Advisory Opinions - Retire Universal Injunctions

Episode Date: April 18, 2024

There’s not much worth discussing yet in Donald Trump’s criminal trial in New York, so Sarah and David focus on the Supreme Court and a case on Idaho’s law restricting gender-transition treatment for minors. Plus: Murmurs about Clarence Thomas’ brief absence. The Agenda: —Election law crimes, tax crimes, and falsification of business records —Challenges of broad injunctions —Idaho’s Vulnerable Child Protection Act —SCOTUS exhausted with emergency docket applications —Justices call to retire universal injunctions —January 6 arguments before SCOTUS —SCOTUS declines to intervene in a police lawsuit against a Black Lives Matter activist —Obstructions in official proceedings —Legal issues in the Iran-Israel conflict Show Notes: —Labrador v. Poe —Counterman v. Colorado —18 U.S. Code § 1512 - Tampering with a witness, victim, or an informant Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isker, that's David French. It's an action-packed pod today. So, David, no real updates to give folks on the Trump case yet, right? No, no, no real updates. I mean, we know a little bit more, but this has been for a while

about the legal theory now, the prosecution, because remember, I'm saying remember to something we talked about a year ago. But if people don't remember the discussion a year ago, basically the way it works is there's a misdemeanor if you falsify business records. Misdemeanor with a two-year statute of limitations, that would have probably run if you were gonna prosecute Trump only on the misdemeanor. However, the falsification of business records

can become a felony if the falsification is in connection with furthering another crime or concealing another crime. So everyone was asking when the case was filed, what is the other crime? What's the other crime that Trump was trying to conceal or carry out through the falsification of business records? And now we know what we suspected. It's mainly election campaign finance, allegations of election campaign finance crimes, state property, or I mean, I'm sorry, state tax crimes.

But it's an interesting case, Sarah, because the only thing you have to prove beyond a reasonable doubt is the falsification of business records felony, but it depends on the existence of another crime. Well, wait, to be clear, you have to prove beyond a reasonable doubt that he falsified the business records

for the purpose of concealing the other crime. You don't need to prove the other crime beyond a reasonable doubt, obviously. Right, exactly. But you do have to prove the for the purpose of concealing the other crime part beyond a reasonable doubt, obviously. Right. Exactly. But you do have to prove the for the purpose of concealing the other crime part beyond a reasonable doubt. Right. It's an interesting, odd thing, which is one of the reasons why from the beginning, I have had some side eye at this indictment. It feels very much like a case that the jury

could convict and then would be reversed on appeal. It has the McDonald case feel about it to me, Sarah. Well, yeah, the jury, as I've said many times now, what's going to the jury here is not particularly interesting. The jury is a fact-finding body. The interesting stuff here and the parts that make this the weakest of the four indictments against Donald Trump is the legal questions that the jury's not deciding. And the judge has already decided that this is fine. And it's just going to have to make its way through appellate courts for that because,

and again, we covered this a year ago, but in short form, there's huge problems with the underlying idea of a federal campaign finance violation here. A, of course, the Department of Justice didn't charge Trump with it. They did indict Michael Cohen and he pled out to it. But you have the former FEC commissioner. You also have, you know, me, someone who practiced campaign finance law for some time saying, but wait, this is just not what is not what we've ever understood to be against the law and campaign finance world. It would really change a lot if on the one hand, you're not allowed to use campaign funds to pay for the hush money because that's not a campaign expense.

Same as pantyhose, dry cleaning, buying a new house, painting your business. It may help the campaign, but it is not a campaign expenditure. But then you, under this theory, you're saying you must disclose it or else it's a campaign finance violation. So this is all a big mess. And the fact that Michael Cohen pled guilty to it is certainly helpful for the government, but not dispositive if the underlying theory of the case isn't right. It doesn't matter that someone pled guilty to it. It gets weirder and I'm far less of an expert when you get to the tax stuff. And it gets way more complicated when you get to the part where he's falsifying business records for the purpose of concealing the falsification of other business records.

That's some fun turtles all the way down stuff. So yeah, that's all to say we haven't learned a whole lot in the Trump case yet. So stand by when we think there's something really worth your time. We'll be doing deep dives into it. Don't worry. Yes, absolutely. Oh, and David, before we hop into the meat of this podcast, you heard about the valedictorian at University of Southern California. So the way that they pick their valedictorian speakers, according to the LA Times, if you're above a certain GPA, which I believe is like 3.98, then you apply. They got hundreds of applications.

They picked this student. After announcing her, several student groups on campus say that she had liked and affiliated with lots of pro-Palestinian and arguably anti-Semitic causes and speakers, etc. And they asked the university to not have her as the valedictorian speaker. The university has now revoked her as the valedictorian speaker, not because of anything she said, but citing safety

concerns. I'm outraged by this because, first of all, the idea that they would have allowed a speaker who had said like white supremacist stuff or something like we all know what the university would have done with that. But you know what? I haven't actually seen anything she's posted that was anti-Semitic. Nevertheless, if they wanted to revoke her speaking because of something she had said, that would be consistent with what universities have generally done in these situations. But simply allowing other students and student groups to make them fear for her safety or that there would be hecklers or protests is absolutely, wildly unacceptable for them to revoke her as the chosen valedictorian speaker for the class for graduation.

