Advisory Opinions - Nondelegation Doctrine

Episode Date: February 18, 2021

On Tuesday, Speech First, Inc. filed a free speech lawsuit alleging that the University of Central Florida and its officials “created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day.” David and Sarah walk us through the history of campus cat and mouse battles over restrictive speech codes and explain whether this lawsuit will matter in the long run. On today’s episode, our hosts also chat about the nondelegation doctrine, the possibility of further criminal prosecution against Donald Trump, and how Rush Limbaugh’s passing might affect the conservative media climate. Show Notes: -Speech First vs. Cartwright and Speech First, Inc. v. Gregory L. Fenves. -Nondelegation doctrine cases: Schechter Poultry Corp. v. United States, J.W. Hampton Jr., & Co. v. United States and Gundy v. United States. -“Trump’s Acquittal Exposed a Republic in Peril” by David French in Time. -“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Julian David Mortenson and Nicholas Bagley in the Atlantic. -“Opinion analysis: Court refuses to resurrect nondelegation doctrine” by Mila Sohoni in SCOTUSblog. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Connect the dots with access to millions of historical documents. And then share what you find in one central place. Visit Ancestry.ca and start discovering your family story today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. We're going to cover a lot of things today. We're going to start with free speech. We're going to also talk about non-delegation doctrine. And I promise you, that's going to

be interesting. Everyone likes to hear about free speech. Not as many people like to hear about non-delegation doctrine, but Sarah is going to bring it in a compelling way to make you understand why it's so important. And we're going to end up by talking a little bit about how possible is it really that Donald Trump is going to be prosecuted? There were senators and others who suggested that the real way during the impeachment trial suggested that the real way to hold Donald Trump accountable was not through impeachment and conviction, but through criminal prosecution.

And we're just going to get into brass tacks about how realistic is that. But before we dive in, just minutes before we started to record the podcast, we found out that Rush Limbaugh had died. And so we're going to end the podcast by talking a bit about him and his legacy. But let's start with free speech on campus. One of the things,

I know both Sarah and I have an inbox that gets just bombarded with press releases. Most of them are not really in my area of interest, but some of them are. And I got one yesterday from Speech First, which is a free speech, a group that advocates and litigates for free speech on campus versus officials from the University of Central Florida. And they were taking on the university's speech policies, its computer use policies, and something that it calls a just-nights response team.

This is kind of like the bias response teams you see on college campuses. And I thought this could be a great launching pad, Sarah, to talk about the cat and mouse battle that goes on on campus and in schools over free speech. We've talked about it a lot, but I thought it might be kind of fun to give a little bit of history as to how these battles have unfolded on campus, how universities have kind of bobbed and weaved in their effort to try different strategies for suppressing speech they don't like. And I think it's really important for people to understand this who care about free speech, because one of the things that if you go back in American history, there's always been a bobbing and weaving over this. It was the same generation that drafted and ratified

the First Amendment also passed the Alien and Sedition Acts. And so there's always this back and forth between free speech and the urge to censor, and especially recently on college campuses. So Sarah, I'm also going to talk about your judge, Edith Jones. She has a fantastic free speech decision from not long ago involving the fake UT, the University of Texas at Austin. So anyway, I don't know if you'd had a chance to review that complaint, but I did find it interesting that we're fighting some of the same fights still now over free speech on campus that we've been fighting for 30 years. Has it been 30 years since the speech code first began to be developed in more than 30 years and implemented on college campuses? So before I dove into some of this history, I, you know, I just wanted to see if you had any preliminary thoughts. Well, first we've had Nikki Neely, the president of Speech First on this

podcast. She is the one who signed this complaint and the law firm involved is Concevoy McCarthy, who is closely aligned with this organization. And so in some ways, we've seen this lawsuit filed around the country several times over. They've been wildly successful at scaring the schools into changing their speech code. They have been less successful, because of what I just said, at actually getting cases to their conclusion and making substantial law on this. Because most of the time, if not every time I can think of, the schools have basically backed down rather than lose in court and make law that would be further constraining on them. At the same time, they're sending letters ahead of time. It's not like they just file lawsuits and the school has no idea this is coming.

So I'm confused why this school has held out and wanted the lawsuit filed against them. Maybe they're willing to litigate this through because, frankly, Speech First started several years ago now. It's sort of well known throughout the country that if you're a school and Speech First sends you a letter that you have a speech code that's really vague and you know just says that you're going to punish students for quote things that other people find harassing or intimidating or belittling or i think humiliating was the term used in this speech code um you know that it's not going to turn out well for you but here we are it's, and Speech First has found another school

that was like, no, we're different. Spoiler alert, they're not going to turn out to be different. Yeah. Well, and if there's one thing that I think I want to get across from this, it's that what we're dealing with is an evolving defense,

an evolving response to the way in which universities deal with speech that they don't like. So in the late 1980s, early 1990s, universities were passing speech codes proudly. This is a speech code. This is how we're regulating student speech. student speech. And the hallmark of the speech code was that it substituted what the law had when it comes to harassment law, an objective test. In other words, a reasonable person test based on a conduct that was sufficiently severe and pervasive that it would deprive a person of the benefit of the educational activity, sort of the objective test of harassment, where actual harassment is not protected by the First Amendment. They substituted that for a subjective test, which essentially was, if I found your speech

humiliating, for example, word used here, or if I found your speech offensive, or if I found your speech discriminatory, that was it. Then you were subject to punishment. And the way this worked is you had no idea if you were a student then what was legal and what was not legal. Because if I'm talking to Sarah, and Sarah, as we all know, Sarah can mix it up. Sarah is, she likes to get in there and argue. She can give as good as she gets, and she enjoys the exchange. But producer Caleb, he's a sensitive soul, Sarah. He is. We all know it. We all know he's a sensitive soul. So I could be in the dorm, and Sarah and I could be talking, and we could be talking and we could be talking, you know,

till late in the night. And we've had this great conversation about, you know, tough issues. And then I walk in and my roommate is producer Caleb, and I'm all fired up after the conversation. And I say the same things to producer Caleb, but I hurt his feelings. So it's the same words between two different students. But the fact that producer Caleb gets his feelings hurt meant under these speech codes that I was guilty. I was guilty. And the entire measure of whether or not I was guilty was producer Caleb's feelings.

