Advisory Opinions - Naw Dawg to the DOJ

Episode Date: February 12, 2026

Sarah Isgur and David French discuss another set of Trump administration indictments rejected by a grand jury, the memo from Chief Judge Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals dismissing the complaint against U.S. District Judge James Boasberg, and finally, Grifter Sarah comes out to play in the Texas Senate race.The Agenda:–The DOJ’s dropping success rate with cases–David goes meta–Are AUSA positions worth it?–DOJ misconduct complaint against federal judge dismissed–Congrats to the AO newlyweds!–Listener questions–The polls are all over the place for the Texas Senate primaries Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. We're going to start at the Department of Justice. Another set of indictments rejected by a grand jury. And that presumption of regularity, irregular, like bowel syndromes.

Next, the memo from Chief Judge Sutton dismissing the complaint against Judge Boasberg. There's some gold to dig out of that. And there's a lot going on there. back to the Department of Justice. And finally, some questions from listeners just from this week. We got so many good questions. And Gryfter Sarah comes out to play in the Texas Senate race. Well, David, let's start with the Department of Justice.

Several months ago, six Democrats, all of whom are former military veterans or intelligence community members, cut a 90-second video in which they told military personnel that they, quote, must refuse illegal orders. Now, the Department of Justice tried to indict them under 18 U.S.C. 2387, 10-year maximum prison sentence for anybody who, quote, advises, counsels, urges, or in any manner, causes, or attempts to cause, insubordination, disloyalty, mutiny, or refusal of duty by any member of the military. The Department of Justice went to a federal grand jury this week, and the federal grand jury gnawed DOJ real hard. Now, David, you know, it's funny. This pod has been around long enough that I used to talk about the Department of Justice is not just their success rate in getting an indictment. I mean, that was like not even an interesting conversation to have.

but their success rate once they brought charges against you at all. You know, soup to nuts was just so, so incredibly high that it became a self-fulfilling prophecy that like if DOJ indicted you, you knew they were going to win, so you might as well settle, so it doesn't go to trial. And there was this internal debate within the Department of Justice. And actually, it wasn't a debate. It was just like me on the other side. And then I eventually came around to see the light.

Do you bring the cases that should be brought, or do you bring the cases that you believe you can win? And of course, I was like, all in my West Wing high and mighty, like, you fight the fights worth fighting. And it was pointed out to me by my much longer serving federal prosecutors. No, you bring the cases that you believe you have a high likelihood of persuading a jury beyond a reasonable doubt to convict. And this again creates this self-fulfilling, if DOJ brings. the charges, they've already gone through the analysis that they believe that they will get a conviction. Not that they personally think the person did it beyond a reasonable doubt, not even that they think there's evidence that the person did it beyond a reasonable doubt, that they

believe a jury will agree that there is evidence that the person did it beyond a reasonable doubt. In fiscal year 2013, federal grand juries rejected indictments just five times out of, Let's just the denominator here. 165,000 cases. Grand juries have now rejected Trump administration indictments for one of the three charges against James Comey, the sandwich guy, the one who threw the sandwich at the National Guard, several of the other protesters, Letitia James, Latisha James again. And now these six congressional Democrats. And David, we've also seen courts acknowledging something that you've talked about, the presumption of regularity given to the Department of Justice. And I think that phrase can be a little misleading.

But it is the idea that when the Department of Justice represents something to the court, that they are being truthful, that you don't need to look behind that, that we assume always that they are honest brokers in the court, more so than a private party. because they're the Department of Justice, they're the government, their repeat players, they get this presumption of regularity, and now you see court saying, eh, maybe not. The cost to DOJ is proving much faster than I thought it would be, David. You know, we can think about some of the reasons why, but I would say one of the immediate reasons why it's happening faster than I thought it would happen is that the administration's aggression at trying to evade, if not actually, defy court rulings,

combined with the fact that the judges are seeing this phenomenon of when there is an incident that occurs, say in the streets, or something like the Renee Good shooting or the Alex Preti shooting or one of the shootings in Chicago and many, many other incidents, that there's an immediate story the administration comes out with before any investigation that is often, not always, but often completely contradicted by the facts that emerge later. And so you're seeing the situation where, you know, I mentioned it in a piece recently where even in the Supreme Court, even Supreme Court justices are reciting facts provided by the Department of Justice that turn out later to be 180 from the truth. And if you feed judges falsehoods, you know, we talked last, we talked yesterday about the woman who said this job sucks. And can I do a revision? Do you remember how you did your revision? I'm going to do a revision. I still believe that the underlying facts around her statement are more important than her statement. In other words, the way lawyers have been thrown into this, the haphazard ad hocery, the dishonesty of a lot of the proceedings, the inability or unwillingness to comply with all of that is a bigger thing. But the more I thought about it, the more I thought, you know, a lot of the casual stuff. And I said this, I think, off air, a lot of the casual stuff that I've seen has been

and state court in chambers, where I've seen super casual stuff. In federal court, in open court, I'm going to revise. Never seen anything like it. Okay, never seen anything like it. And so I'm going to up, you know, I said last week, I mean, I said earlier in the week, I don't like it. It wasn't good. I'm going to say it was worse than I said. So I'm going to revise. It was worse than I said. Now, on to the main event. So there's a couple of things about these attempted indictment. Let's go with good news, bad news. The good news of the attempted indictment is that the grand jury check on prosecutorial discretion, which is rarely exercised, as you indicated, Sarah, isn't dead. It's not dead. You cannot, in fact, indict a ham sandwich. There is still some life

