Advisory Opinions - Release the Kraken!

Episode Date: November 23, 2020

In Monday’s emergency episode of the podcast, David and Sarah bring us up to speed on the Trump legal team’s latest litigation drama, which has become nothing short of a clown show. One of the most puzzling aspects about all of this is the striking gap between the Trump campaign’s public rhetoric about widespread voter fraud during press conferences and its much more modest—albeit still meritless—legal arguments in the courtroom. No matter how you slice it, the president’s legacy is on the line here. In Sarah’s words: “This is what he’s going to be remembered by.” Our hosts discuss the Trump campaign’s failed Pennsylvania election lawsuit and Thursday’s rather unconventional press conference given by Sidney Powell, Rudy Giuliani, and Jenna Ellis. Then Sarah’s husband, Scott Keller joins the podcast to spar with David about nationwide injunctions. Show Notes: -U.S. District Court Judge Matthew Brann’s opinion throwing out Trump’s Pennsylvania lawsuit. -“Nationwide Injunctions Will Be a Vital Check if Biden Overreaches” by Scott Keller in the Wall Street Journal. Learn more about your ad choices. Visit megaphone.fm/adchoices

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new details, photos, and stories about your ancestors. Uncover new relatives and branches of the family with automated Ancestry hints. Connect the dots with access to millions of historical documents, and then share what you find in one central place.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 an emergency edition of the Advisory Opinions Podcast, wherein Sarah proves that she is incapable of taking a vacation for any reason at all, up to and including the birth of a child. And I, David, David, last night,

there was just, it was too much. I was overwhelmed with the news and we just couldn't, we couldn't not do it. I'm sorry. I know. Well, one of the mottos of this, of this podcast is give the people what they want. And the people wanted

an emergency advisory opinions podcast. There's just no question about it. And if you're not going to be deterred by the birth of the brisket, you're definitely not going to be deterred by a small thing called Thanksgiving break when you've got like Krakens being released. That's right. There were just Krakens everywhere, David. Goodness. Okay. All right. Here's what we got for you, listeners. We're going to bring you up to speed on honestly just how insane the last four days have been in this ongoing election contest. Because I really think, however insane you think it is, if you're a non-lawyer listening to this podcast, you probably are looking at the events

out there and you're saying, this seems weird. This doesn't seem right. Well, we're here to tell you it's even weirder than you think it is. It's even crazier than you think it might be. Because I do think there's a gap between the lawyers, especially the litigators watching all this unfold, and everybody else. Because we're pretty chill people, David. Lawyers are understated people. Yeah, very chill. The understated lawyer Twitter is like, okay, well, that's not normal. That's not okay. But that's not the tone of most Twitter when things aren't normal. So we are the bridge.

We are going to bridge that divide between the lawyers who think this is crazy, but in a soft, dulcet tone, and people on Twitter who are like, this is crazy. So yeah, so lawyer Twitter would say something like this. Trump's attorneys filed a highly unconventional pleading. Okay. Translating that would be that I have never seen anything like that in my career. I have no idea what they're doing. Okay. So what we're going to do, we're going to talk about some of the most recent developments. We're going to talk about them. We're going to talk about how messed up the situation is. We're going to talk about the most recent cases in Pennsylvania. And then Sarah's husband and I are going to square off in the ring, sharks versus jets.

Sarah's going to tie us together by the wrists. We're each going to have a switchblade, as in the bad Michael Jackson, was it, just beat it. It was the just beat it video. And we're going to have at it over the topic that is front of mind really to everybody in this Thanksgiving season, Nationwide Injunctions. Yes. So, okay. So that's the order. That's the run of show, as they say in the biz. So let's start, Sarah. And let's start with sort of the legal team intrigue of what has occurred over the last several days. So there was a rather... Was it just Friday that the news

conference occurred? I think... Was it even Thursday afternoon? Friday? I don't know. Yeah, it was, I mean, all the days are running together. Late last week, let's specify late last week, there was this rather remarkable press conference in which Sidney Powell, Rudy Giuliani, and Jenna Ellis each took the podium and they made a series of just wild claims, just wild claims about fraud, about irregularities in the vote, about software, dominion systems, etc um and and none of them had any real none of the serious claims none of the election altering kind of claims had any sort of merit to them um but that didn't stop city pal

rudy giuliana and jenna ellis from getting out there and making the claims. It didn't even stop them from describing themselves as an elite strike force, as they called themselves on Thursday. But there were two important parts to what Sidney Powell said. Yes. Okay. Explain, please, Sarah. One, she said that Brian Kemp, the Republican governor of Georgia, she said that Brian Kemp, the Republican governor of Georgia, was in on the conspiracy with Dominion voting the deceased Hugo Chavez and the CIA, and that part of that conspiracy allowed Kelly Loeffner to appear to be the winner to make it into the special election runoff over Doug Collins, who was seen like a closer ally of Donald Trump.

So she accused the Republican governor of a crime and said that the Republican in the Senate runoff was also rigged and that she shouldn't be in the Senate runoff. Now, those two Senate seats are the key to Republicans keeping the Senate. So fast forward to last night. Right. So, well, before we fast forward to last night, let's rewind very briefly to November 14th. And this is a statement from the president. Well, I mean, it's a tweet from the president. I look forward to Mayor Giuliani spearheading the legal effort to defend our right to free and fair elections. Rudy Giuliani, Joseph DiGenova, Victoria Tenzing, Sidney Powell, and Jenna Ellis, a truly great team added to our other wonderful lawyers and representatives.

What would you say is the plain meaning, Sarah, of that tweet? It would appear that the president is claiming that he has an attorney-client relationship with Sidney Powell. But, last night, a statement, Trump campaign statement on legal team,

that's the title, Trump campaign statement on legal team, Sidney Powell is practicing law on her own. She is not a member of the Trump legal team. She is also not a lawyer for the president in his personal capacity. Huh. That would appear to be saying that the president is not in an attorney-client relationship with Sidney Powell. It would appear to say that. Now, so why don't you explain for the folks why all this stuff kind of could really matter as a matter of law?

Well, real quick, because we also need to get Sidney Powell's statement on this. And this is, I think, the only point yesterday that I actually laughed out loud, uncontrollably. In fact, I think it was after this that I tweeted at you. I think we need an emergency podcast because I was waiting for Sidney Powell's statement, but none was coming, right? Like, what's she going to say about this? Right. And then General Flynn, her criminal defendant, tweeted this. Sidney Powell has been

suspended from Twitter for 12 hours. She understands the White House press release and agrees with it. She is staying the course to prove the massive deliberate election fraud that robbed we the people of our votes for president for president Trump and other Republican candidates. So after all this, after all of the tweets of all of the people on the Trump campaign, the Trump legal team, Donald Trump himself, referring to Sidney Powell as being part of the team.