So under that circumstance, it's easy to see how these speech codes got struck down. And there are ways that universities tried to defend them by saying, for example, they were just trying to protect against fighting words. Well, that doesn't really work. And so then another thing they started to do was say, well, wait a minute. We're not really interested in punishing you, which is censorship. we're interested in educating you. So to educate you as to why producer Caleb finds your speech so offensive,

we're gonna bring in something they call a bias response team. And this is the kind of thing that Speech First has really pioneered is diving into these bias response teams. And someday, Sarah, we're going to actually get a university that's gonna try to hang on tightly enough to its biased response team that will get good case law deciding this one way or

another because the way they defend this. So speech first will say, if a biased response team comes knocking on the door, even if they're not punishing me, the mere fact that they're educating me about problems with my speech and then if they find that the speech is severe enough referring it out to disciplinary authorities that has a chilling effect that has a chilling effect and the university says no no no no we're a teaching institution it is our purpose to educate people and we're not censoring we're just instructing them and telling them how, say, for example, historically marginalized communities like podcast producers have been impacted by this

kind of speech. And that is one of these cases is going to actually get to that stage where you're going to really dive in on this education versus chilling effect aspect of this controversy. And it's going to be interesting. And I have a feeling I know how it's going to go, Sarah. I have a feeling I know how it's going to go that when agents of the state knock on your door and say, let's talk about your speech

and let's have a conversation about your speech, that that is not going to be seen as purely educational. So what about this Judge Jones case? Yeah. So I was going to talk about the Judge Jones case because she has, if you were going to, and we'll put it into the case notes or the podcast notes. I was going to recommend this as a recent case,

and if you're going to read one case and you're saying, you know what? I don't really know how speech codes work and why they're legally suspect and, um, how they are used in sort of the real world. Uh, this case by Edith Jones called speech first incorporated versus Gregory.

Do you pronounce it? versus Gregory Finvis. Finvis in his official capacity. You don't know how to pronounce the president of the University of Texas name? Well, anyway. So if you want to read a case that explains the battle over the First Amendment on college campuses about as well as you're going to see it explained and how universities draft policies to suppress speech, it's going to be hard to improve on this case. So we're going to put it into case notes and podcast notes. We're going to put it into our podcast notes. You can read it if

you're really interested in a nerdy way. But one of the things that it demonstrates is literally, and I think the first case it cites goes all the way back to like 1989, how this battle has been fought for 30 plus years. 30 plus years, and universities have never won. There isn't finding, now they have won on some side issues, like do you have standing or is this case moot? But on the core substance, does this speech code pass constitutional muster? They've just been losing and losing and losing and losing. And truth be told, it's one of the most successful litigation efforts, constitutional litigation efforts that I know of because the number of

universities that have had speech codes has gone from a high of in the high 70% range down to where it is now in the 20 plus percent range. And they're rarely enforced. So it's a successful effort, but it's an ongoing effort. So I just thought, hey, look, free speech on campus, my issue, Judge Jones, Sarah's judge. What a great advisory opinions topic. We will keep our eye on this case, but my money, it settles. You think it settles? money, it settles. You think it settles? They all do. Yeah. Yeah. You know, it's which all which then gets back into some other things that we've talked about, about mootness, attorney's fees, how people evade responsibility for passing unconstitutional policies. but let's move on to your topic, non-delegation. Get ready for some sexy law talk.

Wait a minute. I need to begin my topics like that. All right. So last pod, we were talking about how broken Congress is and how all of their legislative powers basically moved into the administrative state and things that can be done. And I was criticizing Yuval Levin for his ideas, which I thought were sort of pie in the sky, things that someone at a think tank comes up with, but not things that actually have any chance of happening. Multi-member districts, increasing the number of folks in the House of Representatives. To the extent that things are

going to happen, it's going to be a while. But one thing that gets thrown around a lot when you talk about ways to sort of force Congress back into being a legislative branch is reinvigorating the, quote, non-delegation doctrine. And so today, now that we have some time, I wanted to talk about the sexiest of law topics, the non-delegation doctrine. So this doctrine was basically created in 1928 in a case called J.W. Hampton v. U.S., in which the court said that Congress has to give agencies in the administrative state, quote, an intelligible principle on which to base their regulations. Still super lenient, but basically this case said, like, Congress can't just say, hey, EPA, make environmental rules. Like, that's not intelligible. You have to provide more guidance than that.

Then, in 1935, in a much more famous case called Schechter Poultry, every law student is like, oh, my God, it's Schechter Poultry, my favorite. student is like, oh my God, it's Schecter poultry, my favorite. The Supreme Court held that, quote, Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. So this was a tighter rule than just the Hampton rule. And this is like, they can't abdicate any, quote, essential legislative functions. And so I guess the example for that would be something more like telling the EPA, not just broadly, like, make environmental law, but please set up all regulations for wind.