left in this grand jury system, and that is encouraging to see. The bad news is that they tried this in the first place. And look, I'm not in love with the ad. If I was a member of Congress, I wouldn't have cut the ad because, you know, the actual doctrine in law about disobeying unlawful orders is a bit more complicated than they're saying. It has to be manifestly unlawful. This is, you know, talked about in the U.S. v. Cali case, which was upholding the conviction of Lieutenant Callie who participated in the Milai Massacre. And we've even talked about it sort of back in the War of 18th. 12 case, like, you personally don't get to decide whether the president's order is lawful. Right. You don't get to decide whether the president's order to go to war is lawful.

But you do, if you're told by your commander, shoot this prisoner, blow up these shipwrecked people. Like, that's an actual example in the DoD Law of War Manual, that in those circumstances, it's got to be manifestly unlawful. It's got to be plainly unlawful. And this is something I taught to soldiers in the theater of operations. So, but the idea that that video was illegal is frivolous to the point of malicious. And trying to engineer that indictment is, in my view, just, it's pretty darn shocking. It's the kind of thing that in a normal world, when we're not also thinking about, why is the airspace around El Paso closed for the next 10 days? Why is the airspace over New Orleans now closed?

Wait, do we have an answer on that? as of taping, we do not have an answer on that. It's aliens, isn't it? It's El Paso. It's pretty close to New Mexico. I mean, it's very close to New Mexico. It's right there. And wouldn't the aliens immediately land and go to Mardi Gras? Possibly. Yeah, I mean, honestly, they're looking at two of the best food cities in America. True. True. But we've got a, you know, giant crypto pardons. I mean, like, Andy McCarthy has got this amazing series. He's walking through right now in the financial

corruption. And so, you know, which is something I think we should dive into at some point, but there's so many things going on. It's hard to sort of press pause and say, wait, he tried to prosecute six members of Congress from the opposing party for a pretty darn innocuous video that was a broad restatement of the actual law. And very similar to what Pete Hegzith himself had said in past years. Why would he say it in past years? Why would he say it in past years because it's basic stuff. I mean, this is stuff that has been talked about since Nuremberg. And so, I mean, the corruption and the degradation of the Department of Justice at this moment is proceeding at a just remarkable pace. And Sarah, I want to ask you, how easy

will this be to repair? I could ask that question pretty frequently right now. So I've been in DOJ three separate times. And I, I'm mention that because the Department of Justice already had shifted. You know, always, right? Any institution is changing. But, you know, between the Bush administration and then the later Bush administration, obviously I was not there during the Obama administration and then the first Trump administration, then to now, I know you guys get annoyed when I do stuff like this. But if you think that there was just this thunder clap in 2025 and everything went from black to white, that's just not accurate. And it's not accurate when it comes to Congress or the executive branch or the

judicial branch or the Department of Justice. And precedent matters. And I think the Department of Justice and as the executive branch became more powerful, the temptation of presidents to use the Department of Justice. I mean, the best counter example to this is the relationship that Janet Reno had with Bill Clinton, which was to say none. It was probably the most independent in some ways that the Department of Justice ever was because he put Janet Reno in power and then Janet Reno was like, don't talk to me. And there was a lot of tension. I think you just see president since then saying, like, well, I definitely want to avoid that. And also while I'm here, this sure seems tempting. You have President Obama putting one of his closest friends in as attorney general. It's probably

the closest that we've seen a president and his attorney. General since, you know, they were siblings back with Bobby Kennedy. So I don't think it's black and white, but like maybe it was like a very light gray and now it's black. Like, that's not to say there hasn't been a real jump or shift either. Let me read this quote from this judge where the Trump administration sued Oregon, the presumption of regularity that has previously extended to the United States government that it could be taken at its word with little doubt about its intentions and stated purposes no longer holds. That's the thunder clap.

How hard is it to repair? I can give two different answers to that. One is that you cannot repair it, that once you have, it's sort of like a marriage, you can never go back to the way things were before you messed around with the marriage and the trust of the marriage. But I can give another version of reality

where Rahm Emanuel is elected president and picks his super buddy, Chris Christie, as Attorney General to sort of have this bipartisan nod to Republicans that basically decisions about the Department of Justice's prosecutorial priorities will be made by a member of each party, the president and the Attorney General in that sense. I think judges will want to go back to that presumption of regularity, sort of, again, to use the marriage example. You know, for the sake of the kids, I want us to be in a happy home. But can you ever really go back? I don't have a great answer that, David. We just haven't really seen something like this with the transparency level that we have.

You know, Woodrow Wilson imprisoning a thousand plus people for their speech protesting World War I in the draft. You know, on the one hand, we can say, like, the Department of Justice has had a checkered past. I mean, the FBI, my God, there's books, so many books about the checkered history of the FBI. The CIA, for that matter. Welcome to the 70. several of our institutions have gone through bad times, the presidency, Nixon. You don't go back, but you also can return to a normalcy, a new normalcy. That is not quite the same as it was before, but it's not bad either. And so that's my hope.