Then there's this statement that comes out that implies that she was never part of the team. Although, David, it is worth noting, and we will get into this, that the statement is written in only present tense. Yes, yes. Uh-huh. But then Sidney Powell can't release her own statement because she's been suspended from Twitter.

So she has her client do so, who is currently, though, contesting his not just indictment, but accepted plea agreement and conviction for various crimes. agreement, and conviction for various crimes. Tweet out her statement. What was unfortunate is I couldn't, in fact, see that statement from General Flynn because he's blocked me on Twitter. Hmm. Yeah. Okay.

So that's where the ball lies on the golf course, if you will, David. So let's play it. Well, okay, but there's one other little twist to it that's not really legally consequential, but it adds color. It adds flavor. During all of this controversy over Sidney Powell

volleying these incredibly inflammatory claims of criminal misconduct on the part of multiple actors in American life, Jenna Ellis got into a spat with, was it Frank Luntz? Oh, well, there was that. I didn't know we were going there. We're going there? Well, we have to go there. I mean, if we don't go there, you don't get the full sort of flavor of this team, like who this team is. Let's go there. Okay. I mean, you... Are you reading it or am I reading this?

I just am going to refer to one word. So... Okay. Luntz and Ellis kind of get into a back and forth on Twitter

about Ellis's, you know, Ellis's arguments. And Jenna Ellis, who, by the way, is very publicly, very publicly holds herself out as a Christian attorney. She has tweeted like her outspoken faith and has, you know, if you go back into her social media history has been a, for a time was a champion of civility and decency

and against name-calling, et cetera, et cetera. And so here is one of the elite strike force attorneys, one of the three, Rudy Giuliani, Jenna Ellis, Sidney Powell, one of the elite strike force, and she responds to Frank Luntz, not with a legal argument, but by saying that he has, quote, a micro penis. Okay, you said it. Good. Good, good. I don't know. Does that give us an explicit rating, Producer Caleb? Okay. Producer Caleb says we're good. All right.

So anyway, that's the stage. Let's break down the Trump campaign legal statement to determine whether it has any operative effect at all, David. Okay. Sidney Powell is practicing law on her own. I don't know what that means. I have no idea. She is not a member of the Trump legal team.

She is also not a lawyer for the president in his personal capacity. So the first thing we have to determine is whether there is an attorney-client relationship between the president and Sidney Powell. This certainly says that there is currently not a relationship. But, David, it certainly is ambiguous, even though certainly from a PR standpoint, they're trying to portray it as if she were never part of the legal team. I think that if we were talking about privilege issues, they could, with a straight face, argue that this statement was operative from November 22nd forward, but that in fact, privilege did exist pre-November 22nd. Do you disagree with that? I think that that is

a carefully crafted statement that is crafted for the purpose potentially of preserving an attorney-client privilege. I'd be very interested to know if there was any retainer agreements entered into between Sidney Powell and the Trump campaign or Trump personally. the Trump campaign or Trump personally. And here's, listeners, why this matters. Because as we'll get into, Sidney Powell has made some incredibly inflammatory accusations of criminal misconduct that appear to have zero support. We've seen zero support for these claims. And that opens her up to a defamation case. And you know what? Go ahead. Go ahead. Now, we've talked about defamation on this on this podcast before. Yes. And against a public figure, it's nearly impossible to win one of those cases. You have to prove actual malice. um now the reason that the privilege issue comes in is that they could you could use sydney powell's non-privilege with the president and rudy giuliani for instance as a back door to simply get a lot of

you know emails discovery embarrassing stuff even if you don't think that you have a particularly good defamation case because you certainly have a colorable defamation case against Sidney Powell. So the existence of privilege is interesting because of that. But David, even if you sort of a judge, for instance, decides that their cute PR move has implications on privilege and that the, you know, the desire to say that she was never part of the legal team will be held against them, you still have the joint prosecution defense to this. So this is the theory in which as long as they are sort of pursuing a joint prosecution, and this isn't prosecution in the criminal sense.

This is prosecuting a civil case. So as long as they are pursuing a joint prosecution effort and the statements were made in furtherance of that effort, you don't need an attorney-client relationship between Sidney Powell and Donald Trump or Sidney Powell and Rudy Giuliani, let's make that like a vertical line. As long as Rudy Giuliani has an attorney-client privilege with Donald Trump on their vertical axis and Sidney Powell has an attorney-client privilege with herself, I suppose.

Well, that's the really interesting question. If she's practicing law on her own, Well, that's the really interesting horizontally between her and Rudy Giuliani. And then Giuliani's vertical privilege with Donald Trump can also move across that horizontal line from Rudy Giuliani to Sidney Powell. Now, normally when we're dealing with these kinds of things, because the stakes are really pretty high. I mean, attorney, the attorney, attorney client privilege is sacred and vital. And the penetration of attorney client privilege is catastrophic. So normally when you're dealing with sophisticated litigants or even just competent litigants, all of this stuff is papered up. Like there's no ambiguity. Because by the way, the burden is on the lawyers that side to show that they're in a joint prosecution agreement.

So on the one hand, privilege is privileged, if you will. But on the other hand, the burden is on them to show it. Like you don't just get to say, nope, we have attorney-client privilege, and now it's on you, the person bringing the defamation suit, to show that we weren't in an attorney-client relationship. So Sidney Powell and Rudy Giuliani would need to have evidence on their side of this to show that there was some joint prosecution understanding. But, David, to your point, it doesn't have to be in writing.

Nope. It just should be. Yes. Well, that's why it's in writing, not necessarily because the law requires it to be in writing, but because it's, it, it's then essentially closes down the, it answers the question. That's right. Yeah. So, uh, so that was, I don't know, very unusual disarray.

I've been involved in a lot of cases in my life. I've probably been involved in some capacity in hundreds of pieces of litigation. And I've never seen anything like any of this. Not once. Not even close. So yeah, so if you're legal Twitter and you're looking at this and you're using words like highly unusual or unconventional or it's all a stand-in

for what the heck is going on. And keep in mind, this is the president of the United States' legal team. This is the legal army he is bringing into the field of battle here. which is the president's legacy is on the line here. And in talking to some highly engaged Trump voters, they're starting to be concerned, not that, for instance, this sheds any light on how he was running the White House for the last four years or his administration, but more that like, this is what he's going to be remembered by.

