Advisory Opinions - Sex Abuse in the Church

Episode Date: May 27, 2022

David and Sarah talk about the Southern Baptist Convention sex abuse scandal, including the role that lawyers play in compounding the injustice of sex abuse in religious institutions. They also talk about an interesting insurrection election eligibility decision in the 4th Circuit and circle back to red flag laws. They also discuss the nature of courage and cowardice under fire.   Show Notes: -Southern Baptist Convention sexual abuse report -David in The Atlantic: “The Southern Baptist Horror” -Cawthorn v. Amalfi -French Press: “Pass and Enforce Red Flag Laws. Now.” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey, Sasquatch! Over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See home club for details. Maple syrup, we love you, but Canada is way more. It's poutine mixed with kimchi, maple syrup on Halo Halo, Montreal-style bagels eaten in Brandon, Manitoba.

Here, we take the best from one side of the world and mix it with the other. And you can shop that whole world right here in our aisles. Find it all here with more ways to save at Real Canadian Superstore. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And we've got a few things to cover today. We're going to cover the Southern Baptist Convention sex abuse report, but we're going to cover it from a legal angle and specifically the role of lawyers in the entire process in the

considerations about liability, because there are nuances to this story that particularly implicate, quite frankly, the practice of law and the way in which liability concerns actually ended up facilitating an awful lot of abuse. So we're going to talk about that. We're going to also talk about a Fourth Circuit insurrection case against Madison Cawthorn that was pretty darn interesting. Narrow, but interesting. Sarah? Chippy. It was chippy. It was chippy. It was chippy. We're also going to talk about red flag laws and federal legislation just introduced that will empower federal courts to issue extreme risk protection orders. And so we're going to talk about that. But first, Sarah, you've invented a holiday.

Yes. Today is the first annual, though I hope to have it recognized every day on May 26th, or perhaps the fourth Thursday of the month. I haven't decided yet, David. We'll have to just play with that as we go forward. It is Producer Appreciation Day. And we have a lot of things to talk about here. One, in the last episode, David and I decided

that it was very important to record an episode even though legendary producer Caleb wasn't available to do it with us. And so we were like, no big deal. How hard is this? I mean, sure, the editing part is hard, but we can record a podcast without Caleb. So we get on and we're looking at all the squiggly lines and I'm like, my squiggly line doesn't look like David's squiggly line. I'll fix it.

In doing so, for those of you who listened to the last episode, my audio maybe didn't sound awesome. And for that, I do apologize to the listeners, but mostly I apologize to Caleb, who then listened to me record myself, talk about how happy Caleb was going to be that I had fixed this problem all on my own, that I had in fact totally messed up. But David, that's not the only producer we have to recognize today. For the last two months, I have continued to have a cough related to COVID. And you listeners haven't heard many, if any, of those coughs. Most recently, I was clocked at 15 coughs per hour. That's two months after having COVID. And that is actually legendary producer Adam. Adam has to go through and deal with all of my COVID-related coughing. Adam does a whole

lot of other stuff too. But David, I just thought it was important the fourth Thursday of May to recognize that you and I get all the glory. But really, as we saw from the last episode, it would sound terrible without our legendary producers, Caleb and Adam. Hear, hear. I completely agree. But I'll also note that you're just trying to curry favor after having left up in Slack for hours a message that said, we just can't do anything with Caleb. Yes, I also can't type sentences completely without typos

without Caleb. Yeah, so I had to correct the record. I had to step in and correct the record. So now your curring favor, we can all see it, but the kudos are still extremely well-deserved. So happy producer recognition day to you, David. Well, it doesn't really apply to me.

Well, no, you say that to everyone. It's just like, you know, you say happy Memorial Day to people. Do you say happy Mother's Day to dads? Sure. Okay, you have a point. Maybe. Okay.

Happy Producer Recognition Day, Caleb and Adam. Thank you for all that you do. Yes. Amen. Amen. Should we now turn to much more awful subjects? Yeah. Honestly, this whole podcast is going to be reasonably awful, so I'm glad we at least

had one nice thing going. Yeah. So I'm glad we at least had one nice thing going. independent investigations firm. And this report was breathtaking, I think is the best way to describe it. What it basically detailed was decades of abuse in Southern Baptist institutions that was ignored, minimized. Abuse survivors who tried to raise issues to the executive committee of the Southern Baptist Convention were consistently rebuked. They had asked for, I could just go through various elements of this report. It's like peeling an onion of awful, but it generally falls into two general categories. Category number one is senior SBC leaders who were guilty of sexual misconduct or received corroborated accusations of sexual misconduct. That's one whole category. And then a whole other category is the negligent,

reckless, however you want to call it, treatment of abuse reports to the convention. The Guidepost report said that survivors and others who reported abuse were, quote, ignored, disbelieved, or met with a constant refrain that the SBC could take no action due to its policy regarding church autonomy, even if it meant that convicted molesters continued in ministry with no notice or warning to their current church or congregation. It says for two decades, survivors of abuse and other concerned Southern Baptists who contacted the executive committee to report child molesters and abusers were constantly, constantly faced adversity. And one of the things that they wanted is they wanted the Baptist churches to cooperate to an extent so that they would be able to create, for example,

lists of people that had received accusations of abuse so that there could be warning. There could be warning. And consistently that was refused. Consistently that was refused, except the executive committee did actually do it. They did actually create a list of 703 abusers with 409 believed to be Southern Baptist affiliated and didn't share it with anybody. And then when survivors reported abuse, they were denigrated as opportunistic, having a hidden agenda of lawsuits, wanting to burn things to the ground, acting as a, quote, professional victim. And that's not even dealing with the senior leaders. So there was a former SBC president who delayed reporting a staff minister's prior sexual abuse of a child. Another SBC president allegedly allowed an accuser of young boys to be dismissed quietly in 1989 without reporting the abuse.