Wind. Just wind. Like, that is probably too essential. Like, that's just too broad. Okay. But that was 1935, Sarah. Why are you giving us cases from 1935? Because then nothing happens for nearly 100 years and non-delegation doctrine, I mean, it just dies. It withers. It's gone. There's cases where it's like waving its hand from far, far away at the horizon, and you think it's going to come back in the 90s. There's a line item veto case.

There's a mistretta about guns in school zones, whatever. And basically, the court finds other ways to get to the outcome and doesn't ever, ever really head back to non-delegation. But, and this is where the excitement happens. In 2019, there is a case, Gundy versus United States. It is very recent in which the court had, like it is teed up. So there is this thing called the Sex Offender Registration and Notification Act. And what it did was require the U.S. Attorney General to basically create requirements, quote, as soon as feasible to offenders convicted before the statute's enactment. And the whole question teed up was, was that an unconstitutional delegation of legislative authority? Now, it's a pretty messy statutory case, and it doesn't matter for

our purposes. We are not going to spend time today talking about 34 USC section 20913D. That is not sexy law talk. Are you sure? Are you sure? Because I've got questions about... Yeah, no. I've got questions about subsection B, but anyway, we can table those. No, we should. If your sections are in the 20,000 range, I am not

there for that. Okay. So the court affirmed, which again, for our purposes, doesn't really matter, basically said that it was not a non-delegation problem because actually the statute gave plenty of guidance. It was a 5-3 affirmance. Kagan wrote for the court, but this does not tell us the whole story. First of all, you may note that it was 5-3. That's because Kavanaugh was not part of the decision. This was decided in June 2019. So he had not been there for the argument on October

2nd, 2018. So he just stayed out of it. So it's an eight-person court. So the five are Kagan, Ginsburg, Breyer, and Sotomayor in Kagan's main opinion. Alito is the fifth vote, but he is in a concurring opinion. And then Roberts, Thomas, and Gorsuch are in the dissent. Now, Kagan's main opinion is like 18 pages. Gorsuch's dissent is 33 pages. He has feelings about non-delegation doctrine. But the fifth vote, as I said, was Alito. And what Alito

said, fascinatingly, is, quote, if a majority of this court were willing to reconsider the approach we have taken for the past 84 years, as in post-Schechter not doing anything with non-delegation doctrine, I would support that effort. But the reason he's the fifth vote is, he says, it would be freakish to single out the provision at issue here for special treatment. You know, normally I'm team Gorsuch and I think that Gorsuch has a lot of great points in his Gundy dissent, all 33 pages of it. But I have to agree with Alito that if you're going to do non-delegation, let's do non-delegation. But the idea that the only non-delegation problem last 84 years happens to be, you know, the Sex Offender Registration Act 34 USC 20913 subpart D? Like, no. So his point is like, let's have a coherent plan here or not, but this ain't it.

This ain't it. It's certainly not even the most egregious. So that means, David, that we now have Justice Kavanaugh on the court. Yep. And we have Justice Barrett on the court. If there is an issue, I mean, you and I have talked about Chevron getting revisited in the 6-3 court and said that all these people focusing on abortion probably are like way missing the major structural legal changes that could happen in a 6-3 court and that abortion actually isn't one of them.

It will be things like the non-delegation doctrine that could wildly change the balance of power between Congress and the administrative state. If all of a sudden you have a court that says, uh-uh-uh, you, Congress, have to actually write laws about all of this stuff, and all of you administrative agencies who are beefed up on legislative steroids right now, we are going to starve you of all authority to make new rules. You are simply enforcing what Congress has said. And if Congress hasn't said it, you can't do it. So, I mean, massive shrinkage to the EPA,

massive shrinkage to those other regulatory agencies, really, more than anything else. Yeah. I'm sorry. No. Keep going. Well, I think you should go because there's also some pushback to the whole concept of non-delegation doctrine that I want to get to, but let's like bask in the glory of non-delegation doctrine for a little bit. Well, that's what I wanted to do.

We're on the same wavelength. I wanted to bask in the glory because, and we can put this in the podcast notes as well, I had a Time Magazine essay yesterday about how upside down our constitutional structure is. We talked about that in the Dispatch podcast that we recorded mere moments ago. This is a huge issue. It's a huge issue. It's one of those things that we often tend to think of when we think about what divides us as a country. We'll think of specific issues,

abortion that you just raised. Absolutely, it's incredibly divisive. There are issues around free speech that I just talked about that are incredibly divisive. Religious liberty, incredibly divisive. And one of the interesting things about the constitutional system is that Congress was really kind of created to be the primary vehicle for resolving the most

contentious, it was the primary vehicle for resolving these contentious issues through a process of legislation and compromise. And so as Congress becomes less powerful, as Congress sort of the bottom drops out of Congress's power, what ends up happening is a lot of these super contentious issues get filtered into the much more winner-take-all system of court decisions or who's the single unitary executives who's setting the agenda for this executive branch. And so what the courts here can do pretty immediately through non-delegation, through adjusting the Chevron doctrine,

is say, wait a minute, all of that power that we kicked, that was kicked from Congress to the executive branch, we're not going to let that happen anymore. And this isn't judicial activism. This is in the sense of living constitutional stuff. This is basic intended structure of the government. And I do think it would be very interesting to see the effect on our politics when more of the contentious issues are channeled into a legislative process that demands compromise versus to a judicial

process that's winner-take-all? Yeah. I mean, this is why so many people think the non-delegation doctrine is this, you know, maybe quick solution. It's sort of a two-for-one, right? You shrink the administrative state and you beef up Congress, thus giving more power, in theory, to the middle, you know, to the Joe Manchins who are willing to actually work on legislation. And so if all of a sudden legislation is back in vogue, you in theory are incentivizing people who want to work on legislation instead of, as I have mocked before, those freshman congressmen who aren't even hiring legislative staff and instead just hiring all communications staffers. Because that's where the party is right now. It's on cable news. It's not actually drafting laws. If anything, that's the stuff that is right now. It's on cable news. It's not actually drafting laws.

