Advisory Opinions - Lawless or Just Unwise?

Episode Date: February 14, 2025

Is President Donald Trump breaking the Justice Department or simply reshaping its priorities? As federal prosecutors resign, Sarah Isgur and David French debate whether we’re looking at another Saturday Night Massacre—and whether that’s how the justice system should work. The Agenda: —What is (and isn’t) lawless? —More on the independence on federal agencies —One magnificent speech away —Justice Brett Kavanaugh on fiduciary discretion —“F— cheerleading” Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, just to take a moment, Stanford gave us each huge loaves of homemade sourdough bread. Nobody's topping that. Okay, well, let's just be very, very, very clear here. It was not Stanford.

It was not the institution. Okay, yeah, sorry. It was a very lovely person, a member of the Federalist Society, and I don't know if she wants us to out her name on the podcast, but she made just spectacular sourdough bread for us. And I put it in my backpack. And so I carried it with me in my backpack all the way home. Yeah, we're still eating it.

We had it last night for dinner as well. Just, my point is this, future chapters who want us to come speak, up your game. Oh, without question. I mean, seriously, the Fresh Sour Joe Bread is the new baseline. That's right. You must improve on that. Good luck.

If it's not at least that, then just don't even bother. All right. We have a full podcast today. David, I want to start with the Saturday Night Massacre that happened on a Thursday at the Department of Justice. Now, Saturday Night Massacre was when Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor, and then Elliot Richardson resigned rather than fire Cox. Then Nixon ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus refused and resigned. So by the way, fun fact, who's the one who actually fired Archibald

Cox? I'll give you a second. That's right. It was Solicitor General Robert Bork. Just, you know, fun facts in history. So why do I mean there was a Saturday night massacre at the Department of Justice on a Thursday? Well, after the number two official, who's the acting Deputy Attorney General at the Department of Justice, ordered the Southern District of New York and the Public Integrity Unit at the Department of Justice to drop its charges against New York Mayor Adams. In fact, the Trump appointed Acting U.S. Attorney for the Southern District of New York resigned rather than drop the charges, as did the number one and number two officials at the Public Integrity Unit. And all of the AUSAs principally responsible for the case were placed on off-duty administrative leave pending investigations by the Office of the

Attorney General and the Office of Professional Responsibility. In terms of who's actually going to dismiss this case since everyone who's been asked to do so has declined and resigned, the letter actually says the prosecution of Mayor Adams is transferred to the Justice Department, which will file a motion to dismiss the charges pursuant to Rule 48 of the Federal Rules of Criminal Procedure. So I actually do not know at this point, literally, who's going to file the charges to dismiss other than the acting Deputy Attorney General himself potentially. But the back and forth was really something. This is from the letter.

The acting Deputy Attorney General, Emile Beauvais, sent, I have accepted your resignation based on your choice to continue pursuing a politically motivated prosecution, despite an express instruction to dismiss the case. You lost sight of the oath that you took when you started at the Department of Justice. Now, if you're curious about Danielle Sassoon, who was the, again, Trump-appointed acting US attorney for the Southern District of New York. She was a long time assistant US attorney, so federal prosecutor at SDNY, and a law clerk to none other than Justice Scalia, and before that, Judge Harvey Wilkinson,

member of the Federalist Society. In fact, I'm actually reading her bio on the Federalist Society website. So, super lib, David. Trump appointee. So, I guess my point in all this is to say, first of all, this was the thing we were prepared for in the first Trump administration. We did fire drills on this and talked pretty openly about what would cause someone to resign, what that

would look like, who would actually carry out the order, who would be the Robert Bork staying behind. So for it to happen here in the first month of the administration is really something. For it to happen over dropping charges against New York Mayor Eric Adams, a prosecution, by the way, that we said, David, that was going to be somewhat complicated, that line between bribery and just good old fashioned non-criminal corruption. But it leads us to, I think, a short conversation we should have on lawlessness because we talked about it a little on the last episode. This is the idea that, where is the line? When do we start saying that the president is being

lawless? For instance, doing something that is later found unlawful, not lawless. Every president from the beginning has done that. I mean, Adams, Jefferson, Biden, Trump. So saying that you don't think the 14th Amendment encompasses birthright citizenship, not lawless. Might be a bad argument, might be a losing argument, not a lawless argument. You know, and in fact, as we've talked about before,

and I believe we also mentioned this at the Stanford event, we actually have made very, very deliberate accommodations for filing lawsuits designed to challenge existing law. So if you were doing something that is deliberately designed to be channeled into the judicial process to see where the law is and to see what the limits of the law are. Our system is designed for that. Now, it could be dumb. You could have a dumb argument.

It could be a weak argument. It could, but the only time you're really beginning to get to lawless and the actual challenging of a law, as opposed to disobeying, challenging is if you defy a final binding judgment of the court. That's when we're talking about lawlessness. So when we're talking about the Trump executive orders, so long as they go through the judicial system, and the judicial system ratifies or rejects these orders and the administration complies, what we have seen is not lawlessness.

