Advisory Opinions - Pardoning Hunter

Episode Date: December 3, 2024

Sarah Isgur and David French discuss President Joe Biden’s decision to pardon his son Hunter, dive into President-elect Donald Trump’s plan to appoint Kash Patel to lead the FBI, and explore whether there’s a meaningful difference between anti-Zionism and antisemitism. The Agenda: —Friend of the ’cast —Biden pardons Hunter —Amend the Constitution! —Joe Biden ain’t nice —What to do about Chris Wray —Sarah is George Will —Is Kash Patel insignificant? —Next topic, Jews! —SCOTUS in favor of vaping —Heroic woman, sad dog, and a Gorsuch-Sotomayor match Show Notes: —Jonathan Chait on Biden pardon —Republicans pounce! —Sarah Isgur on 'This Week' 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 Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur, that's David French, and David, we have a bit of a potpourri podcast today, but I think a compelling one. I agree, I agree. Are we gonna pounce today, Sarah? I think we might do some pouncing today.

There's gonna be some pouncing, but before we do, David, we do have an important five-year running correction to issue at the start of this podcast. A five-year correction. From day one, basically. We have been messing something up. Oh my, okay, what is it?

We need to apologize to our listeners and explain the error. So, if you're a long-time listener to this podcast, you've heard phrases like friend of the pod, husband of the pod, et cetera, right? Yeah. Well, we had an eagle-eared listener write in and said, I watched your recent interview with Judge Ho and noticed your objection to the idea

that an attorney general or a solicitor general would be addressed simply as general. I remember this topic coming up before and recall that this objection stems from the fact that general is the modifier, an attorney or solicitor would be the noun in the phrase. There's another compound term where this logic should apply and it hits a little closer to home, he writes.

Uh oh. The term podcast is a compound word. The pod comes from the iPod and the cast comes presumably from the word broadcast. In this example, pod is the modifier and cast is the noun. As in, this is a broadcast that goes to your iPod. By the logic of your attorney general objection, therefore, you should be referring to cast rather than pod. For example, Judge Ho is a good friend of the cast.

Interesting, interesting. No, I see the reasoning, I see the reasoning, but I feel like it leads to confusion because... Just because everyone else is wrong, this podcast should hold itself to a higher standard. But friend of the cast, it sounds like friend of like a cast of characters. Right. Yeah. Yeah. OK. Well, ponder that when listeners will expect you to have strong opinions,

as you usually do. All right, David. First up. President Biden issued a pardon of his son, which, again, if you've listened to this podcast for far less amount of time, you will know that I said that was going to happen all along. Why? Because he's a dad. And frankly, it would be really weird if a dad with a magic wand in his both last act as president, but also one of his last acts on behalf of his son, given his age and things like that,

didn't use the magic wand. But Joe Biden had assured Americans that he would abide by the results of the judicial process, that he wouldn't interfere, obviously, at any point. And even after the conviction said that he would not, unequivocally, he would not pardon his son or issue a commutation. This happened at the White House briefing room. It happened in an interview with David Muir. Multiple, many times he was asked this question

and answered every permutation of it, to be clear. briefing room. It happened in an interview with David Muir multiple, many times he was asked this question and answered every permutation of it to be clear that he would not do that. And he did that, David, after the conviction. And that's going to be relevant to this pardon. I'll read you the statement that the president issued upon issuing the pardon this week. Today, I signed a pardon for my son Hunter from the day I took office. I said I would not interfere with the Justice Department's decision-making

and I kept my word even if I have watched my son be selectively and unfairly prosecuted. Without aggravating factors like use in a crime, multiple purchases or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions,

but paid them back subsequently with interest and penalties are typically given non-criminal resolutions. It is clear that Hunter was treated differently. The charges in his case came about only after several of my political opponents in Congress instigated them to attack me and oppose my election. Then a carefully negotiated plea deal agreed to by the Department of Justice

unraveled in the courtroom with a number of my political opponents in Congress taking credit for bringing political pressure on the process. Had the plea deal held, it would have been a fair, reasonable resolution of Hunter's cases. No reasonable person who looks at the facts of Hunter's case can reach any other conclusion than Hunter

was singled out only because he is my son, and that is wrong. There has been an effort to break Hunter, who has been five and a half years sober, even in the face of unrelenting attacks and selective prosecution. In trying to break Hunter, they've tried to break me, and there's no reason to believe it will stop here. Enough is enough. For my entire career, I have followed a simple principle. Just tell the American people the truth. They'll be fair-minded. Here's the truth. I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process,

and it led to a miscarriage of justice. And once I made this decision this weekend, there was no sense in delaying it further. I hope Americans will understand why a father and a president would come to this decision. And David, just hold on one sec. I want to just hold on one sec. I wanna just highlight some things here.

One, from the day I took office, I said I would not interfere with the Justice Department's decision-making. True, and he didn't. But he also said he wouldn't pardon or commute his son after the trial. So we'll come back to that. Second, we've talked about how unusual the charges were, both the gun charge,

and less unusual, the tax charge. Many people are pointing out the difference between those two, although he lumps them together here. And next, of course, is the, there's no reason to believe it will stop here. Because if I'm'm gonna steel man this for a moment, I think the argument is, well, he did this the day after Cash Patel was, at least the president said, he would nominate Cash Patel to replace Chris Ray, who he intends on firing as FBI director,

and that he fears about future prosecutions for his son. Well, he could have pardoned him for any other crimes committed during this time period and let these two convictions stand, thereby keeping his promise to the American people if that were the fear, which I think is the only steelman fear you can come up with here that makes him not a hypocrite and a liar. But, of course, this pardon is for those offenses against the United States, which he has committed or may have committed or taken part in during the period from January 1, 2014 through December

1, 2024, including but not limited to all offenses charged or prosecuted by special counsel David Weiss. The most sweeping pardon since Richard Nixon, right, encompassing a 10 year time span. And by the way, for those curious, January 1, 2014 may not be meaningful to you. Hunter Biden joined the board of Burisma in April of 2014, long before the actions that would result in tax charges or the gun charges.

