Advisory Opinions - Stop Doing This

Episode Date: January 17, 2023

As they consider the meaning of Robert Hur’s appointment as Special Counsel, Sarah and David cast a wish to the universe that top officials be held accountable for mishandling classified documents (or that they just stop doing that). They also discuss whether collegiality is declining among Supreme Court justices, take the pulse of religious liberty in the law, briefly discuss Fairfax county’s “war on merit” controversy, and offer a simple-to-follow definition of academic freedom. -”Should have no impact” -Steven Mazie on SCOTUS collegiality -The president of Hamline University responds -The latest from Fairfax County -David on the ruling out of Eugene, Oregon Learn more about your ad choices. Visit megaphone.fm/adchoices

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Sorry, we got excited. Thanks for snagging those tickets. Make every purchase highlight-worthy with the BMO Toronto FC Cashback Mastercard. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And we've got a few things to cover here. We got some requests for an emergency pod after the special counsel decision,

or Merrick Garland made a decision to appoint a special counsel to investigate the Biden classified documents matter. But we thought, nah, we talked about it a little bit already. And besides, Monday was coming fast enough when we record. So we're going to talk about the special counsel. We're going to talk about the Biden classified documents mess more broadly. We're also going to talk about the question of, is SCOTUS getting along? Some folks sent us a piece from The Atlantic asking that question. And then we'll also talk a bit about a lawsuit in Eugene, Oregon that I wrote about over the weekend that was a Clinton appointee

tossed a threat to religious liberty in response to arguments made by the Biden administration defending religious liberty. Wait, what? Hold on. So we're going to talk about all of that. But Sarah, why don't we start with the special counsel? And I think you were the one who immediately squelched any talk of an emergency podcast. You're blaming me for this? I'm blaming it because I saw an email come in.

It said emergency podcast. Before I could even open the email, I saw a response from Sarah that said no. So explain yourself. Why does this not merit an emergency podcast? You know, it's so funny how different the world looks now and the equivalent compared to when Mueller was appointed. I mean, we have two special counsels at this point looking into the current president and the former president,

and yet somehow the entire temperature is 20 degrees cooler than on any given day during the Mueller investigation. Just, you know, funny enough. So Rob Herr was appointed special counsel. And yep, I worked with Rod every single day at the Department of Justice. I know Rod quite well. So Rob was Rod Rosenstein's number two in the deputy attorney general's office. So called the pay dag, the principal associate deputy attorney general. And of course, Rada was also acting attorney general for the purposes of the Russia investigation, making Raba basically the principal person overseeing the day-to-day operations of the Russia investigation and overseeing Robert Mueller and his whole team. So that's all to say Rob Herr has significant experience, maybe more than anyone else on the

planet really, with special counsel investigations at this point. there's probably no one better to be the special counsel for this. A little background on Rob Hurd, by the way, in case you're wondering, incredibly experienced federal prosecutor. He was in the U.S. Attorney's Office in Maryland under Rod Rosenstein, then becomes the U.S. Attorney himself. That's why he leaves the Mueller investigation. Harvard undergrad, Stanford JD, clerked for Judge Kaczynski, same as husband of the Pods. So they're little clerk brothers. And then goes on to clerk for the Chief Justice. That's an unusual resume for an AUSA in any number of respects, actually. So Rob is a special bunny. He's just incredibly conscientious, straight shooter. But I think what I wish more people knew about Rob Hurd that I'm afraid they won't find out during the course of this is that Rob is one of the funniest people at the Department of Justice.

He has just this like really wicked, dry sense of humor. I hope it comes out in the course of this, but I kind of doubt it will. So, OK, let's set aside me, you know, working with knowing Rob Hur and just move on to like sort of the what we know, what we don't know. So, first of all, there was nothing new that we had learned of the classified documents when, from when we talked about it last, when Merrick Garland appointed Rob Hur as special counsel. talked about it last when Merrick Garland appointed Rob Herr as special counsel. That's no longer true. We actually have learned more since the appointment of Rob Herr, additional classified documents found in sort of additional places. One set of classified documents was just more classified documents in the same place, et cetera. So that is relevant. Also, and we want to get into this a little bit more of like okay how does this change the Trump part how does this change you know what does it look like when you have a special counsel

investigating a sitting U.S. president when at least according to the office of legal counsel you can't indict a sitting U.S. president you have to wait until they've left office. Okay, so there's a ton to talk about there. I think that the expectation, the feeling, the vibe, if you will, David, is that Joe Biden hasn't really done much wrong. That like the expectation is there's not going to be charges here that Garland had to appoint a special counsel because there's one for Trump. But that in the end, this isn't going anywhere. I just big picture. I do probably buy into that.

I think that expectation is probably about right. But I will say this. In general, federal prosecutors don't like taking cases that aren't going anywhere. That's not fun. Federal prosecutors are hammers and they like nails. And so the idea that Rob Herr quits his job as a partner at Gibson Dunn, quits, by the way, this isn't a leave of absence,

quits to be the special counsel because he knows there's nothing there and has no intention of charging anyone. Again, this is not based on me knowing him at all. This is just based on his sort of track record of being a federal prosecutor. I would say this about any federal prosecutor. That's not generally how they work. So while I am looking at the facts and the law and I'm like, yeah, I don't really see it. I think that probably those expectations are a little bit off because you've got a really serious person who's overseeing this investigation. Yeah. You know, it's let's do a little legal housekeeping here because