It's just a more aggressive testing than we've seen in a long time. And I'm so glad you brought that up, Sarah, because this is a very, very important point because a lot of folks will say, well, you know, Biden was just as lawless because of student loans or Obama was lawless because of DACA or Bush was lawless. And then you go through this. No, no, no. They had a legal theory, a credible legal theory that they were testing through policy. And that is not lawlessness. It might be unwise.

There can be circumstances where it might even be immoral, but it is not lawless. And I think that's a great distinction to make. So let's move over now to the criminal side, right? Because that's all the civil stuff we've been talking about. All those EOs are civil. On the criminal side, so far, what we have seen is this administration dropping charges against its friends. What we've seen so far, David,

is dropping charges against its friends. We have not seen prosecuting its enemies. I wanna be clear, both of those things are bad. One of them is worse. I think prosecuting enemies will be a difference in kind and a Rubicon. Use all the metaphors you want about a line that is crossed, similar to ignoring a court order in my view. I assume you agree with that.

Yes. Yeah. Dropping charges can be tough, right? Because there's all sorts of reasons to drop charges. They're claiming that the reason for this is they want to put all resources toward immigration and violent crime. I don't agree with that, but it's not crazy. There are limited resources and it does take enormous resources to bring charges against, for instance, the sitting mayor of New York. It's just true. It takes a lot of extra resources.

Maybe it shouldn't blah, blah, blah. But again, I don't agree with it and I don't like it, but it is different. Let me, let me agree with a caveat. So here would be the caveat. If you're saying that we are dropping the case, not because we're doing a favor for Eric Adams after he has cozied up to Trump, but because of prosecutorial discretion and resource allocation. I would be interested to see what they do with other white collar cases, because I guarantee

you the case against the mayor of New York, while complicated, is not outside the realm of a complicated white collar case. These cases tend to be complicated. So if you have a dropping of the charges with Adams, but you continue to prosecute, say, securities traders and others according to normal processes, even though these are very resource intensive, then you start to look askance at the state of justification.

I agree. I will say, however, they did say that they were gonna pull a bunch of resources from white collar criminal prosecutions entirely and move them onto immigration. Again, something you can say is unwise, stupid, immoral, all the words, but it's not unheard of. Cause in fact, we've, each administration has done versions of this pendulum.

When Obama came into office, he moved a lot of the prosecutors onto white collar crime. Remember this was in the wake of the 2008 financial crisis, something that seems, you know, very politically popular, I would argue. Then when Trump comes into office in 2016, moves a lot of prosecutors off of white collar crime and starts moving onto gun crimes and violent crime prosecutions and immigration. Again, makes sense in the political moment. Presidents have Department of Justice policy that the department carries out, including its prosecutorial discretion.

Another thing I want to mention though that isn't lawless, David, is what the acting deputy attorney general did in demanding that the case be dropped and what Danielle Sassoon did in resigning. This actually is how it's supposed to work. You get an order from your boss, something that you think is unlawful or immoral or anything else in between. Your duty at that point is to resign. Register your objection and resign. Yes.

That's right. Say, no, I won't do that. You can fire me or I'll resign, you know? And I guess as weird as this is, it's sort of like the Skokies marching in Illinois, David. And I said that was a really proud moment, I thought, for our legal tradition in this country and for the First Amendment, that the worst people have a right to free speech. Similarly, the Saturday Night Massacre is a proud moment in Department of Justice history. This should be too. Yeah. Resigning, objecting and resigning is an honorable thing.

And you know, I'm reminded when General Mattis did the same thing. He objected to the withdrawal from Northern Syria and abandoning of our Kurdish allies. He stated his objection, but said that the president should have a secretary of defense who is going to carry out his policies. And so he resigned. And so, yeah, I'm with you 100%.

And why is it important to say this? Let's just stop for a second and say, why is it important to parse between unwise, immoral and lawless? Well, because if there's one thing that we have learned in the last 10 years, guys' words matter, They matter. And if you want to make an argument against MAGA, if you go too far, if you go, if you overstate your case, we have seen the same pattern for 10 years, then what happens is the scandal becomes your overstatement and not the actual guts of the thing that occurred. And MAGA is

very good about this. This is what right And MAGA is very good about this. This is what right-wing media is a machine about this. So if Trump does something unwise or immoral, and then there's somebody out there who says, it's also lawless, then it is days of, this is not lawless, look at the left lying about Trump, and the whole story becomes the left lying about Trump or never Trumpers lying about Trump.

Sorry, Adam, I'm coming down with something again. And so this is a pattern. This is a pattern. Now, is there bad faith replete through that? Yes, of course. You should defend the action on its merits and not just attack the overreaction on the other side. But this is a pattern we've seen again and again. And so it's

not just a tactical thing that MAGA really capitalizes on overstatement. It's also just normal. It's for civic education. What is lawless? What is unwise? What is immoral? These are different things. These are different concepts, and we should speak about them differently. How is an American company helping to end smoking? PMI-US is on a mission. A mission to improve public health by developing science-backed, innovative, smoke-free products.