This is his legacy that it's this like messy, embarrassing. I mean, Chris Christie, uh, I'm going to do a little self plug here, David. So I was on ABCs this week with Chris Christie yesterday. Oh, of course you were. Yes. And Chris Christie, though, this is an ally of the president. This is a guy who helped him with debate prep a month ago and got COVID from it, by the way. He's sitting there on the panel saying that this is a national embarrassment. for the president himself. These are the people who you think represent you in court and are doing a good job. It casts him in such a bad light. And surely there are people calling him and saying, set aside just Sidney Powell. This is embarrassing, dude. They mixed up Minnesota and Michigan. You've got to stop this nonsense. If you have colorable legal claims, get a real lawyer and bring them.

But this is hurting you and your reputation moving forward when you had this really loyal base of support leading the presidency. Yeah, I mean, you know, but the thing, it's again, part of this is a gap between a lot of people's understanding of their understanding of President Trump and the reality of President Trump. I think that there's an awful lot of people who are maybe not reacting with a huge amount of shock or surprise to any of this because they've kind of known how the president operates and who the president has surrounded himself with for some time. I mean, the impeachment that occurred was in part or in large part because of just this kind

of clown car activity, except in international diplomacy. And so a lot of people who are sort of closely, who've watched the president closely, not One of the reasons why the response to this isn't as shocked as it might otherwise be is it's, oh, this is the way Donald Trump works. But I think what's different for a lot of Trump supporters is they're seeing in a sort of a way that not even sort of a lot of the folks on primetime Fox can defend anymore. They're seeing this play out right in front of their face. And some people are all in on it. They're all in. OK, Dominion did this and hammer and scorecard. And they're all in.

There's no question that a lot of people are all in. But a lot might be a strong term. I agree that there are some people. I think that there's a lot of people who think, A, there's voter fraud. And B, this is what the Democrats did to Donald Trump when he entered into office. Yes, they understand that Hillary Clinton conceded the election in a technical sense, but she gave a speech saying, okay, Donald Trump's going to be president. But from that point forward, she kept talking about the popular vote and how she really won that and how there shouldn't be an electoral college and how the Russians helped Donald Trump.

And she certainly did not make a distinction between the Russians buying Facebook ads or creating Facebook groups to stir the pot and the Russians affecting vote totals for Donald Trump and the campaign colluding with the Russians and the theory of the Obama administration tacitly approving of or taking a more hands on approach, perhaps to turn the FBI onto Donald Trump and investigate him surreptitiously to bring down Michael Flynn, like all these things that they did. And, you know, fake whistleblowers on the Ukrainian phone call, things like that,

that were so constant through his presidency that the point was to undermine his presidency and to delegitimize him as president, all coming from the left. So I don't think a lot of people necessarily buy into like the Hugo Chavez dominion. I don't, I still don't know what hammer and scorecard is though.

You did a valiant effort in trying to teach me. Um, but I think that a lot of people think like, no, this is the game they set up and we're playing by their rules. This undermines that because like these people look stupid and they look clownish and they look ill-prepared.

And again, they look like they don't know the difference between Minnesota and Michigan, that MN is the code for Minnesota, not for Michigan. That is very different than what the Democrats were able to do in their minds, which was actually, you know, pretty well executed, all things considered, again, from that perspective. And this is not well executed. Yeah, well, I mean, right.

There is the sort of there's a group of people are all in that this fraud, you know, these allegations happened in Dominion. She did blah, blah, blah. There are people who are all in on that. Then there's another subset of people who are like, I don't care if this is true. This is revenge. This is what it's like. This is what it feels like to have your victory questioned.

But as you were saying, Sarah, it's not what it's like because it's so clownish. It's so clownish. It's not what it's like because it's so clownish. It's so clownish. And the revenge theory has some uncomfortable facts it has to deal with, such as the predicate underlying allegation of the impeachment claim, for example, was true. It was just a question, was it of a magnitude to seek the removal of a president or not? The other one is the Russians did try to help Donald Trump. That was true.

And there were Trump campaign officials who reached out to the Russians. That was true. And so there was a lot of smoke there that doesn't exist at all on this Dominion and hammer and scorecard and all of that stuff. It's just not there at all. It's crazy talk.

And so the revenge narrative is a little weird. If that's the motivation, it's A, the motivation itself, I think, is suspect if you're wanting to be a good citizen in a constitutional republic. And B b the execution of the vengeance is amateurish and incompetent to an extreme and so it comes off less as revenge or vengeance and more and it's much more discrediting it's it's much more it's it's something that is going to um tarn as you you've said, the legacy of this president is being tarnished by the day. So this isn't actually vengeance. It actually furthers the interests of critics of the president.

Speaking of all of that, this takes us to the Pennsylvania appeal. the Pennsylvania appeal. So, on Friday night, David, the Pennsylvania district judge issued a... Scathing isn't the right word because it actually wasn't angry. It was

eye-rolly. What is a good word for eye-rolly? Yeah. It wasn't scathing. You wouldn't even call it contemptuous. No, I wouldn't scathing. It was, it wasn't, you wouldn't even call it contemptuous. No, I wouldn't. No. Yeah, it was just,

it's hard to, it's hard to think of the right, maybe if we had Jonah with us, he'd have a perfect German word. Jonah would, and listeners, you should feel free to send us what the appropriate word is

for the Pennsylvania District Court opinion dismissing with prejudice the lawsuit to throw out all of Pennsylvania's votes. But let's read a little bit of it. Is that good, David? Shall I start with an excerpt? Please do. Okay. with an excerpt? Please do. Okay. Plaintiffs ask this court to disenfranchise almost 7 million voters. This court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election in terms of the sheer volume of votes asked to be invalidated. Pause. That line right there is telling because he didn't say, ordinarily when you read a ruling, a judge's opinion, the next sentence would be, court has been unable to find any case in which a court, this court has been able to find any case

in which another court has granted such a drastic remedy. That would be your normal. But they say, no, no, no, we've not been able to find any case in which a plaintiff has even tried. I mean, that's how far outside of conventional election law this is. And I think that's really important to point out. And it resonates exactly with what we've talked about. I have said over and over again, they're not seeking remedies that make any sense. Yes. And here's the court saying that he's not been able to find a case in which you've even tried. And y'all, considering the wild litigation that is constantly filed in federal courts in the United States, to not have even found a case where

someone's tried to do what the Trump team is doing is telling. Okay, now, one might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption such that this court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this court has been presented with strained legal arguments without merit and speculative accusations, unpled and the operative complaint and unsupported by evidence. And then this last sentence, in the United States of America, this cannot justify

the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Yeah, that's not angry. Indeed, Judge Brand, Indeed. And by the way, this judge was appointed by Barack Obama during his administration, but he is a member of the Federalist Society, and his appointment was part of a deal with Senator Pat Toomey. So he was a package, basically. So he is a Republican-appointed judge during a Democratic administration and considered broadly to be quite conservative. Right. Right. judge during a democratic administration and considered broadly to be quite conservative right right and so i mean we could go through this in some detail but man as far as an introduction goes and and like you're saying it's not like he's a he's not acting angry

nope it's not even contemptuous it's just like kind of incredulous, maybe incredulous. Decent. Okay. I'm going with incredulous. This is an incredulous opinion. Do you have any other highlights that you would like to amplify or does that suffice? Oh, no. I think that got to it. You know, in one of these cases, I listened to some of the audio, and the judge is asking, okay, so you filed all of these affidavits under penalty of perjury. Then when you discovered some of them to be untrue, you had proof that they were not accurate, discovered some of them to be untrue, you had proof that they were not accurate, you withdrew those affidavits. And so the affidavits that have stayed on record are the ones that you couldn't prove were untrue. And the lawyer's like, yeah. He's like, you see why that's troubling, right?