I saw a lot of Twitter commentary about this and, and wanted to kind of add some context. So a lot of people are saying, well, if he appointed a special counsel, that means there's evidence of criminality. So what it says is this is, this is the actual, this is the actual regulation. The attorney general or in cases in which the attorney general is recused, the acting attorney general will appoint a special counsel when he or she determines that criminal investigation of a person or matter is warranted. Either A, the investigation or prosecution of that person or matter by United States Attorney's Office or litigating division of the Department of Justice would present a conflict of interest for the department or other extraordinary circumstances, and that under the circumstances, it would be in the public interest to appoint an outside special counsel to assume responsibility. And in the announcement, Garland specifically mentioned 600.2b, which says, When matters are brought to the attention of the attorney general that might warrant consideration of appointment of a special counsel, the attorney general may direct that an initial investigation consisting of such factual inquiry or legal research as the attorney general deems appropriate be conducted in order to better inform the decision. Okay, so this does not mean that a crime has been committed

and now a prosecutor has been appointed to prosecute the crime. That is not what this means. It means that there is a matter meriting criminal investigation. And what is it that merits criminal investigation? Well, it's right there in the announcement. And there are two key parts of the announcement. One, on the evening of November 4th, 2022, the National Archives Office contacted a prosecutor at the

Department of Justice and informed him that the White House counsel had notified the archives that documents bearing classification markings were identified at the office of the Penn Biden Center for Diplomacy and Global Engagement. That office was not authorized for storage of classified documents. And then on December 20th, President Biden's personal counsel informed Mr. Lausch that additional documents bearing classification markings were identified in the garage of the president's private residence in Wilmington, Delaware. President Biden's counsel informed Mr. Lausch that those documents were among other records from the period of the president's service as vice president. The FBI went to the location and secured those documents. So that's a really long way of saying, yes, there is criminality implicated, but it's an investigation of potential criminality.

It is not a finding that a crime has been committed and therefore a prosecutor is being appointed. It is a, there's potential criminality. Well, what's the evidence of potential criminality? Well, when people find classified of potential criminality? Well, when people find classified documents when they're not supposed to be, that's evidence of potential criminality. Doesn't mean that a crime has been committed. It is evidence of potential criminality. So that's sort of the legal background here, Sarah, and I'm with you. I'm with you overall on this. As of right now,

based on the facts that we have, and also bringing in the context of sort of the Clinton investigation and the standards announced in the Clinton investigation, I'm not sure what they're going to end up with, but I'm absolutely definitely tapping the brakes on any sort of conclusive kind of comparison with, for example, the Trump investigation. The Trump investigation is still underway. Jack Smith was appointed not long ago. This investigation is just starting. And besides, as I've said a number of times, Donald Trump isn't the measure here. You could be not as severe as Donald Trump

and still potentially violate criminal law. Let's put it that way. So that's not the measure. David, Merrick Garland has so many problems right now. So we've talked about this before, but right, these special counsels, same as US attorneys, report to the AG at the end of the day,

they can make whatever recommendations they want, but it's Merrick Garland's call. And Merrick Garland can say, I'm going to follow the recommendations of the special counsel. I will bet you dollars to donuts those recommendations, like anything from a lawyer, come back with some sort of on the one hand, on the other hand, because you want to give your boss both your best legal judgment, which is going to be presenting sort of the process that you went through.

And also the ability to compare like situations and determine whether they are like situations. And so in that sense, the Trump part does make a difference. But here's the other problem that Merrick Garland has. There's no reason that these two investigations will end at his desk at the same time. Right. Investigations will end at his desk at the same time. Right. So what's he going to do when the Rob Herr investigation wraps up in six months, but the Jack Smith investigation is still ongoing? Does he decline?

I mean, right? Like, it's just, whew, this is a ball of fun. Well, and the Jack Smith investigation is a bigger investigation because it includes the January 6th. It's much bigger. It has many more people. I mean, Jack Smith's team is enormous at this point. We don't know how big Rob Herr's team will be.

More to come on that, I'm sure. But not only does Jack Smith have three investigations under his purview, January 6th, the mishandling of classified information, and then obstruction, which is related to the mishandling, but actually, I think, should be considered separate. All three of those just are going to involve, I mean, some of the subpoenas that we've seen are so broad, the number of emails they're going to sweep up. I mean, someone has to read all these. And I would just say that like the Mueller investigation went at pretty breakneck speed and that took two years. That was really fast by DOJ standards. Two years.

So it just, and okay. So one problem that Garland has is this is his decision in the end. The second problem he has is he might have to make the decisions separately or make, you know, have sort of two really bad news cycles, not be able to really sit down and compare the two. People are like, yeah, but the special counsels will talk to each other. I have no reason to believe these special counsels will ever talk to each other during the course of their entire investigations.

The third problem is, and we've seen this through Janet Reno. Obviously, I've experienced it myself. This creates a, well, you can fill in whatever word you want, a buffer, a rift, a strained relationship with the White House. And now to some extent, that can be helpful for the Department of Justice, not being super buddies with the White House has a certain freeing aspect to it, I will tell you. But it's not fun to sort of everyone be walking on eggshells around each other. And so in that sense, that's now going to be certainly the rest of this term. And of course, we don't know whether Joe Biden is actually running again or whether he'd win again. But for the remainder of Merrick Garland's time as attorney general, and I believe Joe Biden's term as president, this really does change the relationship between the Department of Justice and the White House.

All right. Well, Sarah, let me ask you a question more political than legal. Do you think this will play any role in the ultimate decision whether Biden runs again? Oh, that's interesting. Oh, man. I mean, woof. Yeah. Will it? Should it? Those are all interesting questions i mean at some point i mean doesn't this just get exhausting to people that you have i'm exhausted i'm exhausted that every day we've had a new they found more classified documents and biden's the whole thing about well they were next to my corvette and i definitely kept that locked was the worst possible explanation I've ever heard. Yeah. Not great.

Yeah, I mean, you raise an interesting question. And I think, look, so Don Ayer, Mark Zaid, and Dennis Aftergut wrote this thing in The Atlantic. And these are all great lawyers. The headline was, Biden's classified documents should have no impact on Trump's legal jeopardy. So Don Ayer was, he was pay dag in the Reagan administration and deputy attorney general under H.W. Bush. And he was a U.S. attorney. He's very well known. Mark Zaid, we talked about before, national security attorney who does a lot of these cases in D.C.

You know, they make a very compelling case walking through the statutes about sort of the factual differences as we know them now between Trump and Biden. I take no issue with anything they wrote. It's all correct. Right. Except for two problems.