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That's A-U-R-A frames dot com promo code advisory. Support the show by mentioning us at checkout. Terms and conditions apply. Next up, David, you and I tease that we were going to talk about two different law review articles written by now justice Brett Kavanaugh when he was on the DC circuit and how they speak to executive power, separation of powers, prosecutorial discretion, all of those things. I think it's an interesting conversation in the theoretical. I think it's an interesting conversation in the now less theoretical. So one of these is from 2009, one of them is from 2014. We'll put them both

in the show notes. They're both taken from speeches that he gave. Well, I think one thing that is an interesting takeaway from this is he does, especially in the first article, a really interesting job of saying, based on his own experience, what should the law be versus what it is actually constitutionally? But what should be, what privileges should be afforded the executive, I think is a really interesting, a series of interesting issues that he raises in the Minnesota Law Review article. And I found the Notre Dame Law Review article much more interesting on what are the limits

of the president's constitutional authority? Again, this is talking about, say, prosecutorial discretion, the president's ability to interpret the Constitution, etc. So one feels more programmatic and one feels more conceptual. Yeah, I think that's right. So let me read you a few different pieces, now taking from Notre Dame where he's talking about the Constitution structurally. And he says, the danger to liberty, the framers knew was concentration of power. As Madison explained in Federalist 47, the accumulation of all power, legislative, executive, and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed,

or elective may justly be pronounced the very definition of tyranny. It goes on to say, there would be no one person, no king or queen, who could simply declare the law, and the system was designed to be difficult. Keep this in mind today, he writes. The framers wanted it to be hard to pass legislation. Legislation that attained broad support was less likely to be oppressive, to unfairly benefit one faction at the expense of another. Is it possible we based our whole podcast after this article that we hadn't read yet,

David? It could absolutely be. So his point here at the top is the whole way to read the structure of the Constitution is toward liberty. It is a liberty preserving document. And I think that's really interesting as we think about these questions and we're going to try to count to five, if you will, on any given of these questions that Trump is pushing that

are going to make it to the Supreme Court. For Justice Kavanaugh, the structure of the Constitution is to preserve liberty. In some ways, for instance, when you look at the unitary executive theory and independent agencies, protection for civil servants, there's an argument at least that that doesn't really advance the protection of liberty because it doesn't allow for holding people accountable, right? There's no one, you can't remove the head of the Securities and Exchange Commission as a voter and neither can the president.

Rutrow, that does not seem very liberty protecting, which is why I think we've described Justice Kavanaugh as a pretty strong Unitarian. Yeah, you know, there's this interesting segment of the Minnesota article where he says independent agencies are constitutional under Humphrey's executor, but what is constitutional is not always wise. Now remember, he's writing this when he's not on the court, when he doesn't have the ability to say that Humphrey's executor was wrongly decided. So he's in this position where he has to follow the precedent.

But he then goes on to say, there is reason to doubt whether the elaborate system of numerous independent agencies makes full sense today. This goes back to our conversation with Aaron Hawley, at least as to the rulemaking and enforcement activities at certain agencies as opposed to their adjudicatory functions. The independence those agencies enjoy from presidential direction and supervision may weaken the executive and strengthens Congress hand in the Washington power game, but this

independence has clear costs in terms of democratic accountability. So where is the democratic accountability, which is a key protection of liberty? I mean, it's not the only, obviously, because we have a bill of rights and the civil war amendments, but democratic accountability is a key protection for liberty. Also, look at this. This paragraph was really interesting, and I'm going to now use it forever and ever. So don't be surprised when I'm going to now use it forever and ever. So don't be surprised when I'm using these examples down the road. He's talking a lot about how the administrative state, some of which involves these independent agencies involve, quote, an extraordinary amount of duplication, overlap, and confusion

among the missions of different agencies. Whether it is the Department of Justice's Antitrust Division overlapping with the Federal Trade Commission, the Commerce Department overlapping with the Federal Communications Commission, the Department of Energy overlapping with the Federal Energy Regulatory Commission, the Department of Labor overlapping with the National Labor Relations Board, the Security and Exchange Commission overlapping with the Commodities Future Trading Commission, and the Treasury Department, or the FBI overlapping with the Drug Enforcement Agency. There are problems wherever one looks.