Okay, David, those are the facts. Rant. Okay, Sarah. All right, let's take the best steelman case for this is, as you laid out, Cash Patel selected as FBI director at some point in the future. I mean, you still have a FBI director right now, whose term doesn't end till 2027. So something's got to be done about Chris Ray.

We can talk about this more later. So the steel man is, okay, Trump is following through. He's nominating people who will do what he wants on political prosecutions. Okay, let me grant that for a moment. Here's the way you deal with that. You pardon for other crimes that he's not been convicted of. That's right. So you leave in place the convictions, they're already there. And then you say, okay, for other crimes in that same time period. And, you know, look, that's much more defensible.

You've got these are not crimes that have been charged. There are promises of political prosecutions. I think that's defensible. There are promises of political prosecutions. I think that's defensible. If you were gonna charge him on other stuff, should have done it at this point. Too many reasons not to trust the Trump administration on other charges, so pardon him there, fine. I'm a little nervous about that, a little leery of that,

but I got it, I would get it. Pardoning him for the existing crimes that he's been convicted of and pleaded guilty to as well, by the way, so talk about this plea deal blowing up. Well, he pleaded guilty to the tax crime, so there's a plea deal there, right? So pardoning these, and especially after he never said, he said plainly, clearly that he would not,

just inexcusable. There's no excuse for it. And let's go back a bit to what he, the point that he was making earlier about, these are not crimes that would be charged for a normal person. This is something we talked about at some length. And there is a kernel of a point there.

This is not a crime. Let's leave aside tax evasion for a moment. The gun crime is not a crime that is typically charged. However, I will say, let me put a caveat on that, unless you're a very famous person who brags about or writes about committing the crime in the most public way possible. And profits, right?

He writes a book to profit off of writing his memoir and talks about committing this crime in the book. Right. I mean, so if you're going to, when you're somebody who's notorious slash famous and you write about in a book that you have committed a federal crime, you're kind of throwing that right in the Department of Justice's face. And so there is a little bit of a difference here

between sort of saying, okay, was there a search and destroy mission for this guy? Did they go and turn his life upside down and find this and prosecute it when it normally not be prosecuted? No, he writes a memoir in which he talks about committing this crime, and it's right out there for everyone to read.

And at that point, it's essentially a challenge to law enforcement. It's throwing down the gauntlet in front of law enforcement. So I don't think this is a situation that Joe Biden says where he's just sort of been singled out. No, he threw down the gauntlet in some important ways. And in that circumstance, it would have been difficult for the DOJ not to charge.

And there's no acknowledgement of that at all. So look, Sarah, there is a reason why a lot of people look at Donald Trump and Joe Biden and don't see a big difference. What they will see as Donald Trump is sort of more authentically upfront about sort of who he is, and Joe Biden will hide who he is behind high-minded language. So he gets the credit for months and months and months of saying, I'm not gonna pardon.

Everyone applauds his commitment to the rule of law. And then he goes ahead and pardons. And this is, by the way, coming in the aftermath of a period of time where he was, and I don't normally like to use this word because it's kind of a trendy word to use, but he was literally gaslighting the American public about his fitness for the job of president. And so this is not a person who is a shining example of integrity and the rule of law to contrast with Donald Trump. Sorry, he's not.

Now, it's not saying he's as bad. I'm not saying he's as bad. But give me a break if you're going to like wrap your arms around the Biden administration as some sort of example of integrity and that you're going to look to Joe Biden as some sort of example of integrity and that you're going to look to Joe Biden as some sort of example of integrity. He is greed, his pride, his ambition has cost him again and again. It's one of the reasons why we have Trump again, by the way. And now we see what it is, how it's bearing fruit.

And by the way, Sarah, I've seen enough time to amend the Constitution, get rid of this ridiculous pardon power, this vestige of royalty that has existed. Since the colonial era, get rid of it. It has been abused too much, too many times. It's time for it to be over. So can we for once and all get rid of the notion that Joe Biden is a really nice guy? Like, he's not.

We know that because of the way he's treated his dogs, putting them in situations that they cannot succeed in and are obviously very unhappy dogs where they're biting people. The granddaughter situation where, again, he was so indulgent of his son that he would not acknowledge his granddaughter who was being thrust into this public spotlight in horrible ways, while the family was sort of refusing to even acknowledge she existed and then refusing to meet with her, et cetera.

And then this, you know, at no point, by the way, does the statement acknowledge, this is from Jonathan Chape, by the way, in the Atlantic, what the president fails to note in his self-pitying statement is that Hunter Biden for years engaged in legal but wildly inappropriate behavior by running a business based on selling the perception of access to his father. The only commodity Hunter had to offer oligarchs in Ukraine, China, and elsewhere was the belief

or hope that he could put in a good word for them with his dad. David, I would not have opened the podcast with this probably or wanted to rant about it if Joe Biden had given the statement that I thought he would give and it was the reason I was so sure he would issue this pardon. I'm a father.