Completely agree, Sarah. This isn't heckler's veto. It's like anticipatory heckler's veto. Yeah. And so you have somebody who's been selected out of 100 or 200 students selected. And then, you know, look, from what I understand, I'm looking at the original statement in opposition. In a social media bio, the valedictorian has a link to a curated media page which calls Zionism a racist settler colonial ideology

and advocates for the complete abolishment of Israel. I think what they mean- If that's the most you got, that ain't it, man. And again, but I think it's more upsetting to me That the school didn't even cite that If they said look Her views don't align With the university's views

Or something or other Like I would be Disappointed But I wouldn't be outraged The way that I am By them just saying That they're not willing

To Deal with The fallout Protest concerns Right the protest Safety concerns Like Right No no. That's why you exist is to platform people, regardless of whether other people like what they're going to say. That's what a university's mission is. How dare you, University of Southern California?

And I hope is very clear that I don't agree with a single thing that she believes on this issue. But I don't even know if she was going to talk about that at all, by the way. I don't know if she's going to talk about that at all either. And if you really think about it like this, there are a lot of people who believe that if you say that there is two biological sexes, that you're a bigot. If you believe that marriage is a man for a man and a woman, then you're a bigot. You know, imagine a statement that says, you know, after somebody is announced as a valedictorian, that people have found out that they have said that there's men and women,

and that trans women are not the same as biological women. And so therefore, we're worried about safety, you can't speak. I mean, when you just go one step through through other kinds of speech that you either may or may not agree with, but is part of our national debate in a pretty dramatic way, and then say the person on one end of that cannot give the commencement address because of unspecified safety concerns, that's a big nope in my book. And again, I totally 100% disagree. And I also, by the way, disagree with somebody using a valedictorian platform to deliver some kind

of political screed. I have no idea if she was going to do that. No idea if she was going to do that or not. But I disagree with doing that. But I'll tell you what I really disagree with is the authority figure saying, because somebody has said things that make a lot of people angry, we're not going to allow her to speak because of unspecified safety concerns. That's a big nope.

Yeah. All right, on to the Supreme Court. First, Clarence Thomas was not at argument on Monday and there was a lot of just like whispering. Why wasn't he there? Is something really wrong? Is there about to be an opening on the Supreme Court a la Justice Ginsburg in the final months and days of the Biden administration? He was back at argument today. We don't know why he was gone. Justices have been gone in the past because they have the flu and don't want to get

their colleagues sick so they don't show up. Sometimes then they show up over the phone. But like if you're feeling really crummy, you call in sick to work. Or maybe you have a doctor's appointment that you couldn't move or something else like we don't know. CT hasn't said we're not gonna know but no, no opening on the court this week. Next up, David, we were really focused on the oral arguments over the January 6th defendants case. Yes. But we got some other really interesting stuff out this morning, including a case about Idaho's medical care for transgender youth law. This was a law that was enjoined by the district court.

That injunction was upheld by the Ninth Circuit. And then there was this emergency petition on the shadow docket, the emergency docket, however you want to call it, to the Supreme Court. And we got 34 pages of thoughts and feelings. Amazing. Many of the justices, much broader than anything to do with this specific law but just to go over the details of this law a little bit it was called the vulnerable child protection act went into effect in 2023 the law sought to regulate a number of practices upon a child

for the purpose of attempting to alter the child's sex. Those practices range from surgeries that sterilize or mutilate a child's genitals to the supply of puberty-blocking medication. Idaho claimed that its law aimed to protect children from treatment that can cause lasting harm and irreversible damage. So two children and their parents sued, arguing that without access to puberty blockers and estrogen, the two minor plaintiffs would likely suffer serious mental health problems. So the district court granted the preliminary injunction. But because those two minors were anonymous, the district court basically said the judge couldn't limit it to those two minors. Therefore, it had to be a statewide injunction. And then we're off to the races about universal

injunctions, etc. So, David, we had a very 3-3-3 court vibe going on here. Yes. You had justices Gorsuch, Thomas and Alito explaining why they voted to grant the stay of the injunction, meaning allow the law to go into effect, except as applied to these two minors for the remainder of the litigation on the merits. You then had justices Kavanaugh and Barrett writing their reasons why they granted the stay on the injunction. Then you had Justices Jackson and Sotomayor explaining why they would have denied, meaning not let the law go into effect while the litigation was pending. saying that she would deny the application, same as Sotomayor and Jackson, but did not join their opinion, which is becoming a bit of a trend thing that we're seeing on the,

a little split happening in that threesome. And then we didn't hear from the chief justice at all. And because his vote didn't matter to the outcome of this, we're never gonna know where he fell on this. Except in terms of the 3-3-3, even odds would tell you he fell with Barrett and Kavanaugh potentially. Yes. And the case is really interesting. And I have not seen coverage focus on the part of this

that makes this such an interesting case that is and it's not really about the trans issue. No, no, no. I've read everything that's about the actual issues in the case in the 34 pages. I just read you all of it. Yeah. It's not about the trans issue. Okay. So there's all this coverage about it as if the Supreme Court's decision was about the trans issue itself. No, this was a very unusual case in this sense. So you had a district court granting an injunction that blocks enforcement of the law for everybody. But then when the case goes up on appeal, the state does not seek to enforce the law against the specific plaintiffs. So the plaintiffs are able to receive the treatment that they want to receive. So the plaintiffs are able to receive the treatment that they want to receive.

So the plaintiffs are able to get what they want here. The injunction applies to the state and everybody else other than the plaintiffs. Including about things the plaintiffs didn't even say they wanted. For instance, the plaintiffs were about medical, sorry, hormonal intervention, not surgery. But the part of the law involving surgery was also enjoined. It's a big, big injunction. It is statewide. It applies to everyone, not the two plaintiffs. Yeah. In addition to the two plaintiffs. It was weird. I was trying to think of an analogy from my own practice, and I could not think of a situation analogous from my own years of practice. And I had a lot of injunction practice.

analogous from my own years of practice. And I had a lot of injunction practice. But it would be a very weird, say, free speech case for me to sue over a speech code. And then the parties agree that the speech code doesn't apply to the plaintiffs and then continue the litigation over the speech code, which would be an interesting kind of construct. And so what this actually was about was not about the trans issue at all. What this actually was about was about the process or the topic we've discussed a million times, which is how broad can injunctions be? And that was, and this was also a lot about the Supreme Court's emergency docket.