And the lawyer's like, no, we filed affidavits under penalty of perjury, your honor. And the judge is like, yeah, but you had other affidavits under penalty of perjury, Your Honor. And the judge is like, yeah, but you had other affidavits that were filed under penalty of perjury that you now know are untrue. And you're just saying these are the ones you couldn't prove were untrue. And the lawyer's like, yeah.

And the judge is like, do you see the problem with that? And the lawyer's like, no. And around and around it goes. So, you know, you're sort of like, this opinion still to me makes it sound more reasonable than it actually was on the ground in these hearings where they've just got nothing.

Now, remember also that what they're saying in these press conferences is not related to what they are saying in court. Yeah. So it's not like they're sitting there talking about Dominion or Hammer and Scorecard or Hugo Chavez in court. That's not happening. Instead, you know, they'll say like, well, our observers couldn't see those ballots. And the judge will be like, are you saying that there was fraud occurring?

And the lawyer will say, no, your honor. And the judge will say, then why are we here? And the lawyer will say, we want to throw out all these ballots. And the judge will put his hand in his, his head in his hands, as I will, and just wonder what we're all doing here. Yeah. And this is something that has been driving me crazy, and there's almost no way to really fully communicate this. So there's several different categories of people in public life.

You know, there's regular Americans who are maybe watching the news or reading, you know, not too many regular Americans are watching Twitter closely, as you've pointed out. That's a subset of political hobbyists. But maybe you're looking at social media, maybe you're listening to talk radio. And here there's this argument that's going that says, look, there's nothing unusual about filing election challenges. And let's just let this thing play out. I mean, didn't Al Gore just wait 37 days for this thing to play out in 2000? And there's sort of this facial reasonableness to it. Like, wait a minute, this election was really close. The Trump campaign believes it has valid challenges. Why can't we just chill out, let the challenges play out,

everyone calm down? But one of the problems in that communication loop is that it's not that the Trump campaign has valid challenges and everybody calmed down. It's that the Trump campaign is filing frivolous litigation, buttressed off often offline, I mean, out of court, by wild conspiracy theories. And that's the issue. If there were valid, you know, let's, you know, there is such a thing as a valid question, for example, about whether or not in Pennsylvania, some county, voters in some counties should have had an opportunity to cure defects in their mail-in ballot, and others did not have that opportunity. It's not nearly enough votes to adjust the outcome, but there's a valid legal issue there

that will have relevance for future elections, for example. But what we're doing is, instead of, and a lot of people who know better or should know better are advancing a sort of business-as-usual narrative when this is anything but business-as-usual in court or out of court. And that's what's so bothersome. And I think what's very frustrating is, and I haven't read every single one of the 34 cases going on right now, but my understanding is that none of them allege fraud. So all of the press conferences are only about fraud. None of the lawsuits even allege fraud. Right. Right. I don't know of a, you know, the closest you came is some of the, it's not even fraud, really. There was all the, there are these allegations in these Michigan,

in the main Michigan case out of Wayne County of irregularities in the count and these allegations in these michigan in the main michigan case out of wayne county of irregularities in the count in the way in which people are allowed to observe but again that's not they're not alleging that that was due to fraud exactly so okay so we have the pennsylvania decision and the lawyer there um says that they have appealed and that they're going straight to the Supreme Court and that they have strong legal arguments, according to one of the top constitutional scholars in the world, et cetera, et cetera. And, yeah, that this is going straight to the Supreme Court, David. Yeah. And this was, in other words, the spin was even beyond that. It was like, good. We're glad we're past this Obama appointee.

Now we're stampeding to the Supreme Court. Let's go. That's the public spin. But then they file a notice of appeal and a motion to the Third Circuit. And it says, quote, the appeal concerns only the decision denying leave to amend. Explain what that is. Explain what leave to amend is to everyone. So if you file a complaint in federal court,

you're often subjected to what's called a motion to dismiss from the defense. And the motion to dismiss says, even if you just assume, I'm not conceding, but even if you just assume that everything you allege in that complaint is true, that as a matter of law, the complaint fails. So you will often in that circumstance do one of two things, sometimes both. One is to say, no, you're wrong. The complaint sufficiently alleges violations of the law. The other one is, and if you would argue that if there's any defect in the complaint, I should have permission to amend the complaint. In other words, file an amended complaint that can cure the defect rather than have it dismissed once and for all.

And in this case, what the judge said is, no, I'm granting the motion to dismiss, and I'm not giving you ability to amend, to cure any defects that I've identified as a matter of law in this pleading. And so it is shutting down your, the case is then over, the case is done, except for appeals. And so what the Trump administration or the Trump team is doing is they're saying, rather than appealing on all the legal grounds for dismissing the case, what they're appealing is very simple, is that they're appealing the decision to deny the ability to leave to amend. So in theory, that if they prevail on that appeal, they can sort of amend the complaint again and try

again. And David, what happens if they win at the Third Circuit on this appeal, but they're totally victorious, 100% a win at the Third Circuit, Where do they go from there? Right back to the district court. Oh, that's fascinating. And because they only appealed on this issue of amending the complaint, will that affect the jurisdictional defect that the judge found that they don't have standing to bring this challenge?

No, unless, I mean, if they're granted leave to amend, then presumably they would try to figure out a way to have standing or to bring somebody in who has standing. But this is- They could bring someone in, but I don't see how anything in their pleading will affect their standing. No, I don't either.

I don't either. And the other thing that's interesting about this as sort of a legal matter is the standard of review. So if you are filing an appeal, the way in which the court of appeals looks at your appeal, the standard that they apply, and advisory opinions, listeners are very familiar with our standard of review analysis, the amount of discretion they give the lower court varies depending on the issue. So if it's a, the lower court has made a legal determination, as a general matter, a legal determination from a lower court is reviewed de novo. In other words, it's reviewed as if there is no discretion, there's no deference.