This is my son. His faults, I feel are my, you know, my failure as a parent. Right. And I have this power. And if you had it, you know, my failure as a parent. And I have this power and if you had it, you'd do it too. I can't help myself. I must do this as a father. Do not throw the Department of Justice under the bus and say that this was selective prosecution and the, you know, lawfare that Donald Trump has used

to undermine the Department of Justice and the criminal justice system that we have. How dare you do that when that's not what this pardon is about. It was his DOJ. It's his Department of Justice. And by the way, if he thought it was selective prosecution and so unfair, issue the pardon before the trial is brought and we waste community resources and money on this or right after the conviction, I suppose. But don't then tell us that you're not going to interfere, that you stand by the jury's decision, that you won't issue a pardon even after the jury reaches that decision.

Then several months later tell me that actually you don't believe in the justice system in this case, but only when it applies to your son. By the way, everything you said about Donald Trump's prosecutions not being selective, not being law fair. No comment on those. And to that point, David, let's talk a little media here because I mean, is this a joke?

The headline from Politico, Republicans pounce on Hunter Biden pardon. Really? I know. Are they trolling? They've got to be trolling. They have to be trolling. I mean, that's why it's that headline

is why I said at the very start of the podcast that we're gonna be pouncing. No, this is not the news isn't that Republicans pounce. The news is that Joe Biden is a liar and a hypocrite and didn't actually, still is not telling the truth. He issued this pardon because he's a dad. Okay, that's fine. I would do the same thing.

I'll be very honest. I would have said all along, I would do the same thing. Sorry, I'm a mom. But to tell us that it's actually, no, no, no, it's not just because I'm a dad. It's because this prosecution was bad that the Department of Justice brought. But the prosecutions that the same Department of Justice tell us that it's actually, no, no, no, it's not just because I'm a dad, it's because this prosecution was bad that the Department of Justice brought,

but the prosecutions that the same Department of Justice that I oversee brought against my political opponent, nope, nothing selective about those, especially the falsification of business records, which on its face looks incredibly similar in terms of not ever being brought with these facts, where it's the only charge for it, or the highest charge in New York, for instance. Where was Joe Biden stepping up and talking about selective prosecution then? And similarly, David,

I don't watch cable news. There's a reason for that. I assume many of our AO listeners also do not watch cable news. But someone put together a nine-minute sizzle reel of all of the hosts and pundits on cable news assuring their viewers that Joe Biden would never issue a pardon for his son because he said so. That I find somewhat forgivable, believing a US president who is emphatic in saying that he wouldn't pardon his son. I felt sort of badly, I guess, saying that he was lying this whole time, but nevertheless believed that very firmly as a parent. But they went beyond that. They said, this shows the type of man he is, his character, that he would sacrifice his own son on the altar of the rule of law,

said Andrew Weissman, who worked on the Russia case against Donald Trump. I checked Andrew Weissman's social media feed before we taped this, David. Lots of stuff on Cash Patel, which we'll get to in a minute. Nothing on what this says about Joe Biden's character now. Yeah. No soul-searching on if you thought that of him, if you thought he was this man of character, what about now and what does that say

about your judgment of character and all these other people that you're then judging with that same judgment of character that you used here? None. And obviously this extended to hosts and other pundits. I'm picking on Andrew Weissman because he's at the Department of Justice. And now look what Joe Biden has done to DOJ. Just totally undermined the rule of law for his own family, for his own benefit. How can

you justify this? The thing that really annoys people, rightfully so, I might add, is what we really have here is just a naked display of power. He has the power to do it, he's going to do it. That's all this is, Sarah. He has the power to pardon his son, he's going to pardon his son. It's exactly what you're saying.

That's what he's doing. He's 82 years old. He doesn't want to die with his son in— He doesn't want to die with his son in prison. This is all that's happening here, and yet he's cloaking it in this sort of high-minded language. He's pretending there's a higher principle here. And this is what is so frustrating to people

when dealing with politicians, and it's one of the reasons why they see Donald Trump in this interesting way as not necessarily honest, but authentic. Again, he's just upfront about what he does. In the meantime, a Joe Biden will do the same things as a Donald Trump. He'll just cloak it in this very high-minded rhetoric.

And look, and the thing that also makes people frustrated is the partisans fall for it. You know, I posted on, you know, social media that this is just wrong. This is just not what the rule of law is supposed to look like. And you just have all of these Democrats coming in and people on the left just coming in with their their claws bared and ready to tear you to pieces. And nobody thinks that they would support Donald Trump pardoning one of his kids under any circumstances. Right.

And if these say pundits come out and say, you know, Joe Biden's right, and these were selective prosecutions, then I want to hear them say it about Trump. Because that's how I can tell a partisan from someone of good faith. Apply your same logic, your same character analysis. If you think this, you know, uh, is, shows poorly on Joe Biden's character, okay, and then go back and, you know, take back everything you ever said about Joe Biden and revisit that. But if you're going to defend this and somehow, though, say that

Donald Trump's prosecutions weren't selective, I'm sorry, I don't have a steel man for that. I don't see a principled difference. You can say one's worse than the other. Okay. I actually think both sides can argue one is worse than the other. I'm not sure I have a strong feeling on which one is, but okay, you can argue one's worse than the other. But do not tell me that these are a difference in kind. At most, they're a difference in degree. Right. Exactly.