One, we know a lot more about Trump than we know about Biden. And so there's a lot of assumptions being made. You know, well, Trump did this and we have no evidence that Biden has done this. Correct. But we have no evidence at all. And each day,

the story does seem to change a little. Two, you know, read that headline again. Biden's classified documents should have no impact on Trump's legal jeopardy. I think it's a little almost too lawyerly. Now, David, you walked through what Comey said in July 2016, when he has that press conference, saying that they're not going to move forward with charges against Hillary Clinton. And the statutory definition, you know, knowingly removing classified documents. Frankly, I'd be surprised if Biden doesn't meet that statutory definition based on what we know, the number of classified documents being found in multiple locations.

It's possible, but coin flip or maybe less than a coin flip for me on that one. But of course, as you've mentioned many times, Comey then says, yeah, but that's not, we don't just look at the statute. We also look at past DOJ practice. And in every case that the department has brought, at least two of these four factors are present.

Clearly intentional and willful mishandling, not just knowing. Intentional and willful. Two, vast quantities. And vast in this case is defined as giving inference of intentional misconduct. Number three, indications of disloyalty to the United States. Number four, efforts to obstruct justice.

So, at this point, there is no evidence on the Biden side for number four. Right. Great. On the indications of disloyalty to the United States. No evidence. No indications of that. Although that being said, we don't know what's in these classified documents. And I think that, let me give you a radical, again, we have no evidence at all, one way or the other. For all I know, they're like the least dumbest classified documents ever. But let me give you the other version, which is that they're specific to Ukraine and to his son.

And that... Right. That would give some inference that he removed them intentionally, sort of Sandy Berger style, if you will. That would really change, I think, the legal analysis here. And I feel like for everyone who's saying that there are huge factual differences between these two,

I agree. But most of that's because we don't have the facts in the one case. Certainly we know that there are more classified documents that were in Trump's possession. So the vast quantity thing, I don't know that it cuts necessarily against Trump, but it certainly doesn't cut against Biden.

You know, if we're at, and we don't actually know the number in Biden's possession, we're certainly over 20, maybe we're under 30, Trump's around 300. There's some difference between the numbers there. And then on the intentionally and willfully, that's where I think we just truly don't have evidence.

Because if there's sort of a throwing everything off your desk into a box and those boxes get randomly distributed to three different locations, that doesn't look very willful and intentional to me. If they sit there for six years and gather dust. It looks pretty different though, if those documents have been accessed over the past six years and people have read them and knew that they were there, but only raised their hands and called the National Archives after the Mar-a-Lago search warrant. So again, I think that Atlantic piece by Ayer and Zaid is well done because it tells you where things are right now with the information we have right now

by three very smart lawyers. But there's a lot we don't know. And some of these write-ups that we've seen of the factual differences between the two cases have looked pretty bad 24 hours later when they were like, these were found in an office in a locked closet. And then it's like, no,

they were also found in a garage next to a car, et cetera. Locked garage, Sarah, locked garage. Well, we all know the Corvette was really precious. Yeah, I agree with you completely on all of this. There's just so much we don't know. And if you walk through those factors, look, you know, Trump has got some problems on some of those factors based on what we've seen reported. If you've gotten a subpoena and you've not complied with the subpoena, that's a different

world. And one that sounds more in the obstruction language than it does in the mishandling of classified information regime. But we'll see. We'll see. There is no real cost to just saying, we'll have to see. And it's...

Can I also tell you one other thing that, like, I don't... Legally, I'm not sure how relevant it is, but of course, nobody ever asked Biden for classified documents back. So you don't have anyone from Biden's team responding that they don't have any. Right. That correspondence never happened. Right. And so a bunch of the, you know, quote unquote, aha, these are very different. And not just comparing to Trump, but comparing to Petraeus. Right.

Or Sandy Berger. It gets to this like cover up point, the obstruction point. Yes. Well, there isn't any obstruction with Biden because nobody ever asked. Nobody ever checked. Over six years, nobody followed up. You know, Trump, they're calling him within months of him leaving office and saying like, hey, we think you have classified documents.

Why didn't that ever happen with Biden? And doesn't that say that something's a little bit wrong on the sort of National Archives side, that all of these classified documents in three different locations, and they never asked, they never knew, they never followed up. And so I get it that like everything Trump does

from the point that they ask him for the documents back is a dumpster fire, legally, politically, just all of it. This isn't to excuse them or to both sides it. But, you know, for everyone's like, see, Biden never did anything wrong. That's right. They were like, Petraeus under oath said that he didn't have any classified documents. Yes.

And Biden was never asked. Lucky him. Here come the carrots making their way upfield, followed by the whole wheat bread over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots are over the line. What a goal! How would you like to pay, sir?

Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. I just want to put this out there for all of those. And look, I get this partisan instinct that comes into play. You know, we saw it when there was the Trump raid and there were people who immediately, immediately said this is definitely FBI abuse. We've seen it at every stage as Trump information comes out. Oh,

this can't possibly be a problem because he declassified the documents in his mind. I mean, there's all kinds of things that people do when they're highly partisan to try to instinctively defend people on their side and their tribe. And now we're about to, and we've already seen some of the festival of hypocrisy where people are minimizing Trump's documents saying we need to really get to the bottom of the Biden document situation. Look, it's all bad. And I think this is a point that needs to be repeated and emphasized again and again. We cannot allow our exhaustion with repeated classified information scandals to numb us to the need to take care of classified information, especially when this is not hard to do. It is not hard to

do this well. And if we have a standard that's somehow going to say that for you and me, Sarah, it's windbreaker time. But if you just get important enough, if you just get powerful enough, when, by the way, when you're important enough and when you're powerful enough, you're exposed to the most closely guarded secrets in the entire United States. But those people, we got to, we got to give them some, cut them some slack. No, I'm just tired of that. And interestingly, we got an email from a military judge who said that, no, lots of things happen short of criminal prosecution.