No deference is the better term given to the lower court's opinion. It's just a fresh look at a matter of law. But there are other things where a lot of deference is granted. And one of them is whether there should be leave to amend. That's evaluated under abuse of discretion standard. So it's hard to overturn. So to put this in football terms, a legal question is more

just like booth review, where they just go through it again. Yeah. Abuse of discretion is actually far more than in NFL terms, reviewing the call on the field for clear and convincing evidence to overturn it. It is actually above that. It is field for clear and convincing evidence to overturn it. It is actually above that.

It is more than clear and convincing evidence standard. It is like full on, this judge was drunk when he made this ruling, clearly, because nothing else could explain it. Right. Right. Exactly. So they chose the most challenging avenue for reversal. And a reversal doesn't actually, all it will do is it would, I guess the best way to describe it would be like in Monty Python and the Holy Grail when the card is rolling around and they're saying, bring out your dead, bring out your dead. And they throw the guy on the cart and he says, I'm not dead yet.

And that's basically all it is, is you're taking a case that you thought was dead and you might get a little bit of life signs for a little while. So David, I don't want to spend a ton of time on this, but we also have the issue that because they only appealed

the leave to amend problem, they did not appeal the standing ruling and they did not appeal the equal protection ruling. If you don't appeal problems that you have, you can waive those or you can forfeit them. The distinction here, not all that important. There may be a case in which it's very important for us to go through the difference between waiver and forfeit. But regardless, they might not be able to get to the Supreme Court on their actual substantive legal claims. Right, exactly.

And the other thing is, if they do get to the Supreme Court on this particular, you know, if the Third Circuit denies their motion, the only issue that will be taken up by the Supreme Court will be the leave to amend issue. Which is pointless. Pointless. It's pointless. So again, there's this giant gap between the public rhetoric and what's in the legal pleadings. They're also asking as a remedy, by the way, this time around that when the Third Circuit sends it back to the district court, when they somehow find an abuse of discretion on this, and they're given leave to amend back to the district court, when they somehow find an abuse of discretion on this, and they're given leave to amend that the district court should decertify the election results,

which is an even crazier remedy, David, than delaying certification. That you want to say, because decertification, in theory, could be a remedy, like, four years from now, that, like, we're going to kick Joe Biden out of the White House because of a legal claim that you don't have any evidence for it. It's very strange. De-certifying election as a remedy. Bonkers town.

Now, David, correct me if I'm wrong here, but. If they lose the Third Circuit, they can appeal to the Supreme Court, but they can only appeal the leave to amend. However, if they win at the Third Circuit, something that I'm willing to bet a whole lot of money that they don't, if they win at the Third Circuit, or for some reason they get to the Supreme Court on this leave to amend issue and they win at the Supreme Court, I suppose, they go back down to the district court. They then amend their complaint. The district court once again finds that they don't have standing and that their equal protection claims have no merit whatsoever. They then could appeal new on the equal protection claims up to

the Third Circuit and up to the Supreme Court. Again, remember, listeners, that the Supreme Court, of course, has discretion over its docket, and snowballs have a far better chance in hell than the Supreme Court wanting to touch this case with a 10-foot pole. Right. So in theory, they could actually sometime way in the future appeal on the substantive issues, but that's only if they win this appeal that they have basically no chance of winning. Lots of people are right now raising lots of money from very sad and desperate Americans for related to or tangentially touching upon these completely meritless claims, not least of which is the Trump team itself. out across the land from activist organizations that aren't really involved here, public interest law firms that aren't really precisely involved here. There are fundraising tentacles being aimed at sad and desperate Americans who think they're

losing their country and all tied to these utterly frivolous lawsuits. And it is infuriating. Okay, so that brings us to what is the most meritorious, Sean Parnell, Thomas Frank, Nancy Kurzik, Derek McGee, Robin Sauter, Michael Kincaid, and Wanda Logan. So their argument is that the Pennsylvania Constitution provides two ways of voting. One, on election day, normal. And two, by absentee ballot with one of the excuses outlined. You know, disability, you're out of town, whatever,

that you have to basically certify that you need an absentee ballot. And then they're arguing that a law called Act 77, which allows for no excuse absentee balloting, is unconstitutional under the Pennsylvania Constitution because it changed the voting code without being a constitutional amendment and that it, you know, tried to appear to be a constitutional amendment, but it did not amend the constitution validly under the mechanism for amending the Pennsylvania constitution. David, to some extent, none of this matters. It's like, this is a real legal argument. It's a, a colorable legal argument in my view. You know, a state moving under the Constitution

from excuse absentee balloting to no excuse absentee balloting, there's going to be procedures for that. And if you didn't follow them, that could cast a real problem on no excuse absentee balloting in the state. Here's the problem. Act 77 was passed in October 2019. This challenge is coming after the election in November 2020. Now, you can challenge this in November 2020. That's not a problem. But once again, David, we get to a remedy problem. The remedy that they are asking for is that therefore all of the absentee ballots in Pennsylvania can't count from the previous election. No, no, that's not a valid remedy. I literally have banged my table. I am banging the table, David.

You have a colorable legal claim. It's interesting. I'm here for it. I want to readed my table. I am banging the table, David. You have a colorable legal claim. It's interesting. I'm here for it. I want to read more about it. Except that when you ask for a crazy, crazy remedy like that, it makes me think that you don't have a colorable legal claim. It casts a light on the whole thing. Like that judge said, I've never seen an election lawsuit

where someone even asks for that remedy. You had a year to file your lawsuit to say that you didn't think absentee balloting in the state was constitutional. You didn't do it. You would have been maybe purcelled up, you know, closer to election day

if you had filed this, let's call it September or October. The courts might well have said that it was too close to an election. Although again, bear in mind, the Purcell is a federal issue. And this is a question over whether it was passed under the state constitution properly.

But okay, you know, would have been interesting. It certainly would have been just fine if they had filed this in November of 2019 and said that the remedy that they wanted was that absentee ballots that did not meet the excuse standard set in the Pennsylvania Constitution would not be valid votes in November of 2020, a year later. That remedy, I would have been like, well, okay, let's see how it goes, David. But you don't get to file the lawsuit after you've counted the absentee ballots, then say all the absentee ballots are invalid based on a law that's

been on the books for over a year, and say that the remedy is to throw out hundreds of thousands, millions of ballots. What? Not a remedy. So once again, and we've had a few of these, right? Like the cure thing that you were talking about, David, a colorable legal claim, a real one, one that you and I could have an interesting time discussing. But the remedy is not that you then don't certify the election. And this is the same issue here. It's like they were like, look, the Trump legal team clearly has problems. They don't know what they're doing. They're flailing around. So we will file the lawsuit that they should have filed a year ago. Yeah. I mean, I'm just so and several people have brought this to my attention, this case. And yes, you're right. That's a real legal case. And the remedy for that is that in the midterm elections in 2022,

that there will not be no excuse absentee ballots until the Pennsylvania legislature sort of duly passes Act 77. There's like a, you know, in order to get a constitutional amendment in Pennsylvania, there's a whole lot of hoops you have to jump through. In theory, it seems to me just on a cursory reading that Act 77 could get through those hoops still,

but it has not yet. So could this affect the midterm elections in 2022? Sure, David, it could. And if you and I want to spend some time on election law, this could be an interesting one to dive in on. But it will not affect the outcome of the 2020 election, David. of the 2020 election, David. Could you be a little clearer about that? Because I think the nuance was missing. I mean, there's too much nuance in that.