Overlapping responsibilities means redundancy, inefficiency, conflict, and unnecessary finger pointing. So the only way to fix that, David, is to allow a president to streamline it. But if Congress has created each of these agencies and you can't touch them or change them or move them, then of course a president can't do that. And that, of course, to that larger structural point, is not good for liberty because then no one can fix it. And now you have, let's call it the 9-11 problem, where nobody calls the ball as it's coming

over the volleyball net. Everyone thinks someone else is going to get it and it hits the ground. Gosh, Sarah, do you know how much I wish that we had an actual rigorous constitutional thinker in the White House, or at least semi-rigorous, you know, somebody who knew about this stuff, who had energy for reform and could attack and could tackle it in a thoughtful way? Because I think he's right, you know, And one of the things that we can't do as we look at various Trump executive orders

and say that one's bad, that one's bad, that one's bad, we can't make the mistake of then defaulting to the defense of a system that needs reform. And this has been a big problem for Trump opponents from day one, which is Trump is coming in like a populist wrecking ball at aiming at a status quo that is unsatisfactory, okay? You can say that Trump might be worse,

that the cure is worse than the disease, but do not say there's no disease. And so what you end up happening is a lot of discontent people fell to Trump because he was the only one who was expressing and sharing their discontent. And so this was a huge problem. And it was always a little bit weird to me because you began to see parts of the left who had long

waxed eloquent about their distrust of the FBI or the Pentagon or various government agencies just like leave the FBI alone. Where did that come from? Well, what that came from was negative polarization. So Trump is attacking the FBI. They're going to defend the FBI when in reality, it might be better to say rather than defend the FBI whole, in the whole, you know, the whole entirety of the FBI, join in the critiques that you agree with and refute the critiques you don't agree with.

Oh, David, this reminds me of one of the best lines from the movie, The American President, starring Michael Douglas and Annette Benning before the West Wing. You may remember it and I will do a dramatic reading of it. This is Michael J. Fox's character, if you remember, Louis Rothschild. And he says, they want leadership. They're so thirsty for it, they'll crawl through the desert toward a mirage. And when they discover there's no water, they'll drink the sand. And President Shepard says,

people don't drink the sand because they're thirsty. They drink the sand because they don't know the difference. First of all, it's a very Aaron Sorkin line because I don't really like think he knows what he means exactly there. But boy, I actually feel like you're 30 years later. Well, huh, they're drinking the sand right now. Is it because they're that thirsty

or because they don't know the difference? And then when I see Elon Musk's tweets, I'm like, well, actually, maybe it's because they don't know the difference. Yeah, no, I think that could be right. I think, and by the way, just as a pop culture aside, that there was a certain period in American entertainment where we had three, do you remember the movie Dave?

I'm sure you do. The American president, West Wing, and they all had this sort of view of the president that if you get the right guy up there and he delivers a speech beautifully, powerfully, then it shames his opponents, wins over the public, and solves the crisis. And once you see that dynamic in some of these movies,

you can't unsee it. It's like the magic speech, which is phenomenal for television. And look, I'm not gonna say there haven't been some magical speeches in American history. Checkers. Checkers. Checkers.

I was thinking more these are the boys of Pointe du Hoc than checkers. Or checkers. Or checkers. We're keeping the dog. Yeah, it's a Gettysburg address, more than Checkers. Checkers. But, I mean, does any speech change the course of history more than Checkers? I don't know.

Yeah, I don't know. I don't know. But it is, and it's interesting how much that clings to us, sort of this notion that we're a magnificent speech away, which is one of the reasons why everyone hangs on, well, all the political obsessed hobbyists, hang on the State of the Union, the hang on the nomination speeches,

and you have to do round tables and podcasts after them, and you talk about them and you write about them, and the polls move by nothing, even though somebody will just get up there and like take a dump live and then somebody else engages in like incredibly eloquent oratory and the polls do not move. Like, it's a different era, guys. I want to talk about this other law review article that really dives into prosecutorial

discretion but before we leave the Minnesota one, he does have two recommendations that I just want to throw out there as like interesting little footnotes to your Justice Kavanaugh baseball card, if you will. The first one is that the Senate should consider a rule ensuring that every judicial nominee receives a vote by the Senate within 180 days of being nominated by the president. Six months is sufficient time for senators to hold hearings, interest groups to register their preferences, and citizens to weigh in on the qualifications of a judicial nominee for lifetime office. At the end of that time, it seems that senators should stand and be counted." It basically goes on to talk about blue slips and like,

nope, nope, nope, this isn't working. He also talks about the difference between, for instance, non-judicial nominees, Senate confirmed members of the president's team, basically says like, yeah, those need to go. We need to start moving on those faster, faster. Quit using them as policy blocks. If you're mad the president got elected on the policies he got elected on, you don't get to take that out on the team he wants. Just an interesting note in this moment in time.

