Advisory Opinions - Spies, Shredders, and Mistaken Identities

Episode Date: January 26, 2023

Honor, thy name is the Pence staffer who found classified documents and resisted the urge to accidentally let them slip into a shredder. In addition to covering the latest in the Trump-Biden-Pence-Carter documents drama, David and Sarah discuss what’s shaping up to be one of the most egregious cases of spy corruption in American history. Plus: -A Georgia grand jury updates-A headscratcher case of wrongful arrest-Some thoughts on Florida’s crackdown on College Board’s African American Studies AP curriculum Show Notes: Classified documents discovered at home of former VP Mike Pence Ex-FBI arrested for alleged money laundering Georgia election probe report to remain secret for now DeSantis sparks outrage with rejection of African American studies class The Dispatch: Academic Freedom for Whom? G-File: Reading, Writing, and... Black Queer Studies? Learn more about your ad choices. Visit megaphone.fm/adchoices

Okay, here we go. Here we go. Oh, the red dot is up. I mean, we are ready. Let's go. You ready? I was born ready. Welcome to the Advisory Opinions Podcast.

I'm David French with Sarah Isger, and we've got a long list of things to cover. We're going to update the classified documents weirdness. We're going to talk about the Georgia grand jury update. This is the special grand jury convened to investigate potential election crimes surrounding the 2020 Georgia presidential election. We have thoughts on a senior FBI official arrested for taking bribes from an oligarch. Yikes.

We've got a really interesting wrongful detention case to talk about. Poor guy involved in this thing. We're also going to talk if we've got time about the Florida Advanced Placement course, African American Studies course, controversy. And then we're going to end if we've got time with the latest at Hamlin College, University, whatever it is, but I know it's pronounced Hamlin, which is where a professor was fired after showing an image of Muhammad painted by a Muslim in medieval times. We've talked a bit about this case and there have been some developments. But Sarah, do you want to start us off by talking about Mike Pence? Oh, Jimmy Carter. Jimmy Carter found some

classified documents. What the heck? Look, let's start with the good news. We now have confirmation from H.W. Bush, Clinton, W. and Obama's team. They do not have any classified documents in their possession at their residences, not in the garage, not on the desk, not with their Celine Dion photos, not in the backseat of the Corvette. No. So that's the good news. The bad news, look, the Carter thing, I'm a little, the details are a little unclear. At some point, Jimmy Carter not recently found some classified documents and returned them to the National Archives.

This sounds like not even worth digging that far into. The joke, of course, for everyone is Jimmy Carter found classified documents in his heart. But look, here's the big news is that Mike Pence asked lawyers on his team to search his residence. Those lawyers then called the National Archives. I mean, it's all going to sound so familiar, right? Called the National Archives, who called the Department of Justice, searched the residence consensually, and, in fact, find documents with classified markings at Pence's residence. Donald Trump then puts out a statement that I pretty much agree with, which is unusual. And he said, look, Mike Pence has never done anything intentionally wrong in his whole life.

And David, I think it's relevant, actually, because we've had the Trump situation. And I think it's very easy to believe that a person like Donald Trump just didn't care. Right. These documents belong to him. And who cares what they say at the top? Who cares about America's national security? They're mine. And that Joe Biden is sloppy. The rules don't really need to apply to him

because he's a good guy. But when you add in the Pence thing to it, and I tend to agree that Mike Pence has never broken a rule intentionally in his life, then we start looking at a much different problem and it's not a legal one. I tend to agree that Mike Pence has never broken a rule intentionally in his life. Then we start looking at a much different problem, and it's not a legal one. It really is, how does this keep happening? Why aren't there systems in place to better inform these leaders, but also better protect these leaders, frankly,

from themselves, perhaps. And so there are now a lot of legal questions. What do you do with the fact that Mike Pence, on the front end here, his case is now identical to Joe Biden's case a la November 2nd. Right. Now, a special counsel wasn't appointed. There wasn't an investigation

until documents continued to be found in new places. Right. And in that sense, look, I mean, the Pence team executed this flawlessly. They had DOJ come in and search themselves right away while Meg Pence was at the March for Life, they put out full and complete information to the public in what was that? 48 hours? 72 hours? Yeah. Now, David, if I can just have a little moment, and I think the person I'm about to talk

about will find this funny. It is worth noting that Mike Pence's main communications guy is my former deputy. So let's just say he's been well-trained. Excellent. Yeah. So, uh, that being said, at some point we now have, I think, reasonable and unreasonable complaints about disparate treatment between three different cases. And at the end of the day, David, I don't know that they are legally distinct enough to treat them all that differently. Interesting. Interesting. Interesting. Well, the first thing to say about that is maybe, maybe you're right. There's a ton and, you know, there's just so much we don't know. It seems to me that the way Pence has handled things is substantially different, at least, you know, from a distance, it seems, emphasis on the word seems,

that the way Pence has handled things is substantially different than the way the Biden team handled things. And then the way the Biden team handled things seems different from the way the Trump team handled things. So politically and communications-wise, obviously there are huge differences between what the Biden team did and what the Trump team handled things? So politically and communications wise, obviously there are huge differences

between what the Biden team did and what the Pence team did. But let's just look at those. Legally, when you're talking about removal and retention of classified documents and you have that knowledge prong, the Biden team searched, found something, called the National Archives, who called the FBI.

They then keep searching over two months. They find some more stuff. Then they find some more stuff. Then they ask the Department of Justice to come do their own search. Right. The Pence timeline is obviously totally collapsed. Yeah.

We're talking about one week instead of two plus months. Right. Legally, you maybe find that relevant on the knowledge prong? The only thing I might find relevant on the knowledge prong is finding documents in multiple locations

and multiple places as opposed to, again, finding some documents of undetermined. There's so much we don't know. It's just absurd. And we're maybe a week away from hearing a press release saying additional documents have been located. So what can you even say at this point?

But it would seem to me that you have a potential larger problem finding documents in multiple places across multiple time periods, reflecting long-term mishandling problems dating back to senatorial days, perhaps, versus whatever we know about Pence so far. It is much easier to believe that the Pence documents were packed in boxes that have not been opened since they were packed. Right. So again, if I'm, if I'm, if all I know is a set of documents was found in an unopened box from vice president days is one situation. And all I know about the other situation is multiple caches of documents from multiple periods of a politician's life are found in multiple places. One signals perhaps a

longer term problem, perhaps a problem of policy or practice stretching over a longer period of time than the other. But then again, this is like pressing pause. We're dropping into the first third of a movie, it feels like, and trying to project the ending. It sure puts Garland in a pickle. It really does. It really does. It really does.