There are many examples of botched or unethical conduct in prosecutions from the DOJ. You can go back and look at the Stephen, you know, the Senator Stevens prosecution around in Alaska. big problems, huge problems. You can point out some others as well. But that was the exception, not the rule. And there's a giant difference when you move from it's the exception, not the rule, to now it's looking much more like the rule

and not the exception, that what's being said is just completely fundamentally not trustworthy. And that, as you said, that's the thunder clap. It's not that the DOJ was perfect or didn't need reform before and didn't have excesses and abuses before. It's just taking that which was exceptional and making it emblematic.

That is one of the things that's happening right now. And I would say there's sort of a general reality about life is that that, especially in what comes to trust, trust can be destroyed quickly. It is only restored slowly. It's true in relationships. It's true. It's just true. You destroy trust.

You don't get it back for a really long time. And so it's going to take, I think, a bipartisan generation-long commitment to ethics and integrity to restore anything remotely like this presumption of regularity. I also think that about, say, commitments to NATO, for example. Can we just pour one out for my homies in the second half of the Bush administration where it was a huge scandal? And it really was. Like, it took up all the headlines. People got fired.

Lives were ruined over the U.S. attorney firing. scandal where the Bush administration decided to replace U.S. attorneys, their own appointed U.S. attorneys with different U.S. attorneys for political reasons. When you look back at some of the past scandals that people talked about for a week, two weeks, three weeks, it's, you know, I don't want to go too meta. But there was this movie that came out during the pandemic called Don't Look Up that a lot of people ragged on. It was about, you know, there's an asteroid or something coming to destroy the earth. And people didn't believe it, blah, blah, blah. It was, you know, kind of an allegory

of climate change. And I had, you know, parts of the movie were hilarious, parts of it were cringe. But at the very end, it was super touching because at the very end, you've got Leonardo DiCaprio at the table with his family and with friends. And everything's about to end. And he says, something along the lines of, we just didn't know what we had, did we? And I think about that with our political system, the way in which we were ripping each other to shreds over scandals that in hindsight seem quaint, just quaint by comparison.

Now, it's not to say that there weren't real injustices that occurred and there weren't real scandals, but the non-stop high volume around almost anything that erupted in politics right now, Binders full of women. Mitt Romney wanted to make sure that he was getting to review more female candidates for job positions. And that was morally evil. We could do this all day flipping back and forth.

The American flag pin. Remember that? American flag. Does Obama wear an American flag pit? I do remember the tan suit. Somehow that made him un-American, too, or something. I don't even know the tan suit thing. Now we're looking at a situation where trying to indict six-de-old.

Democratic members of Congress on incredibly specious grounds may well be gone from our consciousness, not ours, not, you know, we'll carry that grudge for a while, but it'll be gone from the public consciousness with extreme speed. And I feel for my college students, because they'd only know this. This is the only politics that they know. And it is not the only politics that has existed in America. David, before we leave this topic, it's also been reported that the number of applications to be an assistant U.S. attorney has dropped dramatically at the Department of Justice. These are considered very coveted jobs. Most federal prosecutors will tell you it's the best job they ever have, including some who become attorneys general later on in life, will look back with the most fondness

at their AUSA days. And the fact that fewer people want to do it, again, symptomatic of all sorts of things I think you can point to. But David, I got a text from a clerk this week trying to decide what to do next in life. And I will tell you that, like, without hesitation, I was kind of like, why in the world would you not basically arbitrage this and go get an AUSA job right now and go be a federal prosecutor? Because it is still the case that 99% of AUSAs out there are still doing the 99% of AUSA work, which is drugs, guns, gangs, white collar fraud, insurance, Medicaid fraud. And it's really fun stuff.

So go do it. And by the way, there's also just really important work that some people are cut out for and that others will not be able to do. And here I'm thinking of the incredibly important work that DOJ does on sex trafficking. we need people to do that. It will have nothing to do with partisanship, I assure you. So, I don't know, you wonder if the market, the legal market of capitalism here will take care of this problem, David, where once people hear that the number of applications are down, they should actually spike back up because it is such a fun job. And I've had the same thought. Let's say you're talking to a 1L. Do you aim your sights on one of these AUSA positions with the, you know, knowing that by the time, if you're a,

1L right now, you're going to be graduating in 2028. And is it possible to arbitrage and get, you know, move into these incredibly coveted positions? I mean, you know, I don't know exactly what it was like when you were graduating, Sarah, but when I was graduating, leaving law school and joining the AUSA, becoming an AUSA was not a thing that happened. Yeah, no, that would have been not possible. You're looking at, I mean, generally speaking, between three to seven years out, probably, before you're going to be seriously considered. You had to really demonstrate high-quality legal work. You had to come to an AOSA application with a lot of credentials aside from whatever top-notch law school you were from. You often had to start in one of the smaller market U.S. attorney districts.