Look, the prosecutions of Hunter Biden, I think, are very comparable in many ways to the prosecutions, not the Manhattan prosecution of Trump, which I think, and we've talked about from the beginning, should not have been brought. That case should not have been brought. But the other prosecutions of Trump, the documents prosecution, the January 6th prosecution, I think they're every bit as predicated. They have every bit the credibility

that the Hunter Biden prosecutions have. There's probable cause that he committed these crimes. There's very, it's actually much more than just merely probable cause that he committed the crimes. There's a lot of evidence, enormous amount of evidence that he committed the crimes. There's a lot of evidence, enormous amount of evidence that he committed federal crimes. Same with Hunter Biden. He wrote about it.

I mean, there was nothing subtle about this here. Nothing subtle about it at all. Something offends me that he wrote about it for money to profit off of his story. But then his father cries selective prosecution when he's held to account for what he wrote for money. It's always been about money, right? That's the Burisma charge. Again, whether it's legal or illegal, it was all about money. Okay. All right, David. One more thing about this. One more thing

because we're not done ranting yet. Again, this goes back to the character issue with Joe Biden. We're not done ranting yet. Again, this goes back to the character issue with Joe Biden. Look, it is not to your credit, President Biden, that we can't technically link to you the financial, the flow of money from all of these oligarchs and authoritarian governments through your family to you. Okay? Bully for you, bully for you

that you did not dip into that till. But by golly, the idea that you're sitting there as the sort of the patriarch of this family that is just constantly trafficking off your name. And, you know, look, I'm gonna be, maybe Sarah, there's some small chance that there was this screaming fit behind closed doors where he said to his brother, to his son, stop it. This is ridiculous.

You're going to hurt me. We have no evidence of that, but we have a lot of evidence that he was, you know, that he seemed to be fine. He seemed to be just fine with the way that other people used his name. And when you look at the granddaughter incident, that to me is telling in terms of how far he'd go to indulge his son. Right.

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visit BurfordCapital.com. All right. I want to make sure we have time to talk about All right, I want to make sure we have time to talk about Donald Trump announcing he's going to fire Chris Ray, who was appointed by Donald Trump after he fired Jim Comey, and replace them with Cash Patel. Because David, boy, I have a lot of feels about this. And some of them are contradictory. So I'll just sort of vomit all my feels. First of all, it feels very black and white that you have one side saying Cash Patel is totally unqualified and you have the other side saying Cash Patel is like the most qualified FBI director in history. Okay, so here's why I think Cash Patel is technically qualified.

And it's really for reasons that neither side is talking about, so I'll just share my own, I guess. Cash Patel has been appointed to sort of various jobs during the first Trump administration. He worked for Devin Nunes in Congress on the House Intelligence Committee. He was chief of staff, the US Secretary of Defense. He served on the House Intelligence Committee. He was chief of staff the US Secretary of Defense he served as

on the National Security Council as a lawyer there and a senior advisor to the director of National Intelligence None of those things are on my list Right getting appointed to something and then failing in those jobs or doing poorly at those jobs appointed to something and then failing in those jobs or doing poorly at those jobs does not make you qualified for another job. I'm not even going to argue whether Patel did fail at those jobs, but just the fact of holding the job or being appointed to the job is not in and of itself a qualification. But here's what is David. He worked as an AUSA, as a federal prosecutor, an assistant US attorney, and he worked as a federal public defender as well. I think those are sort of the barest qualifications, by which I mean, he has worked

in the Department of Justice, and he has worked on criminal prosecutions. I think if you don't have those things, you can't be FBI director. We've certainly had FBI directors who have not worked in the FBI before. I don't think that that's a deal breaker on qualifications for me. I can't think of an FBI director who was as junior in the Department of Justice as Cash Patel was. A line assistant United States attorney is pretty much as low as it gets for a lawyer at no disrespect to AUSAs. I think they would actually agree with that even though you do incredibly important work

in terms of management, seniority, all of that stuff. Cash Patel has never managed anyone. But again, I think on the barest qualifications, he meets those for me. So that's not the issue. Here are the issues, David. This gets to our conversation about Matt Gaetz. And remember, I was like, hey guys, think twice about using all your political capital to bring down Matt Gaetz. There could be worse yet to come. Or he could replace Matt Gaetz with someone worse for attorney general.

I can't play out what would have happened if Matt Gaetz was still Donald Trump's nominee for attorney general and whether he still would have picked Cash Patel. I'm not convinced that he would have, for instance, that in fact, perhaps by losing Matt Gaetz, that made him want to pick Cash Patel for FBI director. So take that for a moment and marinate

on which one was worse to you, Matt Gaetz or Cash Patel, if you had to pick. But I also go back to that quote, Federalist Papers, David from 76, this was Alexander Hamilton, by the way, a proudest TV moment. I actually quoted it from 76, this was Alexander Hamilton, by the way, a proudest TV moment. I actually quoted it from memory on this week on Sunday. Oh, that's phenomenal.

That is actually phenomenal. I love it. And I just want to say there was one person I had in mind when I was doing that and it was George Will. Because if I could be anyone on TV, aspire to be anyone, it's George Will. And I feel like people don anyone, it's George Will. And I feel like people don't see me as George Will

because I'm not an older man, but really because I'm not cranky enough. And I just want everyone to know, I am cranky enough to be George Will. I am incredibly misanthropic. To the extent you've gotten the impression otherwise on this podcast, just know that I'm doing this from my bedroom by myself. That's how much I told my-

Sarah, can I give you some George Will tips? Okay, so if you want to be George Will, you've got to have an extended rant at some point that men should not be wearing blue jeans. Okay, so that's one. Another one is that grown men should not be playing video games. So you got to have that one.