Uh, I agree with you. I agree with you that each of these are sort of stair steps. Um, but I mean, just well done to the Pence team, at least so far doing this all correctly, both legally and transparency wise and looking above board and all of that. Finally, someone got it right. Part of me wonders what it was like to be in the heart of the person

on the Pence team who discovered documents and he's looking at the documents and he's glancing at the shredder and he's looking at the documents and he's glancing at the shredder and he's looking at the documents and he's glancing at the shredder good on you whoever you are for not looking that would have been tempting oh i have to assume that there were just multiple people in the room and once there's multiple people in the room you don't mess around with conspiracies yeah um but boy if it would just just me in the room i know my boss didn't do anything wrong the shredders right there or the fireplace it's cold in indiana in the winter i hear

and just all of this mess and you're like oh god what if i just slipped but then then you know you stumble, it falls into the fireplace and then a pedestrian walking along the road gets a corner of a burnt document. I know. And then it's, then that's just textbook obstruction. I know. I'm not saying I do it. I'm saying I would dream about it. I do it, I'm saying I would dream about it. But doesn't this get to a larger problem? Don't we need to now, like whether it's Joe Biden or Merrick Garland, someone in the executive branch of the U.S. government needs to have a comprehensive review of how this can happen and what steps can be taken to prevent it.

Yes, exactly. And, you know, the next incoming administration should have protocols for this. These are exactly the steps with sign-off on reviewing all the documents that are being sent away from the Oval Office or from the Vice President's office upon the conclusion of the presidency

that, yeah, it's a system crying out for reform. And I keep thinking about last podcast when Rod Rosenstein talked about, expanded my mind a little bit, don't necessarily think of this as military versus civilian, think of this military-civilian political class, which is not an excuse for the political class. He's just describing the difference in the political class. And again, not everyone in the political class, as you noted, Sarah, so far, we've got multiple, we have multiple past presidents where there's no indication as of yet that they've mishandled classified information and

seem to have double checked that. So it's not everybody. And by the way, speaking of people who are like sleeping much better tonight, each of the representatives of those past presidents who have now confirmed that they have now done a separate search and there is nothing. now done a separate search and there is nothing. And this gets, I mean, we said this earlier, right? Just the type of people that Barack Obama and George W. Bush are, I'm not surprised at all. However, Bill Clinton's not known for having his, you know, shoelaces perfectly tied is one way to put it. And so I do wonder what has changed in the transition or in the treatment of classified documents. I mean, the proliferation of classified documents. I don't, I don't know. I mean, the biggest change I can think of is the move to the internet and having

classified computer systems. You could receive classified briefings on iPad, for instance, during my time. But that should actually make this problem less bad. Exactly. So that doesn't work. I don't know. Yeah, yeah. I mean, I, it was rare. I would, I would hold classified paper documents in my hand and have done that many times, but it was less common than viewing classified information on a screen. That was the predominant way that I viewed classified information. And so the over classification issue wasn't as important because whether I had 100 megabytes or two gigabytes of it on my thumb drive, my classified thumb drive, it was still carrying just one classified thumb drive. It didn't change the size of the thumb

drive or the ease of handling or mishandling that thumb drive. So in some ways, yeah, I agree with you that the fact that everything is now or most most things are now, off-paper format in digits should make it easier, should make it easier. But apparently, well, again, there's so much we don't know. So this could have been, the Pence stuff, there could have been a casualty of a Trump administration internal chaos. I mean, we just, there's just so much we don't know. But the one thing I would say, Sarah,

you highlighted Bill Clinton. I was just wondering how many times in life has there been a headline that said something along the lines of investigation clears Clinton? I will say that perhaps the situation with his wife from a few years ago might have already cleared out all of the documents. It's true. It's very true. Although I could easily imagine a Bill Clinton all alone finding a classified documents and not even looking back at them after he looked at the shredder. and not even looking back at them after he looked at the shredder. But, you know, we don't know. So this is just having fun. Should we move on to update on the Georgia grand jury?

Yes, please. Yes. So there was a hearing on yesterday about the fate of the special grand jury report. And now this was the report of, this was the special grand jury that was special purpose grand jury, to be precise, that was convened to investigate 2020 election interference in Georgia.

It has come forward with a report. Now this special purpose grand jury does not indict. It issues reports. And so you have the DA for Fulton County then has come into court to talk about, that's Fannie Willis is the DA for Fulton County. the report is to be released. And so this is something news organizations want the report out now. They wanted it out yesterday. And so there were court arguments about the release of the report. And so there isn't a lot of news there because there was no decision, but there was some interesting hint, there were interesting hints that really big news might be coming. So I got a report from somebody who'd seen all of the proceeding. A few bullet points here.

One, Willis told the court that charging decisions are imminent. Now, nobody knows what imminent means. My general view of imminent, when I hear something like that from a prosecutor, is I think imminent means weeks, not necessarily days, but really soon. In legal... I just think of with all deliberate speed from Brown v. Board of Education that took 10 years. So somewhere in between with all deliberate speed and right now is imminent. Is imminent. I'm going to say weeks, not months, but we'll see.

So then the DA's office opposed release of the report until after it makes its charging decisions on grounds that release of the report could complicate what remains a pending criminal investigation. The office does not oppose ultimate release of the grand jury report after it's done with its charging decisions. The judge seemed to indicate that the statutes give him very little latitude

and he must release. He listened to the DA's arguments and those of news organizations and took it under advisement and said he plans to write an opinion explaining his thinking. And the expectation is that he would order the report's release, perhaps with some small delay or other accommodation

to protect the DA's policy concerns about disclosure. Oh, come on. That's the judge saying, you've got as much time as it takes me to write this opinion. Yes. Yes. And it takes me about four days. Yes. Which makes me change the definition of imminent to however long it takes the judge to

write the opinion. So the bottom line from the individual who watched this says, I think things are going to move pretty fast. I concur with this, that I think look for some charging decisions. Again, I'm going to say weeks. You're now thinking within a week, Sarah? I think end of the week. I think Friday you could see something. Well.