You know, there's 94 districts for U.S. attorneys. Some of them, like Southern District of New York, Eastern District of Virginia, you know, Miami. me are more coveted than, well, let's just say some of the other ones. So you could also, like, sort of try to game the system that way, as I know many people did, where they, you know, spent a few years toiling in, I'm not even to name districts. That's mean. But you can guess. And then would try to transfer over to one of the, you know, prestige districts. But then you might get the question about your support for Trump in the interview, in the interview. And at that point, all of that arbitrage comes screeching to a halt if you're going to be honest, you know,

and there are ways to answer it without being anti-Trump. You know, there are ways to finesse that kind of answer, but I do wonder if they're going to tolerate finessing that answer, you know. Sort of boilerplate about commitment to following the lawful policy objectives of the president may not be enough, may not be enough. And to be clear, my advice to our young lawyers out there, do not lie. Do not lie to get a job. Even a great job, even a fun job, ain't worth it. It's sort of the reverse, David, of what we talked about, about courage being a muscle that you actually need to

keep working out in the smallest of situations. Lying is the reverse of that. Lying in a small situation, white lies, I think, actually build the muscle of lying as well. Like it can be a treadmill of lying. So, yeah, try not to lie, even when it is the most convenient, even when it is small, try instead to be a lawyer and weasel out of the question. When we get back, we're going to talk about this memo from Chief Judge Jeff Sutton of the Sixth Circuit and number one AO judicial crush about his dismissal of the ethics complaint against Judge Bozberg, as well as drumroll David, the return of Grifter Sarah. At Medcan, we know that life's greatest moments are built on a foundation of good health, from the big milestones to the quiet wind.

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Visit medcan.com slash moments to get started. Do you love the dispatches journalism but don't have time to read it all? We hear this pretty frequently from our members, is why I'm very excited to introduce Dispatch Voiced, a member's only podcast feed that helps you keep up with our work on your schedule. Here's how it works. We've built two feeds, editors' picks for our biggest stories and the morning dispatch for our daily newsletter, powered by realistic AI voice models created by 11 labs. These high-quality audio versions are delivered right to your favorite podcast player. Whether you're commuting at the gym, out grocery shopping, even walking the dog, dispatch voice fits our reporting into your schedule. Jonah Goldberg's latest column? The biggest news from Capitol Hill? Our most colorful cultural analysis?

Now it's all available in your podcast feed, ready when you are. Most episodes use advanced AI narration that sounds remarkably like a professional audiobook reader and will occasionally feature authors reading their own work too. ready to take the dispatch on the go, members can set up their feet on their account page at the dispatch.com. Not a member yet? Start listening today when you join the dispatch. All right, David, we're back. I'm going to read you here from Chief Judge Sutton's dismissal of this complaint. The gist of the complaint is that the subject judge violated several canons of the Code of conduct for United States judges based on a comment he made at a semi-annual meeting of the judicial conference at the United States and based on actions he took and presiding over a case involving the Department of Justice. On July 29th, 2025, the Department of Justice filed the complaint against

Judge Bowsberg with the Judicial Council of the D.C. Circuit. The complaint focuses on a statement the judge allegedly made during the judicial conference on March 11, 2025. According to the complaint, the judge, who was a member of the judicial conference, expressed concerns to other members of the conference that, quote, the administration would disregard rulings of federal courts leading to a constitutional crisis, end quote. In the weeks that followed the alleged statement, according to the complaint, the judge made several rulings in underlying litigation that demonstrated the judge's hostility toward the administration. This complaint warrants dismissal. The department identified one source of evidence, attachment A, for the judge's statement and for the setting in which it

occurred. The complaint, however, did not include the attachment. The D.C. Circuit contacted the department about the missing attachment and explained that if it failed to submit the attachment, the circuit would consider the complaint as submitted. The department did not supply the attachment. In the absence of the attachment, the complaint offers no source for what, if anything. Judge Bozberg said during the conference, when he said it, whether he said it in response to a question, whether he said it during the conference or at another meeting, and whether he expressed these concerns as his own or as those of other judges. Later in the complaint, to be sure, the department refers to a Fox News clip discussing the same allegation,

but it does not identify any source, contain any specifics, or answer any of the above questions. A recycling of unadorned allegations with no reference to a source does not corroborate them, and a repetition of uncorroborated statements rarely supplies a basis for a valid misconduct complaint. Rumors and gossip that it most could constitute leads into possible misconduct fail to carry a complaint. Second, even assuming for the sake of argument that the judge made

this statement at some point during the judicial conference or its related meetings, the statement was not prejudicial to the effective and expeditious administration of the business of the courts. The subject judge attended the conference as one of two representatives of the D.C. Circuit, and federal law required him to be there. The conference acts as a policymaking body for the judiciary, yada, yada, yada, this is literally what they do, is talk about concerns for the judiciary. To the extent that the department claims that the judge's comments amount to public comment with respect to a matter pending or impending in any court, that theory also falls short.

The alleged comment does not refer to a case, and the case in question, the JGG action, was not filed until four days later. Because the judge did not refer to a case that all but guarantees in his comments did not violate any judicial canons of conduct or the judicial conduct rules. And David, that's basically the gist of all of this,

although I want to add, the part that is most meaningful to me is the part about how they didn't include the attachment because either they have no source for the underlying allegation. They made it up. Or they were just too lazy to include the attachment because this wasn't actually important to them. And either way, it leads to the same conclusion that this was not an actual complaint of misconduct against Judge Bowesburg. This was a press release against Judge Bosberg to gin up anger. and outrage at the judiciary against the rule of law for the purpose of small dollar fundraising, clicks, and support for the administration, because they never intended for this to actually be a

valid judicial complaint. I agree with that. I don't think there's any real substantial evidence that they meant that anyone should take this seriously outside of sort of the base to show that they're fighting the judges. I mean, this is beyond incompetence, Sarah, to sort of say, okay, here we're taking a highly unusual step of filing a misconduct complaint against a judge, claiming it's supported by a piece of evidence, and okay, massive incompetence would mean you didn't attach the evidence. What's beyond massive? What's bigger than massive? Like black hole level incompetence would be then you're contacted to provide the evidence and you don't do it. Like, what? What on earth? And so, yeah,

dismissing it on that basis alone was absolutely correct. But I'm glad that he went on and dealt with it, you know, dealt with the sort of the substance of the allegation anyway, because the whole thing was just specious from start to finish. The idea that a judge can't seek advice from the chief justice of the United States in a judicial conference where they're talking about matters involving the judiciary. And by the way, quite prescient matters involving the judiciary because we are watching, not really a campaign of defying the Supreme Court, but an inability and or unwillingness to comply with district court orders at scale, like at scale. So asking the Chief Justice about that seems to me to be not an abuse of your discretion or authority as a judge, but rather like a

genuine heartfelt inquiry. And these things are not without cost, too, because you can't sit there and say, well, he won, or like going back to the six Democratic members of Congress, they weren't indicted, no harm, no foul, no, that is not the case at all. Judge Bosberg has been inundated with threats, just inundated with acts of intimidation. And he's not the only judge. I mean, we've talked about, you know, Justice Kavanaugh, somebody was sentenced for trying to kill him. Justice Barrett has talked about threats that she's faced. So this is something that happens on a bipartisan basis, but the threats here have been generated in many ways by these kinds of complaints. And so it's not no harm, no foul. It's not at all. It's an efforted intimidation that had

no legal foundation behind it as evidenced by the fact that they barely even tried to make their case. All right, David, I have a series of questions from just this week from listeners that I wanted to share with you. We're just going to tick through him. First, David, we've been keeping a secret from our listeners because several weeks ago we got an email from an assistant district attorney and he and his girlfriend were avid listeners of the pod and they were coming up to DC. He was very excited to propose to her and asked us for advice on exactly where to do that. He was thinking Supreme Court, but there was scaffolding up. And we can now tell everyone this secret because it was a success. She said, yes, the scaffolding just days.

before came down. The pictures are beautiful. Congrats to you guys. We're thrilled for you. Congratulations, guys. Next up, David. There was a recent AO episode where Sarah and David were talking about stealing elections, and it reminded me of this example from Miami, Florida. So the example, David, is that the Republican candidate funded another independent candidate who had a very similar name to his opponent. Now, as it turned out, they illegally used the money to do that. So they were indicted for campaign finance violations. But as I pointed out, that's not illegal. It's not good. I wouldn't call it moral. But we're actually seeing something very similar happen in the Texas Senate race. It's a three-way race. And let's just you. Let's just

just say Ken Paxton has every interest in having the other, the third candidate stay in the race to siphon votes from John Cornyn. And we've certainly seen this in plenty of other contexts of, you know, Green Party candidates and the Republicans will help ballot access for the Green Party candidates. You know, it's, it was a version of what Chuck Schumer did in 2022. He spent tens of millions of dollars, I think it was 50 or 60 million total, David, to support the most MAGA candidate in the Republican primary against his more vulnerable Democrats, ensure the MAGA candidate won, often defeating more moderate Republicans,

some of whom had voted to impeach President Trump, for instance, so making sure they were out of office, so that in the general election, the Democrats were more likely to win. And David, what was really upsetting to me about that is that it worked 10 times out of 10. And so the lesson was like, yeah, this is a great idea to do this. So again, we talk about stealing election,

and election security, I'm not talking about shenanigans. Even shenanigans that I think are highly corrosive to our body politic. We're talking about actual illegal changing votes, throwing away votes, rigging machines, illegal contributions, that type of stuff. What you're talking about, I imagine a British gentleman saying when they see it, that's not very sporting of you, my good man. it's it's sort of like dirty pool so to speak but it is not illegal and you know there and and you know sadly sadly the only reason this stuff works sarah the only reason pumping up the

maga candidates works the only reason adding the third party works the only reason it works to have someone with a similar name is you're dealing with giant amounts of civic ignorance amongst your voters and so you're fooled because you can be fooled. That's why, you know, the absolute firewall for a democracy isn't informed and engaged and crucially ethical citizenry. You know, the bottom line is, you know, when I was writing about some of the radiating effects of this moment,

don't think for a second that everything, that nature heals just because Donald Trump is gone. Because Donald Trump's only there. Because, what, 77 million people decided to put him there. And so if you get rid of Donald Trump and you still have 77 million people who are happy to vote for Donald Trump, then you're not necessarily in a position like, let's say it's overseas and you're NATO. You're not thinking, oh, everything's cool. Or the DOJ, oh, great, the DOJ is going to heal itself. The fact that twice the American people said yes to Trump means that we have a problem that is not just named Donald Trump.

And I think we tend to forget that. All right, David, here is a public school teacher for 30 plus years. Talk about an expert. I take your point that abridgment of the First Amendment freedoms is to be taken seriously. However, I've got to tell you that there were a multitude of things we could not say in our classroom. I could not say F. Shakespeare. Not that I would. I could not indulge in racist commentary.

Indeed, I was not permitted to discuss partisan politics. I'm wondering how you distinguish your argument about pronouns. And so I responded that F. Shakespeare would be part of the curriculum, right? That's actually about what you're supposed to be learning. And the argument is that pronouns aren't part of the lesson plan. And she said, I take your meaning and we'll avoid the obvious, which is that for we English teachers, pronouns are always part of the curriculum. But this is the tricky part, David, because if pronouns are part of the curriculum, then the school can mandate that teachers use non-preferred pronouns. They can mandate that the teacher use the pronouns assigned at, you know, birth rather than the pronouns that the teacher wants to use and the student wants to use, let's say.

And obviously, vice versa. They can mandate the teacher use the pronouns that the student wants, even if that's not the pronouns that the teacher wants. And so it gets back a little bit of a tricky question of whether teachers are really going to want to push that pronouns are part of their curriculum. If it is part of your curriculum, the school gets to decide. If it's not part of your curriculum, the teacher gets to decide. decide. Well, and to be clear here, this is a circuit split. So the Supreme Court gets to decide, who gets to decide? Let me reserve some time for oral argument right now to the SCOTUS Justices. Please, please go back to Pickering. Please hold that Pickering applies to public school teachers,

because that really does, because remember, when it comes to the bout pickering, it does not mean that as a public employee, you have the exact same free speech, as a private citizen. Even if you're talking about issues that are matters of public concern where this locks in, there's still a balancing test. And then also, by the way, there's anti-harassment regulations and rules that apply as well. So if you're intentionally browbeating a trans student with pronouns that they do not prefer, well, you might be having a, you might be having an harassment issue there.

But if you are saying F. Shakespeare, I don't think that would pass the Pickering test. if you are engaging in racist commentary, that wouldn't pass the Pickering test and might also violate Title VI. So it is not the case that it is mandatory pronoun direction from school districts one way or the other, or anything goes. It is, shall we at least have the balancing test? At least have the balancing test because it took a long time. But now activists on both sides of the spectrum have realized that if we can get something curricular, we can mandate that every last person teaches it to every last public school student, essentially turning our public schools into just explicit, overt, intentional instruments of ideological indoctrination. And I just think that's dreadful

for American public education. All right, David, I really liked this question, more of a process question. Regarding concurring opinions, what used to they have if they aren't the majority deciding opinion. Can lower courts use concurring opinions even though the majority of the Scotis justices didn't sign on to them? I was thinking about the bar opinion you all talked about from the late 80s and the Trump administration recently referenced in support of actions in Venezuela. I was also thinking about the recent concurring opinion in the case about prisoners being able to submit their case to the Supreme Court and how many times they're allowed to do so. So what's the purpose of a concurring opinion? And for that matter, David, what's the purpose of a dissenting opinion?

If you're not in majority, what does it matter? And yet, I will tell you, you will see citations to concurring and dissenting opinions all the time in lower court opinions. So let me give you the value from a practitioner's perspective. So when I was preparing for oral argument, I would, the instant that I knew my panel, I would look at every opinion that they had written on the topic I was doing, I was arguing. And so concurrences could be incredibly helpful for me to tailor my argument to the judge's expressed preference on the law. Same with dissents. And so in that standpoint, they're just super valuable to a practitioner. Imagine you're a Supreme Court oral advocate and you're thinking, okay, as I'm mapping this out, I think I've got three justices definitely against me.

I think I've got four justices potentially for me. There's the two. There's two I'm aiming at. well, you're going to be laser focused on their majority opinions, their concurrences, their dissents, it's going to be very educational. And then the other thing is, if there's anything that you know from this podcast, it is that the law is an iterative process. It is constantly in conversation with itself. And this is part of the conversation. This is how ideas are tested. This is how ideas are questioned.

This is how judges explain sort of in greater depth their thinking. And I think it's actually one of the best elements of the law. It would be interesting to me if, say, for example, if you had a statute, you had an official majority report, an official minority report about the leading reasons for why this law was enacted and why it was opposed. That would be very fascinating. That'd be very interesting, not legally binding by any stretch, but very interesting. So I feel like this is one of the wonderful transparencies of the law is you are encouraged, you're you're quite encouraged, even if you're not writing the majority opinion, to explain your thinking in ways that people who rely on your rulings and people who are going to be arguing for

in front of you can understand. So I actually love it. David, I also think it's worth distinguishing different types of concurrences. So there's the concurrence where you did not agree with some or all of the majority's reason for the outcome. You agree on the outcome, but the way you get there, you want to take a different road to get to the same town. Those concurrences, again, are very helpful for the practical reasons that David said, though I don't think you'll often see lower courts cite them. But there's a different type of concurrence, which is the, hey, I'm just noting we didn't get to this question, but it's an interesting question and here's how I'm thinking of it. And those type of concurrences, I think, do get cited more often by the lower courts,

almost as just like, well, we don't have a decision on this question. We know that they didn't answer this question because this justice said that they weren't answering this question. They highlighted that they weren't getting to this small piece of it. And you have a really smart person telling us how they're thinking through the trickiness of this problem that doesn't have a majority opinion about it. So those can be very valuable concurrences to lower courts because inevitably that question, whatever, the one that was reserved, will go back to the lower courts. And so the concurrences can be helpful in that way.

And then on the dissents, which I know you didn't ask, but I don't care. You know, Sotomayor has talked about the purposes of dissents quite eloquently. You know, there's the John Marshall Harlan writing for posterity. You're really, you're just writing this after you're long dead and you hope that someone will read it someday and know that there were people thinking it at the time type thing. But there's also dissents that are far more short term. You know, we talked about gobitis to Barnett. I mean, that flip happens in, what do we say, three years, David? where you're writing the dissent because you're like, this is a close case. All we need is like

one justice to flip. I'm just going to make the best argument for this and kind of like put a little, put a pin in it, if you will, everyone, because we're going to come back to this. We got a question, David, also about the three judges who dissented in the Texas redistricting case, but not the California redistricting case, about how that process would work and how precedent then would ever get overturned. You know, if you dissented in the one, why aren't you dissenting in the other one if it's the same case. And I guess I would point you, I mean, Kagan again has said this explicitly, but the most famous example of late has been the chief justice in Hellerstadt to June Medical, where he's in the dissent on an abortion case applied to a Texas law in a 5-4 case.

And then Louisiana has the exact same law. The composition of the court has changed. He switches sides, and it's 5-4 striking down Louisiana's law as well. and he says precedent. We just decided Hellerstadt. I was in dissent. I'm not agreeing with the reasoning of Hellerstat, obviously, but it's now the decision of the court and we're not just going to flippy flop around based on change of personnel. So that's another way in which dissents, concurrences can be sort of meaningful or not meaningful or it's not exactly what the judge is going to do next time, as in it gets complicated. And thinking of the courts like Congress will not help you in predicting what the court will do. Also, David, I have an important correction to make in that

conversation that we had because I was talking about the dissent in the three judges who heard the California redistricting case. And I said it was by Judge Bumete. It was not. It was by Judge Lee. So, David, Judge Ken Lee and Judge Patrick Bumetay are not the same person. Judge Ken Lee has an incredibly inspiring story about coming to the United States from South Korea. And really, if you haven't seen it, like go find a video of him talking about this. His story of becoming American and his parents is really moving. Judge Patrick Bumete is the first Filipino-American to serve on a circuit court. Good for him.

All right, David, when we get back, it's Gryfter Sarah time, right? Yes, it is. Cannot wait. So we're back, and we're back with Gryfter, Sarah. Sarah A.O. host has departed the scene. In has lurked grifter Sarah. She has lurked into the room. And I am now asking her to put on her grifter Sarah hat and analyze the Texas primary. And I know this is a little off the beaten path. Believe it or not, A.O. started off with always having a political segment because Sarah's got

enormous amount of political experience. But we're going to avail ourselves of that now. And we call it grifter Sarah, not because Sarah was a grifter in politics, but because she, He's very good at sort of analyzing how this thing's going to play out. Morals and ethics be damned. How all of this is going to go. And Texas Senate primary to me, Sarah, is encapsulating both parties' problems at the exact same time. You've got Ken Paxton, maybe one the most corrupt politicians in America, recently endorsed

by Turning Point USA, taking on Senator Cornyn, and apparently leading, at least within the margin of error on the Republican side. And then you have James Talarico, a state senator, I believe, from Texas, sort of very, I think of James Tallerigo as straight Pete Buttigieg. Is that fair? Yeah, totally. And then you've got Jasmine Crockett, who, you know, I don't want to say that she is the Democrats, Marjorie Taylor Green. I think that's a bit much. But she did make her name in this very aggressive confrontation with Marjorie Taylor Green and is very much a punch-em-in-the-mouth Democrat. And so that's where we are. And we could very well end up with a Jasmine Crockett versus Ken Paxton primary because we can't have nice things. But you're from Texas, Grifter, Sarah. Tell me

what's happening. Tell me what needs to be done. First of all, let's talk just for my Texans out there. Primary election day is March 3rd. You need to go vote early voting for. for the primary start soon, February 17th. Okay, so let's do some numbers here. According to the latest poll, Ken Paxton is at 38%, John Cornyn is at 31%, and Wesley Hunt is at 17%. That was that third candidate that I talked about. The conventional wisdom is his continuance in the race

is actually helping Ken Paxton. Although I am loath to say that there's, you know, if he dropped out, John Cornyn all of a sudden gets 17 more points. That's very unlikely to me. You know, when we were talking about lanes in 2015 and the Republican primary with Donald Trump, this idea that like, if only everyone dropped out, you know, Ted Cruz would beat Donald Trump. Early in the race, that would have been true. But as we started looking later on in the race about where each person's voters would go, you know, maybe it would be two to one. And then it would be 5545. It wasn't like those people saw it as I'm voting for Marco Rubio because I don't want Donald Trump.

At some point, they were like, I like Marco Rubio, but my next choice is Donald Trump. And you're like, that makes no sense. No, that's not how voters work. They are not strategic political operatives. So, yeah, but nevertheless, taking 17% is really important, David, because of the runoff. If you don't get over 50% in Texas, you go to a runoff with the top two candidates. 38% and 31% unless those numbers shift dramatically. This is going to a runoff between Ken Paxton and John Cornyn.

Now runoffs generally, not always, have pretty low turnout. And so it becomes an enthusiasm battle, which in this race could really mean anything. Now, on the Democratic side, Jasmine Crockett is at 47% and Tala Rico's at 39%. Boy, that seems like we're getting close to not having a runoff there. but I think it's worth noting something very interesting going on on the Democratic side that had already happened on the Republican side. And Marjorie Taylor Green is the perfect example of it. If you are trying to plot Republicans on a right-to-left spectrum that is, you know, one-dimensional line, it's getting impossible to do that right now. I don't know what's on one side of the line

or the other. If it's policy, it's not going to work. If it's vibes, even that is getting hard. where would you put Marjorie Taylor Green now, for instance? Well, Jasmine Crockett has the same problem. She is not a traditional progressive in terms of policy issues, but then vibes-wise, she's very much, you know, social media, Instagram, you know, outrage, anger, shock value. But policy-wise, progressives don't actually like her very much. So this gets to the fun part, David. if you actually had a general election race between Ken Paxton and Jasmine Crockett, it is all over the place. The polling is just not helpful. And unlike the Alabama race with Roy Moore, where a Democrat won that Senate seat, that was only for two years because it was filling out the rest of Jeff Sessions' Senate term. This will be for all six years that a potentially, there could be a Democratic senator in the state of Texas.

Yeah, you know, this is my completely uninformed opinion compared to yours on Texas politics. It just, it seems to me that it would be difficult for Tolariko to beat Corny. He's much more likely to beat Paxton. It would be virtually impossible for Crockett to beat Cornyn, but Crockett could very well beat Paxton. Like, that is actually a thing. And so, you know, I don't, well, I think if Democrats were wanting to select the most electable choice, which I think is the smart thing to do, they would go with Tala Rico.

I actually just don't think, I think Paxton has so much baggage combined with the possibility of a lot of underlying fundamental dynamics going and cutting against him. I mean, Beto O'Rourke came pretty close to Ted Cruz in 2018. And Ted Cruz did not have the baggage

that Ken Paxton has, not even close. So here's what Grifter Sarah says. The Trump admitted. would be insane not to offer Ken Paxton nearly whatever job he wants to get him out of the Senate race, because as you say, David, John Cornyn handily defeats any Democratic candidate on the general election ballot. And it doesn't really matter who it is. And the other dynamic worth mentioning here is something we're seeing in Virginia, where Spanberger ran as a very moderate Democratic candidate for governor. And in fact,

this was touted by moderate Democrats to sort of push back against the progressive narrative that, you know, the progressive wing of the party was ascendant because of Trump, et cetera. The second she got into office, however, she's moved very far to the left on kind of everything, changing religious exemptions for private schools, raising the tax rates. I mean, just like, it's a wish list across the policy spectrum for the left. And this presents a real problem, I think, for voters that like if choosing between, we've talked about this, you know, character or crazy and not crazy, sometimes you will go against your own policy preferences to pick the moderate candidate even of the other party. But if the moderate candidates are basically trying to fool you

to get the moderate vote and then it turns out everyone is crazy, it's going to be really hard for the moderate thing to work anymore because no one will believe you're actually moderate. And I wonder if in the general election in Texas, how that dynamic may play out in a state that is really big. There's a ton of voters. There's a lot of different lanes out there for those voters. Texas is, you know, we're a cowboy state. We're not the deep south. We're like nothing else in terms of voter population, demographics, all of it. So I'm watching closely. Yeah. Oh, it's fascinating. It's absolutely fascinating. Your point's well taken about this whole, that was kind of the Biden process, right? He's the most moderate Democrat in the primary. He wins pretty handily. And then he gets into

office and governs pretty hardcore to the left. And literally SB1 is nationalizing elections, which again, Democrats have memory hold that, like, they ever were in favor of nationalizing elections. That's literally what your first bill was. And then Trump, if you looked at rally Trump, thing about this term should surprise you at all. Rally Trump was all about this right out front. But if you were watching commercial Trump, the people are not following politics, it was all about inflation and it was all about the border. And it was very mainstream. And so this is a pattern that is happening again and again and again. And I honestly don't think we're going to snap out of this moment until we can snap out of this pattern. But the pattern exists for a very interesting

I think very human reason. And that is that the people who stay engaged in politics, like the ones who are in it, who listen to all the podcasts, who put the yard signs, who give the money, the ones that you hear from day by day by day, if you're an elected official, Republican or Democrat, are well to the left and well to the right of the American public, generally. And so you're going to constantly be barraged with the activist base telling in your ear, in your year, in your year. And what you have to do is you've got to cover your ears and think that I'm actually governing not for the, you know, the difference between Republican votes for Trump and the primary and Republican votes for Trump and the general was vast. I think it was 17 million to like 78, 79 million, something like that. You got to think I'm governing for the 78 or 79 million, really the whole country, not the 17 million. And politicians are losing side of this so much. And then what's, and it's one of the reasons for the instability of, our politics, that the people who don't pay much attention come and vote and they vote in a kind of

a mainstream way and what mainstream things. And then they step back and then the activist core takes over and people govern from extremes. And then they, two years later, four years later, the same group of people comes forward and throws out the old, brings in the new, and then goes back and waits. And we're just going through this cycle. And somebody's got to learn on, you know, on the right to stand up to the base, on the left to stand up to the groups, and realize that a lot of these activists are very out of the mainstream. They are, you know, I've talked about the activist problem before. They're very far outside the mainstream. Temperamentally, they're different from general election voters, and their issue set, they're different from general election voters,

but they're the ones who are constantly in the ear of politicians, and so they have disproportionate impact. And what do you do when the moderates are dead and the people pretending to be moderates are lying? Yeah. Well, David, there were more interesting questions that we got, including on the Second Amendment and on the role of Congress and advice and consent and where that rubber hits the road. But we're going to have to leave it to next time on advisory opinions. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes

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That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.