In true, I accidentally took something home fashion. And in fact, Mark Zaid mentions this in this Atlantic piece. Mark Zaid has repeatedly represented clients who have accidentally taken classified documents home or unintentionally left them in unsecured environments. Those cases involved no deliberate flouting of the law, but rather negligent or reckless conduct. These situations are routinely resolved through administrative proceedings such as suspension or revocation of security clearances or other sanctions short of prosecution. This is the sitting president. So not only can you not charge him with a crime,

at least asterisk that, thank you, Nixon administration, but you certainly can't take away his security clearance. So everything we're talking about when it deals with Biden is also all the more fascinating because whatever Rob Herr recommends, short of nothing, or above nothing, I should say, actually can't be done until he leaves office. And so that's just another fascinating aspect

of this. One could imagine a situation where, again, imagine both special counsels say, look, we're not sure we could win this at trial. We think that there was more than just oopsie here. So we recommend that at a minimum, neither of these people have security clearances moving forward. Well, with Biden, you have to wait until he leaves office, certainly.

And even then, former presidents are able to get classified briefings. I mean, this is like a whole messy, messy, messy, as they say. Yeah. And I would disagree a little bit with our correspondent who was saying that this kind of behavior wouldn't necessarily be prosecuted. Well, yes, in the best version, if there's one, if you accidentally take something home and you sort of immediately are like, oopsie, I didn't, you know, there wasn't a safe. I took it on vacation. I thought there'd be a safe. I just,

I messed up. I agree. That person's not going to jail. But you're making a lot of assumptions to say that like the Biden three different locations, that all of that was oopsie and only met a reckless standard, nothing above that. I guess I, for some reason, am far less willing to buy that than a bunch of other people seem to. Right, right. Again, I've said it like nine times already. i'm with you on i'm with you on this and i do think though that our correspondent our military correspondent had a good point which is

if you are a soldier there are a variety of tools in the toolkit that a commanding officer has if you have mishandled classified information, everything from everything from administrative actions to non-judicial punishment, Article 15 of the UCMJ, to filing formal charges and pursuing a court-martial. There's a menu of options that you have. And when somebody has been careless with classified information, not meeting that standard, that criminal standard of gross negligence, but has been careless with it, I have seen the hammer fall very dramatically, but not in a way that triggers criminal law, the administrative punishment. And, you know, what's interesting to me is, again, we're in a situation where the person with the most responsibility and the most importance attached

to their actions has the fewest means of accountability available if they don't meet their obligations. There's also just something really galling about this whole thing. It's galling that two U.S. presidents, a former secretary of state, like these people at the very top, have just keep doing this, I guess. And there's also something particularly galling about the reaction from the White House

when Trump has these classified documents in the search warrant. And they're saying, oh my God, this is so outrageous and egregious. And they didn't check their own backyard. And I think there is a lot we don't totally understand yet about the timeline. Why lawyers were in that locked closet to begin with on November 2nd.

Why now? Was it related to the execution of the Mar-a-Lago search warrant that they did decide to go and make sure that they didn't have a problem themselves? And how that all unfolded timeline-wise and what they were thinking about the political and legal ramifications, that's the cover-up part that may not exist, but that we also know nothing about. cover-up part that may not exist, but that we also know nothing about. Right. Exactly. Exactly. It's an absolute giant mess. It is a symbol. You know, look,

when the populist wave got started, there was a lot of disappointment and anger at American elites. And parts of the populist wave got so out of control that our focus on the problems of the populist reaction kind of drowned out the focus on some of the failures of American elites that created the populist discontent in the first place, which was then expressed in all kinds of really negative and destructive ways. But there was a reason why there was an anti-establishment view in Washington. You know, when you've got a Democratic nominee for president who's being nominated while under active, credible FBI investigation for mishandling classified information, and we're not talking about just the carelessness that our JAG correspondent talked about. What we're talking about is maintaining a server all on your own that contained information traded on it back and forth

that James Comey said, you know, no reasonable person in her position would understand to be anything but classified. So we're not talking about just inadvertent carelessness here. That's going on. Then we dive into all the Trump nonsense. Then we add not talking about just inadvertent carelessness here. That's going on. Then we dive into all the Trump nonsense. Then we add on top of it, the Biden nonsense. And we can't forget the David Petraeus nonsense. It's very deeply discouraging. And it all circles back, Sarah, it all circles back to, we got to restore a character in our public officials because guess what? The system isn't set up very well to impose accountability on our public officials. The more powerful they get,

it's really fine tuned for accountability for captain French. If I was still back in Iraq, it is not set up for accountability. If captain French somehow became President French. Then I've got it going on, Sarah. I've got a lot of impunity. And I, of course, believe that we have way too many classified, you know, massive over-classification problem,

but that's irrelevant because the presidents, multiple, this is not from over-classification. That I will tell you. No. All right. Well, good luck to special counsel Rob Herr. It sounds like you have a really fun job ahead of you. We'll look forward to seeing who all ends up on that team and all of the future subpoenas and interviews to come. Woohoo. Yes. All right. Well, do we want to move on to SCOTUS and some speculation about are the Supreme Court justices getting along? Yeah. So Steve Mazie, a well-respected Supreme Court reporter, also wrote this piece in The Atlantic called The Supreme Court Justices Do Not Seem to be Getting Along. The Supreme Court justices do not seem to be getting along.

Collegiality is scarce and tensions are apparent. And in short, he basically uses the Harvard argument and the 303 creative argument as evidence that the Dobbs decision has had this deleterious effect on a level of legal collegiality, professional and personal collegiality on the court. Again, not that I disagree with any of his factual assertions. I just think it misses out

on a whole bunch of other atmospheric stuff. So one, I don't doubt that the leak had a huge impact on how the chambers interact with each other. And when we talked about why we don't have any opinions yet, I didn't talk about the possibility that the way that draft opinions are circulating

is very different this year than it's been in the past and it is slowing down the process. There is no evidence that that's true, but certainly worth raising as a possibility that of course, after the leak, there's now going to be a slower, more sort of sign in, sign out, after the leak, there's now going to be a slower, more sort of sign-in, sign-out, I don't know,

some process that is making it more secure, but a lot slower. It's possible. And of course, there was the piece by Sadie Gurman and Jess Braven in the Wall Street Journal. That investigation is going apace, if you will,

that they've narrowed it down. It does include some law clerks here at the end, but that hasn't been dropped. It's not on the back burner. It's very much continuing to move. So again, you have to pour that into the relationship of these nine people. There's an ongoing investigation. They're probably relatively frequently reminded of it, you know, questions being asked, more papers being circulated, whatever. But, you know, there's a whole lot of other things that Mazey didn't touch upon that I thought are relevant.