Yeah, yeah. No, I know, I know. It's, yeah. I mean, that's the thing. There is this persistent gap that hopefully we're doing our small bit to close between the public understanding of the ludicrousness that is happening right now and the actual ludicrousness that is happening right now. And why it's not at all, remotely, anything close to, quote unquote, revenge for the Russia investigation. It's a farce. It's a farce.

And it's a dangerous farce because there are people who believe it. There are people who believe it. And I don't know if you heard, you know, look, I mean, you don't want to extrapolate too much from, you know from the people who are showing up at protests and sort of the people who are calling in to talk radio. But there are people in this country who are desperately sad and desperate about the fate of the country who believe that this thing is being stolen and taken from them. Why do they believe it? Because they're being told that

by the legal team of the most powerful person in the world. And there are lots and lots of people who are going along with that con right now who should be explaining to this angry, sad base that they're being had and they're not doing it. Including Senate Majority Leader Mitch McConnell, who has not said word one about this. Right. Hear that? That's the sound of waves crashing on a beach. And that?

That's the sound of ice clinking in your favorite drink. The secret to making your retirement dreams come true is simple. Lower your investment fees. If your retirement savings are in high fee mutual funds, you could be losing a lot of your money to those fees. With Quest Wealth Portfolios, your investments are managed for you at a fraction of the cost so you can earn more and make your retirement dreams come true. Get started today at Questrade.com. All right, David. Yes. Should we bring in the brisket paternalis? We should. We must. All right, Scott Keller. Welcome to the Advisory Opinions Podcast, a podcast that is taped in your basement. Welcome. You are joining us from the first floor, correct? It's great to be back. Yes, that's right on the ground floor. correct? It's great to be back. Yes, that's right on the ground floor.

So great. So great. So you have an op-ed in the Wall Street Journal today. I'm just going to read a piece of it. Federal district judges have frustrated the Trump administration by issuing nationwide injunctions against dozens of agency actions. The Supreme Court will consider a case this term that could determine when, if ever, judges can issue these universal injunctions, which apply beyond the geographic limits of the court's jurisdiction. At the same time, and now I'm going to start summarizing, the Biden administration plans to bypass Congress and issue sweeping regulatory changes through executive action against nearly every U.S. industry. As Texas Solicitor General, you got lots of nationwide injunctions against the Obama administration. And so, Scott, what should the Supreme Court do and how should it decide the question of nationwide injunctions

in this case? But before Scott before we, before Scott describes, makes his argument, can I just note, we've got a real achiever family here. So here is, Sarah was, wait, what'd you say earlier? You were on This Week on ABC and the same evening

that you were on This Week, Scott's got a Wall Street Journal op-ed. So. We like our opinions to be known. This is a total everyman kind of family here. Like this is right. Yeah, this is real working folks. Okay. Speaking of what we're vetting opinions, I just got to say that the big 10 needs to put out a press statement condemning that terrible, terrible offensive pass interference call on the Purdue-Minnesota game this past weekend. I just got to get that out there. He's wearing his Purdue hoodie while saying that,

folks. Interesting. And he's been wearing it all weekend. Interesting. I pay no attention to minor league college football. So anyway. Oh, boom. Okay, Scott, explain what the Supreme Court is reviewing and then how you think it should come down. Sure. So the issue of nationwide injunctions has been an off-debated topic recently. But just to frame up what that is, a nationwide injunction is a bit of a misnomer. Called a universal injunction, a non-party injunction, whatever you want to call it. It sounds like a really legalistic term and it gets into complex history, but it really amounts to when a court finds a government

action unlawful, what does it do? Does it just grant the particular plaintiff relief in that particular plaintiff's single case? Or can a court go broader and, say, declare the government action lawful to others that aren't necessarily before the court? And there's debate in the academy over how long this practice goes back, and that historical argument we can get into. But as a practical matter, it means a lot, because in both the Obama and Trump administration years, and before that, even going back to the Bush years and before, when courts issue these nationwide or universal injunctions against a federal administrative agency, they're blocking the administration's policies. And that's why this pretty esoteric

concept about court remedies has become such a political hot button issue. And my argument is courts should use nationwide injunctions sparingly, but they should have the power to enter them in appropriate cases. And what I would call an appropriate case, first of all, would be when an administrative agency has significantly overreached in a way that would be unlawful for anyone if that agency action were applied to them. And your argument is based in part, at least, on the text of the Administrative Procedure Acts, and I think your argument is that when Congress passed the APA, it was handing over huge amounts of authority to these administrative agencies. And in doing so, it also, perhaps in your argument, in the text of that handing over, created an ability for judges to say that they had exceeded

that authority in every context and therefore issue a nationwide injunction. Will you walk through your textualist argument on that? Sure, very happy to. So I think one aspect of the debate over nationwide injunctions that isn't getting enough attention is focusing on administrative agencies, federal administrative agencies. If Congress were passing more legislation and there were more challenges to congressional statutes, I could see the issue maybe coming out differently. But when we're talking about federal administrative overreach, you have Congress that has sub-delegated powers to make rules that carry the force of law. And so presidential administrations through their

administrative agencies are making those rules. And by the way, agencies have made many, many more rules than Congress has enacted bills over the last few decades. I think that by one estimate, it was something like 20 to 25 or plus rules for every bill that Congress is passing. So we're talking about a large amount of rulemaking that carries the force of law. And so when Congress created the Administrative Procedure Act, that really was the charter setting forth the conditions on which Congress was willing to allow presidential administrative agencies to act. And one key part, Congress said, was people get to sue agencies very broadly. And when agencies act unlawfully, courts can, quote, set aside, unquote, an agency's unlawful action.

