Advisory Opinions - Meet the Faithless Electors

Episode Date: May 14, 2020

David and Sarah discuss 'unmasking' and Michael Flynn, Supreme Court oral arguments over the president's financial records and "faithless electors," and Wisconsin administrative law. Show Notes: -The Flynn case isn’t over until the judge says it’s over -Transcript of Michael Flynn sentencing proceedings -Trump v. Vance oral argument transcript -Trump v. Mazars USA, LLP oral argument transcript -Colorado Dept. of State v. Baca oral argument transcript -Chiafalo v. Washington oral argument transcript -Wisconsin Supreme Court blocks statewide lockdown Learn more about your ad choices. Visit megaphone.fm/adchoices

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And you can get up to $4,100 with a new TD Mortgage. Offer ends October 31, 2024. Conditions apply. Visit td.com slash tdmortgagedirect. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And so much law is happening right now. It's so hard to keep up with it all. And it's none of it's obscure law.

All of it is headline making law. And we're going to hit the high points today as well as we can. high points today as well as we can. So we've got multiple extremely interesting slash crazy slash unprecedented developments in the saga of Michael Flynn. We've got a Supreme Court oral argument to discuss regarding subpoenaing the president's personal financial records in various contexts and from various institutions. We've got a faithless elector case. And if we've got time for it, we might even talk a tiny bit of Wisconsin administrative law, which I'm so unfamiliar with that when I just open my mouth about it, I'll probably commit malpractice, pundit malpractice. And then we're going to wind up with a discussion of what is the best historical fiction drama on television ever. So Sarah, that's a lot. And you know what we're not going to get to,

but like shout out to it happening. So the fourth circuit just en banc, meaning all 15 judges on that court, flipped the dismissal of the president's emoluments case, which makes a circuit split, which means almost certainly the Supreme Court is going to have to take that up in the fall. So we're not even going to talk about that. We're just going to skip over it. So the Fourth Circuit, you say, because this is news to me, and that's pretty surprising coming from the Fourth Circuit. Yeah, this was not the D.C. Circuit. Fascinating. Okay, so much law is happening. All right, so let's get started on Flynn. A couple of things happened yesterday. So sort of phase one of Twitter freakout was there was a leak, or not a leak, a disclosure of individuals who sought to unmask Flynn.

And so, Sarah, do you want to sort of walk through what unmasking is, why it happens, and sort of give your first pass on what you thought of that? So when our intelligence community picks up chatter, their recording conversations, sometimes incidentally, American citizens' names will get mentioned between two foreign people. When that happens, the intelligence community masks those names, as in hides them, so that if you get that transcript or that intelligence report, you don't see the name of the American citizen that is mentioned incidentally in that conversation. If you, the reader of that intelligence report, say, well, this actually seems very relevant. Whoever they're talking about is, for instance, an American citizen who is helping them bomb this embassy, I want to see who the name is. You can make a request back to that intelligence agency to, quote,

unmask the name of the American citizen. This may sound like it's kind of rare, but it's not. I don't have the numbers right in front of me, but it's definitely five digits from the past, you know, from 2017 and 2018 and 2019 or roughly, you know, 10,000, more than 10,000 names get unmasked in these intelligence reports every year. What makes this unusual is obviously Michael Flynn, Michael Flynn's relationship to the Obama administration and Michael Flynn's relationship to the Trump administration. And who's on the list of who got his name, which includes obviously Joe Biden. That's what's making headlines. And that his name is then leaked, which is not OK and a big deal. However, of course, we have the, you know, dozen plus names that his name was, quote, unmasked to, but we don't know who leaked it to reporters. Right. So I have some of those numbers. In 2018, so this is in the Trump administration, the National Security Agency handled about 17,000 unmasking requests.

It's a lot. That's a lot. 10,000 in 2019 went down, but still, that's a ton. So unmasking requests it's a lot that's a lot ten thousand in 2019 went down but still that's a ton so unmasking by itself is really uh almost the definition of routine what is not routine is if a request comes from say the vice president of the united states that would not he's not making 17 000000 unmasking requests. Bear in mind, this refers to his office. And I think it's probably more than you think it is. But, but, you know, really the vast majority of these are, you know, so-and-so money launderer from foreign government is talking to other money launderer from foreign country. And they're mentioning their buddy who's helping them, who's an American citizen. And so, yeah, someone within the intelligence community also wants to

know who that is and whether it's someone they need to look into. And I would say if you are having a substantive conversation about American policy with the Russian ambassador, you're probably going to be unmasked. I think that's a pretty safe assessment. Right, because bear in mind what's showing up in that intelligence report is presumably two Russians talking to each other and multiple times mentioning, you know, so-and-so is about to have a very, very high-level position, if not the highest position within the Trump administration. He said X, Y, and Z, but like every time they say this, you can't see the name. Right.

And you're like, yeah, I definitely want to know who that is. Yeah. So this is kind of where my head's been at from the beginning of this, that unmasking, which is a name that sort of has, it almost kind of has like a sinister overtone, sort of like you, it's like you imagine a person's walking, trying to be disguised and just ripping the mask off. Unmasking, relatively routine. You should expect that you're going to be unmasked if you're being brought up in substantive conversations between, say, ambassadors or senior staff in an embassy.

or senior staff in an embassy, that doesn't alarm me. The real problem is leaking because unmasking is revealing your identity within those who hopefully have a need to know. But the leak, that's taking it public. you know, you're disclosing classified information in that circumstance. And so the leak from the beginning has always seemed to me to be the real problem here. It's a huge problem and really hard to ever track those down. Leak cases are notoriously hard to investigate. Really, really hard to prosecute because the, you know, leaking is not a crime. The unauthorized disclosure of classified information is a crime. Right. But in order to prosecute it, you have to disclose classified information in court. Yes. So there's a bit of

a catch-22 there. So that's a big, big problem here. And that's why so many people are against these long lists of unmasking not the number of names not the 17 000 but how many people a person is getting unmasked to because what you want in a leak investigation is the smallest number of people possible to go investigate for leaking right right so that that was the was the controversy that erupted earlier in the day yesterday. And to me, it kind of was pretty simple. It was unmasking, barring some extraordinary information to the contrary, okay. Leaking, not okay. So we kind of began to have a, we kind of thought we knew where all this case was going. We're going to have a big argument about the unmasking and we're going to have sort of the argument, and it was going to play out on predictable partisan lines.