The same abuser was charged then later with abusing boys in Mississippi in 2011. Paige Patterson, a former SBC president and president of Southwestern Baptist Theological Seminary, fired by the seminary after he told a student not to report a rape, and after he, quote, emailed his intention to meet with another student who'd reported an assault with no other officials present, so he could break her down. The president CEO of the executive committee resigned in 2018 after admitting to a consensual affair. Guidepost also reports on another SBC giant. It's former Vice President Paul Pressler, who was an architect, basically, of the modern

SBC, is now a defendant in a civil lawsuit brought by a man who alleges that Pressler began abusing him when he was 14 years old. And then during the investigation, an SBC pastor and former SBC president, a SBC pastor and his wife came forward to report that a former SBC president had sexually assaulted his wife in 2010. Sarah, before we get into the legal weeds, what was your initial reaction to this report? So actually, my initial reaction has not changed. I've been saving up a question for you, I suppose. It's not really for you in particular. It's just like a question question. I'm very confused how the Southern Baptist community saw what was going on with the Catholic church

and its sexual abuse, both scandals, but really the coverup scandals of that. And then knew what was going on themselves and thought, well, that seemed like a good playbook. Because the timing of this actually coincides with a lot of what was then being revealed about the catholic church right this report starts what back in 2005 or something yeah it starts in the early 2000s so this is when the catholic scandals are really starting to emerge starting to emerge in public consciousness um are you confused by that? Like how did another organized religion not learn in real time from another religions? I mean, not just failures,

like catastrophically hurt the Catholic church and the Southern Baptist Convention is going business as usual. And so then my second but related observation is the catastrophicness of what happened to the Catholic Church in the late 90s and early aughts as those things began to come out into full focus doesn't seem to be happening to the Southern Baptist Convention. Is that because we were used to it with the Catholic Church? I mean, that was leading the

news every night for years in some respects. There were movies about it. Pulitzer Prize winning journalists, Academy Award winning movie. And this does not seem to be in the public consciousness at the same level. Maybe there's just a bunch of other stuff going on. I'm a little confused. Okay. So let's unpack it. And did I say GuideStar early on? I meant GuidePost. I think so. Yeah, GuidePost report. Anyway, so there's a lot there, Sarah. Let's unpack it a little bit. I think if you're going to go, how could Baptists look at what was going on with Catholics and make some of the same mistakes? I think there's a few things going on at once.

One is, I honestly think a lot of Baptists thought, wow, look at the problem the Catholics have that we do not. So there's sort of an instinct whenever you see something horrible happen in another community to not necessarily say, wow, if that's happening here or there, it's probably happening here, but instead to say, wow, they have problems. So, you know, when Me Too rips through Hollywood, for example, there was a lot of conversation in conservative spaces about,

look at the broken culture of Hollywood. So this is something that you, it's just a natural kind of human reaction to sort of say, hey, they're really messed up. Number two is because of the differences between the Catholic Church and the Baptist Church, there was a lot more official, there was a lot more ignorance of what was happening, not so much at the very top of the Baptist food chain, but more at the middle and lower levels because the churches and the Baptist churches are all independent. This is not a hierarchy in the way that you have a Catholic hierarchy where there's a definite chain of command and all of the churches are under the authority of the Vatican and under the authority of the religious leaders running through a hierarchy that you sort of all understand, the Baptist church

has a very different polity. The churches are relatively independent, or the churches are pretty basically independent. They get together once a year for the Southern Baptist Convention. But as a general matter, the hierarchy of the Southern Baptist Church does not monitor and control the churches in the convention. And so there's an enormous amount if the right hand doesn't know what the left hand is doing. This is also true in much of evangelicalism because a lot of evangelicalism is non-denominational. So there's no structure. There is a church and no structure above it at all.

And so there's very few ways to sort of know as a practical matter how widespread these problems are. Rachel Denhollander, who is an abuse advocate, she became famous in the Athlete A documentary as the person who really blew the whistle and exposed Larry Nassar, the Olympic gymnastics physician. And so she is somebody who's probably the most prominent attorney working on abuse issues in the Protestant church, said, look, if you look at some of the insurers that insure Protestant churches versus Catholic churches, some of them in the Protestant world have a higher rate of claims than in the

Catholic world. So there's a problem out there. And you talked about the media. It's a lot harder to report out pervasive misconduct in a decentralized system. So, I believe as the Houston Chronicle a couple of years ago really started lighting this issue on fire when it reported hundreds of abusers in the Southern Baptist system. And that led to a lot of alarm amongst rank-and-file Baptists, which led to a motion last year, really unprecedented. The messengers of the SBC, that's what they call delegates to their convention, voted to require the executive committee to essentially open the books to guideposts, including, Sarah, waiving attorney-client privilege. So that's a key part of this, including waiving attorney-client privilege. So that's a key part of this,

including waiving attorney-client privilege. And so that meant that the Southern Baptist Convention's executive committee just had to open up. Now, it wasn't just because of that report in Texas. There were also a number of other victim, survivors of abuse and victim advocates who'd come forward to say something happened to this person or something happened to me, and there was a building crescendo.

My friend Russell Moore at the Ethics and Religious Liberty Commission had really highlighted the issue, and a lot of people came against him for that. He's completely vindicated, by the way. And so it was the decentralization combined with this sort of notion, at least in my view, that, oh, wow, look at the problem they have. And I even see it still, you know, I've been around some folks since the report came out, and they will say, wow, the Baptists have a problem. And we should be thinking, whoa, if the Baptists have a problem, do we have one?

If we're not Baptist as well, should be a thought foremost in folks' mind. And I think I then forgot the second part of your question. No, I think that encompasses both parts. Why isn't this a bigger deal in our culture right now, the way that the Catholic scandal just is part of everything? It was jokes. It was stand-up. It was movies.