And that set aside concept is a key component of the argument of why nationwide injunctions should be available in appropriate cases when agencies overreach. All right, coming in on the opposing team, David Fritch. First, give some examples of universal injunctions that you were able to obtain back in the day representing Texas. back in the day representing Texas? So I think the two most prominent would be the DAPA immigration order that would have granted lawful presence and work authorization to four to five million aliens. This was the additional, the follow on to the DACA program. And the other one would have been the EPA clean power litigation. You know, the U.S. Supreme Court stayed an EPA rule from the Obama administration that would have drastically reworked the nation's energy grid. And the Supreme Court stepped in and stayed that. That was one of Justice Scalia's final acts as a Supreme Court justice, actually. Those would be the two others, but there were some other examples. And I will also say that the Texas AG's office was very cognizant of not asking for a nationwide injunction every single time it was challenging an Obama-era agency action. And I think part of that also plays into that sometimes when you bring a lawsuit challenging a federal regulation, you don't want to necessarily distract by getting into this remedial question. Although sometimes,

of course, you do. So I think one of the reasons why, and I think you make a very good argument, you know, and you make an argument that is, as you explicitly say, this is an APA argument. This is limited to the Administrative Procedure Act. This is not an argument that really has that much applicability to statutes, to statutory acts of Congress. It doesn't have a great deal of applicability, say, to most executive orders, unless the executive order is touching on an APA-related issue. executive orders, unless the executive order is touching on an APA-related issue. So yeah, I mean, I think it's much more limited than, if your argument is followed, there would still be fewer universal injunctions, is the way I read it. But they would still be available. They would still be in the toolkit. And I think the interesting issue to me is,

without question, the statute enables the court to set aside an agency action. The interesting question is, because this is sound, and we're going to get into the quirks of law. When you're talking about an injunction, that is something that is sounding in so-called equity or equitable relief, where there's a greater degree in many ways of judicial discretion traditionally granted granted judges in equity, what they can order as an injunction or refused order as an injunction.

And I guess the interesting question that I have is, how do you respond to the idea that, well, okay, well, the agency action that should be enjoined is the operation of the regulation on the litigant so uh there is an agency action that is of course a rule but then the rule operates on individuals or on entities in very specific ways and to prevent the kind of gumming up of the works it's entirely consistent with the statute to say wait the agency action that is being enjoined is the up of the works, it's entirely consistent with the statute to say, wait, the agency action that is being enjoined is the operation of the rule on the litigant. And that the court

can write its opinion of the rule's legality in the context of enjoining the operation of the rule on the litigant, but to then enjoin the operation of the rule on the litigant and all other then enjoin the operation of the rule on the litigant and all other potential litigants too far. Well, so a couple of things. First of all,

some of the arguments that sound in the take this approach are really kind of questioning, can you ever get pre-enforcement review of a rule? Now, what does that mean? That means, so before the federal government has actually went and tried to enforce a rule against you, the litigant, you go to court and you say, look, I need a declaration of my rights. And before I'm going to take any actions, I need a court to give me guidance that this rule is unlawful. Now, we can have debates about whether you should be able to do that, but it's pretty settled that you can. Now, if it's the case that you can do that, and the object of the challenge is the rule itself, and it would be unlawful in all circumstances, that's exactly the type of agency action that the APA directs courts to

set aside. In other words, the object of the review is the agency's rule. It's not the fact that they will be bringing it against this one particular litigant. And there's, even besides the set-aside language, there's another, I think, frequently ignored provision of the APA in the statutory section right before the set-aside language that says that courts can stay an agency rule pending review, that in effect is a different way of saying you can get these preliminary injunctions to block the entire rule from going into effect until a court has taken a look at it. And also, as far as administrative law, it makes sense. If Congress is going to

give flexibility to agencies to be able to create rules carrying the force of law, it makes sense. If Congress is going to give flexibility to agencies to be able to create rules carrying the force of law, then you're going to have inflexibility on the back end where a court can set aside that whole action and make the agency start over if they're going to significantly overreach. How many votes do you think you have on the court for such an opinion? You, of course, are a Kennedy clerk who is no longer on the court. But give us your best thoughts. Justice Thomas has written about this a little. Some of the others have tipped their hands a little.

Where does it lie? So right now, Justices Ginsburg and Sotomayor have said, and this was in Little Sister's dissent, that nationwide injunctions, particularly in APA cases, can be valid. Justices Thomas and Gorsuch have expressed skepticism based on the historical arguments. But I'll point out Justice Thomas has footnote number two in his travel ban decision. We love footnotes and advisory opinions. It's always in the footnotes. And he says in that footnote that no one had really presented a statutory argument that Congress had authorized nationwide injunctions. So when Justice Thomas

was analyzing historical arguments, it was from the assumption that what the equity power was in the 18th century would guide the implicit determination of what Article III judicial power would be. And so this APA-specific argument, also when you think about Justice Gorsuch expressing skepticism in a separate opinion, Justice passed term of nationwide injunctions. in a separate opinion, just this past term of nationwide injunctions. Again, those arguments were focused on the big picture, nationwide injunctions in all cases. And I think focusing in on the administrative law, the agency overreach, I think that has the potential to change the framing of the argument. Interesting. There's also situations where back when you were SG, for instance, you would combine with a lot of states like Texas may be the one sort of that got all the glory, if you will, for bringing the action. But you would have, you know, half a dozen states join your brief or more, right? Yeah, there were frequently lawsuits against the federal government. And look,

the states in the Trump administration era did the same thing, where they were band together and have a coalition of multiple states that would then go and raise the claims in a single lawsuit. So in that case, you could have a world where you don't need a nationwide injunction. You would just have an injunction in all of those states that brought the claim. The problem with that, and David, this maybe goes more to your negative partisanship situation. If all the red states join in claims against the Biden administration and all the blue states join in claims against future Republican administration and judges can only issue injunctive relief for parties, then you're going to have a situation

where the red states are under one law and the blue states are under another law. Scott, wouldn't that get kind of messy? Well, and so the way to solve that is when an agency has truly overreached significantly, and again, in all circumstances, then that's precisely when Congress has said courts can step in and set that action aside. But also to back up, we're talking about nationwide injunctions and we're talking about administrative agency actions. But the reason we're here in this situation talking about this is because Congress is not passing major legislation. And a lot of these challenges about whether there should or shouldn't be nationwide injunctions are coming up in the context of challenging administrative agency

actions. And if Congress were setting the policies, there would be significantly fewer avenues for litigants to even challenge on the merits of those policy decisions. And I would also say, I don't think our founders really thought that the current state of affairs where a presidential administration comes in and orders various administrative agencies to change rules that carry the binding force of law, that that was going to be how this operated. David, has he convinced you? You have no disagreement with me on that latter point at all. We're dealing with a legal system and a product of a perversion of the intention of the roles of the various branches of government that is in many ways responsible for an awful lot of our political dysfunction. You've got absolutely zero disagreement with me on that. I mean, to go back to something that Sarah said,

yes, I grant that if you do not have a universal injunction that you could have disparate legal outcomes for a time period in disparate jurisdictions, but that's a completely normal in disparate jurisdictions. But that's a completely normal part of American law. I mean, we have circuit splits. But David, the part that would be unusual here, yes, we have circuit splits. Different states have different things. What would be unusual is that it would fall on partisan lines.