But then the judge. Enter Emmett Sullivan. So the judge in Michael Flynn's case enters in the interests of amici, however you pronounce it, in other words, friends of the court who are going to try to argue that the judge should not dismiss the case against Flynn. This is unusual. I never heard of it, but I'm not a lifelong U.S. attorney or federal of Justice's motion to dismiss the case in the first instance after a plea had been taken and reaffirmed. And so, we're now in extraordinary uncharted territory. And there were two aspects of this order from the judge. Aspect number one was appointing essentially outside counsel to argue against both the prosecution and the defense. And also, the judge was essentially telling the defense, Michael Flynn, to show cause why he hasn't committed perjury in the course of these plea agreements. Criminal contempt.

Yes, which would be contempt, criminal contempt. Now, okay. Of the court's own authority, basically. You don't need to be prosecuted for that. The judge can hold anyone in criminal contempt of his court, and if you commit perjury, he has the authority to then find himself that you have been contemptuous. himself that you have been contemptuous. He can be the prosecutor in essence. Yeah. So, okay. So, I have in front of me the documents that I think tell me what's really going on here and why the judge is extremely ticked. But two things. One, give the listeners what they want, Sarah. Tell us about Judge Sullivan.

And number two, what are your first thoughts on this? So first of all, Judge Sullivan is a character. You talk to any reporter who goes and covers this case, and their favorite part of the day is to see whatever Judge Sullivan might say to these attorneys. He's ornery, he's funny, he's a big personality, and he doesn't give a flip. Zero flips given by Judge Sullivan. Okay, there's one other thing that you forgot to mention that's incredibly unusual about this. By the way, I think this should fall under some version of your bad facts make bad law. Yeah.

It's like highly unusual circumstances make for other highly unusual circumstances. But let me add a third layer, which is the attorney who he appointed, John Gleason, is a former district judge as well from the Eastern District of New York and former chief of the criminal division in the U.S. Attorney's Office there. He wrote an op-ed in the Washington Post earlier in the week. Oh, my gosh. So we know what he thinks about it. I mean, it's a it. Look, this is not some like overly partisan, breathless op-ed by any means, but it doesn't parse words about how inappropriate he thinks this has all been. And he suggests that the judge appoint an outside counsel. It's a little like Cheney is the head of your VP selection committee here. Yeah, yeah, that's true.

There's so many crazy things about this that I neglected one of the crazier things. So the law here is pretty clear. Rule 48 of the Federal Rules of Criminal Procedure says the government may, and here are the key words, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent. So there's this magic words in here with leave of court that sort of seems to give the court some wiggle room. But the general case law on this is that charging decisions are the government's decisions. That's the province of the executive branch. And so a lot of—

True, but that's not the question here. Right. So— As former Judge Gleason points out in his op-ed, Flynn's guilt was already adjudicated. Yes. Yes. So that's what makes this highly unusual. unusual and and while the DOJ very capably laid out reasons why it might believe that the prosecution of Flynn was sort of mean and unfair it did not lay out reasons why it was unlawful

and perhaps the most nonsensical element of the entire thing was when it said it was it was dismissing because it didn't believe that it could prove beyond a reasonable doubt that Flynn had committed these crimes that he had confessed to. And so that was one of the less compelling parts of this. So the whole thing is extremely, extremely unusual. But let's back up. And this is something I'm going to write about today. By the way, wait, can I just make a little footnote? Yes. Because there's something to be said about wrongful confessions, whatever you want to call them.

Coerced confessions, yeah. Yeah, I do think that there's a footnote to talk about here on coerced confessions generally, and they could even apply to Michael Flynn. Um, but setting aside that, and there's no question that in history we've seen coerced confessions of people who do confess to crimes that they don't commit to, uh, particularly when you're getting confessions from very young people, whether they're minors or just past being minors, people without a lot of sophistication in the legal system. So I don't want to say that anytime someone,

like a prosecutor has a confession, that means that that person is 100% guilty and we can't imagine a world in which they ever want to take back their confession. What's interesting about this is that there were several other collateral ways to attack the confession that Flynn had been pursuing. I still think that the most relevant of which was the ineffective assistance of counsel that his attorneys at the time had a conflict because they were the ones who prepared his FARA,

his foreign agent registration papers. And then they would have to have admitted that they, you know, he couldn't blame his attorneys in trial that they were the ones who didn't prepare the papers correctly. And so then his attorney suggested he plead to that. That does seem like a pretty big conflict to me with the information that I have available based on news reports, et cetera. Okay. That's the end of my footnote on the confession thing. Just worth saying that the confession alone is not totally dispositive to me. It's a necessary footnote because coerced confessions happen all the time. Not, I mean, hopefully not all the time, but coerced confessions happen enough that we should be alarmed about them. This is not the typical scenario of a coerced confession.

Three-star general, former three-star general, former national security advisor, represented by elite law firm. This is not your typical coerced confession scenario. This is not your typical coerced confession scenario. And I would also add what further makes it not your typical coerced confession scenario is, you know, I'm beginning to think that our collective memory of any given controversy is about seven minutes because a lot of the controversial elements of the prosecution of Flynn were brought up before in this case, okay? Flynn were brought up before in this case. Okay. So in December, 2018, and, and a lot of people on sort of on the Flynn fan club, we're really looking forward to this moment in December, 2018. I don't know if you remember this Sarah, but this is when his prior counsel in this

sentencing, uh, and I believe sentencing memorandum before a sentencing hearing, raised a lot of the circumstances and attacked a lot of the FBI's actions in much the same way that they're being attacked now. In other words, you know, they said he wasn't, this was, you know, they duped him essentially, that this was a friendly, came across as a friendly interview. They didn't advise him of his rights, etc., etc. And so Judge Sullivan is reading this, and he gets pissed. He gets mad. and I'm looking at the transcript now, is that say, wait a minute. On the one hand, you seem to be taking responsibility for what's going on. On the other hand, you seem to be saying that you were subjected to a great injustice.

