that's sued

claiming that they're sort of the only organization that provides charitable resources to people in this exact position. I don't know. But this lawsuit will move forward because they've got three people who were on the plane. Yeah. It runs through the facts, as you say, David, and we haven't seen refutation of that. It doesn't really matter for these preliminary hurdles that it'll have to jump through because we assume all their facts to be true for our sort of initial look at this. The causes of action, though, were pretty fascinating to me. First of all, there's a million. Yes, it's through causes of action on this case, like croutons on a salad.

First cause of action, violation of Fourth and Fourteenth Amendment illegal seizure false arrest. Now, defendants acted under color of state law under 1983. Yes. The Fourth Amendment protects individuals from unreasonable seizure. Yes. Yes. Yes. By fraudulently inducing individual plaintiffs to cross state lines, defendants unreasonably seized plaintiffs without just cause. Hmm.

Going to need to show your work there. Now, I'm not saying that there isn't case law on this point. That's right. saying that there isn't case law on this point. That's right. And so, but the next one is what gets me, particularly after the individual plaintiffs had boarded the airplanes and were mid-air, plaintiffs were not free to leave and were induced into that condition through false promises and misrepresentation. This constitutes a governmental termination of plaintiff's freedom of movement. This actually runs into the second cause, which is a substantive due process claim under 1983 that they were deprived of liberty without due process of law defendants robbed individual

plaintiffs liberty in the most basic sense denying them freedom of movement without just cause by putting them on the airplane um the airplane part of this is not persuasive to me whatsoever. No, no, no. The fact that you're on an airplane and not a bus where you could in theory say, stop the bus, I want to get off. Which is purely theoretical because the fraud continued until they landed.

So nobody wanted to get off the plane. Again, when you think about the Fourth Amendment, you think about like custodial, like were you free to leave? I get that when you're on a plane, you're not free to leave, but they got on the plane through fraud is what alleged here.

But it's not then that being on the plane violated anything. They weren't asked questions. They were simply being transported from one place to another voluntarily but for the fraud, if that makes sense. Equal protection claim

that they were targeted because of their race and or national origin. I would say it was their status, not race or national origin. Because if you were a legal, if you were a, if you were here from Venezuela on a student visa, you wouldn't be on that plane. Correct. And we're not.

Then several other sort of 1983 related clauses. I'm now on the sixth, still 1983. Seventh, 1985, conspiracy to deprive someone of their civil rights. Number eight, oh, violation of the American Rescue Plan Act, Coronavirus State Fiscal Recovery Act, fun. Another, now we have common law, false imprisonment for number nine. Number 10 is fraud and deceit. Number 11, intentional affliction of emotional distress. Number 12, negligent infliction of emotional distress. So David, I think the fraud claim is good based on that pamphlet. Yeah. I think that to me, this stands or falls on the fraud issue. That's what it stands or falls on. All of the rest is noise and all of the rest are croutons. The salad is the fraud allegation. And the question is, what are the

actual statutes? What are the actual remedies available? And it is the fraud allegation that, quite frankly, separates this from some of the Ducey, Abbott, and Biden. You know, the transportation of migrants from one state to another, not only is there nothing wrong with that, there's a lot right with that to sort of say, no, wait, migrants shouldn't be clustered in these distressed communities on the border. A rational national policy of absorbing migrants says we're going to take them from place from hyper concentration, places of hyper concentration to other communities that can absorb them. And if migrants are told this is what's happening, it's pursuant to a national plan, preferably even the Abbott stuff where if they're actually truthfully told

where they're going and they're given a chance to say yes or no, all of that is far better than just flat out lying to folks. And if you just flat out lie to folks, you got a problem. And I don't understand why they created this brochure. And by the way, the allegation is that they themselves

made and printed this brochure. Yeah. Why? You didn't need to. Surely you could have found 50 people and said, hey, we've got a plane. It'll take you up north. There's this place, you know, it's called Martha's Vineyard.