A, he picked two of the most contentious arguments from this term and then said they were contentious. No doubt, friend. Yes. You know, and even during those arguments, there were some lighthearted moments. They were maybe cringy and weird. I'm thinking here of KKK Santa

or the Ashley Madison moment. Yeah. But to say those weren't collegial or something, you know, at one point, Maisie says that Alito barreled through even when I think it was Sotomayor or something was trying to get in there and ask a question. But he doesn't mention the fact that

that's actually the way it's supposed to work. It's a very strict seniority. The senior judge doesn't get interrupted by a junior justice and vice versa. So that, you know, when Sotomayor is going on and on and Kavanaugh tries to get a question in, she can barrel right on through Kavanaugh tries to get a question in, she can barrel right on through Kavanaugh and does. And it had sort of a gender overtone to it the way that it was written,

but it certainly had a political overtone instead of noting that like, nope, that's, it's actually been very common for justices, the more senior justice to continue. But most importantly, David, of course, this doesn't mention all of the other arguments where there's actually seemed to be quite a bit of collegiality, quite a bit of sort of back and forth. There's been plenty of jokes this term, lots of laughter in the courthouse now that there's humans in the courthouse again. And then there's one other piece that I thought was missing from that, which is, remember, Breyer is the junior most justice for 11 years. That court had just been together a really long time. There's a reason that Breyer and Thomas have their little jokes, because they sat next to each other forever. forever. Or Ginsburg and Scalia, you know, they were just colleagues for so long. This is a new court in a lot of respects, with a lot younger folks, people who haven't been working together for two decades, etc. And so I would expect there to be fewer inside jokes, if you will.

And so it's not that Mazie's wrong. I don't doubt that Dobbs and the sort of public back and forth that we've seen, especially with Justice Kagan, hasn't had any effect on the court. I'm sure it has, but I don't think this is a black and white question. Yeah, I mean, look, if you have the combination

of contentious cases on the most important or probably the most emotionally significant issues in American life from race to abortion. You're the you're the tip of the spear on resolving these kinds of issues against the background of a leak investigation. investigation, which is no doubt causing an enormous amount of consternation, not just the breach of trust at the beginning, but any investigation of a breach of trust causes people to look over their shoulders. It causes a lot of speculation. It causes a lot of mistrust. So you have all of that happening at once. It would not surprise me at all if there were more tension. But at the same time, we've still seen, as you said, some really interesting moments that indicate that people in this institution are trying to keep

it together in a personal way. And one that really stood out to me that we talked about at the time, but is worth mentioning again, is back last summer. My goodness, time's flying, Sarah. It's already been since last summer, but last summer, Justice Sotomayor really quite effusively praised Justice Thomas as a person. And, you know, these are probably the two people on the exact opposite ends. If you're going to draw a right-left spectrum of judicial philosophy, Thomas and Sotomayor would arguably be at the furthest apart from each other in the court, and Justice Sotomayor very graciously complimented Justice Thomas. There have been many moments of really sort of deeply human, humane, personal interaction that have been indicated that

these seem to be folks who are really trying, in a very trying time, to maintain the, not just the integrity of the institution, but its collegiality as well. So I, part of me wonders if it's a glass half empty situation, or more of a glass half full. And I've tended to see it as more half full, especially compared to the festival of dysfunction we've seen in the other branches of government. Well, hard to beat those. For me, I think it's let's give it some time. These folks just haven't been together very long. There's a lot of new faces.

time. These folks just haven't been together very long. There's a lot of new faces. You know, if in five plus years of this court, Maisie can write the same article, then I think I'm a lot more on board with it than I am today. Yeah, no, I think that's, I think that's entirely fair. Absolutely. 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.

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Go for it. Okay, well, a lot of listeners know we don't ordinarily highlight district court opinions as much. Sometimes we do if they're particularly interesting or particularly important. In this case, we have one that's, I think, particularly important for a number of reasons. And this is something I wrote about in my Sunday newsletter, and we'll put that into the show notes. But had a really interesting case come out of Oregon. So here's what happened. Here's the background. Title IX is the federal statute that prohibits sex discrimination in federally funded education programs. But it contains a very narrow exception for an education. This is I'm reading from the statute, an educational institution, which is controlled by a religious organization, if the application of this subsection would not

be consistent with the religious tenets of such organization. So when Title IX was passed, and now, of course, a big chunk of American higher education is religious higher education. It's church-funded church. These are church schools or church-affiliated schools, church-funded schools. And they were created from the ground up to be institutions of higher education, yes, but also to be institutions of religious education around religious tenets of different faiths. And so Title IX recognized that different faiths have different ways in which they treat sex distinctions and sex differences and have different policies and doctrines regarding sex and sexuality. And so they provided a carve out for Title IX that if you're a religious institution, you don't have to be under the, you can opt out of Title IX requirements.

And a coalition of students, mainly LGBT students, sued the Department of Education, students sued the Department of Education, not the religious schools, but the Department of Education claiming that that religious exemption was unlawful. And they filed the suit, Sarah, in Eugene, Oregon. Eugene, Oregon. Now, that's an interesting decision considering that there are Christian colleges all across the country. You're filing against the Department of Education to begin with, while you're not necessarily filing in D.C. You're in Eugene, Oregon. I don't know about you, but I caught a distinct whiff of the forum shopping phenomenon.

Maybe they thought that the judge who sits in Eugene, Oregon, would be hospitable. They also filed against the Department of Education. So these are generally these were students more on the left filing against a Democratic administration. And there was a lot of concern. I know when the case was filed that the Biden administration may not vigorously defend the case. In other words, that it would ally itself with LGBT students. This is, again, something we've talked about before, a phenomenon called sue and settle, where an allied group sues an allied administration and the administration settles with the allied group in a way that sometimes circumvents the real regulatory process. There was a lot of concern that, wait a minute, was this filed in a jurisdiction

that's going to be hyper-favorable to the plaintiffs, filed against a defendant, the Department of Education, that's going to be favorable to the plaintiffs? And there was a lot of concern about this, even though the thought was that on the merits of the case, the plaintiffs didn't have really much of a chance, that religious exemptions have long been recognized in American law, long been recognized by the Supreme Court as not violating the Establishment Clause.

But then lo and behold, a really interesting thing happened, and that is the Biden administration pledged to vigorously defend the religious exemption. The case went before a Clinton-appointed justice or judge who just dismissed the case outright. And then what I thought was really interesting and important was relying upon Supreme Court precedent, unanimous Supreme Court precedent, in favor of religious liberty that was decided by a coalition of justices

nominated from the left and from the right. And the reason why I wanted to highlight this is I wanted to highlight this case for a very simple reason, to double underline a point I've made for many years now. And that is, it is not that there are no threats to religious liberty, Sarah.

This lawsuit was filed. So that was not made up, that this lawsuit was filed. The Coalition of Students did try to overturn the Title IX exemption for religious colleges. So it's not that the threats aren't real, but the liberties are really pretty darn secure. In this case, you had a Democratic administration defending religious liberty in front of a Democratic appointed judge applying precedent decided by Democratic and Republican appointees on the court unanimously to kick this case out of court. And I think it's a really interesting little microcosm of the religious liberty battles that we're facing,

which it is not that the threats don't exist. It is the truth that the legal protections for religious liberty are extremely strong and only getting stronger. And so I thought that that was an important case to highlight from that point of view. I like it. With our couple remaining minutes,

do you want to just briefly touch on the Virginia Attorney General's investigation? Yeah, Sarah, we've talked about this. So this investigation, so what we have is that Virginia Attorney General is launching an investigation into Fairfax County schools. And this investigation is focusing on three schools' national merit notifications at the same time that it scrutinizes the admissions policy of Thomas Jefferson High School for Science and Technology, TJ, the school that we've talked about a bunch. So we've reported on this at the dispatch. We'll put it in the show notes. One branch of this, the admissions branch of the investigation is, as our folks said, really straightforward. admissions branch of the investigation is, as our folks said, really straightforward.

In 2020, Fairfax County School Board voted 10 to 1 to change Thomas Jefferson's admissions policies with the goal of, quote unquote, improving equitable access, particularly for underrepresented Black and Hispanic students. The school board put out protocols that are facially race neutral, but the argument is motivated by a discriminatory animus against Asian Americans. The percentage of Asian American applicants or admittees last year declined pretty significantly versus the year before. declined uh pretty significantly versus the year before um that case we've talked about it is it is uh in the appellate process right now then the other thing which is the thing that is kind of confusing to me uh and i'll read from our report at the dispatch with the admissions controversy already already pointing a spotlight on t, the school's failure to notify students of national merit commendations. In other words, students receive national merit awards. Those who don't know, the National Merit Scholarship is a prestigious scholarship program that can be very helpful,

very helpful for students seeking scholarships and admissions to universities. very helpful for students seeking scholarships and admissions to universities. So they failed to notify on a timely basis students of their national merit accommodations that convinced Governor Glenn Youngkin to call for the AG's investigations. When two other Fairfax County schools apologized for the same thing, the AG widened the scope of the national merit part of the investigation to include them as well. He wants to find out whether the school's behavior was racially motivated, which could be a violation of the

Human Rights Act. I'm so confused, David. I'm so confused how this happens. The principals have sent out apology emails, so there's no question that they did delay notifying students of their national merit status. The last thing I've seen from the superintendent

says all of the principals signed the certificates, but that it was up to the staff to deliver it to students, implying that that's what didn't happen. I don't see any evidence that this is race-based, so that's also a weird jump, I have to say. Why wouldn't schools do this? But then they didn't. They're apologizing for not doing it, so we know they didn't. And you know, as has been pointed out, this school district, Fairfax County, spent $500,000 on an equity consultant who, for instance, one of the recommendations, I guess, was, you know, equal outcomes means sometimes treating students unequally and things like that. Okay, that all sounds pretty bad.

But there's nothing in it about not telling students about something that helps them get scholarship money. I mean, I guess I kind of understand the theory that they didn't tell these students because they were Asian, because they didn't want the Asian students getting into better colleges than the other students at their schools. It's just that's so weird from an incentive standpoint. But that's all to say, David, just I don't totally understand why you would delay telling your own students this is scholarship money on the line,

it's acceptance into college on the line, getting some of your students rejected from college or getting into college but not getting scholarship money. I'm not sure how that helps other students it certainly doesn't help the school um and yet it again fact-based we know that they did in fact delay telling students i'm very confused about the whole thing frankly and there's a lot we don't know it's so weird it's so confusing. You know, I've heard of it as classified as, well, this is part of the quote, war on merit. But that doesn't make a ton of sense. from this is an old, if you're, if people are worried about sort of this idea that a school shouldn't elevate some students over another, this is an old issue. In 1987, when I graduated from high school, my school did not recognize valedictorian, salutatorian, anything like that

in a public in, in like graduation. Cause they were had this very egalitarian ethic about graduation. And I didn't call that a war on merit. I didn't feel like that was a war on merit. It was just sort of something about self-esteem of all the kids. I don't know. It was a little strange, but this just is weird. It's just really weird.

And the fact that multiple high schools were doing it and this email sent by the two principals and two of the high schools apologizing to the parents do read awfully similar to one another. That's all to say, basically, there's been sort of this like, what is the attorney general in Virginia doing? No, I think this warrants investigation.

It's bewildering. I don't know that they're going to find any race-based purpose here, but something's very strange about this. Yeah. Yeah. Very odd. And it, some listeners might wonder, why are y'all talking about the Fairfax County school, school so much? Well, I, you know, it became an epicenter of public controversy. I think in large part, because this is where a pretty significant portion of the American governing class sends their kids to school. And so there's this sense that, well, whatever is happening at Fairfax County could leak out elsewhere. Also, whatever

is happening at Fairfax County is going to get a lot more attention simply because who the parents are. And it reminds me of why is it that we spend 20 times more time talking about admissions policies, say at a Harvard or Yale than we do anywhere else. And this is, I'm not saying that Fairfax County schools are the Harvard or Yale, but there is some sort of, it is somewhat analogous in the sense that this is the school district for much of America's governing class. And so there's going to be greater attention.

And quite frankly, it hadn't withstood that attention all that well. Speaking of not withstanding the attention well, Hamlin's president, the school we talked about last time, that did not, well, had renewed an adjunct professor's contract and then unrenewed the contract because she had shown a picture of the Prophet Muhammad in her art history class where she had warned students in the syllabus, warned students at the beginning of the course, and then warned students at the beginning of that class that that was going to happen. Nevertheless, the student was offended

and the school took the student's side and did not bring back that professor. So the president of that university put out a statement that made it so much worse, David. Yes. Yes. Yes. It was really, it was really something else. Sarah, this was a really stunning statement

on academic freedom from a president of a college. So in her statement, she says, the American Federation of Teachers correctly notes that academic freedom and its attendant rights do not mean anything goes. Well, nobody has argued that it does. Okay. And then it says, it notes that faculty must act professionally in their scholarly research, their teaching and their interaction with students and ensure this through policies and procedures that safeguard both students and the academic integrity of the institutions and disciplines. Well, yes, of course, faculty must act professionally. And this faculty member did. This faculty member warned that some people are offended by the image

that she was about to show. But then the president goes on to say, I ask those who presume to judge us the following questions. First, does your defense of academic freedom infringe upon the rights of students in violation of the very principles you defend? Okay, Sarah, I've tried to figure out how a display of a classic Islamic art violates the rights of students? It does not. It does not. Only by equating the rights of students with the feelings of students do you get anywhere close to this. And the feelings of students do not define the rights of students. And then this other part is pretty interesting. Second, does the claim that academic freedom is sacrosanct and owes no debt to the traditions, beliefs, and views of students

comprise a privileged reaction? One of the reasons for academic freedom, Sarah, is so that you do not owe a debt to the traditions, beliefs, and views of students. That you don't owe a debt to the traditions, views, and beliefs of alumni or to the leadership of the college. One of the reasons for academic freedom is to give scholars the ability to question traditions, views, and beliefs.

That's one of the core purposes of academic freedom. I mean, rarely have I read a bigger swing and miss. I mean, this is the kind of thing that I used to see back in the mid-90s at the height of the speech code era, where there was, before these things had been challenged in court, and they're actually trying to erect an argument that said that student feelings can define the limits of free speech. And that was obliterated in a quarter century of legal precedent. That whole idea was just obliterated. It's a really remarkable statement that places the freedom of any scholar at that university at the mercy of the most sensitive student, I think with the caveat provided that the sensitivity of that student

matches the ideological sensitivity of the leadership of the school. Because I sincerely doubt that a student who is objecting to some, maybe some portrayal of Jesus would have gotten a similar kind of reaction. But that's, I'm sorry, unfounded speculation on my part. But it's a really remarkable misstatement of academic freedom. Now, I am curious for you to compare this to the Jewish students who say they were targeted and retaliated against at George Washington University and how that intersects with academic freedom. Remind me of the, I remember it. I don't remember the precise facts.

So this is at George Washington University, where I am an adjunct professor, by the way. This is in a different department, obviously, but worth mentioning that. This is in their professional psychology program. You have a mandatory diversity course. One of those is taught by Professor Laura Shahi. The complaint details persistent anti-Semitic actions where she regularly singled out Jewish and Israeli students for their identity, invited a guest speaker who referenced anti-Semitic stereotypes about Jews being deceitful and power hungry. She endorsed using violence against Israeli civilians. When some of the students complained

about the anti-Semitism they were encountering, she denied the allegations and asserted that these students were actually guilty of targeting other identity groups. She then retaliated against the students who had complained by disparaging them to other faculty members and subjecting them to groundless disciplinary proceedings after they brought her inappropriate

behavior to the attention of university administrators. There is now an investigation going on at the school about this. How does that intersect with academic freedom? Again, this is, these are allegations, not proven facts. Yeah. Yeah, that's a really good question. And it brings up the difference between speech and harassment. So the question I would have in analyzing any claim of, in analyzing those claims is, does the evidence indicate that what the professor was engaged in was racially motivated harassment?

And racially motivated harassment, they are, or depending on the jurisdiction, religiously motivated harassment, but racially motivated harassment is going to be unlawful in a higher education context under Title VI. Now, interestingly, racially, a harassment analysis is not a viewpoint-based analysis. It's much more of a conduct-based analysis. How are you treating individuals on the basis of race? And if you have singled out Jewish students for different and worse treatment because they are Jewish, and that treatment is severe or pervasive enough to essentially deny them the access to the educational program, the benefit of the educational program,

that's harassment. And so one thing that is, while there is a subjective element of harassment, it has to be unwelcome to trigger the analysis. it is ultimately decided under an objective standard, a reasonable person standard. Is this the kind of behavior that would be harassing to the reasonable person? It is not a subjective, students are offended, therefore harassment has occurred. It is a reasonable person standard. That's different from Hamlin, where the argument seems to be the student was offended, therefore a violation of university policy or an offense occurred simply because the student was offended. And this really strikes at the heart of the speech code argument for 25 years was over this definition, quite frankly, Sarah, of harassment. When does harassment occur?