So here's what I'm gonna do. I'm gonna swear you back in, Flynn, and I'm gonna re-question you about this case. And so that's exactly what he does. And so it begins. All right. I'll inform you, sir, that any false answers will get you in more trouble. Do you understand that, Flynn? Yes. Apparently, he just mumbled that because the court then says, you have to keep your voice up. So Flynn's got him on the hot seat right now. So he says, you know, it says you can talk to

your counsel. Should you want to attempt to withdraw your plea? I will afford you that opportunity. So he says right there, if you want to withdraw your plea, you can right now. Do you understand that? Yes. And then the court, do you wish to challenge the circumstance on which you're interviewed by the FBI? No, your honor.

Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstance under which you were interviewed? Yes, your honor. Do you understand that by maintaining your guilty plea and continuing with sentencing, you will give up your right forever to challenge the circumstance under which you were interviewed? Yes, your honor. Do you have any concerns that you entered your guilty plea before you or your attorneys were able to review information that could have been helpful to your defense? No, your honor. At the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to the FBI investigators was a federal crime? I was aware. You were aware? Yes. Your sentencing memorandum also states that you pled guilty before certain, quote, revelations that certain FBI officials involved in the January 24th interview were themselves being investigated for misconduct, end quote. Do you seek an

opportunity to withdraw your plea in light of these revelations? I do not, your honor. So, and then it goes on and it really goes on. Like Sullivan goes off on Flynn at one point because he starts to bring in the FARA allegations against Flynn that, you know, he was working with the Turkish government. At one point, he basically accuses Flynn of treason and then comes back after recess and says, maybe I went a little too far. So he came into this case unimpressed with the idea of Flynn pulling back from his plea deal, gave him a whole opportunity to pull back from it on the basis of FBI misconduct. Flynn doesn't do it. He makes it very clear that he could have been charged with other stuff. So Flynn doubles down

on his plea. I think that's part of the background here. Sullivan does not suffer annoyance well. And I think this case has been annoying to him from the start it continues to be annoying and this is now the most annoying yeah yeah i you know ultimately if i had to if i had to guess um what's going to happen here uh i i would guess that he's ultimately going to dismiss the case against Flynn, but not without putting Flynn and the government through as much misery as he can put them through. Which we basically said a couple weeks ago. You're right. Exactly. Exactly. But, wow. You know, this is the bad facts makes bad law.

You know, this is the bad facts makes bad law. This is I wrote a whole a whole newsletter on Tuesday about how the pressure of corruption and the pressure of misconduct can sort of break institutions and cause them to act reacted unpredictable and in questionable ways. And I think we're just watching this unfold all in real time. And how fun it is. Well, we'll put the Gleason op-ed in our notes for this podcast. So if you want to go to the website and read his op-ed, we'll put up some of the stuff around that. We'll also put in the Flynn sentencing hearing transcript from December 2018. Yeah. put in the Flynn sentencing hearing transcript from December 2018. If you want to read a federal judge in full federal judgeness, this is the transcript for you. But it's only like 20% of

the experience because 80% of it is the in-person judgeness of it all. Oh, so true. Okay. So should we talk financial records? It was a big SCOTUS week, David. Big SCOTUS week. So this was the last week of the May oral argument hearing, which brings us to the end of that fun. So now we'll just have opinions coming out from this point forward. But it ended with a bang. On Tuesday, we had three of the Trump financial record cases. And on Wednesday, we had two faithless elector cases. And it probably brings us to the end of the telephonic arguments. Right.

At the Supreme Court, which, you know, I'm not saying I can make a full judgment on how exactly I feel about that, but I have feelings about it and I'm generally for it after two weeks of it. There's some downsides, but there's a lot of upsides. And I know I put everything in gender terms in this podcast, David, and I apologize. But to me, there was something very feminine about the telephonic arguments, about taking turns, letting the advocate answer the question. You actually get to have the justices elucidate points on both sides, whereas I think in a post-Scalia era argument, or during Scalia as well, in post, the arguments had really turned into the justices using the advocates as sort of ping-pongs to hit between them. And it would be arguments between the justices using the advocate to sort of say a couple things in between. This just felt,

I felt far more educated about the case and even how the justices were grappling with some of the harder legal issues in the past two weeks. Now, there are downsides. They last much longer this way, if you think that's a downside. I actually think it means the justices are getting their, you know, questions answered. Oh, I like it. Advocates are getting more of a chance, you know, saying we can get to everything in one hour. Maybe that was just unnecessary. Other downsides is you don't there is something to be said for the ping ponging, right? You don't get follow ups.

You don't get justices saying, well, wait a second. What about this? That's not allowed in this format. And you do go in seniority order. So, you know, to the extent you're sad that Gorsuch or Kavanaugh kind of have to go last, it's probably a benefit to get to go last. But, you know, you could probably want reverse seniority order if you were some of these justices. You hear more from Thomas. I don't know. Overall, I wonder if they can adopt some version of this moving forward and how the justices

themselves feel about it. Yeah, but to me, I don't disagree at all with the pluses you just outlined. I think going sequentially, you also, I felt like it gave you a better sense for where each justice was. The ping-ponging is interesting, but this, because you could tell that some of them were asking pre-prepared questions. Yes. And it just gave you, I thought it gave you a good sense of where their head was. And then, but the big benefit is that, wait a minute, is that Clarence Thomas's music? It's the entry onto the stage of the man himself, Justice Clarence Thomas, who I thought asked

some of the better questions on all of the, I mean, we already talked about one that was so penetrating in the Guadalupe oral argument, which was the establishment clause question regarding the conduct of, you know, the teachers at issue. But then he does something that's always going to, like, just completely warm my heart. He brought Lord of the Rings into an oral argument in the Faithless Lecter's case, which we'll electors case which we'll get to which we'll get to i think that overall uh the format has alito and kagan probably shine most in the format for me maybe particularly kagan i think that justice sotomayor has struggled to her normal thing in oral argument is a pretty aggressive questioner with long questions. The problem is in this format where you only have two or three minutes, her questions take up all of the advocates

time. And so she rarely gets answers from the advocates. I think if this continued longer, she would probably be able to adjust maybe her style a little bit more to the format. So biggest winner, Kagan, biggest loser loser, Sotomayor, probably. But Alito, Gorsuch, I thought have really shined. All right, well, I'll forgive you for not mentioning Clarence Thomas in that list. Well, it's hard to say that his style, like to compare styles from silence to questions.