You know, we think they'll have jobs up there, at least more than here. We're feeling pretty overwhelmed. You're telling me you couldn't find 50 people that way? Yeah, we're going to take 50 of you, drop you in one of the wealthiest communities in the United States, and there's going to be a lot of nice people there to take care of you and help find you shelter in another place. They could have gotten 50 people who had no place to go. I mean, my gosh, they'd come to the United States of America without any assurances whatsoever. Right. You can still give them McDonald's gift cards. That's not a problem. I don't know why that is fraud. I get the like inducement to get on the plane. But to your point, David,

nothing wrong with inducing people to get on a plane. You just can't commit fraud. Right. And, you know, the other thing about this, and again, I, you know, from the political standpoint, DeSantis has now had days on Fox, you know, making all of his points. And from a political standpoint, this is likely to redound to his benefit. But from a, benefit. But from every other standpoint, my gosh, this is a stunt with a capital S. I mean, you're talking about chartering planes. You're talking about taking migrants who are not in Florida through the use of Florida state funds and sending them to Martha's Vineyard to get on Tucker. That's the whole reason. I mean, at least with Abbott, you can say,

we have too many migrants in Texas and he's got a point. He has a tremendous point. These border towns are being overrun. Who can look at that and say, oh, that's fine. Everything's good. Nobody can look at that. And so Abbott has a point. Now, does Abbott execute on his point in the way that he should? We can argue about that. But Abbott's got a point. Ron DeSantis has no point in taking 50 migrants from Texas and putting them in Martha's Vineyard. This is all about the Tucker hit. All about it's a troll. It's a troll is what it is.

But that's not legally relevant. It is not. If again, if he had done everything by the book and did it so that he could get on Tucker every night, no legal problem there. Or else you could argue that like everything a president does is so he can up his approval numbers. Like, duh. Politician got a politician. Right, right. No, the legal issue here centers around the fraud. And, you know, I've seen some questions raised about Florida appropriations. I've seen some questions raised about Florida appropriations. I would say this about my ability to assess Florida,

the law of Florida appropriations. You know how we give malpractice warnings? That would be a malpractice guarantee. If I tried to argue and talk about Florida appropriations, I'd just go ahead and guarantee you, listeners, it would be malpractice. So I've seen that talked about a lot online. The other thing I saw floating around in the first few hours

was basically the illegal transportation of illegal aliens in the country. They're like, if you take illegal aliens across state lines, furthering their status, you know, blah, blah, blah, and like basically human smuggling. And they're like, aha, DeSantis committed human smuggling. You will notice that's not in this complaint, by the way.

Yeah. Nothing about that because it has to be in furtherance of, you have to be trying to help the person stay an illegal alien. These people had already turned themselves into authorities. No. And that was some bad legal takes on Twitter and elsewhere. Bad legal takes.

Almost exclusively from non-lawyers. And it really, I get it. Someone was wrong on the internet and it's bothering me. But like, it does when people are telling tens of thousands of people, they're like, aha, it's a crime. We found him. And then people lose faith in the justice system and the rule of law

because Ron DeSantis didn't get arrested for smuggling aliens. Ron DeSantis is not a coyote. No. Can I recommend that people follow the Twitter account, Bad Legal Takes? It is pretty fun, actually. It's really actually good.

And it's good on two ways. One, I haven't seen them mislabel a good take as a bad take. Nope. Like they tend to pretty much take... Even politically unpopular takes. Exactly. And that was my other point. Number one, they seem to be pretty accurate.

And number two, even if everyone on Twitter is loving the take, they're not afraid to gore a lot of oxes. So it's a pretty educational account, actually. At least you can have education by subtraction that at least you know what ain't right. Now, if you're not on Twitter, please don't get on Twitter to follow Bad Legal Takes. Keep your mental health in check

by staying off the sewage platform. David and I are on there for you. Not often, but I'm on there. I think according to reader surveys, now all of our readers are not also all listeners. So if you're a listener and you're not a reader, shame on you. You need to read as well. But about 70% of our readers are not on Twitter, which could be one of the reasons why our dispatch comment community is one of the healthiest on the internet. It really is. Yeah. So here's some assignments for dispatch, or here's an assignment for dispatch listener, I mean, for advisory opinions listeners. How dare you, David?