And so if I had to summarize the Gorsuch concurrence on removing the stay versus the Kavanaugh-Barrett concurrence on removing the stay, the Gorsuch concurrence was, you people get these injunctions under control pronto. And the Kavanaugh-Barrack concurrence was, you know, I'm going to take this opportunity to tell you why all of this is really hard and we actually have to decide some things on emergency docket.

There's no way around it. Injunction, dealing with injunctions is complicated. It was a really interesting concurrence. Before we get to Gorsuch, Sarah, I'm super interested in your thoughts on the Kavanaugh concurrence, because it really seemed to be like, here, members of the public, I want to explain to you why all this is hard for us. I loved it so much that I took notes on it. Oh, outstanding, because I took notes on it. Oh, outstanding, because I took notes on the Gorsuch. Yeah, no, I took notes on the Kavanaugh one, because exactly what you said, it actually has very little to do with this particular emergency petition and more

about how emergency petitions work at the court and why there's no one quick fix to make your emergency petitions go away or to take this off the court's plate. So first, he starts by explaining when an emergency application comes to this court, we must decide it, grant or deny. The court has no authority to reject or turn away emergency filings without deciding them. This goes directly to the shadow docket criticism, this idea that people just want the court not to have an emergency docket. It's like, well, I don't understand. When you have an injunction and you have a right to appeal, you just don't want the Supreme Court to look at those anymore. But you do if they're on issues

that you care about, like the death penalty, but you don't if they're on other stuff. That's never made a ton of sense to me. It not uh the court by either denying them or granting them is making a decision so he's walking through now that the neat tricks so first some suggest that this court when receiving an emergency application involving a new law should adopt a default position of deference to the court of appeals ruling on a stay or injunction and he's like, yeah, that's a great idea, except some of these have huge national implications and that's actually our job. So simply pushing this off to the lower courts, like, why don't we just do that with all

of our case docket? Like, we don't need to decide anything. Like, if the court of appeals is so great at all of this, like, maybe we don't need to exist. So that doesn't really work. Second, one might reasonably think that this court, when dealing with an emergency application, should simply try to, quote, preserve the status quo. I feel attacked. And his point is, it's really hard to define what the status quo is. And even if you were able to come up with a status quo, there's going to be examples where it would be egregious to allow the status quo to stay in effect because if everyone were then operating under that,

a state could pass a obviously unconstitutional law, but then that would be the status quo. Right. And so that stays in effect for a few years while it gets litigated on the merits? No, of course not. And vice versa, a law that is duly passed by the representatives, it's clearly constitutional, can't go into effect because of the status quo argument. He's like, so obviously

we have to do some analysis of something. You can't just have this rule on the status quo. We can't even agree on what the status quo is. Third, he writes, Justice Barrett has emphasized that the court can and should take care to focus on cert worthiness when considering emergency applications, i.e. don't let folks who couldn't get their case actually heard at the court on the merits later on down the road sort of sneak in on the emergency docket. So if we wouldn't take the case and the issues presented by that case on like a merit cert grant, maybe we should defer to the lower courts

on this emergency docket stuff. And he's like, yep, that's clearly a consideration. But of course, it's really hard to know on various cases whether something's going to be cert worthy, et cetera. So that can't be just the universal even if it's a good idea fourth some suggest that the court should prohibit so called nationwide and statewide injunctions injunctions that prevent enforcement of a law against persons other than the plaintiffs this is where he's attacking attacking is a harsh term

criticizing uh the gorsuch point because Gorsuch and his concurrence is sort of acting like this would solve everything if everyone would just stop enjoining more than the plaintiffs. He's like, yeah, again, great idea. People should really narrow these injunctions, but it's not going to solve the problem for us, the nine justices here dealing with this, because you could end up with dueling circuits with different rules where laws are in effect. And imagine if you're a business with a business in two of those different circuits, it's not going to fix everything, even to narrow these. And even if it would have fixed this case, for instance. So he says, look, at the end of the day, this court cannot avoid

evaluation of the merits in at least some emergency applications involving consequential new laws. If I'm correct about that basic reality, another important question concerns this court's processes. What process should this court employ for assessing likelihood of success on the merits with respect to an emergency application, particularly in cases involving important new federal or state laws. Because it's really, this whole thing has been a long-winded way of saying, I know no one's comfortable with acknowledging that they're simply reviewing this on the likelihood of success on the merits.

Yes, after you've looked at cert worthiness, after you've looked at the irreparable harm, the status quo, all of those factors, however you want to label them, after you've looked at all those things, there's still going to be some that get through. We're looking at the likelihood of success on the merits. We are trying to judge the merits of the case as best we can at a preliminary stage. How do you want us to do it? And so he suggests that,

yes, having more briefing, oral arguments, amicus briefs, et cetera, is sometimes going to be oral arguments, amicus briefs, et cetera, is sometimes going to be smart. And that frankly, this is the job, man. If it's hard, suck it up. Yeah, I thought that was, I thought it was so helpful to explain. And I think this is helpful because what he did was he introduced complexity to the debate.