He had the biggest upside. He had the biggest upside. You can't multiply by zero. Okay. Well, let's talk substance. Yes. So on the financial information cases, if you want to go sort of bottom line up front, it seemed to me that the justices were really searching for a limiting principle on the congressional subpoenas of Trump finances. Is there a limit to this congressional authority to investigate a president? If so, what is the limit? How much can we weigh the motives, the announced motives of people involved in this? And that one, I honestly left the oral argument thinking, I have no clue about how this is going to turn out other than I'm pretty sure that they're not going to say that Congress

has sort of this freestanding subpoena power over the president. And I don't even know if you're going to get a clear sort of five-justice majority opinion out of it. So that's one. The other one, which was the ability of Manhattan prosecutors to get Trump financial records in front of a grand jury in pursuant to a criminal investigation. I think the New York prosecutors win that resoundingly. I think they're going to get that 7 have a specific legislative need or does the president have the burden to show that it's burdensome or harassing or something else? Like what is the limiting principle going to be and who has the burden to show whether it's been met. So in the separations of powers war between those two branches, I agree with you, this is going to turn around. What is the limiting principle? Which, you know, it'll be some version of some showing by the legislature of some need. But the real question that you're getting to of whether there's even five votes is,

did they meet that limiting principle? And I, you know, it is so hard to tell from this argument in particular, where people were falling. I think there's three votes that they have not met whatever the limiting principle is. Yeah. And then the question is, you know, are there six votes that they have? Are there four? I don't know. And agreement on what the limiting principle is. Now, remember, this is all under the shadow of Jones v. Clinton. This is the civil lawsuit brought by Paula Jones. It's a unanimous opinion from 1997 that the Constitution does not automatically grant the president an immunity from civil lawsuits based upon his private conduct. Worth noting that Thomas, Ginsburg,

and Breyer were all part of that unanimous decision. Breyer wrote his own little fun concurrence that was brought up a lot during the oral argument. Be very interesting to see how Thomas distinguishes this from Paula Jones, because I think he's going to be one of the three that says that Burton has not been met here. Well, I think Jones v. Clinton is more relevant to the Manhattan case. Interesting. Because the Manhattan case is what's your immunity from process? External process that's external to the federal government. So, whereas I think with this legislative case, the legislative subpoena, you've got a real separation of powers issue here. To what extent is the oversight authority of the House? Are there limits on that? What is a legislative purpose

when it comes to issuing a subpoena? I think that, you know, the Clinton and Nixon- Well, the big problem, sorry. No, no, go ahead. The big problem you get in the House one is if they need a specific legislative purpose, who determines what that specific purpose is? And as Neil Gorsuch, Justice Gorsuch said, why should we not defer to the House's view about its own legislative purpose? Like, basically, we justices do not want to get in the business of pulling back the curtain to say, like, well, you know, the chairman said this. But then on Fox News, so-and-so said this.

And, you know, we're really weighing those two interviews. Yeah. Yeah. And, you know, I think that there was this, you could really see this tension of, we don't want to be involved in this, on the one hand. And the other hand, which is, I could see that it could upset the balance between the branches if you have an unlimited ability to dive into the finances of, in the records of a president. And so there just seemed, that's why I'm kind of at a loss as

to how this will go. And much more sort of feeling confident with all the caveats about oral argument you can't always tell on the criminal subpoena case. And full disclosure, so my former boss, Jay Sekulow argued was Trump's attorney in the Manhattan case. And he is an excellent attorney, repeat. He is a repeat oral advocate at the Supreme Court. I don't think he's done it since maybe since the campaign finance reform cases back in the early 2000s. But yeah, so I worked with Jay for several years back. Oh gosh, I think it was like 2011 to 2015. So I know him very well, just laying that out there, full disclosure. Interesting, talking about advocates in that case. So Jay Sekulow

represented the president, Noel Francisco, the solicitor general, represented the office of the solicitor general, the Department of Justice. And Carrie Dunn was from the general counsel's office of the New York County district attorney representing Vance, district attorney Vance. Such an interesting advocate presentation. You had three, I thought, pretty different approaches to being an oral advocate. So if you are a law student out there, I thought, pretty different approaches to being an oral advocate. So if you are a law student out there, I think that's the case from this two-week period, maybe this whole term, that I would tell you to go listen to, to hear three different approaches to arguing before the court. I thought Sekulow's was by far the least effective, combative, least effective, combative, sort of grandiose at the beginning. It sort of calmed down after a few minutes. But, you know, there's a big difference between being on Fox News and making big

pontificate points and losing some credibility with the justices, I think, versus I thought Francisco's argument was very much like, I am here to provide information and answer your questions to the best of my ability. I'm barely an advocate, really just here to help you out. And then I just thought Carrie Dunn, who obviously I'd never heard argue before, was fabulous, was so helpful to the justices while making persuasive points, getting back to his sort of home base arguments, but not obfuscating on the questions he didn't want to answer, which had happened a little bit in the earlier case on the congressional ones, frankly, from all sides, where they just didn't want to answer, which had happened a little bit in the earlier case on the congressional ones, frankly, from all sides, where they just didn't want to answer certain questions like on impeachment or like on what the limiting principle would be. But man, Dunn, I thought, just nailed it

right down the center. Yeah. And oh, I thought Dunn was excellent. And what Jay did is he staked going to be subject to at least some forms of process. Even in Clinton v. Jones, even to the extent that which you can be required to show up for a deposition, take time off from your presidential duties to give a civil deposition in a civil case. At issue here was the power to subpoena from accountants financial information for a grand jury pursuant to a criminal investigation. And so, it's really hard to take that maximalist position of temporary immunity in the face of this precedent. And when this precedent was, when this, you know, the justices reminded Jay of this precedent, he went back to his fallback position was, well, you know, you could have all kinds of DAs all over the country bringing subpoenas. The president could just be, you know, sort of like this death by a thousand cuts. But there are a couple of problems with that. All those DAs all