It was long-form articles. I got the answer to that. This SBC culture is heavily concentrated outside of America's media capitals. So, you know, New York, Boston, that's the epicenter of America. You know, Boston, New York, Washington, there's your Acela Corridor right there. The Catholic Church, very powerful in those sectors. Philadelphia. I mean, so you're talking about huge population centers, huge American cultural power centers,

huge media centers. This is where the news happens. And the same thing, thing frankly with the thing that nancy and i worked on with canna cut camp and then nancy has three big stories that have come out today uh and we'll put them in the show notes this huge christian camp in near branson missouri huge sort of the camp of the evangelical elite 20 000 kids per year with decades of abuse decades of abuse and why no reporting on it before we started digging into it or no reporting other than very local local news who goes to you know who in the mainstream media goes to branson who

in the mainstream media knows evangelical culture enough to know how prominent that institution is. And so that's part of the real hole you have in the media, I think. Though shout out to our friend Tim Alberta for all the work he does over at The Atlantic and on all the places he's worked before there as well. His reporting for years has been top notch. Okay, David, tell us about the legal part of this. Yes. Okay. So there's really, let's talk about two things, liability and privilege. Okay. So one of the things that happened is the, and this is something that happens in frequent in these sex abuse scandals is as soon as a sex abuse accusation pops up, of course,

what are institutions going to do? They're going to pull their lawyers in. Okay. So when they pull their lawyers in, a lot of these lawyers immediately, and for reasons that, you know, make sense from a legal and ethical perspective, immediately start to think institutional preservation. That they have a fiduciary duty to the institution itself, to the corporate entity that they represent. And then these, and then, you know, the leaders, the ministry leaders often essentially delegate the leadership of their ministries with regard to that matter or with respect to that matter

to the lawyers. So the lawyers suddenly start to drive the bus. And the way, one of the ways that the lawyers drove the bus in the SBC scandal is they wanted to make sure that there was no what they called escalating liability. If there was going to be any liability for misconduct, let it stay at the local congregation. Don't let it go up to the deep-pocketed ultimate Baptist entity. So they were very focused on avoiding escalating liability. And why was, what did they choose to do to avoid escalating liability?

Systematically sort of disclaim responsibility, sort of systematically try to prevent any sort of denomination-wide denomination-wide response to abuse because the view was if there was denomination-wide action there might be then denomination-wide liability and the lawyers would brag that of more than a dozen cases they had won them all, that they had blocked all escalating liability. Well, that's not just a legal strategy. It also becomes kind of a cultural strategy as well. So the law and culture are very intermixed. And when you start to sort of separate a moral response from a legal response, and when you try to suppress centralized responsibility,

legal responsibility, then you're also suppressing a lot of centralized moral responsibility. And so the separation of the larger Baptist church, the larger SBC, say the executive committee, from these individual churches, in many ways, these individual churches were atomized and isolated, and other Baptists and other Christians were operating in the veil of ignorance. They didn't know what the executive committee knew. They didn't know how widespread the problem was. They didn't know how many people had been accused of abuse. They didn't know much of anything, and they didn't know much of anything because that was a strategy. That was a legal strategy to avoid that sort of escalating level of responsibility. And then the lawyers also justified it sort of in spiritual terms by saying,

we're defending the way in which, that we're defending the Baptist polity. We're defending the way in which the denomination is structured. But the result was horrible in that you had all of these abusers out there with no way of knowing if a person moves from one church to another and the other church for liability concerns or whatever doesn't tell the next church of the abuse allegation, you could have abusers hopping from institution to institution to institution with the denomination at least pretending that it can't know this stuff. Now, what was so enraging to a lot of survivor advocates was, in fact, the denomination did keep track of it. In fact, the executive committee did keep track of it. That was this list of 703 people. And that was sort of the, a lot of the abuse allegations against the individual high-level folks had

been known for some time. But this list, this list, that was new stuff. And so there was this legal strategy put in place. And I have said, and I get a calls from a lot of ministry leaders in response to these abuse allegations saying, you know, what, what can we do to avoid this? And one of the things I have, I have a few things that I say, one is as soon as possible, retain independent, an independent guidepost, or someone else to investigate abuse allegations so that you're not investigating yourself, which can be a real, real problem. And the other thing is, remember, ministry leader, you're the boss of your lawyer. And the lawyer is going to be telling you a bunch of things to do to minimize liability.

lawyer is going to be telling you a bunch of things to do to minimize liability. But you, ministry leader, you have a higher call on your life than protecting the asset value of your ministry. And protecting the asset value of your ministry in the short to medium term can actually, over the long term, destroy your institution if you don't act justly when people have been harmed in your own ministry. And you're seeing that happen here where the lawyers were acting to protect the assets of the ministry, and now the reputation of the ministry has been nuked from orbit. So that's an example of how when you allow the lawyers to drive the bus and the lawyers get a narrow view of their fiduciary duty and their responsibility, how it worked together sort of with the Baptist system of government itself to suppress knowledge and now has created

this cataclysm. So is there a solution to that, right? Because I hear you on the moral hazard, So is there a solution to that? Right. Because I hear you on the moral hazard. But as you say, like there's a fiduciary duty involved and that's what lawyers do. And you don't want an adversarial process where the defense attorney, for instance, doesn't say like, well, my client's guilty. And so in the interest of justice overall, I'm not going to do a good job defending him. No, you want that defense attorney to give strong adversarial work to the prosecutor to ensure, even when we're all very sure the guy's guilty,

to ensure that an adversarial system of justice is preserved. And so there's something like that here in terms of the moral hazard you mentioned on the one hand, but then also the role of lawyers in society. I don't want to mess with too much. No, you raise a really good question. And it's a question that I've been asked many times.

And I kind of look at it like this. I say, say one don't ask your lawyer to not be your lawyer it's it's a don't now you can ask your lawyer and in a lot of times in these kinds of uh settings the lawyer will become a in many ways often a confidant and a counselor as well. And a good lawyer might say something like this, here's what we can do legally, and a good lawyer should be cognizant of the public relations risks. A good lawyer should be cognizant of the overall mission and structure of the organization. So a good lawyer should be telling the client a full spectrum of advice and shouldn't necessarily say, I'm only going to tell you how to save your assets, right? I'm only going to tell you how telling the client a full spectrum of advice and shouldn't necessarily say, I'm only going to tell you how to save your assets, right? I'm only going to tell you how to defend this. You're going to give them the full picture of all of the risks as you understand

them. That's what a good lawyer should do. But at a minimum, even a decent lawyer is going to tell you exactly how to defend your ministry. But the real fundamental responsibility, the command authority, if you will, rests with the ministry leader. And the ministry leaders, though, often punt almost entirely to the lawyers. They act as if it's good cop, bad cop, and the lawyer's the bad cop. And, you know, I didn't want to do this, but the lawyers made me or the insurance company made me. I think it's a helpful frame is, you know, when I was a JAG officer in Iraq, my, you know, and I was involved in, should we bomb here? Should we shoot here? I could give advice to my commander on that point, but the command authority rested with him. The decision,