Oh, I do feel that. Yeah, for sure. Oh wait, no, we have to have a whole conversation about that. But then the third one is you have to blame screens for the decline of American democracy, but not the phone screen, Sarah, the television. Yeah. But David, this is the sequel, right? Like I'm the next generation of George Will in my own mind. Again, I feel like I'm insulting George Will by comparing myself to him.

And by the way, George, if you're listening, this is all love, by the way. This is all love. I've been on a panel with him one time and was dumbstruck, truly, just to be on with him. But the thing he said was so brilliant that I was like, it's even more brilliant in person. Like when you, it's like seeing the show live.

He's so smart. So again, I'm comparing myself sort of tongue in cheek here, but David, here's my rant for you. Here's my George Will rant. Handshakes are sexist. I thought we got rid of them in COVID. Somehow they've made their way back. They're disgusting because they're germy and weird,

and we don't need to prove we're not holding weapons up our sleeve, because frankly, the weapon's in your belt anyway. So if anything, we should be bumping crotches? I don't know, but- That feels like an HR problem, potential HR problem. Potentially, potentially. I'm not advocating for bumping crotches,

but I'm just saying, if that's the purpose, we've lost it. And in the meantime, we now have germ theory, something that didn't exist when the handshake started. So it was disgusting. But this is my George Will sequel. I'm the female, young, ingenue George Will. It's sexist because you're supposed to judge people by how firm their handshake is but a

Then when women have a firm handshake, it's like, oh like she's like to she's overcompensating to have a firm handshake and to Women's hands. I mean my hands are always about 50 degrees. They're so cold And so I feel like it's setting me up for failure To have all these handshakes and it gets me sick. Like, why should I have to do this? Yuck. So that's my George Will rant. Anyway, David, back to Federalist 76 where I felt like I was channeling my George Will moment by quoting the Federalist papers on network television. An incredible moment for me and my aspiration to be George Will. Here's the quote from Hamilton.

A president would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and plycy to render them the obsequious instruments of his pleasure. That's the Cash Patel problem.

It's not that he's unqualified. Stop calling him unqualified because that's not actually your objection to him. Your objection is that he's insignificant. And we talked about this before, David, that he doesn't have the muscle memory of having held these senior-level jobs of real management, of real decision-making, so that when the big stuff comes on your plate, you have experience in handling those things.

You know when to tell the president, no, sir, that's a bad idea. And you know, the obsequiousness, I think, sort of speaks for itself in Cash's background. But yeah, I think this is the worst Trump announcement for an appointment that we've had yet. I think it's far worse than Matt Gaetz. Worse than RFK. Worse than Tulsi Gabbard. Worse than RF, by far. But I will say this, David, I do wonder whether, A, without a narrative,

if you will, to hold on to, like Pete Hegseth or Matt Gaetz, there's not really a narrative around Cash Patel of like the thing that you think of, like illegal activity for Matt Gaetz or sexual assault allegations for Pete Hegseth, for instance, like haven't really had one for Cash Patel yet. And second though, this is just an announcement. He hasn't actually nominated him. And with Matt Gaetz, for instance,

and all the political capital that was spent on this, I think it's impossible to kind of go back and say, well, if everyone had ignored Matt Gaetz, would he have actually followed through on nominating him or would it have fallen apart anyway? I don't know. But perhaps you will see Republican senators hold their fire a little bit until they see the whites of the eyes, if you will. Mike Rounds was on ABC this week when I was on being interviewed and he was asked about the nomination by John Karl and he did not give a full-throated defense

or say he was going to vote for him. He was basically like, well, this hasn't even happened yet. And like we saw with Matt Gaetz, maybe it never will. So, you know, we'll deal with that when it comes. So announcements of the intent to fire Chris Ray and nominate Cash Patel are really only words at this point, important words

and words I obviously thought were worth discussing on the podcast, but it's not the same as nominating him. And it's certainly not the same as a confirmation vote having happened yet or anything like that. So, I'm not so sold that this will actually make it. Yeah, that's interesting. As we said earlier, there's something that has to happen I'm not so sold that this will actually make it. Yeah, that's interesting. As we said earlier, there's something that has to happen before Cash Patel can become FBI director.

That is, there has to be a vacancy in FBI director. And I'm pretty confident we'll see one soon in the new Trump administration, but it's not there yet. But on Cash Patel, there's a couple of things. First, we have the A.O. Hive mind, Sarah, because yesterday I posted Federalist 76, and guess what I highlighted in the post in yellow highlighter? It begins with, he would be both ashamed and afraid. So there's that A.L. Hyde mind at work that absolutely this is exactly the kind of person that the founders had in mind that the Senate should act as a check on the president.

Having someone this obsequious and you might say, obsequious? How obsequious is he? Well, he's so obsequious that he wrote a book, he wrote a children's book called The Plot Against the King, which was a children's book version of the Russia investigation, in which he described a plot by someone called Hillary Quinton against King Donald, okay?