over the country don't have jurisdiction. Right. And, you know, we also have a long history here of that not happening. Even in the absence of Clinton v. Jones, even after Clinton v. Jones, yeah, presidents are still subject to lawsuit. Trump is dealing with a defamation lawsuit right now from Summers or Vose, and he's still president. He's still functioning. And so you've got a lot of experience that says, hey, making a president immune from, making a president subject to process does not actually inhibit his ability to be president of the United States. And so that categorical ban, I just don't think is going anywhere. And then as the just- But let me let Jay off the hook a little bit here as well, after I just said he was too bombastic on his point, this maximalist position,

which I just don't think is getting adopted, would have been very interesting. If the Solicitor General's office had not been given time, would Sekulow have adopted such a maximalist position when he knew that he was going to have the SG coming up behind him saying, okay, okay. If you don't want to adopt that position, and Francisco was very on message as special needs. The DA has to show a special needs standard, and he hasn't met that standard yet. And that was just sort of Francisco's point repeatedly. So if Francisco hadn't been there making that point for 30 minutes, would Sekulow have had a more nuanced position? Like, did the Solicitor General's office allow Sekulow to say like, this is what we want? Yeah. And I did feel like there was a good cop, bad cop scenario playing out there. So Jay comes in and he's like, the president is like a king while he's president. You may not touch a follicle on the head of the king

while he's in office. And then in comes the Solicitor General and says, oh, you know, there's an alternate. Yeah, I totally got a good cop, bad cop vibe there. And that's where Dunn, I think, even shines more is because he gets to come in and be both in some sense. And so he starts off his argument, you get about two minutes to present at the beginning, by acknowledging, like conceding some just great points right off the top, that they cannot investigate a president for any official acts and that we cannot prosecute a president while in office. And he just gets those out of the way right off the bat. So the only thing he's talking about is that they are investigating criminal activity and

the president holds some evidence for that. And therefore, they want to be able to serve this subpoena during the investigation process. The president's not a target. He's not a subject, they say. And that, I think, put him in a pretty safe little zone to argue and not extreme position on either front yeah I think it's a tactical matter that was absolutely I mean what ended up happening to me in listening to the arguments is that what Dunn did so well is he made his position seem the most reasonable, the one that was most consistent with precedent, the one that was both respectful of the president's position and respectful

of the rule of law. He just made it easy to rule for him, which is what- And that's the goal, right? Exactly. Exactly. Now- And I think the court could also say that they adopt Francisco's special needs standard, uh, that there is some reason while the president is in office, there is a special need for the district attorney to get this information that it cannot wait until the president leaves office, adopt that standard and still find that it's been met here. Yeah. I think that that's a potential outcome. I think that Dunn's going to win.

It just remains to be seen how broadly the opinion will be written. I feel I would be really surprised after Clinton v. Jones, after the Nixon case, that they pull back here. Now, here's one thing, though. Look, I totally understand why Dunn said you can't prosecute the president while he's in office. It's a tactical matter. As a constitutional matter, I reject that utterly. What? Yeah, I reject that utterly. So this, now let's keep in mind, this is not- You've blown my mind. This is not a-

I think that's such, I think that's so foundational to the Constitution. No, no. So, okay, this is not a federal prosecution, right? This is a state process. So this is, Trump is not, he is not the Menastric District District Attorney's ultimate boss, kind of like he's the he's the ultimate boss of the DOJ. There is sort of this conceptual issue. Could the could the Department of Justice indict a sitting precedent when the president can just go ahead and dismiss the case against him? So there's a conceptual process here. I think if let's go back to the Trump, let's go back to the Trump statement from the campaign, shooting a man on Fifth Avenue just to take the take the extreme circumstance. I was shocked that didn't come up in argument, by the way.

I was really hoping I had money on it. I lost five bucks to my husband. Shoot a guy in Fifth Avenue. So he shoots a guy the day after he's sworn in. Sorry, can't arrest him, can't prosecute him until, you know, maybe eight years later. No. Yes, David. No. Yes, you can impeach him and then you can prosecute him. But no, there's a difference between state criminal process and federal. And in this case, I don't think there's any hint in the Constitution that the President of the United States is immune from the application of state law when he's in a state jurisdiction. So, can the state come and arrest him and then have a bail proceeding?

Yeah. He's an American citizen who's committed a crime. There is no hint of this in the Constitution. Like, there's no hint. You can remove the president under articles of impeachment, and then you can do whatever you want. Absolutely not. You cannot charge the city president. I'm not saying he's not president anymore. He's serving in Sing Sing, but he's president.

David, that's ridiculous. No, he's not at all immune from the operation of law while he's president of the United States. Listeners, I expect to get some real mail about this, and I expect it to all be on my side. The form and function of the Constitution is quite clear on the role of impeachment. Okay, so that'll be a fun one when it comes out. And we haven't even talked about the political implications of it coming out and all of that, but we'll save that for when the opinion does happen. I think that there will be a lot of pressure internally in the court, you know, because Jones v. Clinton was 9-0 to, well, now that you've raised this, though, I sort of subscribe to that, too. Either make this pretty unanimous or really, really messy. Yeah.

