Advisory Opinions - The Crime-Fraud Exception

Episode Date: April 1, 2022

David and Sarah dive back into the free speech controversy at Yale and parse the difference between a statement being “disappointing,” “so disappointing,” and “bonkers town disappointing.” Then they talk about whether Trump committed a crime when he demanded that Mike Pence follow John Eastman’s legal advice. They end with a bit of fragrant Supreme Court potpourri that smells slightly like bacon.   Show Notes: -A Message From Dean Gerken on the March 10 Protest -Eastman v. Thompson -Berger v. North Carolina State Conference of the NAACP -Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith -National Pork Producers Council v. Ross Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And first, the question on every listener's mind, how are you feeling? What percentage are you back from COVID? David, I am back in my podcast studio instead of in bed. So progress every day, right? Yes. And while I still have sort of coughing and congestion problems, so my laugh might be a

little stifled or funny and or Caleb's just going to bleep it out because it's awkward sounding. Overall, my feeling, you know, like there's a difference between symptoms and like how you actually feel. I feel quite well, 90% or more. Oh, that's great. That's fantastic. Yeah. Well, you sound 90% better than you did when you, especially then when you recorded that ad that played on the dispatch podcast. We're sorry, true bill.

And it seems like a great product. I want to do it, but I was a little distracted in hearing that, that it was, it was a little like the national lampoon ad of the gun to the dog's head, you know, by true bill or else Sarah,

you know, is going to suffer from the dog's head, you know, by Truebill or else Sarah, you know, is going to suffer from COVID longer. Yeah, it was interesting. It generated a lot of discussion. But speaking of lots of discussion, okay, we're going to talk about several things and one that we've discussed a lot and that we're going to start with talking about Yale Law School. We're going to talk about district court opinion that received a huge amount of conversation online over the last few days about whether the crime fraud exception applied to the analysis of attorney-client privilege in John Eastman's communications and a district court in California concluded that it did. And we're going to walk through that. And then we've got Supreme Court stuff involving Andy Warhol, involving pork. We all like pork. And also involving intervention. And I promise that

will be interesting. I promise. He's promising himself that, but he's wrong because it's going to be amazing. Okay, fantastic. All right, so let's start with Yale Law School. At long last, the dean of Yale Law School has spoken, and we have a bit of a disagreement between us, Sarah. You think the dean's statement is so disappointing. I think it is merely disappointing. So why don't you walk us through it? My two letters are doing a lot of work here. So sometimes we get emails from or comments from listeners that ask like books they should

be reading or things like that. David, when it comes to books, you and I kind of don't have a lot of good recommendations for like intro to law books that aren't law, but are sort of intended for a high level, but not legal audience. But that being said, we do have some other places that people can go. First, on Twitter, I would follow Gabe Malore for anything not Supreme Court related. Although he's great on the Supreme Court, I think what Gabe really shines at is some of these circuit court decisions that would otherwise yeah. Um, number two, volat conspiracy, uh, on reasons website. It's pretty law. It's, it is expecting a certain amount of law expertise, but it's fun. It's written well,

and they're relatively short posts. So if for some reason one is two in the weeds, skip it, move on. Um, but three David and relevant to the conversation we're about to have, of course, is David Latt's original jurisdiction. David Latt was like the original, I mean, frankly, I'm going to flatter ourselves here, but he was kind of the original AO in some respects. He had a newsletter. Was it a newsletter? Just a blog? I guess it was a blog called Underneath Their Robes. It was like a judicial gossip page. And it was anonymous. And then he was outed while he was in AUSA. And it's been all drama and fun ever since. So he has a new newsletter out. And look, has it been a little Yale Law School heavy recently? Yeah. Do I love that?

Yes, I do. So David went to Yale Law School. And so he has great sources at Yale, as do we. We have slightly different sources on AO. But they're all singing from the same songbook at this point, David. The emails we've gotten from Yale students have been remarkably in line with everything David's been reporting. And I say all that because David, of course, did some research about Gherkin's statement. I think he falls a little closer to where you are in terms of the disappointing, but not so disappointing. Okay. But I'll explain why you're both wrong. All right. So what's the statement, Sarah? Yeah, it's a little long, but I'm explain why you're both wrong. All right. So what's the statement, Sarah? Yeah, it's a little long,

but I'm going to read most of it. Okay. Dear members of the community, as we return from spring recess, I write to reflect on the protests that occurred earlier this month at the Yale Law School. Shortly before break,