the command to open fire or hold fire was his decision. And so the ministry leader, what they choose to do, it is the lawyer can tell you this is what would protect your ministry financially, but that's only one factor to consider. And so one of the things I keep reminding pastors and ministry leaders is you're in charge, not the lawyer. You're in charge. And you have to remember what is your ministry for? What are your obligations scripturally here? Because they're going to supersede your obligations. If the law permits you to bully victims into NDAs, the morality should not. And so that's what ministry leaders need to remember. And again, going back to this Kanakuk situation, the way the camp has tried to preserve its reputation in many ways is by delegating all of the dirty work to its insurance companies and its lawyers and saying, for example,

we want victims to speak, but the insurance company may have a different view, Sarah. And that's a problem. That's a problem. So where does this go from here? What happens to the SBC? That's a great question. So the messengers are gathering again in a few days in California for their annual convention. And there are a number of recommendations on the table. And I don't exactly know what's going to happen. I don't know. This is a pivotal moment for the convention. It has been losing members at an unbelievable rate. I believe there's about half a million people

from 2019 to 2020. And then the latest numbers have been released, and I think several hundred thousand more have left the denomination. So it's a really pivotal moment. And I'll be honest, I'm actually going to have lunch here in a few days with a guy in the SBC who's really been insightful about the convention in the past. And I'm going to learn some things from him. I'm talking to a lot of my Baptist friends and no one has given me the roadmap. No one has said, this is what happens next. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds

shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds.

Certain conditions apply. Details at fizz.ca. Certain conditions apply. Details at phys.ca. All right, should we move on to insurrection? Yes, from abuse to insurrection. Let's do it. So we've talked about this case percolating. So in some ways, I want to put a bow on it because this is the end of the line for the Madison Cawthorn barred from the ballot insurrection line of cases, specifically at least, because Madison Cawthorn lost his primary. And yet this week, the Fourth Circuit issued an opinion about the ongoing Madison Cawthorn insurrectionist keeping him off the ballot stuff. Okay, so that's weird. Here's how

it comes down. Judge Toby Heightens writes for the majority here. David, you'll remember that name because he also writes for the majority in the Thomas Jefferson High School race-based admissions case that we talked about a month or two ago. And in this case, he is joined by one other judge with then Judge Richardson, who is a Trump appointee, concurring in the judgment. So it's unanimous in the judgment, but as you'll see,

the Richardson concurrence is really a dissent in spirit. Because there is some weird stuff going on here, David. First of all. Tell us, Sarah, please. First of all, I just said Madison Cawthorn lost his primary. So why isn't this case moot? And I am really unsatisfied with the answer that the Fourth Circuit gave on this, but the answer that the fourth circuit gave on this, which is, well, the election hasn't been certified yet. Okay. So you could have waited five days, right? The time between election night and certification is normally depending on the state. And I haven't looked up Virginia law, but you know, somewhere between a week and two weeks, roughly speaking, uh, you know,

somewhere between a week and two weeks, roughly speaking, uh, you know, barring recounts and some other stuff. So basically we have a 73 page opinion that clearly was written ahead of time, not thinking that Madison Cawthorn might lose his primary and this might become moot. And I think you have three judges that each want their opinion out, which is why it comes out, I mean, days, barely days after Cawthorn loses his primary. This case is moot. And now there's, of course, the mootness exception, David, capable of repetition yet evading review. It's exactly like it sounds, but to, you know, repeat the words with different words. The idea that, especially in the election context, because the court system moves relatively slowly, you don't want something to keep coming up. But because it can't get resolved within a two-year framework, it gets mooted out every

time because the election's over. This isn't that, though. This is a specific candidate who is no longer eligible to be on the ballot as the Republican nominee. And I said Virginia law. Obviously, I meant North Carolina law on the election certification. My bad. Like when I said GuideStar, I obviously meant GuidePost. Yeah. Judge Heitens was the Solicitor General of Virginia, so I had Virginia on the mind. Judge Heitens was the Solicitor General of Virginia, so I had Virginia on the mind. All right, but let's put that aside, David. I think this is just sort of, you know, hey, we wrote it, and technically it's not moot yet. The opinion's ready. Let's put it out. You can come down either way on that, listeners. It's fine. So what's the actual question? It is not whether Madison Cawthorn could have been on the ballot, actually. It is whether the 1872 Amnesty Act removed the 14th Amendment's eligibility bar

only for those whose constitutionally wrongful acts occurred before its enactment? Or like forever, that somehow in 1872, Congress granted amnesty to future insurrectionists? I got to tell you, I will acknowledge that that is somehow an argument that the Cawthorn team made. But to the extent they did, it was a dumb argument because and so in that sense, I totally agree with Judge Heightens, right? And that is what this case is about. So fair enough. But and this is where that Judge Richardson concurrence comes in. This is the problem with the whole ball of wax. What if there's no jurisdiction to begin with? Because what the 14th Amendment actually is envisioning is that this is

a political question or, and political question is sort of a specific term of art, that it is a problem to be resolved between two branches or within one branch. In this case, I mean a political question in the sense that the House of Representatives determines the eligibility of its own members. And the 14th Amendment insurrection language, to me, clearly has that in mind because the members are the ones, the members of the House are the ones who can vote to overcome such a bar. Well, how can they vote to do that if the person isn't allowed on the ballot in the first place because a federal judge says so? Does that make sense, David? Yeah, it makes sense.

Yeah. So like a federal judge can't keep someone off the ballot because they violated the 14th Amendment's insurrection language if the remedy is actually that the House of Representatives can seat them anyway, because then there's a huge gap.

The House of Representatives can't seat someone who wasn't allowed on the ballot. And this is kind of Judge Richardson's point, is that this doesn't make any sense. That sure, the 1872 Amnesty Act doesn't apply to Madison Cawthorn. Fine. But that's not really what we're talking about here because the Fourth Circuit opinion is going to send this case back down to then be further litigated, which again will be moot by the time it goes back down.