And there's an entire plot against the King Children's Book series that this guy has put out with, of course, Donald Trump as King Donald. But that is not, I think, the narrative that, you know, you're talking about a narrative that there's a narrative around Gates. For example, there's a narrative around Hegseth. Well, here's a narrative around Gates, for example, there's a narrative around Hegseth. Well, here's a narrative that I think should emerge around Cash Patel. In December 2023, he tells Steve Bannon on a podcast, we're going to come after the people in the media who lied about American citizens who helped Joe Biden rig presidential elections. We're coming after you, he says,

whether it's criminally or civilly, we'll figure that out. That is very different language from sort of saying, to drug dealers, we're coming after you, or to gang members, we're coming after you. No, he's basically saying, hey, you guys who told the truth about the 2020 election, we're coming after you. Confirmation hearings should really drill down on that point, Sarah.

What does that mean? And it's also maybe worth talking about and maybe repeating just a little bit of what we've talked about in previous podcasts, like what exactly could he do as FBI director to political opponents? And the FBI doesn't actually prosecute people, it doesn't, but it can investigate the heck out of you. And I think that that's the most likely version to me

of what it would look like to, if Trump decides or his DOJ decides to pursue political opponents, that's the arena where I think you would see it most immediately is in the kind of investigations where you have to hire a lawyer, you're ruined financially, you're sidelined. The process is the punishment. The process, that's the kind of thing that I think you might see more of, you might see some of at least during this second Trump presidency. And of course, there's plenty of people

who served in the first Trump administration who have come out against this nomination. Bill Barr wrote about Cash Patel in his book and said, told the president, he said he told the president, at the idea of appointing Cash deputy FBI director, quote, over my dead body. And then Charles Kupperman, who served as deputy national

security advisor, said he is the dictionary definition of a sycophant. Appointing Cash's FBI director is Trump's ultimate statement that his second term will be driven by retribution. It is a gross insult to citizens. So again, David, though, it's just worth reminding people because we had another podcast on recess appointments and the Vacancy Reform Act.

He has to first fire Chris Ray, and then Cash Patel has to be confirmed, or he could try the recess appointments. But I've already said, I think the Supreme Court is likely to strike down a recess appointment for a faux recess. They'll follow the Scalia model saying it's an anachronism and that no recess at that point would be warranted, especially when Trump himself brought about the vacancy by firing the FBI director. This is a much clearer example, I think, than even attorney general, where you're getting rid of a previous political appointee, for instance, this would be firing your own political appointee who was confirmed to a 10-year term, though removable

at the president's will. And then you have the Vacancies Reform Act option. But remember the two ways in which you can be appointed under the Vacancies Reform Act. You have to be a Senate-confirmed official in some other spot. Cash Patel, of course, is not currently Senate-confirmed anything, nor has he ever been, actually. be a Senate confirmed official in some other spot. Cash Patel, of course, is not currently Senate confirmed anything, nor has he ever been actually.

Or you have to have served in a GS-15 or higher position, a senior civil position for the previous 90 days in the current agency in which you're being appointed. So in order for this to work, he would have to appoint cash Patel I've actually said it's only within the Department of Justice, but Former my former professor Jack Goldsmith tweeted he thought it was the FBI but regardless appoint him to some position for 90 days Then fire Chris Ray

Then he could appoint cash Patel for a limited amount of time under the Vacancies Reform Act to serve as acting FBI director, bypassing the other people in the quote unquote line of succession for each of these jobs. So that's how you do it. But David, we're just a long way off from that. Again, hasn't been nominated for anything, hasn't been put in the GS-15 spot, hasn't fired Chris Ray. So we'll hold on to that one. Yeah. All right.

Next topic, Jews. Yeah, oh boy. David, tell us what's going on at UCLA. And I think there's both the legal significance of the case that can be brought against UCLA for this, but also the legal significance, because we've had many listeners ask about this, about religious discrimination under the law and the difference between, for instance,

refusing to hire Jews, a clear example of religious discrimination, versus refusing to hire Zionists. And whether that violates any anti-discrimination law, because Zionism isn't a religion. But of course, pretext is always looked at for anti-discrimination things. So David, talk to us about pretext when it comes to Zionism versus Judaism. Yeah. So this is coming from a piece by Seth Mandel in commentary. And let me just begin, set the stage a little bit, and we'll talk about Zionism and Judaism here in a second. So I'll just begin by reading what Seth wrote. There's a case of apparent employment discrimination

at UCLA, he writes, that should put rest once and for all the spurious idea that the current campus battles are about mere free speech. Now, this is referring to, you know, pro-Palestinian protestors are saying, wait, the actions against us are attacks on our free speech. And a lot of Jewish students are saying, no, no, no, no, wait a minute, you have your free speech, but a lot of what you're doing isn't free speech,

it's actual discrimination. Okay? So, there is a newly filed complaint that alleges that the College of Cultural Affairs, that the College Cultural Affairs Commission has in place a policy of anti-Jewish bias in its hiring. Bella Brannon, the editor of the Jewish newspaper, and I cannot begin to pronounce it, H-A-A-A-M-H-A-M-H-A-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-M-H-A-apostrophe-A-M-ha-um-ah, forgive me, filed a petition with the Undergraduate Students Council and the crux of the allegation is that the head of the Cultural Affairs Commission told staffers not to hire Jewish applicants. Specifically, she told subordinates, please do your research when you look at applicants because lots of Zionists are applying. However, the directive was not Israel specific.