Like either there's 12 different opinions with no clear majority or it'll be as many justices on as narrow an opinion as you can get because of Jones v. Clinton. And I don't, to your point about the argument, I don't see them overturning Jones v. Clinton, even though I think everyone was a little uncomfortable maybe with that precedent 25 years later. Yeah, it's going to be fascinating. The other thing is, because the Manhattan case is coming from, is seeking grand jury documents, it's not as if even if, you know, even if Vance wins, that these documents are going to be dumped into the public square. They're going to be... That was, there was a whole little section on that. Did you notice where they were talking about like,

isn't this going to leak to the public? And he's like, no, here are the precautions that we have. Yeah, exactly. It's funny to hear justices talk about leaking. Yeah, it's, yeah, very interesting. Very interesting. Let's pause for a moment and thank our sponsor, ExpressVPN. Being stuck at home these days, you probably don't think much about the internet privacy on your own home network. Fire up incognito mode on your browser and no one can see what you're doing. Right? Wrong. Even in incognito mode, your online activity can still

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ExpressVPN is the fastest and most trusted VPN on the market. It's rated number one by CNET, Wired, The Verge, and countless more. So protect your online activity today with ExpressVPN. Visit my special link at expressvpn.com slash opinions, and you can get an extra three months free on a one-year package. That's expressvpn.com slash opinions, expressvpn.com slash opinions to learn more. All right, so should we go to faithless electors? slash opinions to learn more. All right. So should we go to faithless electors? I, by the way, I think part of my attachment to faithless electors is just getting to say faithless electors. It's like an old school term and I just love it. And I'll say it as

many times as I can in the next 10 minutes. So the faithless electors, so Jonah has this whole riff on Remnant and elsewhere that he's really, really, really wants the smoke-filled room to come back. Yeah. You know, have the wise heads of the parties select the nominees, et cetera, et cetera. I think the founders envisioned the electoral college, or at least some of them, as the ultimate smoke-filled room. Well, that's sort of what this case turns on. How did they envision it? Exactly. What is an elector? I mean, we were getting into some, like, if you're an originalist, boy, is this the

case for you? So, okay, backing up a little. At the time of the 2016 election, this is a case with Washington state and Colorado. Interestingly, while the cases were consolidated, they were argued separately. I think in part because Sotomayor was recused from the Colorado case. It doesn't really matter. But the point is we have two different arguments, fun times. Washington provided that any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to $1,000. Lo and behold, in 2016, our elector in this case was fined $1,000 for voting for the candidate that was not the one they had pledged to vote for. Colorado law requires electors, quote, to vote for the presidential candidate and vice presidential candidate who receives the highest number of votes at the preceding general election in this state.

In the Colorado case, our elector, once they made clear they were going to vote not for the person who won the popular vote, was removed as an elector and their vote was rejected. They were also told in an advisory way that they could possibly face perjury charges because they had, again, taken this pledge to support the popular vote of the state and then didn't. So that gets us to this case. Worth noting, we have two constitutional sections here. Article two, each state appoints a number of presidential electors equal to the total number of the state's members of the House and Senate. And then we have Amendment 12, which is incredibly long. I'm not going to read it for you, but it also talks about the process by which electors vote, when, where, things like that,

but doesn't really get into how they must vote at all. And just one more little fun national fact, Washington and Colorado, along with 46 other states and the District of Columbia, appoint a slate of presidential electors from the political party of the candidates for president and vice president that receive the most popular votes in the state. Maine and Nebraska, on the other hand, use a hybrid system under which they award one elector to the popular vote winner of each congressional district in the state and two electors to the statewide winner. There's your trivia, David. Maine and Nebraska always doing their own thing. And that's why when we talk about the electoral college and like who's going to win Maine and Nebraska, you'll note are always a

little different on the map that you see because you can win Nebraska too and pick up one electoral vote that way. So anyway, that's why Maine and Nebraska are special in your maps every four years. Yes. So I got the sense the justices were not necessarily the biggest fans of the faithless elector. And that brought us to Clarence Thomas's question about Frodo Baggins. What's to stop a faithless elector from putting Frodo Baggins, writing in Frodo Baggins as the, you know, the, and it led to, you know, sort of like as much as people might like Frodo Baggins, he doesn't deserve a vote for president of the United States. And it was, you know, it was interesting to me, he's one of the court's foremost originalists. And the question betrayed a certain skepticism about a certain skepticism about you know sort

of the the notion of the elector as the free and independent actor selecting the president united states so i found that to be a very and it seems to me that if that question is indicative of where thomas's head is at which is of course a perilous process, all caveats, yada, yada, yada. I'm not so sure the faithless electors got much of a chance. I was kind of shocked. I went into this thinking I was very pro-faithless electors, and there was, yeah, a lot of skepticism, I'll say, on the faithless electors. But David, if the faithless electors don't have any discretion, then it's not a smoke-filled room.

Then we're in Westworld if we want to move to another show, a fantasy show. Then they're just automatons doing their programming, and they serve no purpose. And it sort of moots the 12th amendment and article two about, uh, appointing electors. You don't need to appoint electors because a telegram could do it. And I think that's a real problem for me in this, but I do want to point out the answer that the advocate gave to the Frodo Baggins hypo, because if you're, I assure you, this did not come up in the moot,

you know, this, this is the curve ball, uh, your honor. I, I think there is something to be done because that would be the vote for a non-person, you know,

no, no matter how big a fan people are of Frodo Baggins. That said, I do think the important point is that the framers hashed out these competing concerns. They hashed it out in Philadelphia in 1787. They understood the stakes, and they said, among these competing hypotheticals, electors are best placed to make the ultimate selection.

That hasn't changed, Justice Thomas. So you have your awkward answering the real question he asked, pivot back to home. Yes. No, that was good. I thought that was a great- It was a perfect answer. i thought that was a great perfect answer yeah it was a great pivot and you're exactly right it's if there's if these people are not actually functioning in any purpose other than as glorified versions of western union

um yeah then to quote the consultants in the legendary movie Office Space, what is it you say you do here? Yeah, what would you say you do here, Bob? Yeah, so I came into this pretty pro-faithless elector. They were very skeptical about the chaos that this could cause in a future presidential election where the popular vote has been tallied great the state by state vote has been tallied so we know how the um election should turn out in the electoral college and then if it's a really tight one everyone goes and lobbies these um electors and a lot of the conversation turned around how and when you could remove an elector for bribery under sort of this chaos theory, right? So let's assume that all that just happened. There's people who will simply try to persuade the elector to switch positions. And then there's

people who will try to extra persuade the elector to switch positions. And unfortunately, I thought that the advocate in the Washington case did not have a good answer to that. His answer was, you could charge the elector with bribery, but you can't remove them until they've been convicted, which presumably would be after their vote has been counted. And the justices and the other advocate was like, well, that can't be right, that you can bribe an elector and that the only punishment for throwing or basically bribing a whole presidential election is this. This elector goes to jail months or years later. Yeah, no, no, no. And so if the states have the power to appoint electors, they by necessity have some power to remove electors.