But the last suggestion, David, is the one that I'm super into, as I bet you could guess. He's talking about the 22nd Amendment. And David, some of these structural amendments that were added to the Constitution just in hindsight look like mistakes to me. One is the 17th Amendment, the direct election of senators. We've talked about that before and that I'm against it, but I've come around a little more to why it happened in the first place than I had, you know, at the time. We haven't talked about the 22nd Amendment. This is the lame duck amendment

for those who don't have their pocket constitution on their person. Second terms have not gone well, as Justice Kavanaugh points out in this speech. To begin with, the requirement that a president prepare for and anticipate reelection leads to several concerns. It distracts from the business of running the country. It makes it harder for presidents to tackle difficult but necessary issues in their first terms. It leads to the perception,

sometimes fair, sometimes not, of decisions made with an eye toward the electoral college. In addition, eight years is too long for a president and his or her team to stay in top form. The stresses and demands of the job have led to more difficult second terms. Indeed, the second terms of the last four two-term presidents are widely regarded as having been less successful than their respective first terms. One president resigned under the threat of near-certain impeachment and removal, Nixon. One endured the major Iran-Contra scandal and the bitter defeat of a Supreme Court nominee, Reagan. One actually was impeached and tried bitter defeat of a Supreme Court nominee, Reagan.

One actually was impeached and tried in the Senate, albeit not removed, Clinton. And one experienced setbacks in dealing with the Iraq War and responding to a major hurricane, George W. Bush, his boss. Creative ideas to address this problem are worth considering, even if those ideas might seem radical at first blush. One idea is to repeal the 22nd Amendment and return the nation to the original constitutional design. Another possibility is to amend the Constitution to

provide for a single six-year presidential term. A single term is hardly a novel idea. Indeed, at the Constitutional Convention in 1787, the initial vote of the Committee of the Whole was for a single seven-year presidential term. As we know, the framers ultimately adopted four-year terms, which was the rule until the 22nd Amendment ratified in 1951, setting a limit of two four-year terms. David, I love the idea of a single six-year term.

I reject utterly repealing the 22nd Amendment. I like the idea of the one six-year term. I like that a lot, a lot. I think it could have a lot of knock-on positive effects, including the revival of Congress. Yes! Because this is where all of a sudden ambition begins to change, right? So the actual ambition that checks ambition now, and you know, when Madison set it up, he thought it was,

well, if I'm a Speaker of the House, then my love for my own independent authority is gonna be the ambition that checks the President's ambition. But what we now have learned is that if I am the Speaker of the House, I realize that my loyalty to the President of my party is actually far more

dispositive to my real world power because if I depart from the president, I'm probably going to lose my post might lose my congressional seat entirely. So that party membership and that subservience to a presidential leader has become the ambition. And so ambition isn't checking ambition. Ambition is feeding ambition. But if you have a situation where presidents can't run for re-election, that you don't have the potential of presidential power

hanging over, this same presidential power hanging over you again with a re-election, I do wonder if after a period of time, the ambition starts to change and becomes, hey, maybe I can be somebody now. And so I actually like that. I need to think through it more before I'm gonna pronounce my love for it,

but I'm ready now to profess my like for it. I'm so into this. It's going in my pantheon of great constitutional amendment ideas along with making amending easier and getting rid of the pardon power or at least dramatically changing it to maybe an advise and consent type pardon power right up there. It's number three now and not in order. It might be number one in order because of everything you just said about the potential to reinvigorate that ambition, checking ambition.

Okay. So if you remember, we started with the liberty structure of Justice Kavanaugh's views of the constitution. That was in the Notre Dame one in 2014. Then we bounced back in time to 2009 to talk about all of those ideas for how to change things. Now, I want to bounce back to 2014 because he goes on after the Liberty structure point to talk about prosecutorial discretion. And David, the prosecutorial discretion conversation is interesting on its own right because DACA, there's been all sorts of different things that have fallen under prosecutorial discretion, the Cole memo about marijuana enforcement that have been controversial, including dropping charges against your friends, for instance.

But the prosecutorial discretion argument also resonates, at least in faint echoes, when we talk about impoundment and the president's ability not to spend money. So when I read this, think about both, right? About what applies to only criminal prosecution enforcement and what of this theory or ideas would potentially apply to impoundment theory about not spending money. Is that in your discretion as well? We'll call it fiduciary discretion.

Okay, on this prosecutorial discretion point, some might initially think that the executive has a duty to prosecute violators of every law, at least if there are resources to do so. Some might say that it's not for the president to decide not to prosecute violators of a law that Congress has duly enacted. In my view, the history and structure of the Constitution do not support that proposition. To be sure, the president has the duty to take care that the laws be faithfully executed. That certainly means the executive has to follow and comply with laws regulating the executive branch, at least unless the president deems the law unconstitutional in which event

the president can decline to follow the statute until a final court order says otherwise. To our lawless point, David. In other words, the executive does have to follow laws regulating the executive branch. But the take care clause has not traditionally been read to mandate executive prosecution of all violators of all federal laws. Our leading historical example is President Jefferson and the Sedition Act.

We all know the rough outlines of the Sedition Act in 1798 in the throes of the US war against France. Congress, supported by President Adams, passed a law that said it would be a crime punishable by a fine and up to two years imprisonment to write, print, utter, or publish, or cause it to be done or assist in any false scandalous and malicious writings against the government of the United States or either House of Congress or the President of the United States, with the intent to defame or bring either into contempt or disrepute, among other things.