a group of students protested the Federalist Society's decision to bring a speaker from Alliance Defending Freedom to campus because of the organization's position on LGBTQ rights, including same-sex marriage and the treatment of transgender people. Under the university's free expression policy, student groups have every right to invite speakers to campus and others have every right to voice opposition. Our commitment to free speech is clear and unwavering. Cough, cough. Because unfettered debate is essential to our mission, we allow people to speak even when their speech

is flatly inconsistent with our core values. In accordance with the university's free expression policy, which includes a three warning protocol, those protesting exited the room after the first warning and the event went forward. Had the protesters shut down the event, our course of action would have been straightforward. The offending students without question would have been subject to discipline. Although the students complied with the university policies inside the event, several students engaged in rude and insulting behavior as The event began. A number made excessive noise in our hallways that interfered with several events taking place, and some refused to listen to our staff. Last bit here. This behavior was unacceptable. At a minimum,

it violated the norms of this law school. This is an institution of higher learning, not a town square, and no one should interfere with others' efforts to carry on activities on campus. YLS is a professional school, and this is not how lawyers interact. We also are a community that respects our faculty and staff who have devoted their lives to helping students. Professor Kate Stith, Dean Mike Thompson, and other members of the staff should not have been treated as they were. I expect far more from our students, and I want to state unequivocally that this cannot happen again. My administration will be in serious discussion with our students about our policies and norms for the rest of the

semester. And then the last part is this odd paragraph about why she didn't put out a statement earlier. I have waited to write you because it is our conversations as a community that matter most. In our statement-hungry culture, university leaders are constantly asked to be referees, encouraging our students to appeal to a higher authority rather than to engage with one another and tempting outsiders to enlist academic institutions in their own political agendas. Statements are expected instantly from institutions whose core values include deliberation and due process, values that are essential whereas here the reporting has been so contradictory, and pundits parse any statement to see which side they favor when the role of a

university not to take sides but to articulate its mission with clarity. Most importantly, statements are poor teaching tools. Learning involves speaking and listening. Okay. You get the point of the weird why I didn't put out a statement thing. So David, a couple of points I want to make. One, our commitment to free speech is clear and unwavering. It has not felt like that for the last year. That is the problem. If this event happened in a bubble, I don't know that it would have been such a big deal, but it happened after several other free speech problems on campus. The trap house email shenanigans where a student was threatened if he didn't apologize and then they denied that that had happened. Then the student had a recording of it happening. students being bullied into saying that a professor had done something that they still to this day claim the professor did not do, and then they were retaliated against. They allege that in a lawsuit. And then you have this event. So this idea that their commitment

has been free and unwavering. Oh, okay. Second, debate is essential to our mission. We allow people to speak even when their speech is flatly inconsistent with our core values, except that's not what this event was. This event was actually two people on opposite sides of the spectrum agreeing on free speech as a core value. The thing she just said was a core value at Yale. Next up, David, she mentions the three warning protocol. And here's where David Latt's research and reporting comes in very handy. So now I'm going to read David Latt. I'm curious about where one can find the three warning protocol since I can't find it in the free expression policy posted on the Yale University website or anywhere on the Yale

Law School website. Yale University website or anywhere on the Yale Law School website. Second, while I appreciate Dean Gherkin's statement that a successful shutdown of the event, like what happened at UC Hastings' Ilya Shapiro event, would have triggered discipline, Yale's free speech policy that does exist on their website, not the three-warning protocol that nobody seems to know exists, doesn't require an event to be shut down entirely in order for a violation to occur. To the extent that Dean Gerken has created such a requirement, she has revised Yale University policy

and made it much easier to trample on free speech. Here's what the policy, which Dean Gerken never quotes in her message, actually provides. One, a university event activity or its regular or essential operation may not be disrupted not shut down two protesters may not interfere with a speaker's ability to speak or attendees ability to attend listen or hear and three sitting in an

otherwise um sitting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations is not permitted. As David said, the March 10 protesters broke all three of these rules. They disrupted the FedSocTalk, a university event, but also the regular operations of Yale Law School, including multiple classes and a faculty meeting, which actually was shut down since it had to be moved to Zoom. They interfered with the speaker's ability to speak before they left the room and the attendees' ability to listen and hear after they left the room. And finally, the protesters blocked the main hallway of Sterling Law Building. There's ample evidence for this, including audio video recordings eyewitness testimony um so hmm hmm it also their policy includes examples of prohibited conduct as david

points out the protesters engaged in at least six holding up signs in a manner that obstructs the view shouting in a manner that interferes with the speaker's ability to be heard standing up in an assembly in a way that obstructs the view, sitting in or otherwise occupying a building, acting in ways that compromise the safety or bodily integrity of oneself or others, engaging in activities that are illegal or are prohibited in school or college regulations or policies. So David, Yale, of course, has a quite specific free speech policy. Yeah. And that's why I find this statement insane. Yes, she says that it's unacceptable, but then says she's not going to do anything about it.

And then just says that she's not going to let it happen again, which again, if this were by itself, if this was the first time something like this had happened, okay. But it's been more than a year, David, of repeated free speech violations at the campus. And Dean Gherkin was across the flipping hall and that's never mentioned in the statement. Okay. So I've just figured out why we disagree. Okay. Yes. The reason is I had lower expectations of Yale. Expectations are everything. Yes, I had lower expectations. I literally

believed that the statement had, when it was ultimately coming out after it had been delayed, would be primarily condemning ADF and Kristen Wagner. And so when it did primarily condemn the protests, I was disappointed that there wasn't any reference to actual policies. There wasn't any reference to any actual discipline for violation of policies. But I was, I think, coming at it from a slightly different angle. But you're exactly right. I mean, these were policies. David Latt's exactly right. There are policies on the books that were violated. The statement does not even mention these policies at all. And the entire thing reeks of this. Scared of students. Do, do, do, do, do.

Scared of students. Yes. And so what you're trying to do, it feels like to me, is say, please, please, please, please, please, please, please, please don't do this again. Except by saying that there's a three warning policy, a policy that didn't exist earlier, and ignoring the policy that is in place, you're saying that, first of all, you're chucking the policy that is in place. Because now this is the binding most recent statement on these students. And what it says is, unless you shut down an event, you get three warnings before discipline. So simply preventing someone from being able to hear the event, all the things that are actually in the policy now aren't a violation of Yale Law School's

free speech code, according to Dean Gerken. You have to actually shut down an event and continue to shut down the event after a third warning. That is a recipe for disaster. It will encourage both sides to start heavily disrupting events and do exactly what these protesters did, which is why the Yale free speech policy is in place in the first place. I think this is a bonkers town statement. And the idea that it finishes by saying, I didn't put out a statement quickly because I was meeting with people who, because the Federalist Society has already said that they asked for a meeting

immediately and we're told they couldn't have one until April. Yes. And then it ends with basically, this isn't just a problem at Yale. Yeah, I take your point. True. But you're the dean of Yale and it is a problem at Yale. So I found it to be small, defensive, incorrect, and setting up future protests like this. Because again, she's saying, I know she said it was unacceptable and that it can't happen again, but why not?

Because if they didn't violate any policies, then why can't they do it again? And it never addresses that. Yeah, this is, what was the tell for me was when it said violated norms. That's a very precise word to use as opposed to policy, but you go back and you read the policy and it plainly violated norms. That's a very precise word to use as opposed to policy, but you go back and you read the policy and it plainly violated policy. But when you're saying you're violating norms, what you're then doing is you're just in an exercise of persuasion. Please, please, please restore our

norms as opposed to you must abide by our policy. And that's a massive difference, a massive difference. And you're right. It just creates a permission structure because somebody will say, look, my norms, Sarah, are not to tolerate people I disagree with. That might not be your norm, but those are my norms. But that's when the policy has to step in. And the policy is, I don't care if you don't want to tolerate their presence on campus, you must tolerate their speech and their presence on campus. And yeah, so I'm glad I was able to clarify the source of our disagreement. Fair. So the two speakers, the progressive speaker and the conservative speaker, both co-wrote an op-ed that they published. And they allege at least one thing that I had not seen in any of these other write-ups.

And again, explicit warning coming just over the next 30 seconds or so, because I'm going to just go ahead and say the bad word, but that people yelled bitch after them. Yeah. That's gender discrimination. That certainly violates Yale's policies. And there's no mention of that anywhere. And if Doreen Gerken wants to say that she's waiting to put out her statement until she can collect all the facts, as a comms person, I will tell you, there's always a downside

because then you are responsible for knowing everything that has come out in terms of the facts, including the fact that she never addresses the police presence that was required on campus in the first place. Second, the police present required to get them off campus, which the two speakers, again, the progressive one included, says was necessary for their safety and students yelling at them that they were bitches. Right. I don't understand how you can leave that out of a statement that also ignores what the policies of the school are.

Yeah, I'm actually revising my initial so disappointing to more. I think Bonkers Town was beyond that. Bonkers Town disappointing. That's right. It's Bonkers Town disappointing. Bonkerstown was beyond that. Bonkerstown disappointing. That's right. It's Bonkerstown disappointing. And by the way, on the reference to the language used against Kristen and Monica, is if this was directed at, say, well, you know, interesting. But if this was a progressive event and FedSoc students were shouting bitch at progressive female faculty, that would be absolute front of the statement condemnation there. It would be absolute front of the statement.

And a Title IX violation. You would be creating a hostile environment. You're creating a hostile environment. Right. Right. So, yeah. Okay. So we're mind melded on this. It's just, I had lower expectations to begin with. And what, by the way, oh my goodness. If you're thinking to yourself right now, what she's supposed to do, look to Dean Kagan's tenure at Harvard Law School.

What a difference leadership can make. I understand that times have changed, kind of, but not, I don't know that I actually agree with that. I think this is all a leadership problem and it falls squarely at Dean Gerken's feet. And the reason we know that is because of the way free speech flourished at Harvard when Elena Kagan was there. And by the way, this was obviously before Dean Gerken's tenure at Yale, but Yale, even at that point, did not have a flourishing free speech community under Dean Coe. Yeah, no, no. I mean, during the 2000s, it was, and from Kagan, from Kagan's, throughout Kagan's tenure, it was known that there was a

different free speech environment at Harvard Law than Yale Law. That was just, it was just known. It was known. All right, Sarah. Donald Trump, John Eastman, crime fraud, or do you have any last words on Yale? Harvard Law School, one of the most popular protests was to dress in an orange robe, Abu Ghraib style, and stand silently in the back of an event, which would totally meet with any free speech policy at Harvard or Yale. So just an idea to students out there saying, well, how are we supposed to possibly be able to effectively protest? Those protests were incredibly effective, got a lot of attention. Not that dissimilar from the handmade protests

where you dress up in the red robe and do handmaiden protests. There are good protest ways that don't attract a lot of negative attention to you and your friends. In the 80s, when I was in college, almost every major college had a shantytown erected in the quad to symbolize the oppression of apartheid. Again, you know, sort of classic town square type behavior. Didn't interfere with educational process. Incredibly effective at raising awareness. It can be done. It can be done. All right. Crime, fraud, exception, and privilege, attorney-client privilege. So a couple things to clear up, because we've talked about this before.

The privilege, attorney-client privilege, belongs to the client. However, the lawyer can assert the privilege on behalf of the client. Right. And like we talked about when we mentioned this case earlier, this is about John Eastman asserting that privilege on behalf of someone he believes to be his client, Donald Trump, and not wanting to turn over records to the January 6th committee. claims about this. And there were a lot of pushback from the government. So one, was there attorney-client privilege relationship? Was there a client relationship at all? Two, was that privilege waived in any way? Three, were the communications on the email server? Was there an expectation of privacy? And there were more than that. And we talked about them on a previous pod. But the big one, David, that got so much attention was even if all of those factors were met and there was an attorney

client relationship, it wasn't waived, all of that stuff. A client cannot rely on their attorney's advice to commit a crime with or without the attorney's knowledge. If you rely on advice of counsel to help you commit a crime, the privilege is waived. Or rather, it's an exception to the privilege is a better way to put it. That's why it's called the crime fraud exception. So we got an opinion from this judge. He says, in almost all respects, there was attorney-client privilege. It wasn't waived. There wasn't expectation of privacy, all those things. But the crime fraud exception was met at least to several of the documents in question. Big, big cannonball splash in the pool. And the question to us, David, is does this matter? And if it matters, why? Yeah. Okay. So before we get to that, I want to do a mea culpa because when we first

talked about this, I talked a lot about how the Chapman University servers and Chapman University email was supposed to be used for Chapman University purposes. And that that was quite clear from policies. And I did not overly, I did not emphasize enough that because the privilege belongs to the client, it is the client's expectation of privacy that is most relevant to the analysis, not whether John Eastman looks at his web server and his web server policies and says, oh, wait, this all belongs to the university. It's irresponsible of him to do that. It placed unnecessary risk. But the real issue was, did the client, when the client was communicating with Eastman, consider that this was attorney-client privilege and reasonably