I mean, that feels really fast, but if the DA's office is actually concerned and I knew that I had the amount of time it takes for this judge to write down his thoughts, I'd have it ready to go on Friday. Yes. Well, won't that just ruin our Fridays? Did you have plans for Friday? I do, in fact, have plans for Friday. I'm going to be hiking at Fall Creek Falls State Park in East Tennessee or East Central Tennessee. Fall Creek Fall? How many falls are in that? What? I don't know, but it's Fall Creek Falls.

So I think it is. Yeah, I think there's one big fall. So wait, it's okay. There's one big falls. It's been years since I've been to Fall Creek Falls, Sarah. But I do remember distinctly one big falls and some smaller falls. It's been years since I've been to Fall Creek Falls, Sarah. But I do remember distinctly one big falls and some smaller falls as well. But isn't one falls called a falls and multiple falls are also called falls? David, haven't we learned long ago that this is not a grammar or pronunciation podcast? But it is in the sense that we ask and we get answers it's embarrassing for us both of us um i don't even want at this point it's so soon i don't even want to speculate if trump is going

to be in the list um of uh indictment list i'm just not even going to speculate as to who is but the main reason i wanted to highlight this for the podcast is to alert everyone. It's coming. It's coming. And when it does, we're going to have a lot to say about it. So we'll probably even do an emergency pod. Not if I'm at Fall Creek Falls. Well, now I know where to find you.

It's true. It's true. So let's put a pin in that. We have to put a pin in the whole classified information mess because we're really at the onset of it with Pence and Biden. We're maybe nearing the denouement with or the climax or the denouement, whatever, with Trump. But we have to put a pin in those. And then here's another one to talk about. Pretty shocking, pretty jolting moment and really significant moment, Sarah, with the arrest of the head of counterintelligence, the FBI counterintelligence in the Southern District of New York for allegedly taking $225,000

from a Russian oligarch. This is big. It's far bigger than the news, than the way in which the news rippled across the internet. Talk about this. What happened? Why is this so important? Yeah.

If we judged news behind a veil of ignorance on just the facts and without any thought of the news cycle and what fits into what narrative and what culture war and whatever else, this is the biggest news of the last several years, frankly, right up there with the biggest spy scandals

in US history, Aldrich Ames, Robert Hansen. This is the former head of counterintelligence at the Southern District of New York being indicted for taking money from helping Russian oligarch that he had been investigating, and a very famous Russian oligarch. Like when we say Russian oligarch, this is the only guy anyone can name. Um, it's Oleg Deripaska.

And I mean, this was, by the way, if you've heard that name before, he was one of, um, Manafort's clients also. So like, this guy's all over the place. But so Southern District of New York, which is often called the Sovereign District of New York, because they're basically their own Department of Justice. They think they are at least. But all like side eye aside, they are the flagship U.S. Attorney's Office in the country. They do take the biggest cases.

They, you know, when you think about assistant U.S. Attorney's Office in the country. They do take the biggest cases. They, you know, when you think about assistant U.S. attorneys and someone's like, well, I was an AUSA at SDNY, you know that they had the very best training under the very best federal prosecutors. And, you know, my hunting dog analogy continued, like, these are the best hunting dogs in the country. And the idea that the head of counterintelligence, now, he is charged with some actions while he was still

the head of counterintelligence at SDNY. He's charged with some things related to right after he leaves. He left in 2018 or so. And also, again, worth saying,

I'm not going to say allegedly before every single thing I say here, but these are only allegations in an indictment. There hasn't even been a preliminary hearing at this point. He also, it's worth noting, is represented by Seth DeSharme, who was the pay dag after I left under Bill Barr. But, you know, pay dags don't mess around with this stuff either.

They care as much as any other humans about the nation's security. And so he's gotten a top flight defense lawyer who I expect will make top flight arguments about how this happened. But I don't know, there's $225,000 cash payment that goes through some pretty odd sources in order to get to this guy. You know, generally when I'm taking my money on the up and up, I just take it in a check.

But it's really bad and it's bad for a few reasons. Obviously, it's bad in terms of our work against Russia that they were able to buy off, again, the head of counterintelligence that was charged with investigating this exact guy. Yeah. And basically, this guy wanted to get around sanctions and he wanted one of his rival oligarchs investigated. And that's at least, again, in the charging document. So that's really bad, just from that Russia as our adversary standpoint. It's bad for all of our adversaries and our friends to see this level of corruption in U.S. national security and criminal justice enforcement in the United States.

But also, David, it's so bad for the FBI and for the Department of Justice. This is coming at a time where they're under incredible scrutiny. And I think it is bad. It is also worth a shout out that you know who indicted him. You know who did the investigation. You know who's going to run this trial. justice, the FBI. And so they knew how bad this would be when they unsealed the charges and what this would look like and good for them for doing it anyway and cleaning house and going after one of their own. Yeah. You know, we talked about this on Dispatch Live last night and, you know, the question is why is this not sort of bigger news? Why is this not something that people are going to be talking, you know, water cooler talk and And, you know, there's a couple of reasons for this. And one of them is this just doesn't code in a partisan way. You know, if you had, say, an RNC or DNC fundraiser arrested for taking large amounts of money from a Russian oligarch, it would be much bigger news even though it was of much smaller consequence in part because it would be a club

that one side can use to beat the other one with. This is something that doesn't code in sort of any kind of partisan way. Instead, it just is a depressing, and this is the second thing about it. So you can't, there's no sort of glee. Ah, look, we can show how bad their Democrats are, the Republicans are. Well, there's been a little glee from the right, frankly, about the FBI. Yeah, true. Fair. But the other thing is,

it is extremely depressing. You know, it reminds me of this, you know, Hanson and Ames and I'm old enough to remember both of them Sarah so by the way like coldest act about Sarah's life I very much remember Hanson because he had gone to Northwestern and I was taking Russian as my language at Northwestern and applied to a summer program at the CIA and got rejected and I was like sort of convinced that it is it was because they had like just arrested Robert Hanson you know a few months earlier and I was like, sort of convinced that it is, it was because they had like just arrested Robert Hanson, you know, a few months earlier. And I was like, oh, come on, dude, you're ruining my career. But remember that was, as the Department of Justice described it, the worst intelligence disaster in U.S. history. He had been on the GRU payroll since 1979. payroll since 1979. Now, there is a big difference in terms of the threat to U.S. national security.