I'm so sorry. I'm so, that's, let's just leave that in as a badge of shame. Yes. Yeah. So advisory opinions listeners, I am curious if we have any class action legal lawyer listeners, and I'm sure that we do, and who are members and can comment, how small of a class is too small of a class for certification? So David, I said, you know, we're not class action experts, but let me run through federal rule 23A, just so everyone understands the factors. And I'm not an expert on these factors, how they've actually applied in real cases in real life. But I can read Rule 23a.

Here are the factors. One, the class must be so numerous that joinder of all members is impracticable. Two, there must be questions of law or fact common to the class. Three, the claims of the representative parties must be typical of the claims of the class. And four, the representative parties will fairly and adequately protect the interests of the class. And four, the representative parties will fairly and adequately protect the interests of the class. So there's no question on number two, David, there must be questions of law or fact common to the class. You have three people who are on the plane, all 50 on the plane have the exact same claims. The only distinction would be like, maybe some people didn't get the pamphlet, some did, or some people got a different thing, like maybe, but more than likely, at the point that you're on a plane together, you're probably passing around the pamphlet anyway. Number two factor, absolutely met.

Typical of the claims of the class, that's sort of the same as number two in this case, I think. Whether the representative parties will fairly and adequately protect the interests of the class, I think they will meet that. They have resources. They have, you know, a good complaint here that certainly has lots of croutons. So, David, number one, the question you just asked, I think, is the most relevant question. So numerous that joinder of all members is impracticable. I do have one case citation here where a case found that at least 40

members was enough. Here we have 50. But I think there's a second part to this. So numerous, they're not that numerous. 50 is a relatively small number. But joinder of all members is impracticable? At this point, that is probably true. These are people who do not, who are going to be difficult to get in touch with. If they're scattered. So that is my sort of more detailed question

to our class action experts. What are sort of the factors under factor number one? Is it the numerous or is it the impracticable? Good. That's a good narrowing of that question. All right, Sarah, do you have anything else? Oh, correction about the corgis. Oh, a corgi correction.

Okay, does this make King Charles III look a little bit better? It does. I don't know. It doesn't matter. So, A, it turns out that the corgis were a gift to the queen from Prince Andrew and Fergie. A, I don't know that that cuts either way. Like, people can give you presents and you don't just get to give back the present to that person.

That's not necessarily in the best interest of the dog. Two, it turns out that Andrew and Fergie do live together still. Didn't know that. Did not know that. Yeah. Three, Prince or King Charles is not going to live in Windsor Castle. So actually, they weren't going to stay in Windsor no matter what. Okay.

And four, he already has dogs. And so maybe it's not great to like mix the dogs. I don't know. And are the dogs King Charles Spaniels? Because that would be amazing. I didn't even know there was a breed called King Charles Spaniel. What don't know. And are the dogs King Charles Spaniels? Because that would be amazing. I didn't even know there was a breed called King Charles Spaniel. What? I know. Sorry.

What? David. I know. Useless. Anyway, you know, AO strives for accuracy in all things. And while I don't think I said anything necessarily inaccurate, certainly did not include a full picture of the future life of the two Corgis. So for that, I absolutely apologize. Well, we appreciate the clarification. Yeah.

All right. Well, we will be back next week. And with the pace of legal developments in the United States of America. Oh, and I should say that our next Advisory Opinions recording is going to be a live podcast at the University of Michigan. So if you're a University of Michigan law school listener, please come by. It's going to be recorded at lunch on Monday at the University of Michigan Law School. And we are looking forward to going into Ann Arbor in late September. I'm especially looking forward

because it is going to be 96 degrees today in Nashville, Tennessee. Woo, spicy. Which is an absurdity. So I'm looking forward to Ann Arbor in late September. So we'll see you there to some of our advisory opinions listeners here at the

University of Michigan Law School. And to everyone else, you'll hear from us next Tuesday. And until then, please rate us, please subscribe, and please check out thedispatch.com. So now I've screwed it all up.