consider that this was confidential communication? And I think that analysis was spot on. And I just did not pay that. I was paid too short a shrift in our initial analysis of this to the client's expectations as opposed to the state of the server. So I want to clear that up. Okay. Crime fraud. All right. So the issue here is the crime fraud exception applies with one, a client consults an attorney for advice that will serve them in the commission of a fraud or crime, and two, the communications are, quote, sufficiently related to or are made in furtherance of the crime. It's irrelevant, as the court says, whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. And so what the court basically says

is that on its reading of the case, and this makes pains to say this is not an adjudication of guilt, that it's likely that these documents were used to help Trump attempt to obstruct Congress's proceedings to count the electoral votes on January 6th, that President Trump, Dr. Eastman, and others entered into an agreement to defraud the United States by interfering with the certification process, and that the Trump and members of his campaign engaged in, quote, common law fraud, quote, common law fraud, and went on to say that these offenses were likely, this is the language that really got people going, was it says together, for example, on attempts to obstruct an official proceeding, he talked about that Trump and Eastman's actions likely, more likely than not, constitute attempts to obstruct an official proceeding. So this was the first, really, I think the first judicial pronouncement that said it's more likely than not that a crime was committed. And,

all right, a couple of things about this. One, I found the analysis unconvincing, and I'll tell you why. The reason why I found the analysis unconvincing is that when the court, what the court was analyzing was really essentially the impact of John Eastman's frivolous legal argument. So John Eastman was making a frivolous legal argument about everything from the ability of the vice president to overturn the results of election to the ability of a vice president to delay certification. But essentially what was happening was a lawyer was making a legal argument to the client and that the court's reasoning is an essence is that if the client adopted Eastman's art legal argument or the,

because the client adopted Eastman's legal argument and attempted to follow his legal advice that we now have evidence it's more likely not than these crimes were committed. Now, here's what's dangerous about this, and here's what I think is flawed in this analysis. What I think is flawed in the analysis is that, well, let me start with what's dangerous. Here's what's dangerous. Lawyers make aggressive legal arguments all the time. They make aggressive legal arguments all the time. And the idea that I, as a client, when I retain a lawyer and I'm relying on an aggressive legal argument, that I'm looking at jail time in the absence really of any clear precedent. Again, I want to really emphasize this in the absence of any clear case precedent that puts these facts within these criminal statutes is quite aggressive and quite a stretch.

The other thing about this is that I think as a matter of law, Um, the other thing about this is that I think as a matter of law, and, and this is one of my issues with the whole analysis of Trump around January 6th, if Trump is receiving a legal argument that the electoral count act is unconstitutional and vice president Pence has a constitutional authority to, uh, to delay or overturn an election. I don't see that meeting the elements of this crime. I don't see that meeting the elements of this crime. I don't see that meeting the elements of this crime. Here's where I think you would start to meet the elements of the crime. Is Donald Trump in conversation with the Oath Keepers as they're planning to storm the Capitol? Did Donald Trump delegate or did Donald Trump empower members of his administration to conspire with the Oath Keepers in the storming of the Capitol? To me, that is when you're getting clearly within what it means to obstruct a congressional proceeding. That is far more clearly criminal conduct.

We're even not at the point of the Georgia criminal, what I think is the much more credible criminal case in Georgia, where Donald Trump threatens a public official with criminal prosecution if they don't find 11,000 votes. That's much clearer to me. I don't know. Sarah, I was just unconvinced by the legal reasoning of the opinion. What did you think? I'm so glad you went first. I feel like I am known on this podcast as like the baddie, if to quote the kids these days. The baddie. So there's several problems with this, David, one of which I think you've highlighted really well.

This idea that a president, by trying to use his political power to persuade his vice president to vote a certain way in the Senate, is criminal just stands like that's the constitutional structure. that's the constitutional structure it's a bizarre argument um simply in the definition of the statute in which um by the way the crime is to obstruct an official proceeding um before congress i don't understand how this could obstruct but also you have to meet um it has to be corruptly. And that part in particular is odd in the opinion. So I'm going to read some of the opinion here. The court has made clear that the threshold for acting corruptly is lower than consciousness of wrongdoing, meaning a person does not need to know their actions are wrong to break the law, but then doesn't really go on to say what that is. wrong to break the law. But that doesn't really go on to say what that is. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the

threshold for acting corruptly. President Trump and Dr. Eastman justified the plan with allegations of election fraud. But President Trump likely knew the justification was baseless and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump likely knew the justification was baseless and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several states were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to the president that there was no evidence of fraud. By early January, more than 60 courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made strained legal arguments without merit or speculation. But David, that doesn't show at all that the president knew that there wasn't election fraud or was likely to know that there was an election fraud. In fact, that paragraph to me is evidence of the opposite.