And I'm not sure it's particularly important to our ongoing legal and political struggles in this country to have a Fourth Amendment opinion saying that the 1872 Amnesty Act didn't apply prospectively. Duh. Just extra duh. And instead what we have, I, I think I keep seeing both. Um, we saw this in Georgia and now we're seeing it here, this desire by judges to keep these cases alive. I think because they are outraged about what happened on January 6th and the sort of involvement and cheering on by some Republican members of Congress. And I want to be clear, I too am outraged, David, if that hasn't been clear throughout the years of this podcast. But I love the law more than I hate what they did. And in this case, I think we're twisting

some legal stuff. We're not actually looking at what the fourth and 15th amendment means and says and was meant to do. Um, and of course you have the residual problem where, and I grant you, this is actually a difficult question. Um, What is a modern insurrection? Does insurrection mean, imply, include that violence or the threat of violence? You know, when we talk about the security clearance stuff, David, it says, if you ever advocated for the violent overthrow of the American government, is that really what the definition of insurrection is? Or is insurrection simply saying, I don't support this form of government anymore? That to me is not insurrection. Now, of course, giving aid to a foreign country, well, that would be treason, not insurrection, although I suppose you could have the two in tandem with certain hypotheticals.

have the two in tandem with certain hypotheticals. So I say all that because to me, you need to be able to show that an insurrectionist was giving material support to the violent overthrow or the threatened violent overthrow of the American government. So the people who stormed the Capitol and were committing violence, they would clearly fall under that. But of course, none of them were implicated by the 14th Amendment because they didn't hold federal elected office. So then for the Congress people who, for instance, provided money to help bus people to the Stop the Steal rally, things like that, I would need to see evidence that they knew that the Proud Boys were planting weapons across the river, that they had plans for how to enter the Capitol that day, that they discussed weak points in security. I actually haven't seen that yet. And so again, these cases continuing, um, I guess is a little frustrating at points because I think the 14th amendment insurrection

stuff is a bit of a, what, I don't know, David, there's like words for this that they have in like online communities, but, um, it's this like, you know, fever dream on the left. It's like that we were, the Mueller investigation was going to prove that Donald Trump was actually being paid by Vladimir Putin to be president of the United States and that he was going to be removed immediately as Jim Comey swooped in on an eagle.

That just wasn't going to happen. That would have been cool. It would have been cool maybe. Seeing Comey on an eagle. Yeah. You have to be a big eagle because Comey's a big dude. He is particularly large. I think 6'10".

Yeah. And I've been next to him. I know tall people, but normally they're sort of proportionally tall. But Comey is incredibly thin. And so to meet someone that thin and that tall, it's a little like standing next to a tree. I have to be honest, like just the trunk of a tree. He's like the same size all the way up. So in the same sense here, this idea that you're going to use the 14th amendment's

bar on office holder insurrectionists to prevent all these Republicans you don't like from holding office isn't real. It's not going to be real in the end. And so this is just another example of a case where I thought, okay, fine. You've got around the mootness thing. You found a very narrow question that you could answer in the affirmative, this 1872 amnesty Act, and then you got to keep the case alive. Shrug. Yeah. I mean, it's a mildly interesting case. But yeah, ultimately, shrug. And, you know, I do think it is very important to draw that distinction about what insurrection is and isn't. In fact, there are circumstances where arguing for the violent overthrow of the United States government is still constitutionally protected. It's not just

not insurrection. It's actually constitutionally protected. It's the taking affirmative steps toward the violent overthrow of the government. That's when you're starting to run afoul of the law and starting to become an insurrectionist. But our First Amendment, really broad. You can be elected Congress on the platform of overturning the Constitution. Yep. Yeah. I want Viktor Orban's Hungary.

And that could be your, you know, your fundamental platform. But, yeah, it is. It's an But yeah, it's an interesting case. It's an interesting discussion. But you do see a lot of fever dreamery online about it for certain. So then you have the majority opinion. You have the concurring opinion I mentioned that brings up the sort of political house

gets to decide their own membership. And then you have this concurrence in the middle that that's what I wanted to describe as chippy, David. It's real chippy, if I could be honest for a second. So this is Judge Wynn, who well-respected judge, et cetera, et cetera. I think i've argued in front of him i think good human so again nothing personal about judge win here um but uh i fully concur in judge heighten's well-reasoned and persuasive majority opinion but judge richardson's provocative and novel concurrence compels a correcting response so basically you have majority opinion a concurrence compels a correcting response. So basically, you have majority opinion, a concurrence that's kind of a dissent, and then a surreply to the concurrence from the third judge.

So already, that's a little unusual. Now, his point is that under the House gets to decide the qualifications of its own members analysis, then federal judges can't keep all sorts of frivolous candidates off the ballot. For instance, someone doesn't live in the state or, you know, other sort of obvious things. I don't know to which my answer is like, yeah, maybe. I don't know why we assume that federal judges need to be in all business all the time when the Constitution says that the House can simply not recognize the election of someone who's not qualified to serve in the House. That's what it says. I understand there might be some downsides to that, but is what it is. Now, maybe if the Constitution sets a bar on someone holding that office, like, I don't know. I think you would have to wait until after the House decides, at best, not before the person's even a candidate,

because then you're depriving the House of that opportunity. But also, David, there's a part in the concurring decision where it talks about good law and bad law. And, you know, it has like citations and it's like good law, citation, citation. And then it says bad law and it cites an opinion by Judge Richardson, which I thought, oh, whoa, that's not collegial. And I mentioned this because I think we're seeing more and more of this, David, where some of the background noise that was happening at the circuit level is coming out in opinions. We saw it in the Ninth Circuit, in the Van Dyke concurring with himself opinion. We've certainly seen it in the Fifth Circuit. This is a Fourth Circuit case. opinion. We've certainly seen it in the Fifth Circuit. This is a Fourth Circuit case.

And David, I'm working on a grand unified theory, and perhaps this will be for a summer podcast episode because it's a long grand unified theory, but this is one portion of the grand unified theory. The end of the judicial filibuster planted seeds that are coming up right now in the lower courts and even among law students of how they behave as law students, what they write about, how they interact with one another. Because with the judicial filibuster, anyone who had any aspirations to be a judge knew that they were going to have to have members of both political parties support their nomination for confirmation. Without the judicial filibuster, not only is that no longer the case, but in fact, to get the nomination in the first place, because the president also knows that they don't need members of two parties to support the

confirmation, they then can pick people further and further out in the flank. And then, of course, for the people who are already holding that office, when you think about their own ambitions to be feeder judges, to get a promotion from district judge to circuit judge or circuit judge to the Supreme Court, recognition in the media, in their brand of media, MSNBC or Fox News or whatever else, getting rid of the judicial filibuster changed the incentive structure so much that judges have become more partisan. And I don't mean politically partisan here. It's not that they make decisions to further the interests of the Republican or Democratic Party, but rather the partisanship

of their own ambition, which we have now, by getting rid of the judicial filibuster, tied to political parties. So it's a bit of a two-step, but my point being getting rid of the judicial filibuster, I think is leading to a lot of chippiness in the circuit courts. So I am with you 100,000% on your grand unified theory. And so what has ended up happening is that being circumspect used to be an asset. Now it's a liability. So if you want to be confirmed, people are going to want to know where you stand.

And if they have a choice between a judge who might be a quote-unquote squish, maybe because their area is antitrust. And their area is something that is not as ideologically salient, although antitrust can be sometimes, but it's not as ideologically salient, although antitrust can be sometimes, but it's not as ideologically salient. But then you also have a judge who has written some really strongly worded religious liberty opinions. And I'm thinking, remember the religious liberty opinion in the pandemic era out of Kentucky that basically didn't even cite law. It was just all rhetoric. Then you know what you've got. It's right there.

You know what you've got. And you don't have to get a single vote from the other side. Now, it's going to be very interesting. We're going to get into an area, we're going to get into, at some point, an era where the Senate and the presidency are held by different sides. And you might see sort of the return of the circumspect judge, or though it might be more apt to be a total absolute lockdown. Or you may just see no judges. I think that is the more likely outcome right now.

You know, David, when I was in law school, it was when Chief Justice Roberts was confirmed. And if you remember, he didn't have much of a paper trail. It was like the big discussion was, was he a member of the Federalist Society? And nobody could prove it one way or the other. Oh, and there was all this speculation that I know he's conservative because I know his wife is conservative.

Right? Yeah. There was just like weird monkey entrails, as Jonah would say. And the result was law students stopped writing law review notes in a lot of cases. You know, every law student who had future ambitions was writing one, two notes in law reviews. Those are really long. They're hard to write. They're like 40 pages. And law students were like, wait a second, law review notes can only hurt me. So I'm not going to write one. And now I think you're seeing totally the opposite. Now it's like, what's the most controversial law review note that I can write

to start getting some attention from either party's flank? Anyway, as I said- We can ban blasphemy. Yeah. It's part of a larger grand unified theory on how we broke the courts in the last 20 years. It's my campaign finance stuff. It's major question doctrine dying. It's all coming together as Congress fades away and the executive gets stronger and the political focus comes on the courts and the judicial filibuster is gone and you end up with the Dobbs leak. Like it's all leads to the Dobbs leak in my view. It was inevitable. So yeah, that's fascinating. No, I'm with you. I'm with you. We should do a grand unified theories podcast because I think that's

a rich topic and I have one, Sarah. It's not, it's not original. It's one that I'm coming to believe though. Mine's going to look a lot one that I'm coming to believe, though. Mine's going to look a lot like A Beautiful Mind, where it's just a bunch of numbers on the wall and arrows. Yes. The always sunny map. Yeah, that's... So here's my grand unified theory.

Culturally, the United States of America is more like latin america than europe culturally the united states of america is more like a rich mexico and a rich brazil than britain or uh germany i am interested to hear more about this i've got receipts i'm not even kidding i haveers, you guys are going to be once once I explain it to you, you're going to you're going to lose your mind because it's it makes so many things make sense. 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 All right, David, you want to do a little bit of update from the last podcast on the federal legislation proposed on red flag laws. There's certainly more we know also about police not going into the

building. I'll say we've got some questions on whether there's legal liability for that. I don't know that I feel like I know enough of the facts to talk about potential legal liability for the officers who didn't go in. So there are going to be some of your questions. We're reading them in the comments. A lot of them are really good questions that we may still put a pin in as more facts continue to come out. Right, right. There's as a general rule, um, there's not a legal obligation of a police officer officer to risk their life to save you. Correct. Or to do not even to risk their life. There's not even a legal obligation to do stuff to like, you know, enforce a restraining order. That's the most famous case, obviously, um, that Colorado case where they don't enforce the restraining order and he kills, uh, I believe the kids, uh, and she sues the police department. And, um, when she called

911 and they didn't come. And the answer was, they actually do not have a legal responsibility to answer the 911 call, which sounds outrageous, but when you think about it, it's the only way it can really work. Let's assume they get 10 911 calls

and there's only nine officers. Then they can't have a legal responsibility to respond to all 10. Oh, okay. But they can have a legal responsibility to respond to all 10. Oh, okay. But they can have a legal responsibility not to be negligent. And just not respond. So, yeah. So, for example, if you have,

you could mount as a defense to the failure to answer the 10th call, to say we had nine officers who were answering nine other calls. But it seems to, you know, we can talk about this, but the other thing, and this is sort of a cultural thing that I want to kind of put a pin in. And I know we've got some law enforcement officers who listen and who've given some really tremendous emails and input. And also, I know we've got a lot of law enforcement officers who listen

who would have rushed in. Like, there's no way you could have stopped them from rushing in there, you know, once they knew there was an active shooter. So I do not want to cast general aspersions. But, you know, one of the things that the public does, a lot of the public does, especially on the right, is kind of treat cops like they're soldiers in the pantheon of respect. I respect the boys in blue in the same way that i respect so you know say a soldier down range and there's just different training there's different obligations there's

a different culture and an awful lot of law enforcement officers the the training and the the culture that's inculcated is not necessarily the same as for the 101st airborne air assault division or 82nd airborne and so when they're going to see somebody with an ar-15 much less somebody with an ar-15 who levels it at them and shoots all of a sudden you have immediately escalated beyond their training and experience. Immediately, instantaneously. And that has very unpredictable results in people. One of the reasons why you so thoroughly train marine infantry, airborne, marine infantry, airborne, cav troopers, is that instinct kicks in in that moment. In that ultimate moment, you're not acting in sort of your higher brain functions. You're acting on instinct. When I see someone level a rifle at me, when I see a tactical situation emerging,

everything happens just instantaneously. And I've seen this happen with my own eyes downrange, just that instinct kicking in, all of that training kicking in. And so with a lot of our cops, that's just not, I was just, I was talking to somebody who today

who'd done a documentary where she spent, she had total access to police training in a state, state police training in a state, and was really amazed at how little training there actually was compared to, say, a training, an infantry officer. is instantaneously you have escalated beyond training and experience in any meaningful way, which is one of the reasons why a lot of times they will hit pause until they get somebody with training like the SWAT team or an emergency response team. And now that's not to say that they should hang back. I'm not saying that at all. I'm saying they should go in, but that's not going to be the instinctive response when somebody's leveling an AR-15 in your direction. It's just, it's not,

it's not the way human beings work. Yeah, although David, and again, I want to wait for all the facts. Yep. 40 minutes potentially went by. They zip-tied a parent to the ground, preventing parents from going in. As the parents are screaming and begging. They hear shots in the background. We're past instinct at that point. This isn't a hostage situation, you know, where it's like,

well, we're just going to try to keep status quo for as long as we can. It's, and you know, of course, there's at least one media report at this point that when the police did enter, the police said, yell if you need help. And one person in a class yelled for help and the shooter came in and shot her. and shot her. Oh, man. So I am not, I want to be very, very clear. I want to be very clear.

And that is, what I'm saying is not that they shouldn't, that I'm excusing them going in. We've talked about not going in. We've talked about at length when we talk about a lot of the things that happen. A lot of the things that happen, have happened in our culture recently. There's a difference between understandable and justifiable. Okay? Yeah. And you can understand. I wrote this, I'm going to read a couple of paragraphs of something that I wrote when you remember the share that the quote unquote coward

of Broward, the sheriff who didn't go. So I, I, I wrote this about it. Let's be very clear. Every single person who puts on a uniform and pledges to protect their community, either in combat or overseas or under fired home, is indicating their choice that they are willing, not wanting, willing to lay down their lives. That is their job. When the crisis hits, that's their purpose. It's what we expect of soldiers in environments that are more intense. It's what you expect of cops when the shots ring out. If you have any doubts about your ability to do that job, don't put on the uniform. Don't put up. But even so, there are some people in uniform who will fail the test. Infantry soldiers wilt under fire even when their

brother's lives hang in the balance. One cop will hang back when another charges. When every molecule in your body is screaming for you to live, to protect yourself, it takes immense strength to expose yourself to mortal danger. And this is one caution that I say to lots of people. Until you felt true fear, you don't know how you'd react. Except if you're a mom, David. True. There is not a mom I know who wouldn't run into that building unarmed. Yeah. But that's why I say, I go back to training. Armies throughout history have developed a

complex way of affirming and celebrating, affirming and training for valor and punishing cowardice. And this is, I think, what some of our police training really lacks. We compare them to warriors. We don't train them to be warriors. In many ways, you don't want to train them to have a warrior mindset, but definitely when shots go,

when shots are fired in this circumstance, you want someone to have that warrior mindset, but definitely when shots go, when shots are fired in this circumstance, you want someone to have that warrior mindset. And we don't train police officers for that. We do train them a lot to, to be sort of warriors in the sense of preserving their own lives and their own safety. Um, but again, law enforcement officers listening, your training experience may be different. It may be different. But I've seen enough training and the way these things go. Anyway, I've probably belabored it too much.

So another thing I've seen in the comments section a lot is, you know, Sarah, this guy passed a background check or AR-15s aren't responsible for the majority of mass shootings. So like, why are we banning AR-15s? Why are we expanding background checks? Sarah, why are you for these things when it wouldn't have stopped this or other shootings or the majority of shootings? If you think that you're going to find the one thing that would prevent all mass shootings, good on you, man. I want to hear what it is. What is that silver bullet? Because I have looked far and wide and under every couch cushion and I can't find it. I'm not trying to prevent this shooting that already happened. I'm trying to give us the best odds within our legal framework for preventing

future death. So for instance, expanding background checks, what's required for background checks, who's required for background checks, and the length that governments are allowed to take to complete background checks, all would be helpful and with just no particular downside to me. These assault style weapons, I understand the argument, oh, they just look scary, but they do the same thing as handguns. You know, it's one trigger pull, one bullet. Totally true, except that they are more easily modified to be automatic weapons, which again, I understand would make them illegal. Yes. But as we've already discussed, we don't have all the resources to go find all the modified illegal guns on the ground. And so what can we do further upstream,

prevent more guns from being out there that are easy to modify, to be turned into illegal weapons. These are just some of the things that perhaps we could consider. Whether they will have prevented the shooting that already happened or not, nothing is bringing these kids back. Nothing is bringing the Sandy Hook kids back. The grocery store shoppers in Buffalo, the Walmart shoppers in El Paso, the folks attending their synagogue, their church, none of it. I'm not trying to fix those. I'm trying to give us the best chance moving forward, again, within the framework of what is required under the Second Amendment, in my understanding of the history and tradition of the Second Amendment, and whatever trade-offs there might be for society. Understanding that there's not only not a silver bullet, David, there's not even

like four bullets. You could pass all of the laws that I want and think would be appropriate, and you're still not going to stop all this because there's a cultural rot issue as well. I get all of that. But this idea that we're not going to do X because it wouldn't have prevented Y, yeah, that's the least persuasive argument you not going to do X because it wouldn't have prevented Y, yeah, that's the least persuasive argument you're going to make in the comment section to me. Thank you off my soapbox. David, you wanted to talk about the federal law that's being proposed on the red flag stuff, something you're super, you're the red flag guy. I'm the red flag guy. And to pick up on your comments there, people are getting after me about,

we don't yet, although it's emerging more and more that this guy could have, there's some evidence now emerging about the shooter that he might have red flag qualified. He might have. We're going to learn more, so just put a pin in that. What you said about background checks and assault weapons bans,