After he became president in 1801, President Jefferson decided that he would no longer pursue prosecutions against violators of the Sedition Act, against those who spoke ill of the government or high officials in that way. Most accepted that Jefferson did not violate the take care clause when he made that decision. The take care clause encompasses at least some degree

of prosecutorial discretion. It does not prohibit prosecutorial discretion. But you still may have nagging doubt, as I often do when I think about this issue. Does the president really have the power to decline to prosecute a violator of the law simply because the president's belief that the law is oppressive? In my view, those nagging doubts largely go away when we consider the implications of the pardon power and the intersection of the powers of prosecutorial discretion and the pardon power. Everyone agrees that the pardon power gives the president absolute, unfettered, unchecked power to pardon every violator of every federal law.

Obviously, there are political checks against doing so or against using the pardon power in an arbitrary manner. But in terms of raw constitutional power, that is the power the president has. Now, if the president has absolute discretion to pardon individuals at any time after commission of the illegal act, it necessarily seems to follow that the president has the corresponding power not to prosecute those individuals in the first place. It would make no sense to make him file a criminal indictment and then pardon rather than just not do in the first place. David, I could spend the next three hours dissecting this like word by word of which things I think fall into an exclusively prosecutorial discretion bucket and which things maybe have

larger implications. So big picture, what do you think about the fiduciary discretion that a president might have? So it's a very interesting question, Sarah, and I would be even more interested in it if we had ever had a position in a time in American history when a president had the capacity to prosecute all of the crimes. Because we've never, so far that I know, that we've never had this moment where presidents and even in any kind of practical matter could prosecute all of the crimes.

Yeah, but if you take the Jefferson point, Jefferson never said he didn't have the resources to prosecute Sedition Act violators. He was very clear. He thought it was unconstitutional. The Supreme Court never ruled on it, but two Supreme Court justices had ruled that they believed it was in fact constitutional under the First Amendment. So take that for what you will. Basically, Jefferson said, I think this law is unconstitutional,

and I'm not gonna prosecute anyone under it because I don't like the law. So the reason why I raise this is because if you have two reasons why you're exercising prosecutorial discretion, one is limited resources, and one is, I don't like this law. You know, it becomes, in that circumstance,

I don't think that presents kind of the test that we need. The interesting test that we would need would, let's imagine you had a Congress pass the law and it said, the president shall direct US attorneys to prosecute every known incident of X. And then the X that they've identified is something that's extremely constitutionally dubious. And that would be, in that kind of circumstance, I think, huh, okay. In that circumstance, I feel as if prosecutorial discretion is not a free-standing doctrine

that the president has no matter what in a criminal context, it is the necessary implication of inevitable presidential discretion in the face of limited resources. And you know what that reminds me of to move it from the prosecuting crimes arena that what that reminds me of is the Biden detention immigration case. So here you have a requirement by Congress to have a requirement to detain immigrants and no provision of the funding to detain the immigrants. So compliance literally becomes impossible. So when compliance is impossible, discretion by necessary implication rears its head. And I that's what I think of when I think

of prosecutorial discretion. I tend to think of it less as an inherent authority of the president in all circumstances than an inherent authority in the face of limited resources, which that to me is a much more defensible notion of prosecutorial discretion than sort of saying, well, you can pass a law, it can be signed, I can either sign it or not veto it, or veto it and it be overcome, my veto is overcome or previous president has signed it.

And then I get this extra, extra check called prosecutorial discretion that's nowhere in the Constitution. But without question, without question, it's a practical matter. It exists. It exists, but it's an accommodation to limited resources, not a concession, in my view, to inherent executive authority in the face of congressional direction otherwise.

So, therefore, your prosecutorial discretion would have no implications for fiduciary discretion, really. Well, you know, one of the things that you can do is if you believe something is unlawful and what you know, one thing that I thought was and I read this at the I read this at Stanford as Kavanaugh said, one of the underappreciated elements of Marbury is that it tells the president that we decide what the Constitution says. Not just Congress, it tells the president that his interpretation

of the Constitution is subordinate to ours. And so I could absolutely see a president bringing a test case saying, I, you know, bring a test case. I'm required to file this case, but I believe this is unconstitutional. I could totally see that happen and then it goes, it gets punted exactly where it needs to be punted in that judiciary. But that is not impoundment. That is simply thinking that a law from Congress that appropriated money is unconstitutional for some reason and challenging it in court. That the president doesn't have inherent fiduciary discretion.