And to me, this is something that is really helpful in a lot of the arguments that we're having right now in Americans' life and society, whether it's from diplomacy to military strategy to Supreme Court analysis, there's a lot of missing complexity. And what Kavanaugh did was introduce and bring the complexity forward. And the way I kind of and bring the complexity forward. And the way I kind of harmonized Gorsuch and Kavanaugh was Kavanaugh shows all the complexity. I still think of the standards that he talked about for whether and when the Supreme Court

is gonna actually weigh in on the emergency docket. The cert worthiness feels like the best formula because otherwise you're in a situation where people can essentially escape the traditional way in which the Supreme Court kind of stands and hangs back and weighs in to resolve legal conflicts, the conflict of laws, and sometimes, of course, weighs in on just true issues of truly national importance. But if you don't have cert worthiness as a guide, then people can use this injunction practice to escape, to sort of get court review on a summary basis. We have to take some of these, but we can't set up a system where you're able to game our rules to get review when you'd ordinarily not get review.

So it's really tough. And I feel like the harmony between the Gorsuch and the Kavanaugh is, hey, our approach will be cert worthiness. Hey, lower courts, your approach should be, hey, how about limiting those injunctions? That will actually be helpful. Please and thank you. I was expecting more fireworks also from the dissent from Jackson and Sotomayor,

who voted against reversing the injunction. And actually, I found their dissent also persuasive. Like, I think everyone's actually more or less on the same page. We didn't hear from all nine, but of the seven justices we heard from, their differences are minor, if there's even differences. So, yep, Jackson and Sotomayor would not have granted the stay. But as they put it, we do not have to address every high-profile case percolating in lower courts, and there are usually many good reasons not to do so.

Few applicants can meet our threshold requirement of an exceptional need for immediate relief by showing that they will suffer not just substantial harm, but an irreversible injury occurring during the appeals process that cannot be later redressed. This case presents numerous reasons for exercising restraint. The state of Idaho's emergency application asks us to override the decision of two lower courts based on an issue not clearly implicated and under circumstances where the state does not contest that its law should remain enjoined. As described in part two of this, even if today's application actually involved a universal injunction, the emergency docket would not be the place to address the open and challenging questions that

that issue raises. So basically, they're all pretty exhausted with all this emergency docket stuff. I think it's pretty clear that part of what Jackson and Sotomayor are saying is we wouldn't vote to grant cert on this. Yeah. So that's the difference, not the emergency docketiness. Yeah. They're all getting very frustrated. They're all trying to find what the rules are going to be so that they can not have this clearly internal discussion every single time that these type of nationwide universal injunctions are coming up to the court. Unfortunately, it does not appear that they

resolved it here. No, it was not resolved. Although I would say if I'm a district court judge and I'm reading this and I've got a very broad injunction that I have typed up on my screen. Before I hit print or publish or whatever, I might wanna read this from Justice Gorsuch. Lower courts would be wise to take heed. So that's not subtle at all, Sarah. Lower courts would be wise to take heed. Retiring the universal injunction may not be the answer to everything that ails us,

but it will lead federal courts to become a little truer to the historic limits of their office, promote more carefully reasoned judicial decisions attuned to the facts, parties, and claims at hand, allow for the gradual accretion of thoughtful precedent at the circuit level, and reduce the pressure on governments to seek interlocutory relief in this court. As I wrote in our little slack, can you just inject that straight into my veins? He's right. I think he's right. This is, you know, but there's also something that Justice Kavanaugh said that I think is

very insightful as to why and how the courts have become so prominent in our political life, more so than they used to be. And that is the combination of the fact that universal injunctions are now broadly granted with the reality that when you file a motion in a court, unlike, you know, Congress does not have to pay the slightest bit of attention to you. You can call your congressman.

You can do anything you want in front of Congress. You can walk into the hearing room, do jumping jacks while you're crying out for help, whatever, to get attention. And they don't have to do one thing. They don't have to respond to you. They don't have to answer you. They don't have to acknowledge the receipt of your email. But when you file a motion in court, the court has to answer the motion. So you get a response. The court answers you. And so when you combine universal injunctions with this sort of mandatory legal process, you can begin to see why people

who are very frustrated by politics, where you don't have to get an answer at all, will turn to law, where you can get all the answers you want. Sometimes at a national level, especially when combined with forum shopping, you can sometimes feel pretty confident that you can get not just an answer, an answer you want for at least a period of time that can frustrate the intention of the presidency that you oppose. And we, of course, need to preserve right of judicial review

and right to challenge unconstitutional actions. But the system as it is now, wow. And you can see the strain on the court from these three opinions. 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. We got another little statement from the court, this time from Justice Sotomayor, respecting the denial of Sir Shirari in the case against D. Ray McKesson. He is the leader of Black Lives Matter, and he was giving a speech in Baton Rouge. One of the people in attendance then threw something seriously injuring a police officer. And the question is whether McKesson, the speaker, can be held liable under a negligence theory for those injuries.

The Fifth Circuit, well, this case has basically gone up and down and up and down a couple times at this point. But David, this gets to a conversation that you and I haven't had in a while where we disagree about incitement under the first amendment after january 6th we had lots of conversations in which you thought that donald trump could be held liable under an incitement theory for his comments on the mall on january 6th for then the actions of the crowd at the capitol on january 6th and i said no no how, you're not even in the ballpark. So this is just this, you know, a similar vibe on the other political side of this. Now, there's huge differences.

One of which is that one person in the crowd did something that seriously injured a police officer versus large numbers of the crowd, the sort of import of what happened on January 6th in terms of certifying election. I'm not comparing them on any of those grounds, but I am comparing them on the incitement grounds. So Judge Willett was in the dissent in the Fifth Circuit below. The Fifth Circuit said, yes, this could proceed on a negligence theory. And he wrote, negligent protest liability against a protest leader

for the violent act of a rogue assailant clashes head on with constitutional fundamentals. And what was interesting to me is that Justice Sotomayor, and this is remember a statement on the denial of cert. Yeah.