This is not, he's not being charged with treason, for instance. Right. The charges are about helping someone evade sanctions, money laundering. This is a much smaller, in that sense, case. this is a much smaller in that sense case, but the breach of trust, as you say, is. Yeah. You know, if you go to the Aldrich Ames and the Robert Hansen Wikipedia pages, they're instructive. It says Ames was known to have compromised more highly classified CIA assets than any other officer

until Robert Hansen, who was arrested seven years later in 2001. And Hansen is currently serving 15 consecutive life sentences without parole. That's how serious that was. And I don't think the McGonigal case, so far as we know, again, let's put a pin in with the so far as we know, it's going to be that consequential. But it is extremely consequential nonetheless. And I think we should and we will pay close attention to this case going forward. We should not presume that the indictment and revelations of alleged wrongdoing in the indictment are the full story. And we will know more as time goes by. So yeah, this is worth,

another thing worth putting a pin in to watch and monitor how it unfolds and what kind of national security consequences there are. And is this a case where McGonigal was super on the up and up, except only corrupt with this one dude for $225,000? Or is there more? Again, we don't know, but this is very consequential.

And Sarah, I'm really glad you highlighted how our allies think of us. Because our intelligence operations depend on close cooperation in sharing of secrets, particularly sort of within that Five Eyes coalition of, I believe, US, Canada, Britain, Australia, New Zealand, where there's an enormous amount of intel sharing.

And in a time of heightened risk of international conflict, with international conflict actually occurring in Eastern Europe right now, this has to shake people. It has to shake confidence in our system. You know what? The last six years haven't been great for our relationship with our allies in the national security context. Because another problem in a lot of this during the Trump years was Trump sort of announcing he was going to declassify random information. There wasn't necessarily always hours to share. And just all of those conversations that were going on, I attended Five Eyes meetings, by the way, fun times.

There was one in Malta. One in Malta. Malta not being a member of the Five Eyes meetings, by the way, fun times. There was one in Malta. One in Malta. Malta not being a member of the Five Eyes, but nevertheless. So tell me about Malta. I've never been, but it's an incredibly significant spot on the globe. Like if you read any military history, like you're talking about World War II, Malta was key. Napoleonic Wars, and the French Revolutionary Wars, Malta was important. The Ottoman Empire attempted to invade Malta.

I mean, Malta is- I think I was expecting something like Casablanca or Monaco, maybe like a mix between the two. Malta is a rock. It's a small rock. I don't know the exact size of Malta, but very much felt like we could drive the rock pretty quickly. Yeah. It was rocky and it was a rock. Which means it's an unsinkable aircraft carrier in the middle of the Mediterranean. Unless you're that poor guy in Congress

who thinks that Guam can tip over, but yeah. Yeah, right, right, exactly. Okay, so we're moving, Sarah. We are moving through our multiple topics here. And Adam kind of, he gave us a side eye on the start of our podcast, off to a smashing start, he wrote. But I think we are.

I think he meant it sincerely, yeah. I think that's right. Okay, so we have a case, Sarah, we've been talking about legal issues that are nowhere close to a resolution. Here we have a case that may close to a resolution. Here we have a case that may be at its resolution. And this is a 11th Circuit case about wrongful detention.

And this case is really interesting to me. And the outcome, I think, might be really surprising to folks. Let me just tell you a little bit about this poor guy. David Sosa. David Sosa. Okay, so I'm going to read a little bit of this decision to give you the flavor for David Sosa's plight, like to understand what he's been through. The Martin County Sheriff's Department twice has arrested David Sosa

based on an arrest warrant for a different man with the same name. In 2014, a deputy sheriff stopped Sosa, a resident of Martin County, Florida, for a traffic violation. The deputy checked Sosa's driver's license using the sheriff's computer system and discovered a warrant issued 22 years earlier

in Harris County, Texas, for another man named David Sosa. Although Sosa protested during the traffic stop that the wanted man's date of birth, height, weight, social security number, and tattoo information did not match his own identifiers, deputies arrested, detained, and fingerprinted Sosa. After three hours, the sheriff's department confirmed his identity and released him. Four years later, on Friday, April 20th, 2018, another deputy sheriff checked Sosa's driver's license during a traffic stop and found the same Texas warrant. So here we go again. Again, Sosa objected that the identifiers listed on the warrant did not describe him. Sosa also told the deputies

about the misidentification in 2014. Deputies arrested Sosa and brought him to the Martin County Jail where, despite Sosa's continued insistence to deputies and jailers that he was not the wanted man, his detention lasted three days over a weekend. On Monday, April 23rd, 2018, Sosa was fingerprinted and the Sheriff's Department released him after the fingerprints confirmed that the warrant was for a different man. So Sosa sues.

And Sarah, he wins, right? Wrongful detention, three whole days over a weekend of telling what could have happened to him behind the doors of the jail. He sues, he wins, right? Justice is done. All I could think about was how angry I would be if here I was about to enjoy my weekend

and my whole weekend gets taken away in this Kafka-esque, not even nightmare, right? It's just absurdity because you have a common name. I mean, David Sosa, like, does this happen to John Smith? They just get thrown in jail for random weekends because some other old John Smith who lives five states away committed a crime two decades ago. I mean, this system doesn't make any sense. And the fact that a fingerprint would have solved the problem within 90 seconds. And instead, we're three days later.

It is, again, you just can't help but put yourself. I mean, my last name's Isger. This isn't happening to me. There is one other Sarah Isger in the country. I'm glad she hasn't committed any crimes that I'm aware of. But I've only got her to worry about, you know? Yeah. If you meet the other Isgurs, by the way,

chances are that they are related to me. Like I, not necessarily like siblings, but I probably shouldn't marry them. You know what I mean? Right, right. Well, as listeners might know by the tone of my voice, he lost. Oh yeah, he lost.

For sure he lost. He lost. He lost. So the question essentially turned on, and this is the way the majority described it, is that their Supreme Court precedent, and the claim here was over detention. Because you don't have a constitutional right

not to be mistakenly detained. You do have a constitutional right not to be over-detained on the basis of a mistake. And so the question, this is the way that the court majority, this was an en banc decision, says the over-detention claim

based on its consideration, the Supreme Court has defined the considerations on two criteria, the validity of the arrest warrant and the length of the detention. And that if the arrest warrant was valid and the detention was just a period of days, and in the case that they're talking about,

it was for three days from a Saturday to a Tuesday, that that was talking about, it was for three days from a Saturday to a Tuesday, that that was not unreasonable, an unreasonable seizure pursuant to the Fourth Amendment. So the court very, in a very really basic opinion, said the underlying search warrant was appropriate, was valid of this other David Sosa. The correct David Sosa was, or the, let me restart that. The underlying search arrest warrant for the correct David Sosa was valid.