So Dr. Eastman advised the president that several states were fraudulent. So he had advice of counsel that there was election fraud, but because executive branch officials publicly stated that there wasn't election fraud, then that's evidence of corrupt intent? Yeah. He had advice of counsel that there was election fraud and he had advice of counsel that there was a legal course of action to pursue to remedy what the election fraud that council had identified. Now, I'm going to try to put this in a way to help people draw distinctions. So let's cleanse our mind of President Trump and Vice President Pence, and let's say it's a sheriff election in a county, okay? And the sheriff loses the election

narrowly and thinks there was fraud, and before the county clerk or the county election official certifies the election, goes to a law firm of Dewey, Cheatham, and Howe and says, can you draft a legal opinion? What's your opinion? And Dewey, Cheatham, and Howe, they love this sheriff. They want the sheriff to be sheriff. And they draft a very aggressive, specious argument that the election official shouldn't certify. Now, the sheriff doesn't have any formal legal power over the election official. The election official can take or leave the advice. And the election official looks at the letter and says, that's garbage. I'm not going to do it. That's not a crime. If the sheriff then,

what gets closer to crime is imagine if the sheriff says, you know what, there was fraud, county election official, and unless you reverse the outcome of this election, I'm going to arrest you. Exactly. That's a different thing. That's a different thing. And what we're dealing with with the John Eastman situation here is that first hypothetical. It's I got advice of counsel that was the illegal advice that Donald Trump was given by John Eastman was, let's just be clear, trash. It was trash advice. The fraud allegations that John Eastman makes are trash. allegations that John Eastman makes are trash. But getting trash legal advice and then trying to persuade a person that he did not have formal legal authority over in that circumstance to take a course of action, I don't see the crime there. I don't see the crime there.

To use your sheriff analogy, but now to meld it into Trump, instead of, you know, quote unquote, arresting the election official or threatening to arrest them. Here is the evidence that the court, again, is using to show what he did that was unlawful. According to Bob Woodward's book, Peril, quoted by the select committee, the president said to the vice president, if you don't do it, I picked the wrong man four years ago. You're going to wimp out, he reportedly said to the vice president. You can be a hero or you can be a pussy. Man, we are earning the E rating today. We are. Sorry about that. A cat. You could be a sweet lap cat. That is what that refers to. You could be, you know, a sweet lap cat.

That is what that refers to. Sure. So look again, everything about this I hate. But if that is a crime, LBJ committed a lot of them. A president trying to convince someone, a senator, a vice president, anything else to do what he wants through words. That cannot be obstruction, even when we're talking about a vote in Congress. And here's another argument that I thought was strange. Again, applying this to future or even past presidents. Dr. Eastman argues that the plan was legally justified as it was grounded on a good faith interpretation of the Constitution. But ignorance of the law is

no excuse. And believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court not to disrupt a constitutionally mandated process. So David, there are many theories on what a president is supposed to do when they believe a law is unconstitutional. And in fact, President Bush has gotten a lot of grief in his signing statement on McCain-Feingold Act because he signed it saying that he believed it was unconstitutional but was signing it anyway, and that that was an abrogation of his duties as president. When a president believes a law is unconstitutional, we've had plenty of presidents violate those laws and allow themselves to be sued and then work it out in court. The legal advice Eastman was giving was trash.

But I think there is a real argument that the Electoral Count Act is unconstitutional, one that former Judge Ludig made in, you know, the Wall Street Journal. So that part isn't necessarily bonkers town. And a president believing that the Electoral Count Act was unconstitutional is not obstruction. And it cannot be the basis of corrupt intent. is not obstruction. And it cannot be the basis of corrupt intent. Yeah, that 805-word paragraph, if I remember right, that it's an 805-word paragraph with maybe a 300-word run-on sentence somewhere embedded in the middle of it, the argument that that's unconstitutional, the argument that's unconstitutional is not trash. The argument that Vice President Pence could have just flat out reversed the outcome of the election

on his own authority. That's trash. And I think there's this level of frustration that exists, that is, what Donald Trump tried to do on January 6th, let's set aside the storming of the Capitol, is horrible with a capital H. It's horrible with all caps, exclamation point, exclamation point, exclamation point. And there's this thought that anything that is that horrible has to be criminal, right? But there's a lot that's horrible that isn't criminal. Criminal law is defined not by the morality of an action, but by statute. And yes, I know we have a lot of broad federal criminal statutes. In fact, that's one of my problems with federal criminal laws. You got a lot of really sort of on their face, quite broad statutes, but they have been defined by precedent. And what I keep going back to is show me the applicable precedent.