The red states would all be on one side and the blue states would all be on another. That's the problem that I see. Yeah, I think that the other issue that you have here, and just as a practical matter, is there's a lot of forum shopping. We have to be honest. We have to be honest. There's a lot of forum shopping that's going on in these cases. It's not as if, for example, 15 states are filing 15 separate lawsuits in their local federal district courts, 15 states are filing one lawsuit in a single federal district court, and there of the universal injunction is that you forum shop your jurisdiction. Your jurisdiction gives the universal injunction. That universal injunction is going to stay in play. And to me, when you're looking at a Supreme Court-

And David, it's even worse. Forum shopping implies that you just pick out the judge that you think will be most favorable. It's worse than that. You can get in front of five different judges, and as long as four of them can say of five different judges. And as long as, you know, four of them can say no to what you want, as long as one of them says yes, you can do it in front of 20 different judges. And as long as you, one of them says, yes, you get it nationwide. That is a problem. Yep. Um, but Scott, you address that a little, at least in saying that like judges should look to see whether 19 other judges just said no to this. And maybe you should be more hesitant as a judge to be the one that says yes. Yeah. And back in the Obama era, we saw

some of that with judges saying, look, we're going to tailor injunctions given that other courts have already upheld this and grant some comedy towards it. I think another reason that we are here, though, not only is Congress not passing nearly as much legislation, but I think administrative agencies over the past decade have responded to Congress not legislating on many issues, with then taking additional steps of trying to push their own powers at an administrative agency level, thus prompting a bunch of these lawsuits. So, I mean, in some ways, we can talk about the historical debates and we can talk about, you know, what was the practice going further back, but a lot of ways, this is a confluence of, you know, three or four

different factors all coming together at the same time as to how we are where we are today. Well, I do agree, Scott, entirely with your diagnosis of the various problems that we have here we are in uh because of the abdication of congress and because the what was intended to be in my argument in my view the most powerful branch the branch that can fire the president can fire the justices of the supreme court that can override presidential vetoes is now by far the least powerful branch and the executive branch is now aggressively asserting its role in law making that we got this problem uh and it's my my i think at the end of the day when i look at agency action that can be enjoined it the the agency action should be the operation on the

litigant uh commensurate with the jurisdiction of the court. And there's one entity, one court that has truly nationwide jurisdiction, and that's the Supreme Court. And if it wants to enjoin something universally, more power to it. But outside of that, it's going to be interesting. I mean, you've come the closest to persuading me, but I'm, uh, to persuading me, but you're, you're, this is how, this is how much I am opposed to nationwide injunctions. I wrote a piece in June, 2019 for national review, and this was the title of the piece. So I'm not exactly unbiased in this, the nationwide dysfunction of the district court injunction. Well, I mean, David, what would you say about, for instance, the DC Circuit is the of that. And the court for decades has said that when it finds a violation of law that an agency has overreached, the normal course is to vacate the rule. In other words, it's not enjoying the enforcement action against the particular litigant, but rather it is vacating the rule. And at the time, the language being used was vacate the

rule. No one thought of that as a nationwide injunction, but that's exactly what that is. And so that's, I guess we could say that that is a, maybe they shouldn't have been doing that all along, but that also feels really odd. Again, coming back to the APA language about setting aside unlawful agency actions and that, I mean, this has been going on for decades the epa dc circuit uh rule vacator yeah no i i fully acknowledge that i don't i don't think there's a i don't think there is a clean a particularly clean way to deal with this under the present statutory scheme um that the the present statutory scheme is a A, vague enough, and B, been stretched far enough to where we're in a situation that is begging for congressional action.

But I do see a difference between a district court and, for example, the D.C. Circuit. I see a difference. circuit um i i see a difference again you know the the real the the core issue and that's why we're going back to the title of my um the title of my piece it's the district court injunction that that is where you've got your your biggest problem with the forum shopping that's where you've got the largest stretch now the dc circuit the d. Circuit, the D.C. Circuit is D.C. I mean, this is D.C., where the EPA is, where all of these agencies are, where the action is taking place. I don't have as nearly as big a problem with the D.C. Circuit taking action that has, evidence has expanded jurisdiction versus the district court. And I think that's the core

issue to me is the district court injunction. As a practical matter, if you're talking about some EPA rules, say, for example, in the Ninth Circuit, let's say the Ninth Circuit takes action. I mean, the reality of a Ninth Circuit injunction, particularly maybe in some federal land use regulations, et cetera, would functionally just block the federal regulation anyway because of the immense jurisdiction of the Ninth Circuit or because of the jurisdiction of the D.C. Circuit. But it's this district court issue.

That's where I have the problem. And I think that's where, honestly, your statutory argument is the best argument against me because the language of, it doesn't, the language of the statute doesn't limit district court injunction. I mean, district court jurisdiction. It just doesn't.

Well, Scott, thank you for joining us. The Brisket and I are very proud of your accomplishment. And to just undo how cool David made us sound, we will now end this podcast and Scott and the brisket and I

are going to hop in the car and go try to find a copy of the Wall Street Journal. Do you think Starbucks still sells Wall Street Journals? I hope so. You're going to find a print... Oh, you know what? That's a great idea. Yeah, of course.

Yeah, absolutely. This doesn't happen every day in this house, despite what you make it sound like. I just took this as another Sunday. That's right. All right, Scott. I'll see you upstairs in a few minutes. Great talking with you today. Yeah. Thanks, Scott. And enjoy the incredibly high honor of the only repeat guest in Advisory Opinions history. It's true. Yes. It's true. It's like an SNL host. We're going to start handing out jackets. And let's just say that was a decision to bring you back. No bias involved in the process at all. It's a double-blind procedure um we'll have an independent review anytime you have

emergency podcasts popping up you know who knows who's going to be on the show next that's exactly right that's exactly right all right david we really are taking the rest of the week off no no more emergencies i demand it of the legal team on on all of these cases. We cannot do another emergency podcast this week. No. I hope you're right, Sarah. I hope you're right. But we can't make that promise because it's not entirely in our control. Because what's out of our control is what the people want because we give the people what they want. But I hope, I hope, advisory opinions listeners, that you do not want another emergency podcast this week.

No. We don't want that. All righty. Well, thank you all for listening. And thank you, Scott. This is outstanding. And this is exactly what advisory opinions listeners crave is the deep dive into the rules of equity in federal court.

That's, that is what everybody wants to hear. And that's what we're here to provide. But we really, really appreciate it. And as always, please write us on Apple Podcasts and we will be back, hopefully, next Monday. Thank you for listening. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear,

every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply.