Advisory Opinions - Special Master to Review Mar-a-Lago Documents

Episode Date: September 8, 2022

A federal judge ordered the appointment of a special master to review the sensitive documents seized at Mar-a-Lago. Orin Kerr, law professor at the University of California, Berkeley, joins Sarah to break down the ruling. Then, Sarah is joined by Thomas Lee, former associate chief justice of the Utah Supreme Court, for another discussion of corpus linguistics.   Show Notes: -A Corpus Linguistic Analysis of 'Foreign Tribunal' -Corpus Juris Advisors -Judging Ordinary Meaning -Data-Driven Originalism Learn more about your ad choices. Visit megaphone.fm/adchoices

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. 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 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 PHYS.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to a special episode of Advisory Opinions, and I say special because it's me doing your intro today. Sarah Isger, David French is on vacation, and while the cat is away, this

mice has invited lots of special guests on the podcast. We're going to start, obviously, with the special master opinion coming out of Florida and the Mar-a-Lago search of Donald Trump, but then we're going to talk a little bit more corpus linguistics with someone fresh off the Utah Supreme Court, the master himself. My special guest at the top of the show, Professor Oren Kerr at Berkeley Law School. If you were feeling good about yourself and how smart you are as you tuned into this podcast, let me read you a little bit of Professor Kerr's bio and change your mind. Well, first he started at Princeton with a mechanical engineering and aerospace engineering degree. Then he just went ahead and did some graduate study at Stanford in mechanical engineering,

got a master's there, Harvard Law School, sure, he graduated magna cum laude, went on to clerk on the Third Circuit. And then for Justice Kennedy, yada, yada, yada. He is the Fourth Amendment expert, and there is nobody better to talk to about this special master stuff. By the way, you should be following him on Twitter, Oren Kerr, O-R-I-N-K-E-R-R. He is, he's one of those just smart legal minds that doesn't do hot takes, isn't trying to dumb it down. He'll do a thread if he needs to. Always very interesting to watch him thinking through stuff on Twitter. He's my go-to follow on all of this. Professor Kerr, welcome. He's my go-to follow on all of this.

Professor Kerr, welcome. Sarah, so great to be with you and very kind comments. Very happy to be here. Fan of the podcast. We're going to try to dive into all of this. I want to catch people up. So if you remember, the Department of Justice executes a search warrant on Mar-a-Lago now just over a month ago. They have that signed off by a magistrate judge in Florida. That is all the criminal proceeding, and that will continue under the supervision, if you will, of that magistrate judge.

In the course of getting documents from Mar-a-Lago and that search warrant, they get about 11,000 documents. And at that point, the department institutes something called a filter team. So before the investigative folks, FBI agents and department lawyers can look at any of the documents that have been retrieved from Mar-a-Lago, the filter team made up of totally separate people, though also Department of Justice employees, review all those documents to filter out, for instance, attorney-client privilege documents, by which it would cover both documents with the White House counsel as attorney-client privilege and also private lawyer documents, and personal things that can be returned, like the passports that we heard so much about, things like that. They did not, they were not reviewing for executive privilege. We'll talk about that in a minute.

And about two weeks after the search was executed, the Trump team files a civil lawsuit in front of a different judge. That's what we're going to be talking about today, this civil lawsuit, asking for a special master. The judge immediately says she's sort of interested in this. She's leaning towards it. It takes another nine days for her to issue her final opinion granting the special master. In the meantime, the Department of Justice says that the filter team already completed it. The investigative folks have already looked at all the stuff. There's a lot to unpack here. So, Professor, there's three main topics I want to talk about. Jurisdiction, standing, and mootness slash delay. And then we can maybe talk some executive privilege which is frankly outside both of our expertise but everyone can be an executive privilege expertise today in part because there's

actually not a whole lot of law on it it's a lot more philosophy than law at this point and i think that's worth some diving in so will you explain to folks under you know fourth amendment warrant type stuff how you can have one judge signing off on the warrant and another judge now in a civil lawsuit appointing a special master. Yeah. So this is sort of one part among many that is odd about this case. Ordinarily, a search warrant is issued by a particular judge. The judge has jurisdiction over the matter of the search warrant. And then if you have problems with that warrant, you then go back to that judge and say, basically, hey, this is your court order. Modify this, amend this, do something here. And really, all a warrant is, is a court order saying a search has to occur. And here are the rules for that search. And so normally you'd

go back to the judge that that's their order. And so here the Trump folks file a civil action before the district court. Now, it's a little bit odd because the magistrate judges are part of the district court too. And Rule 41, the federal rule of criminal procedure that governs search warrants, says magistrate judges issue the warrants, basically. And so they're issuing it for the district court in that district. And so it's weird to go to file just a general civil action seeking review of the warrant. It's not that weird, though, because it is at least technically the warrant is being issued by that court as a whole. So that's one of those details. It's like, OK, well, that's strange.

If you can do that, does that mean you can always challenge a warrant by just filing an order in the district court rather than going back to that judge. And that just all kind of gets lost in the mix here. Judge Cannon just kind of takes over the case. And that strikes me as odd, although less odd than a lot of the other things going on here. At least less far-reaching, less problematic than some of the other things. So she says that she does have jurisdiction

and she kind of invokes this equitable remedy, which is supposed to be pretty extraordinary for a blatant, unconstitutional action, almost a mandamus-type level necessary, which she says isn't here. That they went to a neutral magistrate and got a warrant. There's been no real even charge of unconstitutional violations of the Fourth Amendment, for instance, and yet she finds that she does have jurisdiction. Do you agree that she has jurisdiction? Were you persuaded by her analysis? So there's a couple of different things going on. So one thing that's going on is can Judge Cannon sort of even hear this issue given that she didn't issue the warrant? I'm not totally sure. She doesn't really take that particular question on. That strikes me as strange, but okay,

that's kind of like, well, that's weird. But there's not direct case law that I'm aware of saying you can't do that. It's just, I've never seen it done. So I don't know quite what to make of that part. But then the bigger sort of way in which this matters, taking jurisdiction is that Judge Cannon says, okay, I'm going to step in and use my equitable powers to appoint a special master. in and use my equitable powers to appoint a special master. And a special master is some neutral third party brought in to take a particular job reviewing particular kinds of documents that might be obtained in the context of a search. And there are really, I think you can understand what Judge Cannon does. There are four different steps of this, and I think it's helpful to break it down. Step number one is Judge Cannon says, I'm going to appoint a special master for purposes of attorney-client

privileged materials. You know, Trump is talking to Trump's private lawyer, and there are going to be some documents about that that are going to be picked up in the 11,000 records that the government sees. And that is unusual because normally special masters would only be for like law firm offices where that's like fundamental to the search that there's tons and tons of those documents. Here, there's a few of them, but at the same time, it's unusual. My own reaction to that is like, that's fine. Like whatever. There are some attorney-client privilege materials. Apparently it's, I think the government said it was about 500 possible attorney-client privilege documents out of the 11,000, and they've taken those aside. And if Judge Cannon wants to appoint a special master for that stuff, that's not a huge deal. Like, that's not so far out of how search warrants would normally – you can see that happening, I guess. You sort of imagine a search occurred. Is it possible that will happen?

Yeah, that doesn't seem too wacky. The wacky stuff happens to my mind with the rest of what Judge Cannon says. First, I'm going to appoint a special master to review the executive privilege materials. Next, and here's where it really goes out of control, I'm going to enjoin for investigative use all of the seized documents. You're not allowed to use any of the seized documents, any of the 11,000 seized documents. That order strikes me as like way out there and really problematic. And then last, the judge says, okay, come back next week. Let's try to figure out who's going to be the special master. And you're not allowed to investigate this case until the special master is not only appointed,

but reviews all of the documents here and the special master's work is done. So that initial step of appointing the special master for attorney-client privilege materials is unusual, but not so far out there. Okay, here's my slight point of disagreement. I think that appointing the special master for the attorney-client privilege documents where there is nothing unusual about this case aside from who the person is, is a problem. She couldn't come up with anything

that made this unique compared to any other Fourth Amendment search of someone's home, except that it's the former president. She says indictment can carry stigma. Yeah, that, you know, for a former president, that stigma alone, regardless of if he wins at trial, is unique. I disagree. The former president, more than almost any other American, has a platform to push back publicly if he wants to. Also, it doesn't get to the special master part. That may get to the search warrant part. But why uniquely do we need a different filtering system for this set of 11,000 documents? They're

not uniquely attorney-client privileged, as you said. It's not that all 11,000 fall under that at all. So I think all of that is really strange. And she doesn't explain why the equitable remedy that needs to be such a high bar to meet is met here on the attorney-client privilege issue whatsoever for me. Interestingly, on the executive privilege stuff, I'm far more open to it than you are because the department never raises to the magistrate judge the possibility of executive privilege documents. The magistrate never raises it back to DOJ. It's just never mentioned in the criminal proceeding part of this. It's assumed by everyone that a former president doesn't have executive privilege. And that's strange because we have at least one Supreme Court justice who has said that absolutely there is some form of executive privilege for a former president. That is separate than the

question of who gets to raise that executive privilege or whether the current executive could waive that executive privilege, even if the former executive could raise it, for instance. She doesn't really grapple with any of that, frankly. That part doesn't work very well for me. But the idea that the department never addressed it and didn't think they had to at all, they should have because it's not settled law. And all these people on twitter going on and on about how like this is so dumb and it's obviously settled and this is a whack job opinion well no the nixon cases aren't on point we've never actually had anything like this of an intra executive fight of a former executive the current executive waving it anyway very messy we'll maybe

talk more about that later. But it's not that her opinion satisfies me on this, but the topic is not bonkers to me. Okay, I agree the topic isn't bonkers, but the context in which she addresses the topic is bonkers, which is to say, she says, oh yeah, there might be executive privilege issues here. And I think the executive privilege might be retained by a former president.

Okay, that's an interesting theory. What does that have to do with a special master, though? A special master's job is to go through, seize documents, and say the government is not allowed to get these records. These are outside of anything the government has the power to get. Is that what the rule is for executive privilege? No one knows. And what the order says is basically like, I want to make sure this is done correctly, therefore I'll throw in the executive privilege stuff. It seems it's a privilege. Privileges are privileges. Parts is parts. It's just sort of like a general sort of like, let's add that to the mix. But then what is the special master supposed to do? Is the special master supposed to be like a jurisprudence theorist of like the theory of

executive privilege? Come up with the special master's own theory of what executive privilege is. And then like in a year or so, present that to the district court judge who's been sort of not even this, not even that original judge's search warrant and say, here's my theory of executive privilege. Do you think this is good? I mean, it's just weird. And so that, I guess, I guess the, the, the challenge here is just like, that's not something a special master traditionally does. And so whatever the rule is on executive privilege, it's just not clear what a special master is supposed to do with it. Wholly unqualified to do it

and to have someone by definition outside the executive branch decide what falls under executive privilege, which again, nobody has a great definition for. And even if they did, what a former executive's executive privilege, which we all kind of agree would be shrunken to some extent.

And then what happens when the current executive has waived it? And what happens when there's a criminal investigation, which normally, normally is a hard word here, but which at least in theory could overcome any executive privilege? Yeah, no, that part's insane that you're just going to tell this random person to please filter for executive privilege, but we're not going to give you a definition or even theory of what that might look like. Good luck. I hope you're a law professor.

What if, by the way, the special master doesn't think that a former executive has executive privilege? Are they going to ask that ahead of time for the special master? Because then you did filter for executive privilege. You don't think there is any executive privilege. And how are they possibly going to agree on who the special master is?

If you're on the Trump side, you just say no one is qualified to be... Only Pam Bondi. That's probably right. And so this, you know, it could be a long, long time before anyone has ever appointed. And this gets to the injunction, I think, is really the story here. Injunction on the investigation. None of that is allowed to happen until not only is the special master identified, the special master does the special master's work, but then the district judge is satisfied that the special master is done. Then the investigation is allowed to proceed. And then

that's, you know, what, like 2025 or something like that? It could be, that could be a long, long time from now. So there's a bunch of pieces of this beyond just the appointment of the special master that are really, really remarkable. What about this mootness delay point where the Trump team waits two weeks to ask for the special master. If I were a district judge, ballgame for me. That's an easy exit, like flashing red exit sign in the theater. You can get out here. I would just say like, sorry, two weeks is too long. They already, you know, they're so far through the filter process at this point. And then more interestingly to me, she at the very beginning says, I'm leaning towards appointing a special master

and never tells the Department of Justice to stop reviewing documents or to pause. Now, in fairness, DOJ never asks, hey, you say this, do you want us to do anything in the interim? She takes nine days to tell DOJ to stop, which again makes from over three weeks, DOJ finished. The investigative team already saw it. And so now, in my best estimation sitting here on the outside, obviously on a podcast, if the special master finds in substantial part a different set of additional documents should not have been reviewed by the investigative team. Is the judge going to order that all of the FBI agents and lawyers who saw any of the documents now have to be walled off of this investigation, meaning the DOJ has to have an entirely new investigative team than the one who's been working on this for six to 14 months?

the one who's been working on this for six to 14 months. All because, by the way, on day one, she didn't tell DOJ to stop. She told them to stop on day nine of her review. Really strange to me how that all unfolded. Yeah. You talked about the judge not taking the flashing exit signs. This opinion reads as a judge who's like running into the building, not trying to leave the building. You know, this is the, to my mind, the most remarkable part is this injunction. You're not allowed to use any of the 11,000

documents, regardless of whether any of them have any possible claim of attorney-client privilege or executive privilege. You're not allowed to use any of this stuff from the search. And then the reason for this injunction, the court says, is because the, and I'm going to quote from the opinion, the investigation and treatment of a former president is of unique interest to the general public, and the country is best served by an orderly process that promotes the interest and perception of fairness. And the court later says this is in life. We need a fair public in order to further the public trust. Well, what's that? Oh, it's about to be the major hubris fall from grace because she thinks that

she's split the baby here. It's throughout the opinion, right? She says this isn't on the merits. There may be no additional documents. This has nothing to do with the underlying classification or statutory infractions here potentially. But she's about to run into a chainsaw, as we've already discussed a little bit. The Trump team is going to send in a list of their preferred special masters that will have null set overlap with the Biden administration. I think it's interesting strategically what type of list the Biden DOJ will turn into the special master on Friday, by the way, because they know that the Trump team won't include any people that they'll include no matter what. But will they include like a Mike Mukasey, for instance, you know, former Republican appointed district judge

and former Republican attorney general, you know, sort of real people who could really be the special master here? Or do they just do their own totally bonker set? Regardless, the judge is going to have to pick someone that is not on the Trump team's list. At that point, does she think that that 40% of America is going to agree that this was a fair process? And then a step further, when that special master decides that there are no additional attorney-client privilege documents, or frankly, that there are, but there are so many classified documents, it doesn't matter. It doesn't actually go to the underlying problem and potential criminal violation here, then do you think

they're going to think it was a fair process? No, there's no answer which Donald Trump raises his hand and said, well, I had a really fair process here as I'm being indicted. That's not going to happen. Yeah. And the key, I think, is that the perception that the process has not been fair is primarily because Trump has been saying it is not fair. And if a suspect in a criminal investigation can keep saying how unfair the government is being and how the rules are all broken, and that statement then becomes a reason why there are special rules that basically this whole investigation has to stop. Like you can't proceed. Concerns have been raised, passive voice, that this is unfair.

Well, that's just a special rule for really important, you know, publicprofile politicians or influential politicians. And the fact that this particular politician happens to also have been the person that nominated that judge recently doesn't add a particular sort of rule of law feel to this opinion. The vibes. Yeah, it's a really remarkable legal opinion.

Okay. I want to defend this opinion a little bit because most people won't read it. You and I have. This is a real judicial opinion. It is, you know, there are citations. It's broken up into sections. She addresses each one of the government's arguments, maybe not to the extent or maybe not at the level of detail that they want. She raises, I think, a very valid issue where the Department of Justice, I guess, confirmed that there were at least two documents that made it through the filter team to the investigative team. The investigative team then says, ooh, we think these might be privileged, gives it back to the filter team, and the filter team confirms that those should not have made it through the filter team. They should not have been ever viewed by the

investigative team. And the Department of Justice, I guess, did not say what happened to those people who had reviewed that. Were they taken off the case at this point? I would argue, of course, that there's also such a thing as harmless error. If it was attorney-client privileged about his dental records, who cares if the investigative team saw it? It's not relevant to their inquiry at all. If it is relevant, then yeah, if they saw it, they probably would have to be taken off. But you have to dig in a little more than just say they saw a piece of attorney-client material that they shouldn't have seen. Yes, but is it relevant? yes, but is it relevant? And yet this is being treated as if it was written in crayon. And I do think it's worth a couple minutes just to, I did not think it was written in crayon. This was a real attorney who worked at Gibson Don, a major law firm. It's just that it was too cursory for me on some of these far more interesting, thoughtful arguments,

like on standing. How does former President Trump get to go into court at all on a civil suit of this kind when they're not his documents? By definition, again, he's only asking for the special master. So we're talking about attorney-client privilege, executive privilege, potentially documents. By definition, all of the executive privilege documents fall under the Presidential Records Act, meaning they don't belong to him. I used the example on a previous podcast that if I park my car at your house and then the police execute a search warrant and take my car, you don't get to get my car back. You don't get to ask for my car back, even though it was at your house and even though you didn't steal it. I parked it there. So the crime isn't that you stole my car, but it's also just not

your car. And so she doesn't really deal with the standing issue to my satisfaction. She talks about how some of the things that were gathered might well be personal in nature and not part of the investigation, but that's just normal Fourth Amendment search warranty stuff. Police all the time sweep up stuff that belongs to you and you get to ask for your personal stuff back, but you don't get to ask for my car back because it doesn't belong to you. This is an issue where I'm actually sympathetic to what Judge Cannon did. So I think the Justice Department messed up some of its briefing in confusing standing with remedy. So where this is a little bit complicated is these issues normally come up in the context of a motion to suppress. come up in the context of a motion to suppress. And it's almost like there's like motion to suppress vibes in this sort of weird motion for a special master. You know, Trump files this

initial pleading. It's like, what is this? And Judge Cannon is like, this is a convoluted... That was written in crayon. What? I'm going to interpret this, Judge Cannon says, as a motion for the return of property. And then the Justice Department's take was at one point, well, you don't have standing because you can't get these documents back. They're the government's documents. But that's nonresponsive because standing is just are you injured by the search? Do you have at least in the Fourth Amendment setting would be, was it your place that was searched? Either you owned it, you rented it, it's your private space, it's your office,

you're an employee, it's your space. You'd have standing in all those settings. But wait, I want to be a law student here, one of your law students. But to have standing, you have to have an injury, and therefore you have to have at least available a remedy. So if the remedy isn't available to you, then you don't have standing. And in this case, since the documents, he can't get the documents back because they don't belong to him.

If that's the remedy and it's not available to him, that actually is part of the standing inquiry. Yes, professor? I'm going to answer the great law professor answer. It depends. Oh, no. We love to say that. I'm going to answer the great law professor answer. It depends. Oh, no. We love to say that. So it depends. Fourth Amendment standing is different from Article three standing. And so Article three standing would have redressability as one of the criteria. But and Fourth Amendment standing wouldn't. But the basic idea is that Trump was searched. His stuff was

searched. Yes, he can go into court and seek a remedy. The question is, what remedy can he get? He can't get stuff that wasn't his back, but he can get a remedy in some sense. And the example would be, I think, you know, the government gets a search warrant to search your house for drugs and they seize your drugs and then you sue about the search. Yeah, you have standing to bring the suit, but one of the remedies that's available is not give me back my drugs because it's contraband. So yeah, they're standing, but you don't have a remedy. And I think the Justice Department, that was one part of their briefing that was wrong. They said Trump doesn't have standing when they really should have said he has standing, but he doesn't have a remedy over those documents.

And the reason why that matters is that Trump's initial pleading was really confused. It's not obvious what he's trying to get. But that wasn't a problem with like of all the things you could have addressed, the Justice Department, I think, just picked the wrong thing. And then Judge Cannon responds, aha, I've got you on this. There is standing, correct, to my mind. And then, therefore, Judge Cannon sort of says, well, that means I can sort of take over this whole thing. And that's where I think Judge Cannon is wrong. So let's do a brief what happens from here. The Department of Justice, the ball is now in their court. They can simply turn in their list for special master potentials on Friday,

or they can appeal this to the 11th Circuit, which in my mind carries a little bit of risk as well. By the way, worth noting that former Attorney General Bill Barr had some feelings on this. This is his quote. The opinion I think is wrong. I think the government should appeal it. It was deeply flawed in a number of ways. I don't think it will hold up. At most, it's a rain delay for a couple innings, but it won't change the outcome. Bill Barr suggesting that DOJ should absolutely appeal this to the 11th Circuit. I'm less convinced. Where do you think this goes? I think DOJ should appeal on the injunction and on the executive privilege review. I don't think there's much point in appealing on the

attorney-client privilege stuff because that's just not really important to this case. There's not going to be a major dispute going forward about who cares with attorney-client privilege. But executive privilege matters a lot. The injunction, I think, is actually that's what this is really. That's the story here, which is the district judge saying, you have to stop the investigation because everything in the case, it's a case about contraband. It's a case about documents that Trump wasn't supposed to have. To say you're not allowed to use any of this, well, what does use mean? Does that mean they can't bring an indictment? Does that mean they can't remember?

They're not allowed to sort of interview the next witness that would follow from the fact that they had seized that fire document. That's basically like a judicial takeover of the investigation, which federal judges do not have the power to control executive branch investigations under the separation of powers. That's not anything they have authority to stop. And so I think the Justice Department has a really strong interest in making sure suspects in criminal cases can't go into court in order to stop criminal investigation, which is basically what this was. And that is pretty important for them to seek review of. You know, this opinion had to have some real flaws in it because for once, Andy McCarthy and I totally agree. And basically since the moment I was in the Department of Justice to yesterday, Andy McCarthy

and I actually don't agree on very much, but this is what Andy McCarthy wrote. The point of having a special master is to ensure that privileged information is not exposed to prosecutors and FBI agents who are handling the investigation. A special master cannot police leaks, has nothing to say about whether someone gets charged with a crime, or whether they get their personal property back. Unrelated to those things, all of which were part of that initial filing by the Trump team that was a head scratcher. And I don't do well with bad briefing. So I was sort of impressed that Judge Cannon was able to even take it. Like, I will interpret this filing as a request for.

I was like, I don't know what they're requesting. Moon stars? No. Like, to me, it was just a hard no from me. Exit sign flashing? I don't understand what your filing is. So good for her for being a little bit more lenient than I would sign flashing, I don't understand what your filing is. So good for her for being a little bit more lenient than I would have been, I suppose. Okay, I want to spend our last few

minutes on the executive privilege question because it is interesting. And professor, again, I want to play law student here and I want to run my theory by you. We have been using confusing terminology when we say executive privilege, because that's the same terminology we use when we talk about attorney-client privilege or doctor-patient privilege, spousal privilege, all of which are incredibly hard to overcome and only in sort of these rare, very specific interest of justice type things do we overcome those in attorney-client? For instance, if your lawyer helped you commit the crime, whether they knowingly did it or not, you can overcome attorney-client privilege. That sort of makes sense to us. If the attorney was involved

in the crime, you don't get to invoke the privilege to not have that communication revealed. But executive privilege is not that. I think that it is a separation of powers tool, not a legal privilege like those other privileges because of who the privilege belongs to. The privilege of executive privilege belongs to the branch of the executive. And under the unitary executive theory, therefore, it belongs to the power the executive branch is vested in, the president of the United States. It is a privilege, therefore, to be wielded against Congress or the courts. And in this case, that's what makes this so strange, both to have someone claiming that they have executive privilege who's a former executive,

to have someone claiming that they have executive privilege who's a former executive against, though, the current executive branch. The privilege is a separation of powers tool, then this is nonsense. It doesn't make any sense to wield it at all. Second, can someone who the executive power is not vested in assert executive privilege. I would argue under that separation of powers tool, no. Third, can the current executive waive that executive privilege? I do think the former executive has executive privilege. I don't think they can assert it. I think the current executive can assert it on behalf of a former, because again, it's the branch's interest itself. Therefore, they can waive it. Set aside the Presidential Records Act, by the way, that's statutory and I don't care. There's a lot of like, well, the Presidential Records Act says blah, blah, nope, don't care,

blah, blah, statutory. We're talking constitutional level privilege here. level privilege here. And that Justice Kavanaugh was talking about how a former executive's papers could still be privileged. Yes, of course they can, if it's in the interest of the executive branch to protect it against a different branch. But it doesn't make sense to treat it like attorney-client privilege because it's so weak. We've seen how weak it is. Anything can overcome it. A criminal investigation, someone else waiving it on your behalf. Someone else can't waive your attorney-client privilege on your behalf, which means that it must not belong to you. I'm curious what you think of my, we should call it something else because this is actually a separation of powers canon, basically. Yeah. You know, when you're a law professor and you're not totally sure of what the answer is and you don't want to say something, again, you asked for my

professor. Yeah, I did. Yeah. I think the thing you're supposed to say is something along the lines of, Sarah, that was a really interesting discussion. That was a very powerful point. Thank you. That was a very powerful point. Thank you for that. That was great. I need to think more. Wow. Thank you. Oh, we're out of time. Yeah. So that may be right. I just don't know all that much about executive privilege. There's not that much to know from what I can tell, but it's also, it's one of those things, as you'd mentioned earlier, that is sort of philosophized about more than written about in case law. So I think that's possible. The one commitment on this that I do have,

it's not something to just sort of throw at a special master and say, figure it out and we'll wait for you for the next year while you figure it out. And so I think all those issues are just stuff to be figured out someday, but not now. And what Judge Cannon did is basically try to come up with an upfront answer to all these questions or set up a system to allow an upfront answer. And it's just too early. This is not the stage where this stuff gets sorted out. I also don't think it matters.

Like of the 11,000 documents, 100 are classified. No doubt the Department of Justice would like to read any Post-it notes that said, hey, let's do crime. But they don't need those Post-it notes because they have the 100 classified documents with classified markings. The former president has never claimed that he declassified them at this point. Interestingly, they've actually never asserted executive privilege in any of their court filings. That's an odd little footnote in all of this. Even if they wanted the special master to review for executive privilege, they haven't asserted it. Very strange.

But regardless, to your point about what DOJ should do, I think you have persuaded me that they should appeal on the injunction part because that injunction was way too broad. Of course, they should still be able to review the classified information that is not by definition executive privilege or covered by executive privilege or attorney-client privilege as far as I'm concerned. And of course, she did exclude from that injunction ODNI, the Office of the Director of National Intelligence, that said they could still review the classified information to determine the national security risk or detriment by having those documents at Mar-a-Lago, which, as someone else pointed out, yeah, but they need the Department of Justice to

help them with that because having the classified documents alone, they can say how important these documents are, but they might wanna know who had access to those rooms. Where was it stored? All things that now it appears the Department of Justice is completely walled off from ODNI in discussing.

One part of this picture that we haven't talked about that that raises is just getting clarification from Judge Cannon as to exactly what is allowed and not allowed. I mean, I think the whole category of like injunctions on the executive branch, you're not allowed to investigate is wrong. But even if there is supposed to be this sort of rule, the executive branch needs to know with a lot more precision and specificity than that. What does that mean? Or what are the things we're allowed to do and not allowed to do? So it wouldn't surprise me if they file some sort of a motion for reconsideration, motion for clarification, something like that, just basically saying like, can we do this? Can we do that? Like, what do these terms mean apart from whether the order is allowed at all? Because it does seem, it's almost presented

in the order like a matter of grace. Like, okay, I will allow the ODNI to further. That's fine. I'll let you do that. I'm being reasonable. But you need to know a lot more than that to know what's permissible and not permissible. Because if this is to be be a court order that's not something the executive branch would want to violate well thoughts and prayers to the future special master do you have anyone in the back of your mind who uh you think would make a good special master who should be on the list i don't i don't think you would never wish that upon someone it is a null set of p as you said of of of, of, of people that, that could do this job. I mean, the, the things you, what do you need to have? Like, you know, top secret SCI clearance.

And then some of these are even, I guess, uh, a special access program for them. And then someone who you need to have someone who has not participated in any way in public life for the last 20 years or so, has no views, no public views on any of this, no position, and yet is well-respected by everyone. That human being doesn't seem to me exist. So I have no idea.

I think it's Mike Mukasey. And if I'm Mike Mukasey, I say, no, thank you. I don't know if he still has a security clearance though. That's actually a whole different, yeah. I mean, I feel very well qualified to be the special master, but I don't think I'm going to get that call for about 27 pretty important reasons.

All right. Thank you so much for this very fun conversation about the special master. We're about to hop into corpus linguistics next. So kind of a different speed. We're about to hop into corpus linguistics next. So kind of a different speed. We're going to change gears. Bear with me. Thank you, professor.

Happy to do it. 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 toto 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. Well, AO listeners, I told you we had a special episode today. And boy, do we. Because a few weeks ago, I got an interesting message from someone. He enjoyed the episode with Judge Rudofsky talking about corpus linguistics, but he thought it was missing something. True expertise, the sort of godfather of corpus linguistics. And he's going on and on about this guy who we should have on the podcast. And it turns out he's talking about his father. His father is former Associate Chief Justice of the Utah Supreme Court, Thomas Lee. You may remember him from our conversation with Lee Rudofsky.

And believe it or not, he is here on the podcast to join us. So we are going to revisit our corpus linguistics talk a little bit and some of its application at the Supreme Court recently in a case that's, actually, we didn't get to talk about a lot because it was one of those many, many arbitration cases that we kind of skimmed over. So we'll do a little bit of a fun dive on that. And then his career in general, because we don't have a lot of state Supreme Court justices on AO. And by the way, in case you are concerned that he's not sufficiently attached enough to Corpus Linguistics,

you can check out his consulting firm, Corpus Juris Advisors, if you're a lawyer who would like some help with your Corpus Linguistics work. He also, of course, has his own law firm, Lee Nielsen, if you just need a great lawyer. So Justice Lee, we're thrilled to have you. Thank you so much, Sarah. It's such an honor to be here. And I wanted to start because you actually teach a course on this. You've taught it at University of Chicago, Harvard. You're teaching it at BYU this semester. You sent me the syllabus and it's amazing. I thought we would do a very quick version, you know, what you teach in a whole semester. I'd like you to teach in approximately five minutes. But let's just start with what is the ordinary meaning canon?

Yeah, that is the place to start. The ordinary meaning canon is the idea that in interpreting the language of law, we start with its ordinary understanding. Now, there's a lot sort of packed into that term that maybe we can get to in a minute. As I stated in one of my articles, one of the problems is there's no ordinary meaning of ordinary meaning. But often what we seem to be getting at is the idea that our legal norms, as stated in the language of law, are best understood to capture the understanding that an average ordinary speaker of our language would understand in the linguistic context and the time frame and the speech community of the language of the law that is adopted.

And the idea is widely endorsed, at least when the ordinary meaning is deemed to be plain. Nearly everybody accepts that that's not only where we start as a matter of interpretation, but where we stop. And we do so for a lot of good reasons. We do so to credit the meaning that those with the authority to make law may have had in mind or assumed to have had in mind when they enact the law. And we do so to protect reliance interests and fair public notice. I think that's the basic gist of the ordinary meaning canon. But this has existed long before corpus linguistics. This is one of those statutory canons of interpretation.

As you said, it's almost the most basic one in some sense, even if we don't know what the word ordinary means. I'm reminded one of my mother's favorite stories about me is I would pull up a bar at our little diner where I grew up in Fort Bend County, Texas, and ask for my usual. And then when I was about four years old, I turned and was like, what's a usual? And for me, the usual was a grilled cheese sandwich. But of course, usual can have, you know, there's no particular thing that is the usual. So I've put it this way, we've been under-delivering on the promises of textualism. I've said the same thing about originalism. And the way that we're under-delivering, I think, it can be stated in a couple of different ways. One way would be to note that even though we often say that we're interested in crediting ordinary meaning, we haven't really defined what we mean by ordinary meaning.

And you can find even within individual judicial opinions, courts sort of bouncing back between, well, is ordinary meaning getting at the idea that this is maybe the most common way that you would use a certain term or a certain phrase or are we getting at the idea that well this is a permissible way to speak um so that's one of the problems uh that that corpus linguistics can help us to understand and we can get to this in a minute but it helps us to understand it because it allows us to start quantifying the inquiry into ordinariness. To the extent ordinariness is getting at an empirical question, empirical questions call for evidence. So that's, I think, step one in how we get to the need for corpus linguistics. get to the need for corpus linguistics. Step two would be an acknowledgement of the fact that the tools that we have been using for a very long time fall short. They fall short in that they

aren't really delivering on the idea of giving us reliable indications of what a given legal term may mean in a given context. So if you're trying to understand the meaning of a term in a statute and you want to consider what its ordinary meaning is, the typical thing to do is to go to a dictionary or maybe to a canon. And the problem with a dictionary is that very often in the cases that really matter, in the cases that get litigated, both sides can point to a definition in a dictionary and can say, well, look, the meaning is plain and it's plain in the direction that I'd like it to be, therefore credit my meaning. Dictionaries fall short in that respect. They also fall short in the sense that they don't often give us any information about

linguistic context. Our language derives meaning from its linguistic context. And they don't give us information about frequency, about relative frequency within a given context. I could give an example if it'd be helpful. Of course. I like talking about, to illustrate these points, I like talking about Article 6 of the United States Constitution. So not a very, not one that comes up very often, but Article 6 presents the idea that under certain circumstances, state governments are entitled to support from the federal government when there is a problem of domestic violence that arises. So you can think of a hypothetical with respect to domestic violence. Imagine that the state of Utah says, we've got a serious domestic violence problem. We need the Biden administration to step in and help us with this problem of domestic violence. And so the state of Utah issues this demand to the Biden administration

under Article 6. Now, if you wanted to try to answer that hypothetical based on dictionaries, how would you evaluate that problem? You could look up the term domestic in a dictionary. If you wanted to get the timeframe right, and you're an originalist, you could look up domestic in a Samuel Johnson dictionary, in a Daniel Webster dictionary, in a historical dictionary. You could also look up the term violence in those historical dictionaries. Problem is you wouldn't resolve the question of the phrasal meaning of domestic violence. And often phrases have meaning different from, they're not always the sum of their individual parts. So if we look up domestic and violence in historical dictionaries, we're not going to get a clear answer. We're going to say, well, domestic can mean sort of in a local

sort of an environment, you know, something other than a national. It can mean something, it can mean sort of the opposite of foreign. And violence, you know, can mean the use of arms or it can mean some sort of assertion of physical harm through hand to hand. That won't really tell us. Is domestic violence the kind of thing that the state of Utah is worried about today? Or is it maybe something different? So these are some problems with dictionaries and some, an instance, and we can make the leap to corpus linguistics in a minute because the domestic violence problem is one where corpus linguistics can step in and give us a clear answer. Both sides in the

domestic violence hypothetical that I've just presented can sort of say, hey, credit my meaning. I've pieced it together using dictionary definitions. How did you come across corpus linguistics? You're an early adopter. Yeah. So one of my very first law clerks had a master's in linguistics and had done some work in corpus linguistics under the tutelage of a professor named Mark Davies, who has developed some corpora, the plural of corpus, that have been used far and wide. of corpus that have been used far and wide by, turns out people use a corpus to try to learn English and linguists use a corpus to try to understand English. And Mark Deves has developed these corpora. Stephen Morrison was my law clerk. And almost from day one, we would get a problem of statutory interpretation. Stephen's knocking on my door and he's like, hey, judge, there's this thing called corpus linguistics. And I'm like, yeah, yeah, that sounds that sounds really interesting, Stephen. If I were a law professor, maybe we'd have this conversation, but I got to get my work done.

Not clear that that's going to be relevant here. that came along called In Re Adoption of Baby EZ that presented this question of the meaning of a phrase under a federal statute called the Parental Kidnapping Protection Act. And the operative phrase is a phrase that essentially talks about an order in a custody proceeding. And the question in the adoption of baby easy cases is an adoption, a custody proceeding as a matter of federal law, kind of like with domestic violence. There's a sense in which it is right. An adoption is the ultimate custody proceeding. Right. But is that what the statute is getting at? Or is the statute getting at the kind of custody proceeding you'd see in a divorce action where you're talking about assigning maybe joint or shared or maybe individual custody to parents in a divorce proceeding? The more I thought about that case, Stephen's words about

corpus linguistics start ringing in my ear and I'm thinking, yeah, I can't look up custody proceeding in a dictionary and get a clear answer. But it turns out I can, using corpus linguistics, get an understanding of the meaning of that phrase. So that's kind of where it started and where I first started down this path. And you're a little bit infectious. I mean, the Utah Supreme Court, they didn't immediately go like, ah, Justice Lee and his random law clerk are totally right. By the way, footnote on influential law clerks there. Wow. Dear law clerks, very few of you will have nearly the influence on your judge speaking from experience. But fast forward,

the Utah Supreme Court pretty into corpus linguistics because of your influence. You end up on the shortlist for the Supreme Court, in large part because of your corpus linguistics-y-ness. And I'm curious how you saw that evolution and what it taught you about sort of both the benefits and shortcomings of corpus linguistics as you were trying to persuade your colleagues on that front. Yeah, it's a sort of a long story. Let me see if, so we're talking about teaching my Harvard class in five minutes. Let me see if I can tell a story that took several years to unfold in just a couple of minutes. When we published that, when I circulated that opinion, it was a concurring opinion in the EZ case. I got a response that was extended even further in a case called State versus Rassabout, where it presented a sort of more extensive defense of the use of corpus tools.

And the response I got was not only, no thanks, Tom, we don't want to join your opinion. It was, hey, we need to get you a dictionary over there. What's the matter with you? That's not the way we do things around here. You know, when we're trying to find ordinary meaning or plain meaning, we look up things in dictionaries. And not only that, but pushing, the majority opinion is pushing back saying, not only are we not going to join your opinion,

but it's judicially unethical for you to do this analysis, which I completely disagree with. And we can come back to it if you want. But the basic response I have to that is I don't think it's unethical for me to try to get a better understanding of history when I'm trying to understand the original meaning of the Constitution. Can you explain why it would be unethical? I think I intuitively understand why it's not unethical. Yeah, I mean, I'll do my best. I'll try to steel man the argument, and then I'll give you the response to it. Yeah, steel man your poor ethics, sir.

Yes, yes, I will. So the steel man position is judges don't do outside research, outside analysis of evidentiary questions. So if you were trying to understand the facts of a given case, you wouldn't go and visit the scene of the crime. You wouldn't, as Judge Posner did in a case on the Seventh Circuit, order some safety equipment and have your law clerks try it on and time them. And I think my former CIF pro professor rightly called him out on that. Yeah, I don't think you do that. That would be improper. Because you're not a trial court. You're not. Yeah, I mean, yes, duh. But that's very different

than what appellate judges do, which is all the time try to discern proper meaning, whether it's ordinary meaning or current meaning or living constitutionalism, all of that is trying to discern meaning, which is what corpus linguistics surely is. Maybe its quantitative nature is a departure from the qualitative nature of most appellate work, but it's not evidentiary.

Yeah, I think that's the basic response to it. That's essentially the point that I took. I extended it a little bit further and noted something in the law of evidence. There's a distinction between adjudicated facts and legislative facts. So there's a sense in which, yeah, I'm doing factual analysis. I guess you could call it factual analysis. But it's factual analysis that goes to the meaning of the law. call it factual analysis. But it's factual analysis that goes to the meaning of the law.

And so when we talk about, when we impose on judges this limitation and say, don't do your own outside research when it comes to facts, that goes to adjudicated facts. When it goes to legislative facts, which would be facts of relevance to the meaning of the law, we don't impose that limitation. So that's essentially the response. law, we don't impose that limitation. So that's essentially the response. To finish the story about kind of how, so in those two opinions, I got really strong pushback from most of my colleagues. One of my colleagues in the Rassabout case said, well, I don't fully join all this criticism. I don't think it's unethical what Justice Lee is doing. Maybe in an appropriate case, we ought to do this. There was a case in the interim between those two called State versus Canton, in which I wrote a separate opinion. This was on the meaning of out of the state. There's another sort of phrasal question, ordinary meaning of out of the state. Does that mean

physically out of the state or does it mean beyond the long-arm jurisdiction or authority of the state? And I did corpus linguistics in that opinion, but I did, I've later kind of referred to it as dumbed down corpus linguistics. And it was just a Google News search instead of using more sophisticated corpus linguistics tools. And I told my law clerks, this is going to be really interesting. Let's circulate this opinion and see what happens. Because maybe what people are really opposed to is stuff that they're unfamiliar with, stuff that seems esoteric. And Google News, that doesn't seem esoteric. It's a Google search tool. Speaking of Judge Posner, by the way, he used Google to answer a question of ordinary meaning in a case called United States versus Costello. I think his Google analysis was sort of early corpus linguistics.

I think Google tools are not ideal, but sometimes can give you phrasal meaning or evidentiary sort of empirical understanding of the meaning of language. In any event, that Canton opinion ended up being a unanimous majority opinion, not a peep, not an objection. So I said, oh, I think we have the formula now. We do dumbed-down corpus linguistics, and it will all work. Turns out we didn't even need to do that. It just took a little time, I think, for this to settle in and some personnel changes. If I'm being completely open here, some new members of my court who are more open to it. Fast forward to Richards v. Cox in 2019,

and our court unanimously adopted corpus linguistics, repudiated the prior repudiation of Justice Lee and his use of corpus linguistics. And now we've got three or four Utah Supreme Court opinions adopting. And once you felt like three or four Utah Supreme Court opinions about And once you felt like it had been firmly planted and was blossoming and growing up the vine, you retired. Your work was done. Your legacy installed and insured. I find that fascinating in part because it seems so intuitive that the Google News part, because everyone uses it every day, would be more familiar. And that as you got presumably younger colleagues as well, they would just feel more comfortable

with that, except for the fact that we do this all the time with Lexis and we've been doing it for 20 plus years or Westlaw. You put certain phrases in quotes within three words of another phrase in quotes. Now we're doing that for judicial opinions for the most part. And so it's a different type of analysis, but it's the same concept, which is in the past when judges in their opinions have used this phrase, how has it come out and things like that. So I'm surprised that it was as uphill a climb as it was, but here we are. And I don't want to give short shrift to the ZF automotive case because I find it really fascinating. And I think it's such a good

example, sort of like your domestic violence example, but it's from the Supreme court this year. You write a, I'm going to put famous kind of in quotes, famous within Supreme Court litigation circles, law review article, corpus linguistic analysis of the ZF automotive case and what a foreign tribunal is and whether that really refers to a entity with governmental authority

or whether a foreign tribunal can include an arbitration-type tribunal of sorts. And it comes up at oral argument. Chief Justice Barrett, the chief justice, one side cites it in their briefs. Did it feel good? Was that a nice feeling? I mean, people write law review articles all the time

hoping that anyone reads it, and here it's coming up multiple times at oral argument. Yeah, let me correct, just correct one thing, Sarah. The article that you're referring to was authored by my two partners in the consulting firm. I was still on the bench when they published it. So not yet in a position to say anything publicly about a pending case, even in another court. So lest somebody accused me of some other charge of judicial, violating rules of judicial ethics, that was my partners in my consulting firm. But absolutely, it felt good. We would like to have seen it cited in an opinion, of course, but baby steps. And I think we're moving in this direction. Justice Alito, in a case called Facebook versus Dubuque a couple of years ago, cited another article that Stephen Morrison and I published

in the Yale Law Journal called Judging Ordinary Meaning. The question in the Facebook case went to sort of a tension between two canons of construction, the rule of the last antecedent and the series qualifier canon. And one of my other law clerks had written something suggesting that maybe we can use corpus linguistics as a mediator between those sorts of canons. I've got some work underway to trying to push in this direction. But yeah, that felt good as well.

I think we've got really good momentum heading in the right direction. Citations in some separate opinions in the Supreme Court, citations in the Sixth Circuit, the Third Circuitell in Florida presents some corpus linguistics analysis in that opinion. So it feels like we're moving in this direction, and I think rightly so. On the foreign tribunal question, I guess what I found so interesting about it was because it also presents, to me at least, some of the drawbacks or limitations, not drawbacks, limitations of corpus linguistics. So you're looking at a 1964 statute, and when you're going back, you found, or your partners found, sorry, in this article, that foreign tribunal almost always meant an entity with governmental authority, which makes perfect sense in some ways because arbitration hadn't really taken off yet in the way that arbitration is now so ubiquitous

in so many contexts. And so when we're looking pre-1964 around the early 60s to determine foreign tribunal, isn't that a problem with corpus linguistics? If arbitration exists but isn't ubiquitous, then you would also expect the term to sort of represent that percentage. You know, if arbitration only represents 2% of cases in 1964, you'd expect it to represent 2% of usages of foreign tribunal, even if foreign tribunal did at the time include the word arbitration sometimes. And as they said, they did find examples where foreign tribunal could include arbitration. It was just far more rare than foreign tribunal including governmental entities. Yeah, I think that's entirely fair.

Let me try to explain why and then give a brief response. entirely fair. Let me try to explain why and then give a brief response. Corpus linguistics tools can't give us every answer to every linguistic question. It is a tool in the toolbox. It will give us some additional linguistic information that you can't get anywhere else. It will allow you to sort of consider broader semantic context than just a single word. It will give you frequency data. It will allow you to make an assessment. It'll allow you to marry those two things together. It'll allow, meaning level of frequency with respect to the usage of a given phrase. It'll also allow you to look historically. So if what you're trying to understand is how was this phrase used at the time when this statute was enacted or when a constitutional provision was ratified, it'll let you do that.

It won't resolve a number of interpretive questions that are going to be driven more by your interpretive theory. And let me just highlight one and then explain why I think it's, why I think your pushback is appropriate. It won't answer the question of whether, all right, what if we found historically a number of applications? What do the, and maybe all applications are skewed in one direction. What do those applications tell us about the conceptual meaning of the phrase in question? So here's really a question, I think, for interpretive theory and not so much a question for linguistics or for linguistic tools. Should a judge be bound by or limited to the historical applications?

So sometimes when we talk, here's another ambiguity in meaning or an ordinary meaning. Sometimes when we say meaning, what we mean is implied meaning. What's the historically attested meaning of this phrase? Maybe by meaning we just mean what's it been applied to? What are the, a linguist might call it a referent, a historical referent or an application going back. But does that necessarily tell us we're tied to that? I think that's a question for legal theory, interpretive theory. Do the referents help us understand the conceptual meaning? Yes, they do. I think what my partners were suggesting is maybe that suggests that the concept that Congress had in mind when it enacted this statute might have been limited to governmental entities, foreign tribunals with a tie to some sort of governmental entity. Whether it's in fact limited to that, again, I think is more a question for legal theory than it is for linguistics.

All right. I want to slightly switch course here and talk about your career as a whole because it's fascinating. And as I said, we don't get a lot of state Supreme Court justices around these parts. And so I want to make sure we talk about that for the benefit of any judicial aspirants out there. You, well, just actually, will you give me the short rundown of how you ended up on the Utah Supreme Court, you know, starting in law school? Sure. Did you know you wanted to be a judge when you were a 1L and showed up in the south side of Chicago? Yeah, I think not quite that early, but I'll tell you, I distinctly remember a day sitting in Judge Wilkinson's chambers in Charlottesville, Virginia. That was my first clerkship. Working on a bench memo and back and forth between my little office and Judge Wilkinson's office,

talking to him about this case, I distinctly remember picking up the phone, calling my wife and saying, my boss has the best job in the entire world. I don't think I quite let myself say, and if I ever could do this kind of job, it would be the greatest job in the world. But I know that I thought it and I thought it even more a couple of years later when I went on to clerk for Justice Thomas, who, you know, two of the best people and certainly the best bosses and mentors that anyone could ever hope for. And I'll admit a lot of my sort of interest came from how much they loved their job and how they did it and what principled people they are, were and are in how they did it. And I also here's another pivotal moment. I remember talking to Justice Thomas about, you know, gosh, should I stay in D.C.? Should I go back to Utah? Back then, they weren't rolling up the Brinks truck for Supreme court clerks,

the way that they do today. Uh, I think if they were, I would have had to have stayed in DC, but, um, his advice to me was, Tom, you need to go back home. That's where you'll make a name for yourself. That that's where you'll have opportunities to really stand out. I think what he was really saying is you're, you're a small fish around here, Tom, which he was totally right about that. But I really wanted to be back in Utah anyway. And I think that was an important thing. I taught for, I practiced at a law firm in Salt Lake City for a number of years. I taught at the law school at Brigham Young University for about 12 years. Took a leave of absence to work in the civil division at the Department of Justice during

the Bush 43 administration. While I was teaching, I started to develop a little bit of an appellate practice and did some work for the state of Utah. I think that was a big part of, I was able to make connections with people in state government. I was asked to serve on an advisory committee for the rules of civil procedure in the state of Utah, made some connections there. And a few years later, a few years, well, 12 years after I started teaching, a vacancy opened up on the Utah Supreme Court. My initial reaction was, yeah, federal court is really where it's at. I had done most of my work in federal court. But the more I started thinking about the docket and the possibility of serving on a court of last resort, the more attractive that idea seemed.

So I threw my hat in the ring. I applied. And we have a system where you have to go through a nominating commission in Utah. So I went and did interviews there and was fortunate enough to get my name on a list that went to the governor and then did more interviews with the governor. And he nominated me and the Senate confirmed me. And then I had that opportunity to serve on that court for 12 years. You've thought a lot about civility in your career as well.

And a conversation that you had with Justice Thomas about his opinions. Yeah. I learned so many things, as I said, from both of my judicial mentors. I distinctly remember and will always remember a conversation that we had with Justice Thomas. Speaking of small fishes, my co-clerks were Cy Prakash and John Yoo and Caleb Nelson and three people that you might know, which again, amazing people, but what a daunting thing to be in the room with, with those folks and what great fun we had. But so he sat the four of us down and Eric Grant, who was clerking for Chief Justice Brigger that year. And we got to work with him as well.

I'm clerking for Chief Justice Brigger that year, and we got to work with him as well. And I remember him saying two things. One, I never want you to hold back in your analysis. I always want to hear your thinking. We push back on any point of analysis that we think is wrong. We need to get the law right. That is first and foremost the role of the opinions that you will work on. And then second, I remember him saying, it is almost equally important for us to be careful in the way that we push back.

We push back on ideas. We don't question motives. We don't engage in name calling. We don't use rhetoric that could be understood in that way. I'm certain that I didn't always take that to heart exactly in the right way as a member of the Utah Supreme Court, but it was always on my mind. And I think it is so crucial. I think it is more crucial today than it has ever been for us to try our best to have those kinds of conversations with each other. for us to try our best to have those kinds of conversations with each other. I sort of was gently, I hope, teasing your son at the beginning of this podcast who reached out and suggested that you would be a perfect guest, which obviously you are. He's your second of six children and obviously a very good cheerleader and effective one as well. Your family, though, I'd be remiss if I didn't mention your father was

solicitor general. Your brother is a U.S. Senator. You have six children, two of whom are lawyers at this point, I think as well. Do you have parenting advice that you either received or have learned through your own hard-won wisdom? I think you should talk to my wife, I think, about that. She does most of the good parenting around here. She cleans up all the messes that I make. And I think the best lesson I ever learned about parenting was from my dad, Rex Lee, who was Solicitor General of the United States in the Reagan administration. He was a big believer in process. He was a big believer in separation of powers. He was a big believer in civility and in due process and giving everyone an opportunity to be heard. And that might not seem like parenting advice, but I think it's the way he

parented. And as I say, I haven't done it very well. I think my wife has, but, you know, to try to make sure that our children know that they're being heard. I remember my dad more than once saying, you know, if one of us wanted an increase in our allowance or to be able to stay out later and extend the curfew, you know, let me hear you make your case. And we'd sit down and have an argument. We'd make our case. We wouldn't often prevail, but we would always be heard. And it was always clear. He would always give us, it was almost like he would issue an opinion because he would give us a reason. And the reason would always acknowledge and respond to whatever our argument was. I actually do like that parenting advice. My son is two and he's just

learning. He's very obsessed with finding the correct meaning of words like actually and maybe and just. Just meaning almost, not justice. And it's fascinating to watch him linguistically work through that. Yesterday, he asked if daddy was almost done pooping. But as he works through some of those linguistic challenges, I think we're getting closer to petitioning the court here. He figured out to ask the two of us

something separately yesterday. So that was a big, bad breakthrough moment in parenting of a two-year-old. Thank you so much, Justice Lee. And thank you, Jake, by the way, who is listening, your son. Great suggestion. Generally speaking, if you email me and ask me to put your dad on this podcast,

I'm probably going to say no. But look, there's exceptions to every rule. And if you're Jake Lee, then yeah, absolutely. Your dad is welcome any time. Thank you, Sarah. Thank you, Jake. It's been a privilege to be here. Well, that was a real treat. Some special master, some corpus linguistics, parenting advice tossed in between. I think David should go on vacation more often. We'll see what you guys think. Next episode, we are going to do some law school advice, both if you're thinking about going to law school, if you're in law school, it's about to be OCI time, on-campus interviewing. As you're thinking about that law firm, I'm going to bring on an expert when it comes to law firms interviewing

career advice for the once-in-future law students. So we'll do that on Tuesday next week. Look forward to talking to you. you