If anything, that's the stuff that gets you in trouble because then it's something for someone to run against you on. Aha, this person ran, drafted this piece of legislation and it could have been more whatever, which is exactly the opposite of how legislation works. It is compromise.

It is log rolling. Of course, it could be better, different, more the way you wanted it, but 535 people are getting to weigh in on this. And so if you can always run to someone's left or right who drafts legislation and that person loses their seat, then the people who win will have learned that the worst thing you can do is

draft legislation on which you can be attacked. So non-delegation doctrine, looking pretty good. It's all dressed up. It's ready for prom. It's gotten its hair done. Its makeup looks fierce. But there are some problems. So these two law professors, I thought, didn't really...

Wait, did you just say its makeup looks fierce? Yes. Is makeup supposed to look fierce? Not to go on a tangent. I think you maybe don't know the kids the way I do. The lingo, David. Oh. Like, she looks fierce means, like, she looks great.

She looks awesome. She looks like she's, like, ready to kill at the club, you know? Okay. Well, I've heard the term on fleek. Okay. That's old. You're, like, that's no longer used. Okay. All, I've heard the term on fleek. Okay. That's old. You're like, that's no longer used. Okay. All right. I'm sorry. I'm sorry. Proceed. Okay. So two law professors from the University of Michigan published this piece in the Atlantic actually in May of 2020.

So pretty recently, Professor Julian Davis Mortensen and Nicholas Bagley. They, they're going to pour cold water all over our non-delegation world here. So their point is twofold. One, that the idea that conservatives think non-delegation doctrine is somehow originalist or even textualist is deeply mistaken. And two, that delegating things is good. But their first argument is way more interesting to me. So they're pointing out that basically legislative delegations are everywhere. Air quality, drug testing, business regulation, healthcare, education. They do a better job explaining them than I do. So for instance, this is their explanation. Congress instructs the EPA to set pollution

standards that are, quote, requisite to protect the public health. That's pretty broad. The Federal Communications Commission to regulate the airwaves, quote, in the public interest. The Justice Department to classify a drug as a controlled substance where, quote, necessary to avoid an imminent hazard to public safety. So these are broad delegations and they've been going on for the last 84 years. So if you're going to back this up, you need to have, you know, you need to have your receipts. Also something the kids say, David. I'm familiar with that. I got that one. Okay. So first argument is the textual argument. So they're saying that like, look at the text of the constitution and the fact that, you know, article one is plenty big. They're talking. Like, it's got lots going on.

And so they could have easily written in something like non-delegation into Article 1. They didn't. There's nothing about non-delegation at all in any of the text of the Constitution. That's why the non-delegation doctrine is the non-delegation doctrine. It's sort of this hidden idea. Two, and this is maybe their most persuasive, is that an original understanding of what was happening at the time of the founding is completely opposite of the non-delegation doctrine. Now, they have a nice long piece about this,

but I thought their most persuasive elements here were three bullet points from the first Congress, from 1789 to 1791, and what some of the things that the first Congress did. And these people surely would have understood the non-delegation doctrine

if it was so deeply embedded into an understanding of the text or the original meaning of Article I. Congress readopted the Northwest Ordinance, which gave the appointed governor of the Northwest Territory

and three federal judges the power to issue the territory's entire civil and criminal code, quote, as may be necessary and best suited to the circumstances

of the district with no other guidance whatsoever, they say. To foster industrial innovation, Congress adopted a patent law giving the Secretary of State, the Secretary of War, and the Attorney General the power to grant patents to new inventions whenever, quote, they deemed the invention or discovery sufficiently useful or important. And Congress forbade trade or intercourse with American Indian tribes without a license and required all licenses to be, quote, governed by such rules and regulations as the president shall prescribe. Those are pretty good examples of delegation, I have to acknowledge. Yes, I agree, they are. But I think there is a bit of a problem with sort of saying, you know, that early generation, it's going to do what the Constitution was intended to do of how we read the First Amendment now.

So, but David, in fairness, that's kind of an attack on originalism as a whole. Yeah, I would say, well, yeah, that's a, I mean, fair point. But here's what I would say. I think that one of the things that happened, and this is something that's been a tug of war since the founding, the Constitution was written by a group of people who didn't know who were going to be running things. Okay? And when you understand that, so it's written by, it's not like there was one gigantic dominant faction in America that was going to be, it was quite obvious, a political party that was going to be

running things. So what you had was a constitution drafted in an environment where small states were trying to play against big states, big states didn't have quite enough power to impose their will. Nobody really knew who was going to be in charge. And so there were a lot of safeguards sort of drafted into the constitution that you would put into a document when you didn't know who was going to run things. Okay. Then what happens? The very first thing that begins to happen is that somebody starts to be in charge. And one of the things that happens when you're in charge is you start to, A, believe you're always going to be in charge. And then B, you start to do the things that people who are in charge do, which is make

life easier for yourself, which is pass laws that help keep you in charge. So in other words, they begin to act exactly like the founders expected people to act when they gain power. And it was the founding generation that did this. And so I think that that's one of the interesting aspects. And it's also one of the reasons why I'm, if you said, okay, push, which part of, where are you more textualist than originalist? I'm always leaning towards the textualism. I'm always leaning towards the textualism. I'm always leaning towards the textualism.