necessity, have some power to remove electors, and then why doesn't the state have the power to remove an elector who violated this pledge to support the nominee of the party who won the popular vote? Woof. That's a tough one. Yep. Yep. That's a tough one. That's a tough one. And, you know, in a way, I mean, I think this is a really fascinating conceptual conversation. In a way, I mean, I think this is a really fascinating conceptual conversation. And it seems sort of like a law school hypo come to life in a way and sort of in a sense like, hey, this is an actual sort of Supreme Court oral argument over a kind of law school hypo that's had no real relevance in the real world, except that there were some faithless electors last time, and I can easily imagine in a 270, let's say it's a 270-268, given the recent precedent of faithless electors, the amount of pressure that would be brought to bear to try to get one person or two people to switch, especially if the 270 was the popular vote loser um yeah there would be enormous and this is this is the justice is concerned that they are putting their thumb on the scale for chaos uh and as one put it you know if we have a choice between chaos and not chaos shouldn't we probably pick the not chaos? And the advocate responded back, well, it's chaos either way. Because for instance, they come up with maybe an even more unlikely scenario in

most election years, but again, maybe not this one, where the winner of the state by state popular vote, if you will, we're not talking about the national popular vote in this case of the state's popular vote dies and now you're sending all these electors who are telegrams they have no choice of who to vote for so they have to vote for now the dead candidate which throws it to the house of representatives and you end up with a different kind of chaos was his point okay that was not persuasive to the justice, it didn't seem, nor to me. Right. Now, this is not the faithless electors. This is tangentially related to the faithless electors case because there would be a lot of pressure on these electors to switch. But a lot of states are passing these laws. Now, they haven't triggered in yet because they're passing laws that say our votes, our electoral votes will go to the popular vote winner no matter who wins our state.

Yes, which Justice Roberts got into a little bit. And what's interesting about that is you could easily, could you imagine a blue state that has passed this? And it's mainly blue states passing it because everyone fights the last war, right? Correct. And the last war is, oh, well, it's Republicans who lose the popular vote and win the presidency. So we're going to figure out a way to stop that and get more Democrats in. So we're going to pass this law. So could you imagine if California voted by millions in favor of a Democratic president and a conservative Christian Republican who's as, you know,

the most zealously pro-life, pro-religious liberty, you know, let's say it's like Mike Pence, but like really means it. And he wins it. And you would have California sending its, what, 50 some odd electors marching off to put him over the top after they lost California by millions of votes? No, no, no, no. That is not happening. The speed at which the California Assembly would repeal that law, I think it would be so fast, it would have to be measured like in nanoseconds. Like the supercollider?

Yeah, yeah. They would be racing faster than the particles in the Hadron supercollider. I probably messed up the name of that. This is where Justice Thomas' opinion will be really interesting to me because I think that clearly the text and purpose of the Constitution points to the electors having some role beyond being a telegram, a human telegram. But there is a practical side of the court as well that doesn't want to create more chaos and wants to defer to

the states as well and there's this great argument that if they have the power to appoint they certainly have the power to remove someone who's been bribed or in some other way um and you know we're going to see that sort of battle itself out here and it does have implications uh you know this election forward election someday it very well could decide a presidency yeah it absolutely could well we're beginning to run out of time do you want to give uh our good listeners a 30 seconds on wisconsin administrative law so that i can avoid malpractice all right so there's been all these headlines about how the Wisconsin Supreme Court down ideological lines overturned the Wisconsin stay at home order. And now everyone in Wisconsin is, you know, drinking their what is New Glarus beers and their squeaky cheese curds and, you know, touching each other and Lord only knows

what else. Um, which by the way, is pretty funny when you think about the freak out just a few weeks ago about their election, but whatever, um, just a legal note on this. So it's a weird opinion for a variety of reasons. The weirdest part is that the Republican legislature who brought the case against the stay-at-home order asked for there to be a stay as part of the relief so that there could be a new stay-at-home order done appropriately through their administrative process. The court not gave the Republican legislature the first relief they wanted, which is saying that this had been unconstitutionally passed, unconstitutional under the Wisconsin laws and constitution, but then did not give the stay.

So it just automatically undid the stay-at-home order. A, counties, municipalities still have their stay-at-home order. So Wisconsin's not a total free-for-all. Two, they did not touch the governor's order. This was about their sort of administrative state not following administrative procedures, which makes it a really boring opinion, by the way. And I don't recommend you read this one for any reason. Maybe out loud to get your kids to sleep, but you will fall asleep too, and that can be very dangerous, so I just wouldn't do it. But the headlines make this seem like a much more straightforward case than it was, and it's weirder, administrative law-ier, and less interesting when you dive into the details. That's excellent. Thank you. And you spared me from humiliating myself. I always appreciate that.

But now you're going to humiliate yourself in a different way because we're going to talk about what the best historical television series is. Okay. So before I tell you what my favorite one is, and I know it's got historical issues and everything, I'm going to tell you what it's not. And most people I think who pay attention to historical dramas on television, particularly over the last 10, 15 years, would say, oh, John Adams, Adams on HBO. And I'm going to have to tell you why I do not say Adams. I mean, although the book is phenomenal. The book was great. Yeah.

Just love the book. Just tremendous. And there are moments in Adams that are just fantastic. You know, his first meeting with King George III, his complete culture clash with the French court, and seeing that super white makeup they put on their faces, very jarring. But it kind of explained it to you in a way, like visually. You were like, okay, I can see, like whatever, it's fashion.

Yeah. And now, isn't it true that some of that paint was like that makeup was like mercury based and yeah i was just gonna say was it lead or mercury something it was not good for you no no no they were like literally poisoning themselves with their makeup there's a metaphor there but it just ran out of steam It just didn't have a lot of steam. Well, take the other version of this. You have McCullough's Adams and Chernow's Hamilton, which I read within a few years of each other. And I think I would have told you that I liked McCullough's Adams more.