She's just highlighting some things for future courts who are going to get this case as it comes back down. She's highlighting that Counterman decision, the true threats case in Colorado that we talked about last term. And I'll just read a little bit from her statement here. In Counterman, the court made clear that the First Amendment bars the use of an objective standard like negligence for punishing speech. It demands a showing of intent.

The court explained that the First Amendment precludes punishment for incitement, whether civil or criminal, unless the speaker's words were intended, not just likely, to produce eminent disorder. Although the court determined that a less demanding recklessness standard was sufficient to punish speech as a true threat, it emphasized that an objective standard like negligence would violate the First Amendment. So, David, curious if you had any additional thoughts on incitement and how you think this case should come out. Should McKesson, will McKesson, I guess, be found liable? I don't think he should. I'm with Willett on this. You know, the reason, the thing that tipped me over for Trump was when we began to get sworn testimony that

we began to get sworn testimony that he knew the crowd was armed and that they weren't there to hurt him. And he sent them to the Capitol. So, you know, this crowd was armed. And then when you put with all of the other all of the other facts and circumstances of that day, in my mind, it tipped it over to incitement. In this case, I don't see anything like a similar

go there where you're not supposed to go and I know you're armed while you're doing it. And that, I don't see the same kind of action here. I think the way in which Judge Willett framed it, holding McKesson responsible for the violent acts of others because he negligently led a protest that carried the risk of potential violence, I don't see how that squares with the incitement precedent. I really don't. Negligently

led. I liked Sotomayor. I liked her too, like likely to. That's negligence, right? You should have known that what you were saying was likely to result in violence. And I think under that standard, Trump and McKesson would be or should be found liable. But that ain't the incitement standard. That's not what the First Amendment requires. It requires more than just you knowing that there's a likelihood of violence. It requires that you intended it to be violent. And that, to me, is the world of difference.

And I really liked Sotomayor's statement here. I think there's no way, no how, that McKesson will be found liable under that standard. So it's weird. The headlines on that case have been, you know, Supreme Court refuses to take up BLM, you know, protest liability. And it's like, well, but it's fine.

Like it's going back down and it's going to be fine. So, and certainly if he were found liable, it would go back up and they would reverse it on counterman grounds. Yeah, no, I agree with that. I don't, he should not be liable. This case is wild to me. All right, next up, we have the January 6th argument.

And I just want to remind people of the statute in question. And then we'll walk through how it went today. So for those who have been following along with their US code at home, 18 USC is your criminal code, you're going to want to flip to section 1512 C. And again, if you'll just sing along in your hymn books, whoever corruptly alters, destroys, mutilates, or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding or, and this is the question, otherwise obstructs, influences, or impedes any official proceeding or attempts to do so shall be fined under this title or imprisoned for not more than 20 years or both.

So the January 6th defendants in this case, and these were the guys in the Capitol, and they're the bad ones with assaulty stuff. They're charged and found guilty under this otherwise obstructs influence or impedes any official proceeding or attempts to do so. influence, or impedes any official proceeding or attempts to do so. Now, if you take out the word otherwise and just include whoever corruptly obstructs or impedes any official proceeding, got them dead to rights. Not a close call. The question in this case was, what work is the word otherwise doing? Because it would seem to be referring to what just came before it. The alters, destroys, mutilates records,

documents, or other objects with the intent to impair the object's integrity or availability or otherwise obstructs or impedes any official proceeding. So what's the plain reading? So that was the argument today. David, what were your reactions? You know, it's funny

because this was one of the first times that I read, listened to the first half and read the second half of an argument before I, I'm sorry, this was one of the first times that I read the coverage of an argument before I read the argument. Oh, can I just tell you that once again, I listened to the argument, you read the argument, it provides us both like sort of a different perspective. But I did a different thing while listening to the argument today. I was I flossed. For how long? I know my teeth are so clean right now. I just want to suggest it to dentists around the country. If you're a dentist, you should be telling your people to listen to Supreme Court oral arguments while flossing because you're going to run

yourself out of business. That's how clean my teeth are right now. But so the, when I listened or when I, when I read the coverage, it said the justices are very skeptical of the prosecution position and which doesn't necessarily surprise me. Um, but then when I read it, then I, it's appears that the justices really held both, then it appears that the justices really held both sides' feet to the fire more than some of the coverage indicated. So while I feel as if, after listening or reading the argument, that I think the defendants, if you made me guess, I would say the Supreme Court is likely to rule for the defense here, that the otherwise relates to the record document or other object. But I'm very nervous about that conclusion because it seemed to me that both sides were getting some very, very difficult questions and that both sides were being pressed pretty hard.

The one thing, though, when you're talking about the defense position, Clarence Thomas asked some hard questions, but still at the end of the day, it struck me that he's going to be ultimately with the defense here. But Sarah, this is, this is again, connecting with the theme. Can we please draft statutes well?

Because the one thing the court really seemed to agree on is the statute is not very well drafted. If you wanted to, there's a very easy, simple way to make this clear either direction, right? To make it clear to whether this is a broad statute that includes destroying, mutilating, or altering a record,

or if it's a narrow statute that is confined to records, documents, or other objects, which either way you wanted to go on that, you could have done it clearly. And they didn't do it. And I think the best argument for the prosecution was actually made by Justice Sotomayor when she said, well, wait a minute, if I see if I read a rule that says you cannot record or photograph this performance or otherwise disrupt it, if I stand up and yell, no one's gonna say, well, wait,

your disruption was not related to photographing and recording, therefore this doesn't apply to you. But at the same time, at the same time, Sarah, there's a very powerful structural argument. Why are you burying the dragnet behind sort of the, that's the difference between a carpet bombing and a precision strike.