Okay. So here's my, yeah, here's my take. So if you read the Jefferson and the Sedition Act example, that the take care clause encompasses at least some degree of prosecutorial discretion, it does not prohibit prosecutorial discretion. I don't see why that same theory wouldn't apply to fiduciary discretion as well. As in the Sedition Act violates the First Amendment. It is oppressive according to me, so I'm not going to do it. Versus this money which is going to be applied on the basis, given out on the basis of race is racist and unconstitutional and I'm not going to do it. Under that reading of the take care

clause I think the two at least have something to do with one another. That if you think there's clearly separate from what you said, David, not a resource issue, obviously, but just an independent ability to decide that you don't think a criminal law should be enforced because you think it is unconstitutional in the same way you could say, money's not gonna be handed out if I think it's being done unconstitutionally, for instance, on the basis of race. But then he says, the way that you kind of know this is because of the pardon power, and it wouldn't make any sense

to make him prosecute someone to then pardon them. I can't think of an equivalent fiduciary discretion issue. That leaves me a bit torn on the idea of fiduciary discretion and deeply uncomfortable with the idea of fiduciary discretion. As in, I think I'm deeply uncomfortable with Jefferson saying he's not going to enforce the Sedition Act, a law duly passed by Congress, signed by the president just because he doesn't think it's constitutional, even though again, at that point, two Supreme Court justices had said it was.

And I'm all the more uncomfortable because it's so obviously not constitutional and he was right. So I'm on the struggle bus with the take care clause and prosecutorial discretion and therefore fiduciary discretion. David? I don't know. I'm on the struggle bus with you. I don't as a concept fiduciary discretion strikes me as actually dangerous to the constitutional

order. Yeah. Totally. But so does Jefferson not enforcing the Sedition Act, which was clearly a good thing. Though I will note there's been plenty of good things that weren't good. As in outcomes can be good when the process is bad, and you and I are pretty good about caring about process over outcome. So I can criticize Abraham Lincoln for a few things he did where the process was bad, even though the outcome was good. All right, thus endeth our conversation

about Justice Kavanaugh's writings as a circuit judge. Speaking of unitary executive theory though, we did get a really thoughtful question from a listener on this that I have to read to you. I left your discussion this week about the unitary executive theory and while strong unitarianism makes the most sense to me, I'm not sure how to square that

with section four of the 25th amendment. I will read you section four of the 25th amendment as he also provided it to us. Whenever the vice president, a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the president pro tem of the Senate, the speaker of the house, their written declarations that the president is unable to discharge the powers and

duties of his office, the vice president shall immediately assume the powers and duties of the office of the acting of the powers and duties of the office as acting president." Okay, you all kind of know that part, right? It's the idea that the cabinet and the vice president can agree to temporarily remove the president. Doesn't this mean therefore that the cabinet officials possess an authority granted to them by Congress that actively works against the agenda of the president by design? If the idea is that all executive branch officials are merely agents of the president, then presumably a president could by executive order deny them permission to attempt to remove him.

It seems like the fact that Congress can designate anybody as the official president removing authority partially resolves this, since perhaps the moment one becomes secretary of state, they also assume an atextual shadow secretaryship inside the legislative branch and therefore not under the authority of the president. But it still doesn't solve the problem that the vice president can act against the judgment and interests of the sitting president. So David, like the 17th Amendment, like the 22nd Amendment, people be messing around with the constitutional structure in these amendments and they don't realize all that they might

be doing because I actually very strongly believe that the original constitutional framework had a unitary executive. And I absolutely believe that he raises a really good point about the 25th Amendment changing that. Yeah, that is that was an intriguing. I love our listeners and their minds because we get a lot of very interesting messages. We don't have the opportunity to share them all and talk about them all, but we get a lot of very interesting messages. We don't have the opportunity to share them all and talk about them all, but we get a lot. So, and please keep sending them. Please keep sending them. You do help inform our thinking and we appreciate it.

But, but do you think he's right, David? Does it undermine unitary executive theory? Um, well, it depends on how we're going to be defining unitary executive theory. You know, my view of unitary executive theory has always been much more as we've talked about a personnel control issue. Yeah, but if they are all agents of the president, they're clearly not acting as agents of the president when they remove him unless you're going to argue that they actually are because the president by definition at that point is not mentally capable. I don't know. It

gets messy. Yeah, it does. It does get messy. It does get messy. Well don't know, it gets messy. Yeah, it does get messy. It does get messy. Well, let me put it this way. It's a ripcord out of unitary executive theory that says, wait a minute, hold on. We, no matter what you think of the president's authority over the executive branch,

the executive branch can say, okay, we acknowledge that until you're disabled. We acknowledge that until you cannot perform the functions of the office. But hey, look, Sarah, it's a great point. If your employees can fire you, you're not in total charge of them. All right, next up, David,

this is gonna be a long windup to a textual historical question, maybe a text versus history question. So the Arkansas Supreme Court is having a total constitutional crisis and meltdown. To the extent you don't live in Arkansas, you may not have heard much about this, but basically the Chief Justice Karen Baker of the Arkansas Supreme Court has gone rogue. She has decided that anywhere in the Arkansas Constitution that it says the court shall decide something,

that she can decide that on her own. That includes removing members of the judicial like investigatory and discipline body who were investigating her, firing other people who work for the court. At one point, she held a meeting of the justices and live-streamed it without telling them. Yikes. The list goes on and on. Let's just say this is a well-known problem in Arkansas right now. And there's a big question over what they're going to do about it,