Applicants were being rejected after having identified themselves as Jews, unrelated to anything regarding Israel or the war in Gaza. Finally, staffers were told that an upcoming retreat, a no-hire list, that is an anti-Jewish blacklist would be shared. And according to Haam, again, apologize for the poor pronunciation,

every student who indicated their Jewish identity and their applications for cultural affairs commissioner staff was rejected. One rejected applicant, for example, answered a question on the application about an issue of importance by noting that, as a Jewish student at UCLA, it is imperative that I have the right

to express my identity. Another rejected applicant had mentioned Judaism when asked about attendance at a staff retreat, explaining they are Sabbath observant. So a couple of things. First, if you have an anti-Jewish policy, whether you're couching it as anti-Zionist, if you're couching it as anti-Zionist and it's fundamentally anti-Jewish, that's an easy call. It's illegal. The more interesting question is, wait a minute, what if you say, no, I'm not anti-Jewish,

I'm anti-Zionist, and that Zionism is a political position. It is not an ethnicity, it is not an identity, it is not a religion. And yes, I can make political distinctions. Now, California is a little more complicated because California does actually have some protections against political discrimination, but let's pretend for a moment that they don't. We've talked about this before, Sarah,

if you have a religious identity and that religious identity manifests itself in a particular belief system, let me put it like this, you can't say, I'm not discriminating against Christians, I just think Southern Baptists are wrong. Okay? This particular kind of expression of Christianity, that's what my issue is. No, your right

to protection from religious discrimination is going to extend in many and most circumstances to the particular kind of religious expression that you have. It's not just an identity. Religion is not just an identity. It's inextricably linked to an expression, to a series of ideas. And so if you are Jewish and your Jewish religious identity is leading you towards a Zionist philosophy, however you wanna define Zionism,

that is still a religious identity. It is not just political. It is still a religious identity. And so the sort of idea that says, well, we're just getting rid of Zionism, no, sorry, that you're going to be protected. When that is connected to your religious identity, that is going to be protected.

Now, of course, there are some limits to this. Your religious identity can't manifest itself or your religious beliefs can't manifest themselves in ways that concretely harm other people. But that's not what we're talking about here. You or me being a Zionist does not in any way create a harm to another person. It is an expression of a religious point of view.

And that expression of religious point of view is going to be protected. And so this sort of idea that says, no, I'm not anti-Jewish, I'm just anti-Zionist, sorry, that is not a get out of civil rights law free card. I don't have much to add to that. That was good. Yeah.

I mean, it's sort of amazing they put this stuff in writing and especially the part where it's like, hey, we'll give you the blacklist, the Jewish blacklist, but in person, but like we're going to describe it to you. Okay. Yeah, yeah. All of these schools are gonna have long legal problems. It's going to be a great piece, maybe three to four years from now,

after all of these cases have worked their way through the system, to see the actual concrete financial costs paid by these institutions for their anti-Semitism. And it's gonna be a big number, Sarah. It's gonna be a very big number. All right, next up, Supreme Court, let's turn to that before we go. So first of all, it is an argument week

and we've got two good ones. The first one is on vaping. So the FDA basically says no to all of these vaping companies. The Fifth Circuit reverses and says that was arbitrary and capricious. That is going up to the Supreme Court, another Fifth Circuit case, another Administrative Procedures Act case. Just to flag the fun part here, it is hard to get something thrown out as arbitrary and capricious as an agency action.

Of course, the fact that the Supreme Court took this case makes it around a 60% chance that the Fifth Circuit will get reversed. But you never know. The other argument, of course, this week is the one out of Tennessee, whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow a minor to identify with or live as a reported identity inconsistent with the minor's sex or to treat purported discomfort or distress from a discordance between the minor's sex and asserted identity, whether that violates the Equal Protection Clause of the 14th Amendment. David, we might have a special guest coming to talk about that argument as well.

Ooh, okay. In the meantime, there was an orders list from this past week, David, and there was a really interesting statement on the denial. Now remember, you can have a dissent from the denial of cert, but we've often seen these statements of denial where you have justices saying, hey, this is an interesting part of the law, and I'd sure like to explore this further, not expressing any thoughts on the merits of this one. So this is a statement from Justice Sotomayor

with whom Justice Gorsuch joins. An interesting set of bedfellows there, but it's a good one, David. Okay, in July, 2020, a fugitive named Wesley Little kidnapped a 15-year-old girl. After evading police in a high-speed car chase, Little found his way to petitioner Vicki Baker's home with his victim in tow.

Little was familiar with the home because he had previously worked there as a handyman. Baker had recently retired and moved to Montana, so her daughter, Deanna Cook, was at the house that day preparing to put it up for sale. That's going to be a bummer. But when Cook answered the door, she recognized Little and the child with him.

Earlier that day, Cook had seen on Facebook that Little was on the run with a teenage girl. She feigned ignorance and let them into the house, but told Little falsely that she had to go to the supermarket. Once outside, she called the police. First of all, what an incredible hero this woman is. No kidding. Brave, just everything that you would want from a neighbor, and especially as a parent where this is your nightmare and your 15 year old has been kidnapped, the girl is going to be uninjured and released in this situation.

However, Little holds himself up in the house when the police arrive, he lets the girl go. The little girl comes out and tells the police that he's hiding in the attic, that he's armed, and that he was high on methamphetamine. Little told the police that he was not going back to prison and that he knew he was going to die and he planned to shoot it out with police.

To resolve the standoff and protect the surrounding community, they launched dozens of tear gas grenades into the home. When that didn't work, they detonated explosives to break down the front door and garage doors and used a tank-like vehicle to bulldoze the home's backyard fence. Remember, Deanna was here trying to get the house all tidied up to put it up for sale. Whop-whop. Everyone agrees that the McKinney police acted properly that day and that their actions were necessary to prevent harm to themselves and the public. But there was extensive damage, as you can imagine. Most of all, the dog.