Why are you burying this big, broad sort of carpet bombing provision behind the very precision strike section? And honestly, it's a hard, this is a hard one to me. So I went into this, for those who've listened to this podcast you probably tell um believing that the defense had the better argument the otherwise word there has to do some work it's tying the two provisions together about halfway through the

argument i had flipped sides i was now on team government believing that nope a textualist reading of this um it says obstructs any official proceeding. Like that's what it says. And yeah, like to the Sotomayor argument, right? And then in terms of what the court is actually going to do, I got to this from the chief justice to General Prelogger, the solicitor general who was arguing this. I'm sure you've had a chance to read our opinion released Friday in the Bissonette case. It was unanimous. It was very short.

The room laughs. But it explained how to apply one of the canons of interpretation that's in Latin that we're not going to say out loud because I don't know how to pronounce it. And what it said is that you had, when you have specific terms, a more general catchall, if you will, a term at the end, it said that the general phrase is controlled and defined by reference to the terms that precede it. The otherwise phrase is more general, and the terms that precede it are alters, destroys, mutilates, or conceals a record and document. And applying the doctrine as was set forth in that opinion, again, from four days ago,

the specific terms alters, destroy, and mutilate carry forward into the terms record document or other objects carry forward into as well. And it seems to me that they, as I said, sort of control and define the more general term. So that was basically how I went into the case. Right. But the big difference is this is the chief justice. And if he's on the side of the defendants, I think that's the ballgame. But I think it's going to be very thorny opinion, potentially. The breadth argument, I thought, is really where the prosecution, where the government, Department of Justice and the Solicitor General were losing this. Because if you read it as this catch-all, basically, for anyone who obstructs an official proceeding, you ended up with the Gorsuch question, if I might. that mean for the breadth of the statute? Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison? He kept asking more of those hypotheticals. Justice Alito picks that up on the Golden

Gate Bridge that was shut down last week by pro-Palestinian protesters. You know, imagine doing something like that, but shutting down all the bridges into Virginia, he said, knowing that members of Congress wouldn't be able to get to their vote, or maybe that Supreme Court justices wouldn't be able to get to their arguments or whatever else, that that would actually be your purpose in shutting down the bridge. Doesn't this just allow a huge new scope of power for the federal government? Gorsuch asking the question wasn't meaningful to me in the sense that Gorsuch is always going to be on the side of criminal defendants. Anything that narrows federal criminal

law is going to find its way into Justice Gorsuch's heart. But he's highlighting a real problem, which is that if you read the statute the way the government wants, you also kind of turn into surplusage the rest of the statute. So for instance, right after the obstructs, influences, or impedes any official proceeding or attempts to do so, you also have whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from testifying. You have all these other statutory provisions that are about hindering official proceedings. So why would this catch-all be buried in C2

under something about documents and evidence? So I don't know. My guess is in the end, the defendants are going to win in the sense that this is going to get sent back down. I wonder whether it will get sent back down not as a sort of pure win where there's no way for them to be indicted under this statute. I just wonder if there'll be some sort of compromise where, you know, it is limited by Section 1. It is not just this catch-all for like Justice Gorsuch was pointing

out. Why can't you charge someone who pulls the fire alarm or any protester? That would be a huge sweeping new law for the federal government hidden in Sarbanes-Oxley. Right. And, you know, I think the I thought you laid that out like just very well, how the ebb and flow of the argument went. And that's why I'm very shaky in my prediction. The chief's comments, I think, are very, very interesting. But here's another thing that makes me shaky in my prediction about overall outcome is Justice Barrett asked a very interesting question and said, wait a minute, wasn't there a record document or other object at issue here? The quite literal certification of the election, the ability to certify the election that's actually done via documents. And the provision says, anyone who alters, destroys, mutilates, or conceals a record document or other object or attempts to do so with the intent to impair the object's integrity or availability for use in official proceeding.

Her argument was, wait a minute, isn't that what they did? other means to actually try to block, impair the object's availability for use in official proceeding, which is an interesting twist on the case, but has not generally been the government's theory that they're literally talking about the availability of the documents in connection with the transfer of power. But it was-

I think it's because you have to prove some intent, right? It's the corruptly part. But you would have to prove that they knew that that's what they were going in there after, which there's no way that these guys were like looking for the state. Look, the QAnon shaman, Sarah, was had a was aimed like a guided missile at the certification documents. But this actually brings me to another oral argument from this week. Just the day before, on Monday, the Supreme Court heard oral arguments about whether a

different section of 18 U.S.C., in this case, section 666A1B, turn your handbook to that. I know, isn't that weird? Oh. It criminalizes, whether, sorry, it criminalizes gratuities. This is a bribery statute for public officials. I.e. payments in recognition of actions a state or local official has already taken

or committed to take without any quid pro quo agreement to take those actions. And the word corruptly is going to appear in that statutory language. There was a lot of time in that oral argument on what the word corruptly was actually doing in terms of the intent requirement in mens rea. Fun facts in this case, by the way, James Snyder was the former mayor of Portage, Indiana, and he was convicted for accepting $13,000 from a trunk company after the company successfully won bids to sell garbage trucks to the city. Mayor Snyder maintains that this payment was a valid transaction with his consulting business

as the truck company's owner testified at trial. I'm sure he did. Regardless, the government does not allege that Mayor Snyder agreed to rig the bidding process in exchange for the $13,000. The government instead alleged that Mayor Snyder agreed to rig the bidding process in exchange for the $13,000. The government instead alleged that Mayor Snyder both approached the company and received the payment after the bidding was complete, i.e. that it was a gratuity.