I put forward red flags, and I put forward Doug Ducey's study in Arizona in 2018 that shows that every single one of the deadliest school mass shootings in recent American history, the shooter exhibited behavior that could have been encompassed by red flag law, every single one of them. And then people say, well, what about this one? Well, okay. But if we're talking about a trend that we're trying to deal with, and we're talking about common characteristics, more common than type of weapon is behavior broadcasting violent intent. Okay. Whether it's a shotgun, whether it's a handgun, whether it's a rifle, the most common thing of all is behavior evidencing violent intent, okay? And so that's what the red flag law is designed to deal with. This is the kind of thing. And the

other thing about the red flag law that I, when I talked to gun rights supporters, of which I consider myself one, I was just at the National Constitution Center debating this issue in Miami, but not the red flag issue, but Second Amendment rights. The gun-owning community has very, for a very long time, supported limitations attached to people who have, by their behavior, evidenced that they're at risk. So that's felon in possession, that's people who've been adjudicated to be mentally unfit to own a weapon, that's domestic violence. Here, this is adjudicating behavior, and it is right within that tradition that we have in this country of restraining people on the basis of their behavior. So let me turn to federal legislation. So federal legislation has been introduced and there's an aspect of it that

is interesting to me. And I wonder about it, not from, I wonder about if it's got a built-in dramatic built-in limitation on its efficacy so there's extreme risk protection orders it's a it's a um it's uh going to you know come up for hearing in the house pronto and um what it does it's as said, it's federal legislation, and it puts the jurisdiction, as it would because it's federal, with the federal district courts to issue the extreme risk protection orders. That's what it's being called, extreme risk protection order. And there's a problem with that, Sarah, and I think it's a problem that's going to be inherent in federal legislation, and that is there aren't many federal courts. There aren't many federal judges. There aren't many federal magistrates. So what you've essentially done is you have said to American people,

here, we're giving you this extreme risk protection order statute, but you may live, there are a lot of people who live 100, 200 miles from a federal courthouse, and very few people who live more than, say, a dozen or 20 miles from a state courthouse. I took a look at that, and when you see it, now, it's not that magistrate judges, for example, aren't used to issuing search warrants and can't turn around things quickly when they get evidence, but that seems like a real weakness compared to legislation that incentivizes states to pass red flag laws that put the citizen, give the citizen the ability to go to a local state court. Your thoughts? Yeah, I get it. And I don't know that I want to create a backlog within the federal court system.

But if there's any movement to do that, honestly, at this point, like, great, let's just do that. Let's let I would like to see Congress do anything, anything at all. Expand background checks. And yes, to the people in the comment section, I am aware that there are background checks currently, but not for all gun sales. And if you, if there's a backlog and they don't get back in 30 days with the result of your background check, then you get to buy your gun. That that's what I'm talking about. Lengthening the background checks, expanding the background checks. Yeah, there's a lot of bad faith arguments out there and I'm getting annoyed with it. So like if Congress wants to do this, I understand there's some downsides. Frankly, I dare them to pass a law related to

mass shootings because I haven't seen anything yet. I agree with you that being able to go to a federal magistrate is better than being able to go to nobody. Yep. But if you're going to, my concern is you have one shot. You have one shot. At most, you have one shot. Where do you put your, you know, where do you aim that shot? Do you aim it at incentivizing states or do you aim it in empowering the federal district courts? And I would rather fire one shot than no shots at all.

So if they choose the one shot as federal district courts, good. But if they choose the one shot as to powerfully incentivizing states, better in my view. But don't not shoot because federal district courts are fewer and further between than state courts. It's still better. And the due process protections here are pretty robust. If there's an ex parte order, you're going to have 72 hours.'s only going to you know you you're going to have an ability to challenge within 72 hours and folks who tell me that ex parte orders just flat out violate due process no no that is incorrect process after a temporary deprivation of a right is common in this country and is due process, provided that it's robust enough and prompt enough.

In the domestic violence category, we frequently have ex parte kinds of orders that do deprive someone of, for example, access to their families. And in those circumstances, that's a constitutional right. That's a fundamental right. And it's still due process when you have an opportunity to challenge. So as long as you have a prompt opportunity to challenge, you're not going to be violating, in my view, the due process clause with an ex parte order in emergency circumstances. But just wanted to put a pin in that discussion. There are Republicans who have come out in

favor of these things. Marco Rubio has. As I said, Governor Ducey in Arizona. Donald Trump was for them for a few days until the NRA got mad at him and then he backpedaled. Do you remember after Parkland, he came out in favor of red flag laws and then mocked people for being afraid of the NRA and then backed down in the face of the NRA? It's all too much, David. And then, David, there's the lie and try stuff. So it's a federal crime to lie on a background check form, but that would need to be prosecuted by federal prosecutors who are doing, you know, cartels and sex trafficking. States can pass lie and try bills as well. I know Texas legislature was just considering one in the last session. This is, and there still aren't many

prosecutions, even in the states that do have lie and try bills. If you lie on a background check form, I think it's sort of like torturing an animal, right? We can guess what's going to happen next in some form or fashion. So maybe we should put some more resources toward that, talking about upstream things that we can think about. Yep. ATF form 4473 states, I understand that answering yes to question 21A, if I am not the actual transferee buyer, is a crime punishable as a felony under federal law and may also violate state or local law. state government, you know, there's federal prosecutions are very, very rare, are very rare for violation of, you know, for the lying on ATF form 2473 on question 21A. State prosecution should be available and more common. And I absolutely 100% agree with you, Sarah.

All right, David, the end. Yep. So this is going to be a lit comment section. Whenever you talk about police and courage and then add on top of it gun control, not to mention insurrection and sex abuse,

it's going to be interesting. But I will read them. I'll read them. I look forward to seeing your thoughts, seeing your thoughts, listeners. So you can go to thedispatch.com and comment if you're a member. So if you're not a member and you have a piece of your mind to share with us, become a member and let us know what you think. All right. Thanks as always for listening. Please rate us on wherever you get your podcasts. Please subscribe wherever you listen to your podcasts. And please check out thedispatch.com. Here's how it comes down.

Toby hate... See, I flinched because I was like, I'm going to say it wrong.