And the arguments that schools were making would be harassment occurred when any person in a protected category subjectively took offense, when they found a statement offensive, that would be the definition of harassment under the traditional speech code analysis. Whereas the legal definition of harassment, and this was something that got really important in the Trump era when the Betsy DeVos's Department of Education revised Title IX guidelines, for example, is harassment when somebody subjectively takes offense or is harassment an objective matter? And the law says, and the case law says, harassment is an objective matter, not a subjective matter. And you can't have free speech when harassment is entirely subjective because then my rights hinge entirely on your sensitivities. And then that means that there's

going to be an enormous chilling effect because I don't know what your sensitivities are. I'm going to have to default to the most sensitive standard in the school and our academic freedom, much less free speech disappears. Whereas with harassment, it's an objective standard, a line that anyone, a professor, a student, an administrator, knows that they can't cross. And that's, I think that raising those two things, I think is a really nice illustration of how the analysis can go. So to put these into a couple columns here,

for instance, having a speaker that they believed used anti-Semitic tropes by itself, academic freedom. Right. You know, at one point, the Free Beacon finds several tweets from this professor that are pretty inflammatory. She says, Israelis are so effing racist.

There's a lot of, you know, they's. Things of that nature. Yeah. Destroy Zionism and commit to land back, then we'll take you seriously, you effing genocidal Fs, F you. Things of this nature. So that, academic freedom, right? Like that's not targeting any of her students.

On the other hand, when they bring up the possibility that they feel targeted, and again, they're wrong, let's say. Again, just in our version of this. They're wrong that so far, nothing she's done is targeting them. But then they say like, hey, we feel targeted.

She then tells other faculty members that these students are racist, that they called the speaker a terrorist and use the assignment as an excuse to get combative. When they then bring their complaints to the dean, they're then put into disciplinary proceedings. They're not made aware of the specific offenses against them. They're told that they have more privilege and power than a Palestinian student in the class.

Now we're getting more into targeting of these students themselves, potentially. Well, and that brings up the whole separate doctrine of retaliation. So if I believe in good faith that you have violated my rights, even if I'm wrong about that, as a general matter, I'm going to have a right to complain about it through formal channels

without being punished for the complaint. And this is a whole subcategory of employment laws. You'll often see somebody who might believe that they're racially discriminated against and they might complain of racial discrimination. And maybe the racial discrimination complaint was unfounded, but the employer is really ticked off that they complained and takes action against them on the basis of the complaint. That's retaliation is a kind of a whole separate subcategory. But I agree with you, tweeting awful things, inviting a speaker who even uses anti-Semitic tropes,

that's not harassment. In fact, traditional principles of academic freedom give very wide birth to what are called extramural utterances. This is when you say something that is not in the classroom, like a inflammatory tweet. And the most memorable example of that from my career at FIRE was when this professor named Ward Churchill wrote in a piece called

something about the chickens coming home to roost and compared the World Trade center victims on 9-11 to little adolf eichmann's eichmann was one of the architects of the holocaust so he's comparing the innocent people who died on 9-11 to architects of the holocaust academic freedom very offensive i mean very offensive but that's clearly covered by academic freedom. But if students had complained about Ward Churchill under the mistaken belief that that statement was not that that statement, those statements were not protected by academic freedom. And then the university retaliated against them for that complaint. Then you've got a whole a whole different issue. Well, David, to your point, based on the complaint that's been filed,

I'm not sure they have a great case on the academic freedom line, you know, spectrum to harassment and targeting. This might fall more toward the academic freedom side. On the retaliation side, however, looking pretty good, again, assuming all of their allegations are true. You know, at one point,

the professor goes around the room affirming each student's introduction until one student says she was born in Israel. And the professor says, it's not your fault you were born in Israel. You know, I don't think that's enough to constitute harassment, targeting of the kind you're talking about. But it might be some good evidence on the retaliation side

that that professor clearly already had an issue. You know, it reminds me of an issue that was one of the most hot button issues I dealt with again when I was at FIRE and that was called the Columbia Unbecoming Controversy. So Columbia University Middle East Studies Department had a number of scholars who were rather radical pro-Palestinian voices. And a number of Jewish students at Columbia

cooperated on a documentary project called Columbia Unbecoming, where they exposed some really over the line kinds of comments against Israeli students or Jewish students by some of these professors. And what ended up happening was that a number of voices said that the students complaining about their treatment was a violation of the academic freedom of the professors. Nope, that's not how that works either. No. One of the first big projects I worked on when I was president of FIRE was drafting a letter to, in response to the New York Civil Liberties Union, when the New York Civil Liberties Union was discounting student academic freedom and the student ability to complain about the way their professors treat

them or the perspective of their professors. And so it led to this long letter to Columbia, and I believe also copied to the New York Civil Liberties Union saying, whoa, academic freedom is a multilayered concept that includes students as well. Everyone gets to complain. Everyone gets to say their piece. Yep. Stop disciplining people and attacking people and punishing people for saying their stuff on college campuses. That's the, that's the very short high level version. Stop punishing people for saying things. Jeez. Yeah. Should be a pretty simple concept. But I don't sense any give from the Hamlin president.

The other direction. No, no. I mean, utterly contrary. Yeah, it really is. It really is. Just totally utter abandonment of traditional concepts of academic freedom. Total abandonment. And again, just wait until it's something that doesn't align with her personal politics.

Right. And then all of a sudden, academic freedom. Yes. Yeah. Seen this movie before. Seen it before. All right. Well, hopefully, listeners, you will have no clue that you just listened to a technological nightmare

where my internet went out twice. Sarah's computer kind of sort of quit. Very weird. But you know what? We soldier on. It's a federal holiday for our equipment, but not us. Exactly. Exactly. Well, if you found this podcast seamless and enjoyable, and we hope you did, please go rate us at Apple Podcasts or wherever you get your podcasts. Please subscribe. Please check out thedispatch.com and we'll be back on Thursday. Thank you.