Now, David, I think my predictions are worse, like at their very worst when it comes to public corruption cases, because the court has been narrowing those statutes so much. But like I read that and I'm like, yeah, it doesn't rig the bidding process in the normal way where you get the money ahead of time. But if everyone knows that the mayor's up for the gratuities after the fact, then yeah, the mayor picks the winner of the bidding process based on who's going to be able more likely to shady enough

to pay him the gratuity. So like, yeah, it's still corruptly. By the way, there was one other case that was argued Monday at the court that I just thought was a fun one, an interesting one. In this case, it was whether a Fourth Amendment malicious prosecution claim needs to be charge specific or just any of the charges brought. So it's a bit complicated, but basically a guy may or may not have received stolen jewelry and he's charged with a whole bunch of different crimes related to that. One of the crimes was money laundering. And basically the police, according to his allegations, and we take his allegations

in the most favorable light, et cetera, et cetera, they fabricated the evidence to bring the money laundering charge. They changed their report days after the fact to include a line that would make him seem guilty

of money laundering. But they have probable cause for the other charges. So it's a circuit split. In some circuits, as long as you had probable cause for one of the charges, then you can't bring a malicious prosecution claim on another charge, even if they made up the evidence on that charge. And then in a bunch of the other circuits, no, it's charge specific. So if you can prove that they fabricated evidence for one of the charges, it doesn't matter whether you were guilty of or anything else. They had probable cause on the other charges. I just think I always love those Fourth Amendment cases. It

seems pretty clear to me that the answer is it's charge specific. Otherwise, as long as you charge someone with a misdemeanor, as they pointed out at the oral argument, jaywalking, you can tack on felony murder and fabricate evidence. All right, David, that concludes the Supreme Court side. But I wanted to do just a couple updates from the pod. So first of all, if you remember, I was talking about my teacher who first brought me a love of the Constitution. It was my eighth grade teacher, Mrs. Healy. She had us memorize the Constitution, the preamble, all the amendments, the years that they were ratified.

And lo and behold, David, it did not take 24 hours for one of you wonderful listeners to hear that. for one of you wonderful listeners to hear that. Guess which Miss Healy I was talking about who was in your friend orbit, send her an email and help her track me down. So I've been reunited with Mrs. Healy. I'm so grateful. She's of course, since retired from teaching, but there are, I mean,

thousands of students who have benefited from the great Mrs. Healy. And as I told her, you know, it's one thing when either the subject matter happens to be something that the person was going to be passionate about no matter what. But it seems odd that I'm passionate about the Constitution, history, etymology and grammar. Those are not necessarily related things, but they're all the things that she taught. And second, I very much applaud teachers who can touch individual students' lives. You know, they have a favorite student in the class and they really invest in that student. That's not the story of Mrs. Healy. I was not Mrs. Healy's favorite student. I'll be surprised if Mrs. Healy remembers a single thing I did or said that entire year in

class. I was a highly middling student, neither great nor so disruptive to remember on the other end of the spectrum. But it takes an incredible, just pure teacher, I think, to be able to reach every student in the class with your great teaching ability. So just a shout out to all you awesome teachers out there and awesome listeners who track down people that I mentioned by last name. Yeah, that is I love that story so much. That's fantastic. I called David right away. I was like, David, you won't believe what just happened. I love that story. I was having a full on wonderful, wonderful moment there. Okay, David, I also thought we would do a little follow-up on the Chemerinsky story. Yes.

So first of all, I've never seen so many people from across the political spectrum and legal spectrum brought together in their universal analysis of this case. Joe Patrice from Above the Law, who David Latt highlighted, is about as far on the left as a legal writer can be. And he wrote, sorry, David Latt wrote about Joe Patrice, up until now hasn't met a disruptive protest he didn't like. Wrote, you don't have a First Amendment right to go into someone else's house and hold a protest just because they work for a public university. I also got an email from a Supreme Court litigator who

said, one recent set of cases may help answer the question about First Amendment rights in Gene Chemerinsky's house. The Linkey v. Freed decision on whether a member of the public has a First Amendment right claim against a public official who blocks that citizen from their private Facebook page. It was meant to help courts navigate the tricky question of when a public official's restriction of access to an otherwise private space constitutes state action. See the similarities, David? From the syllabus of the case, a public official who prevents someone from commenting on the official's social media page engages in state action under 1983 only if the official both possessed actual authority to speak on the state's behalf and two, purported to exercise that authority when speaking in the relevant social media posts.