The detention of the wrong David Sosa was only for a very similar period of time as this court had decided in this case called Baker. And so therefore that's it. That's it. What are we going to do about it? And the evolution of technology from when the Baker decision was decided in the 1970s to our ability to do sort of instant checks now in the 2020s wasn't really relevant. But David. Yes. Sorry. Sorry. I just, I'm already freaking out. The Baker case from 1979 and even, you know, the smartest judges on the 11th circuit concurred in

this, even where they want Baker overturned. And we'll get to that in a minute. Right. The Baker decision to me isn't exactly on point. So let me tell you about Baker. Yeah, please. Thank you. Okay. Leonard procured a driver's license that had his picture, but all of the stuff for his brother, Lenny. Leonard, masquerading as Lenny, was arrested on narcotics charges, booked as Lenny, and released on bail as Lenny. Eventually, Leonard violated the terms of his bond because an arrest warrant was soon issued for Lenny. Lenny then ran a red light. The police checked his driver's license, discovered the warrant, and arrested him despite his protest

of mistaken identity. The police took custody of Lenny for a few days. When officials compared his appearance against the file photograph of the wanted man, they recognized the error and they released him. He filed a civil rights action. Okay, but this is pretty different. Leonard had a fake driver's license that had everything that was Lenny and he pretended to be Lenny.

And it's his brother. That's not our David Sosa situation here. Exactly. And that's what I was wanting to contest here. The 11th Circuit says, look, valid arrest warrant, short period of time. I want to talk about the valid arrest warrant part for a minute. Right.

There was never a valid arrest warrant for david sosa this david sosa like correct unlike the lenny situation there was a valid arrest warrant for lenny now it turned out that leonard was pretending to be lenny okay but the arrest warrant was for lenny right here the arrest warrant was for a different human whose name also was David Sosa. Yes. So there was never a valid arrest warrant. And then I do think the difference between the 1970s and the 2020s

should come into play when doing a reasonableness analysis. On what over detention is, right. Exactly. Exactly. And then we get to the last thing, a reasonableness analysis. On what over detention is, right. Exactly, exactly. And then we get to the last thing, which is this continued tendency. And look, I'm not blaming the 11th Circuit for this because the buck ultimately stops with the Supreme Court

as one of the concurrences noted, this continued tendency to sort of view the imposition of a dollar amount of liability as some sort of affront to the police. When you had an affront to the citizen here of spending three days in jail completely wrongfully. And it's somehow a, you know, we have to protect the police in this

situation. What on earth is going on? I would love to hear from the police how they thought that a guy with a different birthday, different tattoos, like everything different, like how were they so convinced that they had the right guy a second time after they had him wrong the first time? What? What is their argument for that? Yeah. Yeah. It's a really extraordinary case.

So we have this really interesting concurrence. Judge Jordan joined by Wilson and Jill Pryor. Jordan, joined by Wilson and Jill Pryor. And it contains this portion that they're talking about that they concur in the judgment affirming the dismissal of the over detention claim. And says, I nevertheless concur in the judgment affirming dismissal of Mr. Sosa's over detention claim. The Supreme Court's recent qualified immunity decisions required that the facts of prior cases be very, very close to the ones at hand to give officers reasonable notice of what is prohibited. Although the inquiry does not, at least not yet,

demand a case directly on point, it requires that existing precedent place the statutory or constitutional question beyond debate. If the only relevant case here was Cannon, this is another case that they've referred to, then maybe a reasonable police officer would know that Mr. Sosa's continued detention was unlawful. But reading Cannon in conjunction with Baker, this is the 1979 case we talked about,

as we must, makes the issue less clear. Mr. Sosa was detained for three days, the same time period at issue in Baker, while Cannon involved a detention of seven days. Those two cases taken together would not have provided reasonable officers adequate notice that they're violating Mr. Sosa's substantive due process rights by not releasing him, at least not beyond the debate, as the Supreme Court's decisions require. In other words, under the legal fiction created by qualified immunity, a reasonable police officer who read these cases would not know for certain that detaining Mr. Sosa for three days was unlawful. My concurrence is a reluctant one because the Supreme Court's governing and judicially created, I like that was in a

paren, governing and judicially created qualified immunity jurisprudence is far removed from the principles existing in the early 1870s when the enacted what is now 42 U.S.C. Section 1983. Sarah, this is what we've talked about before. This is one of those concurrences where the judges are saying, Supreme Court, I'm following your precedent, but it's wrong. And so please change it. I think that this entire, how many pages? 89 pages is really the 11th circuit at its best and why the 11th circuit has jumped enormously in terms of being a feeder

circuit. And a feeder circuit means that sort of a high number of your circuit clerks go on to clerk at the Supreme Court is usually a sign of having very good judges on your court that can then attract the top flight talent and then train them, and then they go to the Supreme Court. This is just a great example of why. So the prior chief judge now, William Pryor, wrote the majority opinion. It's just 13 pages.

Because really what all the majority opinion says is we have to follow this precedent and everyone or the majority, all but one judge agree. And then the concurrences get fun. So first of all, you have the Kevin Newsom concurrence. We've talked about Judge Newsom before. I mean, he is at this point, I think more than any other circuit judge, I think,

the law professor of the bench right now. Really thinking through interesting doctrinal issues, writing it in law review-y ways. This concurrence, no different, joined, I will note, by Judge Pryor. Right. So, you know, he's like, look, we have to do this.