I feel terrible. When she left the house to go to the grocery store, she couldn't come up with a reason to bring the dog with her. The dog was left in the house and was permanently blinded and made deaf. Yeah. Because of the explosion, the toxic gas permeated the house and required a hazmat remediation team, all fabrics and appliances, irreparable ceiling fans, plumbing floors, hard surfaces, as well as carpets and bricks all needed to be

replaced. Windows, blinds, fence, front door and garage door all needed to replaced. Essentially, all of the personal property in the house was destroyed, including an antique doll collection left to Baker by her mother. In total, the damage amounted to approximately $50,000. Insurance doesn't cover actions by the government. So the question is, who's going to pay for this? She obviously asked the city to pay. They were like, no, nobody was willing to pay for this. And so the question is, was this a taking under the fifth amendment?

Now, there have been these other cases where if something is inevitable, like this case from 1879, which the court held that a building owner was not entitled to compensation after firefighters destroyed his building to stop a fire from spreading, that was different, right?

The house was going to burn no matter what. Is it the theory at least? So they destroyed the house ahead of time to help it not spread to other buildings. But like if your house is getting destroyed either way, you don't get compensation from the government because they destroyed it versus the fire that was going to destroy it is the theory. But what about here? Where the destruction is necessary

but not inevitable? And there's no answer to that. And obviously you have Sotomayor and Gorsuch saying, I think that we should look at this under the Fifth Amendment. Professor Oren Kerr, friend of the cast from Berkeley writes, I'm very sympathetic to the petitioner's view from the standpoint of policy,

but a question relevant to Gorsuch is joining the petition. Is there an originalist claim that the Takings Clause extends broadly to cover this? My sense is that a case like this in the 18th century would be litigated as a trespass action, with search and seizure law creating a law enforcement privilege for what we would know today

as reasonable searches and seizures. So a losing trespass case in the 18th century would generally become a losing Fourth Amendment case. And it brought federally no claim, even if the Fourth Amendment was violated, because Bivens is basically dead. We don't need to get into that. But if this theory is viable, now being refashioned as a winning takings case. I'm sympathetic to that result as a matter of policy, as I said. It seems to me that in the absence of constitutional coverage, states should pay for their damages in these cases. But is there an originalist way to get there? I mean, he's asking that sort of rhetorically, David, because that is just not the way we thought of the Fifth Amendment takings at the time of the

founding. I've got no evidence for that in any of the sort of constitutional debating documents. But back to what Sotomayor and Gorsuch was joining, if they had bulldozed her home to make a public park for the use of everyone, for the good of the community, she would have gotten compensated. But they basically bulldozed her house for the public good because there was a crazy person inside and they didn't want him shooting his way out.

That's also public use. So why isn't she being compensated in this case? That's the Sotomayor Gorsuch argument. Yeah, it's a really interesting argument. It really goes to the question, what does it mean to take something? So if you bulldoze the home and you put a highway there, the government has literally taken it

because they now own that land. So that's an easy call. They've taken it, they've seized the land. Normally what happens is they seize the land, then they bulldoze. It's not bulldoze first, seize later. But have you also taken something when you seize temporary possession of it

and then destroy it? So essentially what happened here is the government seizes temporary possession of the house, doesn't transfer title the way you would when you're destroying a house to build a road, but it seizes temporary possession rightfully. No one's disputing that it wasn't right, that the government was outside of its boundaries

here. It seized it temporarily and then destroyed that part of the property. To me, that is a taking in the literal sense of the word to take. Not so much the dog, like not every bit of damage is a taking, but it seems to me that if you have seized control of something and then destroyed the thing that you seized control of, you literally took it. Just in the, the meaning of the word take. Um, I feel like, cause again, the touchstone of originalism is text. What does the word take mean?

So if you've seized it and destroyed it, I don't see how that isn't quite literally just taking something. Interesting. So we have this 1952 case, the court held that the takings clause did not require the government to pay compensation for its destruction of oil companies' terminal facilities amidst a military invasion. But sort of the same thing as the fire, right?

Inevitable is the argument. It was going to get destroyed by the opposing military if we didn't destroy it first type idea, similar to the fire. But here, it wasn't inevitably going to get destroyed by some natural or alternative cause, but they needed to destroy it. I'm kind of with you, David, but I see Professor Kerr's point on the originalism side, though it's hard to overcome the, you know, sympathetic facts of this case. Why is, you just pay it, guys.

Why would you pay this? Like, why even have this lawsuit? She did the right thing at every step of the way. It's $50,000. You'll waste $50,000 on way dumber stuff. Pay the money. Yeah, I know it's crazy. This came up because they refused to pay the money. But just to use an analogy,

let's suppose I walk in your house and you have a vase, Sarah, and I pick it up and I leave with it. No one would dispute that I've taken the vase. Well, let's suppose I picked the vase up and then I just smash it on the ground. I would say I took it as well. I just took it and destroyed it.

My use of it was very short, but I seized control of it and did with it what I willed. That seems to me exactly what taking something is. All right, well, we're gonna get around to that birthright citizenship as it applies to invasions and the fifth circuit on bonk case next time around, because don't wanna give that short shrift. Thank you for joining us, and we'll definitely talk about

some of those oral arguments. We're back to oral argument time, David. It's been too long. It has been too long, and we got a big one to talk about. So I'm looking forward to that. Until next time. Hope y'all had a great Thanksgiving.