On the first prong, this lawyer is pointing out the threshold inquiry to establish state action is not whether making official announcements could fit within a job description, but whether making such announcements is actually part of the job that the state entrusted the official to do. I.e., before you even get to all that form analysis, he's agreeing, David, with what we said that like, there's not even state action here. Yes, he is a state official. That doesn't make everything he does state action when he goes to the grocery store and takes the parking spot that you wanted

or gets the ripe avocado. Not everything is state action. So you fail on state action, you fail on the forum analysis, pick your poison. But as David Lapp pointed out, most of the people defending the protest aren't really defending it on first amendment

grounds they're defending it on the grounds that the chimerinsky's overreacted and david latt had a great response to that uh the protester alleged that she was quote assaulted by dean chimerinsky's wife professor fisk and yes fisk did make contact with her while trying to take away her microphone. But I highly doubt any prosecutor would prosecute Fisk for battery, which is the applicable offense under California law, not assault. I similarly don't expect any civil jury, even in super progressive pro-Palestine Northern California, to find a 60-something woman liable for briefly putting her hands on a robust young woman about half her age. Having watched the video numerous times, I think Fisk has a decent, molitor menis impossuit

defense. She used reasonable force. Fisk's initial contact was putting her arm around the protester's shoulder in what struck me as almost paternal fashion, and Fisk's subsequent actions seemed primarily focused on taking away the microphone, not inflicting harm. As Joe Patrice noted, folks, California still has a frigging castle doctrine. So I don't think homeowner tried to wrestle the microphone from me is going to get very far. Yeah. Yeah. And when somebody is in your home and you don't and you want them out of your home, you know what the responsibility of the person in your home is to leave immediately. If I do not want somebody in my home, they need to leave and to continue to stay and talk, to use some moderate physical force to try to stop what's happening and get them out the door, I'm sorry, it's okay. It's okay.

But yeah, the idea that because you're a state official that anything you do is state action, like when you were at the DOJ, Sarah, does that mean that it was state action when you like fired a babysitter? All of it is state action. All of it is state action. Everything is state action. But no, I mean, that's

why I kept saying when we were talking about this, we're not just steel manning here. We're adamantium manning here because there's just no way. There's no way this was appropriate. All right, David, last thing. I've had some really remarkably dumb conversations about Iran's attack on Israel. But here's one that's real. What justified what allowed Israel under the laws of war to carry out an assassination against one of Iran's military leaders, which is what precipitated this? It's what Iran has cited as its reasons for then attacking Iran. leaders, which is what precipitated this. It's what Iran has cited as its reasons for then attacking Iran. Yeah. Yeah. So this is a this is an issue that has come up because I'm seeing a lot of people saying, why would you sanction Iran when Israel struck first now and when Israel violated the sanctity of an Iranian diplomatic compound in Syria and that this is Israel's fault. Now, of course, we both know that the conflict between Iran and Israel has been going on for a very long time, and the Israeli attack on the diplomatic facility and the Iranian military commanders who are there

is not the first round of all of this. This is like round 17,372. I mean, this has been an ongoing issue for decades. But let's just be, let's briefly talk about international law. So, as a general matter, when you have a diplomatic facility, the entity, the nation that is the receiving entity, this is the nation that is, it's called the receiving state. So the receiving state, let's say it's America and you have an Iranian embassy in America.

This is just a hypo. So you have an embassy in America. Even if that embassy is being used for improper purposes, the receiving state cannot invade the embassy. The receiving state can certainly expel diplomats. It can expel people from the country, but it cannot do what Israel did. The receiving state's hands are tied.

But Israel was not the receiving state here. This is the embassy in Syria. So it's the embassy in Syria. The receiving state responsibility is Syria's. But an embassy is still a civilian object. It's a civilian building. And so therefore, it is hands off unless it is used for military purposes, just like the analysis with hospitals, with schools, with mosques, diplomatic facilities, if used for military purposes, lose that protection under the laws of war, except regarding the receiving state. And so it's a real open question when I talk about diplomatic facility,

whether that facility that was hit was truly a diplomatic facility. But what was hit were a number of Iranian military commanders in Syria, allegedly to help coordinate military activities against Israel. That's the justification for the attack. So if you're using that civilian object for a military purpose, it becomes a fair target. And so that's essentially,

Israel is not the receiving state of the Iranian embassy in Syria. It is still a civilian object, even though Israel is not the receiving state entitled to protection under the laws of war. But if used for military purposes, the civilian object loses that protection. So that's the analysis surrounding the Israeli attack.

Now, one thing that is, one last thing that is not legal. I'm just very amused by the people who say that the 300 drones, ballistic missiles, and cruise missiles that were sent at Israel was a symbol that Iran was not serious. What planet are we living on, people? I mean, a major-

Well, a seven-year-old girl who's in critical condition would beg to differ. Exactly. But we, it's international news when Putin sends a few dozen missiles into Ukraine. Iran sent 300 missiles, 300 missiles, drones. That was a major attack. It is only because of the incredible defensive capabilities of the American, British, Israeli, even Jordanian militaries that we were able to, we along with our allies, able to largely defeat the attack. And by the way, Sarah,

do you remember when the Avengers, the first Avengers movie started and people called it the greatest crossover event in movie history? No, but sure. But yeah, just trust me on this, that people said that Avengers was the greatest crossover. Well, when you're talking about America, Britain, Israel, and Jordan defending, that's one of the greatest crossover events in military history. Because who would have thought Jordan would help defend Israel when Jordan has invaded Israel in the past. All right. Next week, we've got three massive Supreme Court oral arguments.

We've got in order here. The homeless encampments case does enforcement of generally applicable laws regulating camping on public property constitute cruel and unusual punishment under the Eighth Amendment. Then we have Idaho's abortion law and health of the mother does federal EMTALA, as it often is called, the Federal Emergency Medical Treatment and Labor Act, preempt state abortion regulations and require hospitals to provide an abortion as stabilizing care when a pregnant woman is suffering an emergency medical condition. And then, drum roll, the Trump absolute immunity oral argument,

does a former president have absolute immunity from criminal prosecution for official acts while in office? As they said in Jurassic Park, hold on to your butts. Here it comes. And that will conclude oral arguments at the Supreme Court, barring some other crazy emergency oral argument. But from that point forward, we're just going to be getting lots and lots of opinion hand downs. So yeah, no, the hold onto your butt still applies. We'll talk to you next episode. Bye.