But also, they want the Supreme Court to overturn that precedent. But more, he's also noting, like, substantive due process. Can we get past this? So let me read you a piece. Oh, and first of all, sorry, Judge Newsom,

I guess I took your Kafka thing. It's in the first line of his. He in fact quotes Kafka though, unlike me. David Sosa must have felt like he had been dropped into a Kafka novel for, quote, without having done anything truly wrong, he was arrested. But then he's going to go on and talk about substantive due process. Substantive due process is a slippery, shape-shifting doctrine. It can take on any of a number of different forms. In what is, I suppose, its most conventional instantiation, it's the method by which the Supreme Court has gradually incorporated, in quotes, most of the substantive protections of the Bill of Rights against the state

through the 14th Amendment's Due Process Clause. Some observers, including me, have criticized the court's reliance on substantive due process, even for that limited purpose, and have urged it to refocus its attention on the long-lost Privileges or Immunities Clause. More controversially, substantive due process has been deployed as a means of protecting certain unenumerated interests, like, say, the sanctity of the family that are deemed to be deeply rooted in this nation's history and tradition, or even more obscurely, implicit in the concept of ordered liberty. As I've explained elsewhere, resort to these sort of vague shibboleths

is hardly a recipe for principled decision-making. And he continues to say, look, especially in this case, we have the Fourth Amendment. What are we even talking about here? We don't need this vague, foreboding cloud in the sky of substantive due process. We have actual substance in the Bill of Rights. You have the 14th Amendment. You have the Due Process Clause. You have the Fourth Amendment. I mean, there's plenty in there. So he has a really good takedown of substantive due process for any conservative law students out there who want to read that in a concise, well-done manner, or liberal law students who want to understand the beef. Although I feel like substantive due process has been largely abandoned by both sides of the spectrum

in the last 15 years. It was the big fight in the odds. Yeah, you know, I think the future of substantive due process case law is grim. If you're seeking to expand substantive due process precedent, the real question is, are we going to have a situation where the substantive due process precedent. The real question is, are we going to have a situation

where the substantive due process case law that exists is revisited under, as the judge points out here, privileges or immunities, which was, in my view, always the better framework for deciding substantive rights. Because as the judge points out, the word after do is process. This is always just by the plain language of the 14th Amendment, you're talking about process.

So adding the substantive word there is changing the text. It's changing the meaning. Whereas privileges or immunities is referring to substantive rights. It's by its term referring to, it necessarily implies substantive rights. And so my guess, Sarah, is you might see some future cases as Justice Thomas has urged, decided under privileges or immunities analysis, and then maybe some of these substantive due process rights being dragooned into privileges or immunities later on.

But it's more than just an academic dispute because it does really matter for future consideration. I'm not so sure that the court's going to run back and overturn a bunch of its prior substantive due process case law without pulling those same liberties in through a privileges or immunities analysis. And of course, worth noting, as Judge Newsom does, substantive due process has, let's just say, a checkered past.

At least in the Supreme Court, substantive due process doctrine traces its roots to the fateful and repugnant decision in Dred Scott v. Sanford, in which the court somehow teased, but of the terms of the Fifth Amendment's due process clause, a white man's right to own a black man. And things didn't get much better from there. This is, again, still Judge Newsom. A substantive due process provided the quicksand on which the court later built the oft-criticized and since overruled decisions

in Lochner and Roe v. Wade. Notably, even defenders of those decisions, including Roe, have confessed a sense of dread or embarrassment or both that they share a doctrinal foundation with Dred Scott,

citing Lawrence Tribe. And so again, he says, Sosa complains in essence, and not without some justification, that he was arrested for a crime that he didn't commit and was then detained in jail for an unfairly long time. As it turns out, the Constitution addresses those types of complaints.

The Fourth Amendment, of course, prohibits unreasonable seizures and more specifically requires that warrants be issued only on a showing of probable cause. The Sixth Amendment guarantees every accused the right to a speedy trial. It's even possible that a complaint like Sosa's could, in extreme circumstances, implicate the Eighth Amendment, which prohibits excessive bail. Now, to be sure, as matters currently stand, none of those expressed textual guarantees provide Sosa a ready remedy. And he goes through why. But yeah, a great concurrence, worth the read.

Yeah, it is a really interesting case. I'm glad you highlighted it and sent it in. And it is also interesting to me, the more you dive into criminal procedure law, the more you dive into the constitutional law surrounding detention, searches, et cetera, the constitutional law surrounding detention, searches, et cetera, we really do give a lot of leeway to law enforcement. A lot of this is a product of the war on drugs. And we've talked about this as the drug war distortion has impacted constitutional case law in a really profound way.

I don't think that's necessarily in play here, but as a general matter, it has distorted case law in a pretty profound way. And qualified immunity has a lot of tentacles to it. And a lot of judges are now sort of banging on the door of the Supreme Court to say, do something about this. So. Sir petition expected. Yes, indeed. Yes, indeed. 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.

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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 all right should we talk ap african-american history yes set it up because i'm so curious for your thoughts on this yeah so essentially what has happened is that um the state of florida has rejected ap african-american studies curriculum um now it is it initially did so in a very short sort of statement saying it violates Florida law. Florida has one of these sort of anti-CRT provisions.

Didn't really state how it violated Florida law. Later on, they put out another statement saying, for example, and there's a segment on reparations that the course contains only arguments for reparations. It doesn't contain any arguments against reparations, but there really wasn't a whole lot known about the curriculum itself. So essentially Florida says to the college board, which does advanced placement courses, go back to the drawing board. This course cannot be taught here in Florida. And so a lot of people got really curious about what the course so i don't know uh there you know there might be tweaks to it since i've seen but

this matches some of the other pdfs and excerpts that i've seen and it's not the point is this they've been trying to keep it secret they have not released it they have not told anyone what's in this curriculum they being the college board this is all leaked yeah so this is a leak. So number one, transparency. Like I, now I do understand that there is a too many cooks in the kitchen kind of phenomenon that can occur. Um, but the idea that it's, you're going to have trouble obtaining a copy of a curriculum that is nearly finalized, that is directly relevant to a public dispute. No, more transparency, please. Okay, so- And the College Board, unlike,

College Board is totally outside of our educational system as we designed it in our accountable representative democracy. Right. You know, like these aren't school board members that are elected. These aren't state legislators who are elected. This is just a private organization that has this monopoly because they do AP tests. Exactly.

And so a few things just to get out of the way, prior. One, more transparency would be helpful here. And I think that, to me, that's common sense. Now, again, I understand the too many cooks problem, but having something unfolding where when there's a public controversy, you can know what's in the actual curriculum would be helpful. Number two, the state is under no obligation to take

whatever the AP, whatever the college board gives it and just say, you're in charge. Well, yeah, you're in charge of administering your private test, but you're not in charge of state curriculum. The state is in charge of state curriculum. And in fact, something a little like this happened, The state is in charge of state curriculum. And in fact, something a little like this happened, what, a decade ago now with the U.S. history curriculum. Same thing. It wasn't released.