Totally. Because originalism is so, I don't know, it is less distinct to me. It's less distinct. In my mind, it's much more arguable. Yeah, because people can have arguments, like they have, I think, great arguments about the first Congress,

but then I think you can, you know, point to John Locke or whatever and have different arguments. And it's all sort of under the umbrella of originalism. But I think that textualism, while there's obviously still plenty of disagreements within the textualist family, I think you're at least grounded to something. textualist family, I think you're at least grounded to something. Right. Exactly. Which is why there's a huge amount of argument that takes place, especially say around the religion clauses about like, hey, the same generation that ratified the establishment clause also did X or Y or Z. Well, let's just start with the language. Let's just start with the language. What is an establishment? That is a word that has meaning, you know, and let's just deal with that first. But yeah, no, I, you know,

I think that that is, that's a strong counter argument. It's absolutely a strong counter argument, but the- Well, to wrap on non-delegation, the sexiest of sexy topics, I'll finish with Gorsuch's dissent, which I said is great. And if you're pro non-delegation, this is the 33 pages for you. the Sex Offender Registration Act doesn't involve filling in the details. You know, this isn't deciding factual predicates. Like the statute says, you know, if it fits this and this and this, then this, and you decide, Attorney General, whether it's fit those factual matters.

And it doesn't involve an overlapping area, inherent to Article II, like foreign affairs, for instance. And so his point is that if you allow stuff like the sex offender registration delegation to stand, it will, quote, invite the tyranny of the majority that follows when lawmaking and law enforcement responsibilities are united in the same hands.

And that, I think, goes to this really fundamental problem when Congress has delegated so much of its legislative powers because it's not interested in being a legislative branch anymore. And I think 100%, David, this will be an issue, if not this term, next term for the court. Folks are watching. They know there's two more votes on the court that will at least be non-delegation sympathetic.

I think that more than even Chevron, the non-delegation doctrine is ripe for reinstitution. And there you've all, I have come up with my answer to your piece. See yourself buying a home one day? Do future you a favor? Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep and put towards your first home. With Questrade, you can open an FHSA online. No bank appointment needed. It's easy

and only takes a few minutes. The sooner you get started, the more time your down payment has to grow. Open an account today at questrade.com. Okay. Sarah, let's talk Trump, and then we'll close with some thoughts on Rush. All right. What I wanted to do is I wanted to get your cold-eyed, realistic, cynical Sarah view. You're not really cynical. Skeptical. I'm a skeptic, not a cynic. Skeptical. Yes, correct. I tell students all the time it is their job to be a skeptic, but never to be a cynic. Right. You're skeptical. I mean, a cynic would not say something like non-delegation law is sexy.

That's not a... Speaking of that, I'm surprised that you were able to transition just like so nonchalantly from the sexiest topic. I mean, catch your breath a little, you know, like... I know. I know. But, you know, I mean, we've been doing a lot of podcasting and sometimes you just got to go from A to B, well, isn't the real way to hold him accountable through the criminal justice system? And I'm going to be honest with you. I'm

just going to lay my cards on the table. I'm skeptical that will occur. There's one area where I think it might, but as a general rule, I'm skeptical that that will occur. It would be a, we'll walk through it, but it would be a very bold move, for example, the DA of Fulton County, Georgia, to indict a former president of the United States. So let's walk through where there are active investigations. And the first one, I mentioned it, Georgia. State officials have been instructed to preserve documents related to attempts to influence the Georgia election. The New York Times reported just seven days ago,

prosecutors have started a criminal investigation into Georgia. Now, I have a French press newsletter where I took a look at the Georgia relevant Georgia criminal statutes. And there's a couple of things that I found in that look. Um, one is there are some statutes that would seem to apply to the content of the conversation that, um, Trump had with Brad Raffensperger, the Georgia secretary of State. They do seem to apply. However, one thing that's kind of interesting about it is it's kind of difficult in some cases to see where a felony begins

and where a misdemeanor begins and ends and a felony begins and ends. And so some of what Trump did may actually, even if it's criminal, be a misdemeanor. And so my position, Sarah, is that it is an incredible reach to say that a local district attorney will indict a president for a misdemeanor. But I will say this, this is the felony statute that might apply. A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony

under this article, he or she solicits, requests, commands, importunes, which that's a great word. I love that word. Importunes are otherwise attempts to cause the other person to engage in such conduct. So Sarah, I importune you to give me your thoughts on whether it is a realistic possibility that a local or even an attorney general in Georgia would initiate any kind of criminal action against a former president based on the election misconduct. Well, look, we know that a prosecutor can indict a ham sandwich, right? Correct. I think also, in general, most prosecutors can get a conviction on a ham sandwich. The problem comes at the appellate level. And, you know, maybe we should walk through the rest of these cases

because I think I'm going to have the same thoughts on all of them. Okay. Which is, I don't doubt that you could indict. I don't even really doubt that you could convict. Certainly, for instance, when we talk about the D.C. one. But at the appellate level, no, I don't think any of them will stand. When someone actually sort of separates the emotion from the law, which is sort of what the appellate courts in criminal cases often are charged to do,

especially in these political ones. Think about the McDonald case, for instance, and the bribery allegations that were there, and he was convicted and it was overturned at the Supreme Court. But I think the most important thing to me, David, important thing to me, David, is that what he did wrong to me was because he was president. Right. If a private citizen had gone on and on about the election stolen, told people they needed to, you know, go make Mike Pence do something, told the Georgia Secretary of State that he should find ballots. And you and I have talked about that transcript and I think read in the larger context, they have a much weaker case

than if you just take that one line about finding votes. Right. In the context of what all the president was saying, it's not nearly as clear cut as you think if you've only read that one line.

I think his defense attorney will have actually a fairly easy time on that. It's because he was president. Well, there's no crime that we have that says that a president doing X, Y, or Z is punishable by X number of years. What we have is impeachment.

Right. That's how we punish presidents for doing something that subverts the Constitution, our rule of law, our free and fair elections. We have impeachment. That was tried. It failed. We can have conversations about the 14th Amendment. I think that those oddly should have a lot more going for them, but everyone's kind of like, maybe we shouldn't be using Civil War stuff now. I don't know. Everyone seems to feel deeply uncomfortable comparing this to the Civil War. And for good reason, I get it. Um, so then we're back to impeachment. Yeah. Well, that's it then. And we can argue about whether Nancy Pelosi should have involved Republicans, whether Nancy Pelosi should have waited to have the nine 11 style commission before bringing an article of impeachment, whether she should have actually done it all much faster, get the article of impeachment drafted on January 7th and get it over to Mitch McConnell on January 8th, leaving him really no choice but to hold the trial while Trump was still in office. There's a whole lot of woulda,

coulda, shouldas that I'm more than willing to entertain. But the fact is, if we're talking about criminal penalties for Donald Trump, no, I don't see them. And I think that goes to even more so to the federal side of this. So the statute that would most likely apply to Trump in his election efforts, especially in Georgia, is 18 U.S.C. Section 241, which is this really broad. By the way, guys, are you getting a message here that some of these criminal statutes are really broad? Which is why Sarah said you can indict a ham sandwich and you can often convict a ham sandwich. So it's really broad it's unlawful for two or more persons to conspire to injure oppress threaten or intimidate any person in any state territory commonwealth possession or district in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the united states that's a broad man that's a broad criminal statute

or laws of the United States. That's a broad, man, that's a broad criminal statute. And one of the rights and privileges secured is the right to vote. There have been criminal prosecutions for failing under this section for years and years and years for things like failing to count votes or altering votes counted.

And if you want to know how broad this statute is, the DOJ manual notes, the relevant DOj manual notes that uh section 241 does not require that the conspiracy be successful does not require that there's even a proof of an overt act in support of the conspiracy um it reaches conduct infecting the integrity of a federal election as a process as a whole and does not require fraudulent action with respect to any particular voter. But guess what? The Biden DOJ is not going to indict Trump under this statute. I'm just going to flat out. It's just it's not going to do it. I can't imagine that it will do it. Sarah, do you disagree? No. Okay.

All right, but here's the one that's interesting to me. And this is the one where I think there might actually be, there might actually be some criminal jeopardy. And this is in Manhattan. And this is the investigation, which seemed to have started out with the investigation of the hush money payments from state criminal law perspective with Michael Cohen and Stormy Daniels which I would be shocked if there's actual criminal prosecution under that but has broadened into investigations of Trump's relationships with banks, insurance brokers, et cetera, more broadly. In other words, the investigation

of some of his financial conduct before he was president. And that one, I could imagine if Cyrus Vance has the goods, I can imagine a prosecution. I can. Don't know that it'll happen. I'm not predicting it will, but that's one I can imagine happening. Sarah, what say you? But that's very different than the post-November, January 6th indictments. Correct. January 6th indictments. Correct. Yeah. If he's got it, I think he will pursue it. And I don't think that would get overturned on appeal. I think that's a pretty clear cut financial

case where we have lots of things that have come before it that will look the same. No problem. Really well-worn path there. The question is, does he got it? Yeah. And we have no idea. No, no idea. No idea. So we just have to wait and see. And as far as the January 6th incident goes,

not only do I think there's no real immediate possibility, barring the uncovering of unanticipated evidence, that there just appears to be no move at all to investigate as a criminal matter Trump's conduct around the January 6th incident itself. So we don't have, we do know there's an investigation in Georgia around the Brad Raffensperger call.

We do know there's an investigation in New York around Trump finances. There is no indication of investigation at the DOJ level Raffensperger call. We do know there's an investigation in New York around Trump finances. There is no indication of investigation at the DOJ level regarding election tampering or interference, conspiracy to violate civil rights, and there's no indication of a criminal investigation around the January 6th incident applying to Trump. So it seems to me, if you're saying that the criminal justice system will hold Trump accountable for his actions as president, that seems to be a pipe dream. If you're saying there's a chance that the criminal justice system may hold Trump accountable for actions that have nothing to do with the presidency, that's more possible. But we just don't know.

Yep. Yep. So, and with that, I'm hopeful, Sarah, we don't talk much more about Donald Trump. You keep saying that. I know. And then we'll come up with topic ideas.

I'm like, oh, this thing. Okay. I really hope, I really hope that we will not be spending much more time on him. All right. Well, let's end up and let's talk a little bit about Rush. And I think we're going to have maybe a little bit different perspectives on him

because you're just a little bit younger than me. And ever so slightly younger than me and so you kind of came up in a different media environment than i did um and so you know did you sarah did you listen to rush absolutely not you never did not i don't think i've listened to rush once in my life is that right that so what would you so you would say your total rush limbaugh radio listening is zero minutes if it's you know maybe if i had been in a taxi cab or something and they would have had it on but i wasn't listening to it. So it's certainly under 20 minutes through my whole life. Oh, wow. Interesting.

I've heard his voice. I've definitely seen videos on YouTube of him saying outrageous things. I am aware of a lot of the sexist things he said. Do you remember that whole Sandra Fluke episode around the Affordable Care Act? And I thought he did so much damage to both the conservative cause on the Affordable Care Act and was just a pig that then conservative women sort of had to defend in a way that I absolutely, not only didn't want to, but also, time for you to go, sir. Like, you are hurting the cause. I have no interest in defending you. And if you truly believe what you're saying, you have no place in the conservative movement that either is fake in welcoming me or disingenuous, I guess I would say, in welcoming me if that's what you believe. Yeah, I remember that incident and that was years after I stopped listening to him.

So I remember in late 1980s, early 1990s, a friend of mine said, have you heard of this guy, Rush Limbaugh? I said, no, I've never heard of him. And they said, well, you need to listen. And I said, okay. And the media environment at that time was so different from what it is now. It's almost like you're just speaking different languages. There were the three media, there was the three primetime, the three primetime news shows, ABC, NBC, CBS. Local media was thriving. Your local newspaper was your main source of news.

Your source of national news was the three 30-minute shows. If you wanted to dive in more, it was Time or Newsweek. We subscribed to both at my house. If you were really interested in ideas, then you could also subscribe to some of the intellectual journals like the New Republic or National Review. And I would go to the library to read National Review. And so there was this sort of day-to-day commentary aspect of news that we just take for granted, now it's minute by minute on Twitter.

But this sort of there's always somebody talking about politics was non-existent. It was non-existent. CNN was really in its infancy. It was a niche thing. Very few people watched it. Nobody really talked about it. It didn't really come of age until Desert Storm. And even then it came of age, not from a commentary aspect, but much more from news.

And so Rush kind of comes into this environment and just, it's hard to kind of say it any other way. He just changes the culture. He comes in. He's a conservative. He just changes the culture. He comes in, he's a conservative, he's on three hours a day. And especially early on, he kind of had this happy warrior persona. Like, I can't wait to explain to you the principles of conservatism. And it was a, I know this sounds strange and maybe I'm misremembering it, sort of this halo effect that often happens when you look back to your years ago. Maybe I'm misremembering it, sort of this halo effect that often happens when you look back to your years ago.

Maybe I'm misremembering it. And readers, please tell me if I, I mean, listeners, please tell me if I am. But he had this sort of happy warrior persona. He was day-to-day, pretty entertaining, often funny, often insightful. often insightful and I remember spending a lot of time in law school and early in my law career listening to him it was hard for me to listen to him because he was on 12 to 3 and I had stuff to do but I'd listen and he had a tv show on for a while and I remember having this sort of feeling about him like, oh, wow, this is, these are conservative ideas breaking through. You really had to go look for conservative ideas back in the day. Um, you would get George will once or twice a week or, you know, that you

would read, uh, maybe a Buckley column that you would read. You had to go looking for it. And it was like, oh, here it is. And then I kind of stopped listening for years and years and years just because I could get conservative content from an awful lot of different places and I was really busy. And I didn't tune in again. I remember the Sandra Fluke, was it Fluke or Fluck? I pronounced it Fluke, but Lord knows I don't know. Okay. At the Sandra Fluke episode, I was thought, and maybe again, maybe I was wrong. I remember saying, that's really not consistent with what I thought he was. And let's just for listeners who maybe don't remember this, I will read to you what he said.

She was a Georgetown law student, and she testified in Congress about the importance of her health insurance covering her birth control. And look, you can argue about whether our health insurance needs to cover birth control. But here's what Rush Limbaugh had to say about this fairly complicated debate. What does it say about the college co-ed Susan Fluke, who goes before a congressional committee and essentially says that she must be paid to have sex? What does that make her? It makes her a slut, right? It makes her a prostitute. And this isn't like the first time he'd said this. He said, women should not be allowed on juries where the accused is a stud. No doubt joking. Feminism was established so as to allow unattractive women to access mainstream society. Women still live longer than men because their lives are easier.

I'm a huge supporter of women. What I am not as a supporter of liberalism. Feminism is what I oppose and feminism has led women astray. I love women. I don't know where all this got started. I love the women's movement, especially when walking behind it. Yeah.

So years later, so I began to see some of these stories about Rush said this and Rush said that and Rush said this. And years later, in the 2016 primary season, I tuned into him some because I wanted to know what sort of this historic guardian of conservatism, was thinking about Donald Trump. And there were two things I noticed. One is he seemed a lot angrier than I remembered. And again, I'll say it again, maybe I was wrong in how I was listening to him 30 years ago, but that was not my memory of how he was. He seemed a lot angrier. And then the other thing that I noticed is he seemed afraid of his audience. Um, say more, which was, so I tuned in one day and I will never forget

this. It was right after one of the late primary season debates where it's pretty much done that Trump is going to be the nominee. And, and Lim said, okay, I'm going to, and this is just my memory from five years ago, so I'm paraphrasing. I've got some critiques for Trump. And then immediately he was like, I know, I know, you're going to be angry at me. You're going to call in, you're going to be angry at me, but bear with me. I'm rooting for the guy." And I thought, that is very Unrush-like. He was always in command of the audience back in the day. He was the conductor of an orchestra, and there was this thing people would call in and they'd say, Rush, mega dittos. In other words, I totally agree with you. And that's how almost every call began,

unless it was somebody on the left that was calling to argue with Rush. And so the Rush listeners were called ditto heads because they totally agreed with Rush. He was in charge. And it was really interesting to me to hear Rush sound like he's not in charge and to sound like he was really worried about what the audience was going to think of him.

And I think it's interesting. I've thought about that moment so many times because if I had to encapsulate how the conservative movement went astray, if you took a snapshot of 1995 Rush or 96 Rush, fast forward 20 years to 2016 rush i think that you would see that the that the in in many ways the thing that he had created that he had helped create had now fully spiraled out of his control and that he unleashed a lot of currents into society that were now driving him

he was not driving them they were driving him and and i think his race stuff within the conservative movement might have been the most pernicious i mean the birther movement is born of sort of this racial otherization um and you know here's rush limbaugh as you said with what 40 million listeners and his height perhaps yeah yeah he's a barack obama a veritable rookie whose only chance of winning is that he's black you know like things like that where it doesn't just give permission to a certain type of casual racism. It breathes life into it. Right, right. Yeah, it's, I don't know.

I just remember, it was just striking to me how much harder edged he seemed, how much more angry, how much more worried, when in many ways he had triumphed to a scale that was unimaginable when he started broadcasting. You know, he had broken through a very, I mean, he basically revitalized AM talk radio, or AM radio. AM radio was just a dying bandwidth.

Like nobody turned on AM when you could listen to music on FM and it was clear. AM was scratchy. But it didn't matter if you're hearing somebody just talk. And so he revitalizes AM radio. He creates this kind of culture of constant conversation about the news. He becomes wildly influential. Um, I mean, wildly a King maker within the conservative movement creates a whole genre of copycats who to this day fill the AM radio talk, uh, bands from coast to coast. Um, and you know, by 2016, 2017, sort of his style of conservatism this extremely aggressive extremely

pugilistic has won like it is the gop it is it it is the gop and that gop governs the house the senate and the presidency and yet he struck me as so mad and angry and worried and the furthest thing from triumphant that you could imagine. And maybe again, I didn't listen to him a ton, but it was just striking to me the difference and how I remember it in 1996 to 2016. One thing that we can't deny is that Rush Limbaugh has been incredibly influential on the conservative movement. I think that there's definitely some for better and for worse there. But his death marks a point in time, certainly, for where the conservative movement went after Ronald Reagan.

And I think when we look back and sort of tell the history of the Republican Party at the end of the 20th century, you won't be able to tell that history without talking about Rush Limbaugh. No, that's absolutely true. I mean, he was one of the single most influential media figures to live in the last 50 years. I mean, I just don't think there's any doubt about that. No question. I mean, do you think he's more influential in the conservative movement than William F. Buckley? I think it's a close call. It's a close call. I would say certainly more influential

in conservative pop culture, sort of in the mass scale temperament of the conservative movement. But William F. Buckley was far more influential over conservative ideas, far more influential in the conservative elite. Yes, I think that's an easy way to distinguish the two of them,

but I'm not so sure I agree. William F. Buckley certainly sought to have influence over conservative ideas, and he did have influence over conservative elites. But the idea that Rush Limbaugh didn't, I think Rush Limbaugh had enormous influence over what ideas were in the Overton window of conservatism. Well, I would say this. By 2016, if you're talking conservative elected elite, then it's Rush hands down. I mean, it was

sort of, in some ways, Trump was sort of the ultimate expression of the dispositional influence of Rush Limbaugh. Yeah, because I would argue that the Republican Party of William F. Buckley's ideas is largely done now. And I would argue that the Republican Party of William F. Buckley's ideas is largely done now. And I would

argue that the Republican Party of Rush Limbaugh's ideas is very, very much alive. And so if you want to use that as your metric for who had more influence, at least as of today, I don't think there can be much question that Rush beats Buckley. Now, maybe in history, we'll find that Buckley had a longer time of influence than Rush did or something like that. But as we sit here in February of 2021, I think Rush Limbaugh by far is the greater idea influencer

of the current Republican Party. So here's how I'd phrase it. I think Buckley had a large amount of influence. So if you listen to Rush in 96, he is articulating a particular idea of conservatism that is very heavily Buckley-Reagan influenced. Yes, when he starts, yes, he did. And for a long time.

That's how he becomes Rush Limbaugh, I would agree. Well, even for a long, you know, one of his critiques of Mitt Romney, as I recall, was Romney was not doctrinaire enough, right? That Romney was not doctrinaire enough. Forgive me if I now do not give that a lot of credence that he meant it. Right.

But then when the rise of Trump comes, it was really interesting because Trump was far less doctrinaire of a conservative than Mitt Romney. Far less doctrinaire, but he fit seamlessly within the other aspect of the Limbaugh phenomenon, which was the dispositional aspect, not the ideological aspect. And in many ways, the GOP is dispositional, not ideological anymore. is dispositional, not ideological anymore. And in that sense, yeah, I think you're right that the enduring influence of Rush

as a dispositional phenomenon rather than anything remotely resembling an ideological phenomenon is what, in addition to his obvious influence on media itself and way in which we consume political media, that's, you know, I think that, you know, that's where he ultimately triumphed. All right, let's leave it there. Yeah, leave it there.

Unquestionably, one of the most influential media figures of the last half century, unquestionably passed away today. And if you're listening to this, you'll have heard more that we talked about him last night on Dispatch Live. And I hope you tuned in last night. It's really weird to say it like that because it's before, but you know what I mean. Please go, before we go, to thedispatch.com.

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