if anything. The Arkansas Supreme Court has not issued any opinions in many weeks now. The whole thing has ground to a standstill. Nobody knows what's going on. The other justices are denying her authority to do any of this stuff. She says she has sole authority and they have no say over it. I mean, true constitutional crisis, right? Okay. So now I'm going to read you a portion of the Arkansas Constitution. The governor upon the joint address of two thirds of all the members elected to each house of the General Assembly for good cause may remove the judges of the Supreme Court. I'm going to skip the other people that they can move under that. Okay, so the governor upon the joint address of two thirds of all the members of the legislature can remove the chief justice. What does joint

address mean? Does it mean that the governor just has to give a speech and as long as two thirds show up and in that speech, she gives a reason, it says good cause, that that's enough, that the whole point was just the governor can, yes, remove the judges of the Supreme Court, but she needs to give a good reason and she has to do that publicly. And it has to, you know, it can't be like to two members of the legislature. It has to be really publicly. And we're going to define that as two thirds of all the members. Or is this like a check where if half of the members don't show up, it's like a quorum

as a proxy for voting? Like if you don't show up, she can't remove them. Or does joint address have some sort of historical meaning that actually somehow refers to a vote of two thirds of all the members? Sarah, do you know how much less interesting our podcast would be if people could draft legal provisions or constitutions? So maybe lawmakers, if you don't like our podcast, if you want us to talk less, draft better.

How about that? I think this is tough. I will tell you, my reading is it's to prevent the governor from removing. It's it's to give the governor wide removal authority to prevent them from doing it secretly. And the two thirds is something like, you know, preventing the secret, but also it gives the members a little bit of a check if they don't show up, they've sort of pocket

vetoed it without having to vote. But I think that at the time of the ratification of the Arkansas Constitution, and really at all times of all state constitutions and the federal constitution, they knew what the word vote meant. So Governor Huckabee, at any point here, you can solve this problem going on in Arkansas. Good luck. But Sarah, this whole time, you've been teasing something internally in Slack. It's coming, it's coming. You're very angry at cheerleaders,

which is like a violation of the ethos of this podcast, when angry cheerleader is one of our favorite Supreme Court cases of all time. Yeah. So what is going on? Okay, so listeners, we're gonna let you in on a little inside baseball here. Sometimes if I'm like off doing something and I don't have time, Okay. So listeners, we're going to let you in on a little inside baseball here. Sometimes

if I'm like off doing something and I don't have time, but I need to leave myself a little note to remember to say something on the podcast, I'll just type reminder colon and just a note to myself. And it's basically to let David know he does not need to do anything with that information. It's just for me. So today, should I, I guess I will censor myself, but know that as I tell the story, it would be in the uncensored version. So I put reminder colon F cheerleading and that was it. There was no additional information given and seemed a gray breach to me. Yeah. And David's very upset. He's like in all caps. We are the primary free speech advocates for cheerleaders in the whole United States. Wait, what?

So listeners, this actually involves you. I was asked by one of our business guys today, what sort of short phrases would listeners want on a t-shirt to represent advisory opinions were basically like if they were walking through an airport that like another AO listener would like be able to see that t-shirt and be like, Hey, yo. And I got it now. And if you remember for the angry cheerleading case, what she texted, what she got in trouble for putting on social media was F cheerleading. So if you walk through an airport wearing a T-shirt that said F cheerleading, 99.99999% of listeners, of viewers of your T-shirt would think

that you had a real problem with cheerleaders and you were maybe a bad person. But one person out of a million, out of 10 million, might see your T-shirt and go, nah, dog. Oh man. If it weren't obscene, that would be the ultimate in-group signaling of all time. Okay. So I'm trying to like think about these and you guys should think of them too and feel free to send them in. Obviously they already have like, Na Dog, Marbury versus Madison,

and just like a super cool font maybe. Congress Do Your Job seems obvious. Major Questions Doctrine, very few people are gonna like stop you if you're wearing a Major Questions Doctrine t-shirt. Oliver Wendell Holmes with a thumbs down emoji. This Wolf Comes as a Wolf. I don't know, What else, David?

How about tears of scrutiny, but we spell it T-E-A-R-S. Actually, that's a really good, that might be the best one yet because the font that they were thinking of is like this death metal font. And tears of scrutiny in a death metal font. Oh. Would be awesome. Amazing. I mean, it would feel like a lawyer death metal thought would be awesome. Amazing. I mean, it would feel like a lawyer death metal band.

Yeah. I'm sure there is a lawyer death metal band out there called Tears of Scrutiny, right? Well this is the podcast version of a lawyer death metal band. And the tears should drop into buckets, says Adam. Oh, that's so good. Oh my goodness. This is the stuff right here. This is.

All right. Well, that's why I put it into our Slack, David, as a reminder to ask listeners if they've got anything better. But it turned out I just maybe needed to ask you. So with that, no doubt we will have so much more to discuss on the next episode of advisory opinions. Thank you for joining us. Good night.