And this is a very rough understanding of it. Then after this pilot program, after sort of no transparency, then when people saw it, they were like, well, wait, no, this is not a reasonable curriculum. But by that point, the textbooks were all printed. And so they made changes to it. But the changes they were able to make were frankly, on the margins and pretty superficial by my understanding, and states were kind of left to take it or leave it. I think every state took the deal. But the whole point is if

people had been able to look at an earlier point, then maybe the textbooks wouldn't have already been printed. And you know, a whole bunch of other trains left the station where the college board can say oh sorry but like oh we can't change that anymore well then you have to let people in the process earlier if you're going to complain about how you can't change it later right exactly so those two primary those two preliminary points, number one, more transparency. Number two, you don't have to eat whatever the college board feeds you, I think should be in the back of your mind here. So then the question becomes really, certainly it's not de facto, it's not per se improper for Florida to reject the curriculum. And it's not per se proper for the curriculum to be so secretive. So those are two sort of backgrounds to it. Now, the real beef, so what is the beef here? And as near as I

can tell, it really circles around unit four. So there are multiple units of this curriculum, units of this curriculum. And much of it is historical. So you're going to be talking about the transatlantic slave trade. You're going to talk about the Haitian revolution. You're going to talk about the underground railroad. You're going to talk about the civil rights movement. You're going to talk about Jim Crow. I mean, all of these sort of, you know, the wave of lynching across the South, efforts to reunite black families after the Civil War, none of that seems to be controversial. What's controversial is when you're getting into sort of the contemporary movements. The movements, I'm not going to say in the lifetime of, you know, in our lifetime, I'm going to say much more recent. So, you know, a lot of Americans are alive during Jim Crow.

Now, the Jim Crow portions are not controversial. What's controversial, at least it seems to be, the discussion of modern intellectual movements and modern controversies. So this is when you're going to get into things like African-Americans in the U.S. occupation of Haiti. You're going to talk about the NAACP, SCLC, the more modern civil rights organizations. You're going to talk about the Black Power Movement

and the Black Panther Movement. And all of that still doesn't seem to be that controversial until you get into Black Feminist Movement, the history and meta-language of race, intersectionality and activism, Black Feminist literary thought, reparations, Black queer studies. And I think the question here is, feminist literary thought, reparations, black queer studies.

And I think the question here is, or the controversy is, A, can you teach about these things? B, do you teach of these things from a position not of, do these movements exist, but advocating for these movements. And if you're going to talk about a contemporary contentious issue, must you include when you're educating people about the movement, the arguments against. So in other words, if you're going to teach about the reparations movement,

here's what it is, here's what it believes, here's what it's asking for. Do you have to teach the, do you have to also include readings opposing reparations? If you're going to talk about intersectionality, here's what it is, here's where it came from, here's what it teaches. Should you include arguments against intersectionality? And those are, I think, the core issues and the core controversies. Okay, so top level. I think it's important before you start any of these conversations to ask, what is the purpose of AP exams? What topics should be covered in AP exams?

And I think it's worth saying, I absolutely think that Black history is a very appropriate AP exam topic. And I can't believe it's 2023 before we have this. I mean, European history has been an AP topic for some time. I would much rather ditch European history, frankly, and have several different, I could see three different breakouts of AP classes at minimum. I mean, you have the survey AP US history course. I think there should be a constitutional history of the US AP course for high school students. I think that'd be fabulous. And so then you have this black history course, which is great. What I don't think that you want is AP courses being used as a way to focus on current political debates and pretending that they fit into some larger historical thing. Pretending is the wrong term. But you know,

those are the type of classes that I think should be left to colleges, because it's not the purpose of AP exams. This ain't that topic. but I think that it has been part of the conversation and worth saying upfront. So A, there's that. B, I agree with you that states don't have to eat what's being served to them, and yet they have been, and Florida is really the first state to say no.

I think that is a good thing, whether I agree with Florida or not, because again, I'm deeply uncomfortable with the idea of the college board not having any accountability the way that school boards do. And we can complain about school boards, but like you and I have said many, many times, you want to fix your school board, run for school board, vote for school board, educate yourself on who's running for school board.

We've seen changes in school boards this year for better or worse, but that's accountability. And the college board isn't that. Three, on the actual disagreement at hand. I think this is a transparency problem. I think it is so easily fixed. There are conservative Black voices that I think could easily be included. I don't think they should be a predominant voice in the curriculum because I don't think they should be a predominant voice in the curriculum because I don't think they're a predominant voice in Black history, frankly. But there are also mainstream liberal voices that are not being included that disagree with some of the more extreme voices. So one of the examples, and again, you're right, David, we just don't have everything you would want from a transparency standpoint to talk about this. But if you're going to include a whole bunch of stuff about defund the police,

you should probably include mainstream liberal voices who think that's stupid. Right. Not conservative voices, liberal voices. And I think it just gets really fraught when you're trying to teach high school students about current political debates. And this is something I struggle with all the time, David. And it's something I hope that we will talk about more on the podcast this year, is what are the things that we are talking about now that will be judged by history very differently? And what are the things that we're not talking about now? The history will say, how were you not talking about this in the moment? And I, when I, I spend a lot of time thinking about those two questions.

And, and I think it will be very different than what we sitting here think today. And it's why it's hard to teach students about the Black Lives Matter movement, because we do not have any historical lens by which to teach about that movement. So I don't like teaching about, I mean, my history course, I think went through Watergate. So 30, 25 years before it was being taught. You know, one thing that strikes me, so we're talking mainly about topic four here, which is one fourth of the course. And if you look through topic four, now not everything in topic four is controversial. Black military service and the GI Bill is a really,

that's an important part of history that not very many people know about the way in which black veterans were systematically excluded from the GI Bill, which has a lot of knock-on effects to this day for wealth inequality and things like that. And so not even all of topic four. And then some of it seems like the kind of thing that, you know, people, conservatives would want to have more of, such as faith and the sounds of the civil rights movement. would want to have more of, such as faith and the sounds of the civil rights movement. There's a couple of segments on faith in Black American culture that seem very, very interesting.