Interesting. And then take the two pieces of art that came out of them, which is the Adams series, in which I fell asleep several times. Adams series in which I fell asleep several times and then take Hamilton the musical, which just like, oh my God, is so, so good, I guess is my point. So Adams, I think, loses even more this many years later when you have Hamilton standing there showing you how it can be done. Yeah. Now there's a future one coming up that I'm very, very interested in, and that's the History Channel is going to have a three-night miniseries about Ulysses S. Grant based on Chernow. Based on his, oh, based on Chernow. Based on Chernow, yeah. And so, I'm really looking forward to that. I'm a Civil War history buff. I think Grant is one of the more fascinating

figures in American history. Really, you know, although at the time he was, his tactics were quite brutal, but at the time he actually was foreshadowing what war, he was a man ahead of his time. He was foreshadowing what war would be and would become over the next 100 years. So I'm really- Are you a little worried about the History Channel doing it? Because I'm a little worried. Now, I would be, Sarah, but guess who's the executive producer? Leonardo DiCaprio. Christopher Nolan. Christopher. If it was Christopher Nolan, that would be the best. J.J. Abrams.

Oh. Not J.J. If it was Nolan, it should be a movie trilogy on IMAX. Wait. M. Night Shyamalan doing Grant. No. Grant starring Will Ferrell. No.

So, no, this is executive producer Leonardo DiCaprio. I've seen the trailer. Looks good. But my favorite historical fiction series is The Last Kingdom on Netflix. Started on BBC based on the Bernard Carnwell books. Look, I know there's some time skips in it you know our our ninth century and ninth century english historians who listen i know that there are some issues there but probably lots of issues but it really captures

um i mean not that i was there but i was gonna say are you telling us something yeah not that i was there but it's like it just this idea that you know when we think of the united kingdom and you you like go way deep into its history i mean it was there was a time period which was very much uh an open question as to what kind of place eng would be. You know, and the Danes were extraordinarily powerful in England. And there was this clash of religions. It was a clash of Christianity and paganism. And it just is so well done. And just my plug for those listeners who are tired of sort of caricatured versions of Christians on television, there are some very rich and layered Christian characters in this.

This is not a show that whitewashes the history of the church by any means. There are some pretty venal and bad folks who are in religious institutions and positions, but there are also some pretty darn heroic people as well. And it's very nuanced. It's very layered. I thought that that was one of the most appealing parts of it to me. So that's my plug for Last Kingdom. Per David's recommendation, we are currently watching The Last Kingdom, and I'm a big fan. I enjoy watching shows like this while sitting on Wikipedia, basically, going into little rabbit holes. So last night's rabbit hole was St. Cuthbert, who I knew nothing about.

And I enjoyed my St. Cuthbert Wikipedia rabbit hole, so thank you, David. However, it is not my pick. you, David. However, it is not my pick. My pick is The Tudors on HBO, which is the story of Henry VIII. For maybe some of the reasons, like maybe some opposite reasons, I don't think I can think of another show, though, listeners, if you've gotten this far, I'm very interested in your thoughts on this, that is so historically accurate while being that entertaining. The changes that they make to Henry VIII are pretty, it's a short-ish list and explicable, right? Like, yes, it shows him really just having the one sister. He had more than one sister. Okay, well, we can't have, however, you know, five sisters

in the show. So we have one sister and it's really, you know, her, her story for the most part as well. Um, I think it shows it as so relatable and interesting and, and unbelievable that at times when you're going down those Wikipedia holes, you're like, well, this one can't be real. Oh no, it is. Okay then. And it goes so it goes so far beyond just Anne Boleyn and the drama around that. Shows Catherine as a really three-dimensional character. And even the later wives as we're ticking through them and as his mental health declines. So really fascinating. Yes, it's a little graphic. Yes, it's a little sultry at times. So maybe not for kids, but I loved how accurate they were able to make it and that they, again, like Hamilton,

to take something that had been so dryly covered in history books and make it not just exciting because you can change things and make anything exciting, but take the real history and have anyone going like, oh my God, okay, that's how that happened. Yeah. I mean, I love going down the rabbit hole of English history in general. I mean, like the Wars of the Roses, I've probably read two or I think I've read three book series on the Wars of the Roses. And still, if I try to figure out the various lines of succession, the various dynastic struggles, it's almost like I need to be one of these guys who has the conspiracy theory map up with the faces and the yarn. Yes, the yarn. Yeah. And then- Have you done the hollow crown?

I have not done the hollow crown. Benedict Cumberbatch appoints, it's the Henry triptych. So that's a thing worth diving into. But the only problem with that one is they are using Shakespeare's language. So you, at least for me, I do kind of have to pay a little more attention

to understand. And let me put pay a little more attention to understand. And let me put in a plug for one other one. So this is a historical fiction because the novel on which it's based is absolutely historical fiction. But BBC did a presentation and I believe it's 2016, did a version of War and Peace. And it is excellent. I mean, it is very, very good. So I can highly recommend that. Unfortunately, I don't know where you can find it other than buying it on iTunes. But it's really good. I haven't searched for it lately, but it's-

Do we count that as historical fiction or fiction that has now become historical? Well, it's historic. I mean, War and Peace is historical fiction. It's set in the Napoleonic invasion of Russia. Well, the Napoleonic wars before the invasion, culminating in the invasion. But it's sort of like Les Mis in that sense. Yeah, yeah, yeah.

But it's set around real events. Battle of Borodino plays a big part. Battle of Austerlitz plays a big part. But anyway know it's set around real events battle of borodino plays a big part battle of austerlitz plays a big part so but anyway it's outstanding it's awesome well david that's the end of our highly fun legal topic plus historical fiction although i feel like we're going to think of so much more historical fiction we wanted to mention. Oh, I know. I know. So much law in this one. When you come back on Monday, so much more law. I guess we're going to start to get some opinions, perhaps, Sarah. Perhaps. Boy, buckle up, listeners. This is the place to be for a while, I'd say.

Thank you guys for listening. And also, please rate us on iTunes. You've been doing a great job of that. And please email us. You've been doing an awesome job emailing us topic ideas. David at thedispatch.com, Sarah at thedispatch.com. We love to hear from you. And so, please, again, rate us on Apple Podcasts, subscribe to this podcast, and thank you for listening.