But what really stands out to me, Sarah, if you look at this, is this is one fourth of the course and it packs a ton of sort of cutting edge left to sort of far left intellectual thinking on race on hyper complex topics. And it's just touching them one after the other, after the other, after the other. So, okay, I get it from sort of a, should you be basically familiar with some of these things? Sure. But the way it's crafted, part of me wonders, is this a, when you're talking about intersectionality, for instance, there is a big difference between saying Kimberly Crenshaw argues versus Kimberly Crenshaw has demonstrated. So those are two different things. And what you don't know from what I've seen so far is, is this kind of curriculum a Kimberly Crenshaw argues

curriculum or Ta-Nehisi Coates argues curriculum? Or is this a Kimberly Crenshaw demonstrated curriculum or Ta-Nehisi Coates demonstrated, which is a different thing. But David, that's the curriculum. It's also very different than how it's going to be taught in a lot of these classrooms. And if you think that distinction is going to survive into every classroom in America, you got another thing coming. Yeah, right. Of course. So then you have to look at what kind of readings are assigned and what's in the syllabus. And again, it looks an awful lot like on multiple of these topics, what you're seeing is essentially including only positive voices on highly contentious and debatable intellectually ideas and no negative voices on those highly contentious

and debatable ideas. And again, this is an easy fix. It's also not what we're trying to teach students. You're trying to teach them how to grapple. We don't actually... How to phrase this in a nice way. We don't actually care that these high school students can do BC calculus. Not really. What we care about is to show how they are able to grapple with new intellectual concepts, learn how to learn them, and apply that ability of learning to something in college. And so it's not actually that we want them to memorize all of these movements in Black history. What we're trying to do is teach them a way of thinking, a way of learning, and that we think that that will, the reason we score the AP exam is because we think that's helpful for colleges to know how well this person absorbs, learns, grapples with, and can

be a critical thinker on these concepts. So if you're not teaching them critical thinking, you have failed in the number one purpose of the AP exam, which is not simply someone regurgitating facts about whatever the AP exam topic is. And I think one thing that's really important to point out is that this is not, and you said this earlier, but so I want to just put a, I want to boldface this. This is not necessarily a right-left argument type of construct. In other words, where, well, for every sort of left-wing piece of thought, you know, every left-wing intellectual idea,

you're going to have to find some sort of conservative voice on this. No, this paper's over differences within the left as well. I mean, you know, if you're looking at some of these ideas, some of these ideas that are being taught are pretty radical. They're pretty radical. There's no question there. Prison abolition. This is the reading on prison abolition is advancing, a reading advancing prison abolition as if there's no other sort of within the black intellectual tradition or the black political tradition, no real pushback to that. That's not a good education.

Now, again, somebody who's very, very familiar with this might say, well, the stuff that's out in the public is not really fully representative. And then we circle back to, well, that's part of the problem, isn't it? You know, so if the stuff that's out in the public is not fully representative, then get out the information that's more fully representative that could ease concerns. But look, this sort of idea that a state cannot say to the college board, hey, look, when you're including a lot of really radical voices, you've not included a lot of more mainstream voices,

even within the black intellectual tradition, and that makes this curriculum unsatisfactory. There's nothing wrong with that. There's nothing wrong with that. There's nothing wrong with that. Now, I can easily imagine bad decisions being made by states in reviewing College Board curriculum. Easily imagine. I don't, by default, think that the College Board is wrong

and the states are right. But the states do have an ability to evaluate this and the College Board does have an obligation towards transparency. And look, if you are including a lot of relatively radical thought without even mainstream, I'm not even talking throw a bunch of, everyone talks about where's Thomas Sowell in a curriculum.

Yeah, I include Thomas Sowell in a curriculum, but there's mainstream left liberal critiques of a lot of these ideas. Are they in there? Or is this presented as and constructed in such a way that what you're seeing is all of these various radical movements are being presented as if they're something they're not. And interestingly, the College Board now says that they are going to redo that part of the curriculum to try to answer some of Florida's

concerns. That'll be really interesting to see what that looks like. They, of course, I think are going to say that it's not in direct response, but the pilot program wasn't done. So it doesn't make sense to roll these out that quick. Anyway, there's the lack of transparency in process, in substance, in all of this, I think is pretty bad for the college board. I think this has been a black eye for them. I agree. And there's a lot of listeners

and I'm not Ron DeSantis' biggest fan. I have written that. Yeah, this podcast hasn't been. I've written that many times. If you listen to this podcast, we have critiqued the Stop Woke Act. We have talked about, we've critiqued a number of things

that Ron DeSantis has done in Florida. But here's what you don't do. When you hear a controversy and you hear that on Ron DeSantis is on one side of the controversy, you don't immediately say, well, let's figure out why Ron DeSantis is wrong. What you do is you learn about the controversy

and you hold open the idea and the possibility that Ron DeSantis could be right or Joe Biden could be right or whatever politician you don't like could be right. It is possible. It is possible. Well, I guess we're saving Hamlin for next week, in which case we'll find out

whether it's college or university before we start recording. It's true. And someone will tell us, but it's a or university before we start recording. It's true. And someone will tell us, but it's a Google search away. But I do know for sure, beyond a shadow of a doubt, it's pronounced Hamlin now. So I am never making that mistake again. But there's interesting stuff to talk about there because there was a religious discrimination lawsuit filed by the fired professor. And I really want to get Sarah's thoughts on that.

I have thoughts. I'm very interested in Sarah's thoughts. And then the faculty voted no confidence in the president. So there's a lot to cover. I don't have confidence in the president. That one's easy. That one is easy. That one is easy.

Oh, and it is Hamlin University. Well, see, we don't even have to wait till next week. There you go. There you go. But we've already got something to talk about next week and more will pop up for certain, including possibly while I'm hiking at Fall Creek Fall State Park,

some indictments out of Georgia. Oh, and we have a big en banc argument at the Fifth Circuit that we'll be talking about. First Amendment, major First Amendment implications there. So please tune in next week because we've already got good stuff to talk about. We're looking forward to it. And David, don't forget next week, 300th episode.

That's right. Is it the three actual 300th episode where you're going to switch in a coup, topple me and take the host chair? As the prophecy states. As the prophecy states. Perfect. Okay. The coup will occur on the 300th episode of the Advisory Opinions Podcast, so you will not want to miss it. Please tune in. What happened? Well, the show's about to start.