We can have that discussion about Trump and some of his interactions in Georgia. There's a lot more there. There's a lot more there. awful as it all was, the thing that I think would push the January 6th efforts into criminality is, was there any cooperation with the actual January 6th attackers? And we've not seen that evidence. We haven't seen that. And that's where we've gotten into the incitement question and things like that. But as far as a direct conspiracy between the actual Capitol Hill attackers and the president, that's something that that's the nine alarm legal fire right there. And that's what we haven't seen.

And I think a lot of people are wondering about these sort of seven and a half hour gap in communications, maybe. But don't let your mind go, you know, don't sit there and think that that's the Nixon tapes, right? I mean, maybe, I don't know, but that's where criminalities would really start to attach in the January 6th analysis, in my mind, is much more there than John Eastman's incredibly aggressive, trash legal argument that Trump had no formal authority to impose on Vice President Pence. I think here's my beef. As I said, I don't think that this standard can be applied to any past or future president without making a good chunk of what a president does criminal. But I also think it's

never going to be applied to a future president. And that in and of itself is dangerous to me. You do not create a new cul-de-sac, a new little footnote of criminal law that applies really just to Donald Trump and just to January 6th. You don't make exceptions for exceptional circumstances. That's when you need the rules to apply the same more than ever is when you think there are exceptional circumstances. And so I hope that people can set aside how bad January 6th was, how trash Eastman's legal advice was, and how much, by the way, I am... Not only am I not convinced by the crime fraud exception, I'm not totally convinced then by the attorney-client relationship that he did find. I think these documents may well not be protected

from discovery by the select committee. I just think he picked the exact opposite way to do it than, let's just say, a future court may hold. I don't think this opinion will stand as is. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect

gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, should we race through some Supreme Court stuff? I'm so excited. Okay, so let's start with the oral argument. Ah, we had an exciting oral argument about intervention. And let's back up because this was the term of intervention, David. We've had three intervener cases. Yes. Unprecedented amount of intervention. I'm beside myself. I'm beside myself. Okay. So first we had the Cameron case. That was where the Kentucky attorney general wanted to intervene at the appellate stage after another state official declined to continue to

defend Kentucky's abortion law. The Supreme court said, yes, the attorney general can come in to defend a state law. Everyone felt like that one was kind of obvious. So obvious, perhaps, that Justice Breyer accidentally said the outcome of the case before the opinion came out. Okay, but number two, David, we actually spent a lot of time on, and that's Arizona trying to intervene as a state to defend the Trump administration's public charge rule saying that immigrants could be turned away if they couldn't prove that they would not accept basically, you know, welfare type payments, they wouldn't be a public charge. And so can a state intervene to defend a rule that they believe affects them when the next administration declines to defend it? That one's still pending.

David, we've got number three. And if you're like, wait, but we've gone through all the iterations. No, we haven't. There's one more. In North Carolina, the attorney general is separately elected and is currently defending the voter ID laws in North Carolina. But because he belongs to a different political party than the state legislature, they don't think he's defending it with enough vigor, let's say. So the state legislature has tried to intervene. And they've come up with a very interesting legal theory for why they get to intervene. Not that the attorney general isn't defending it vigorously enough, because frankly, they don't have a lot of evidence that he is providing inadequate representation, but instead that the attorney general serves two masters, if you will. The attorney general isn't just defending the constitutionality of the law,

though he may be, he is defending the administration of the law because he represents the election board. And as they pointed out in one specific example, when a stay was put in place by a federal court, even though the attorney general could have appealed that stay on Purcell grounds, meaning that it was too close to change the rules to the election, he chose not to because the election board wanted there to just be set rules for the ease of administration of the next election. And the legislature says, aha, that's where your two purposes come into conflict. If you were only defending the constitutionality of the law, you would have appealed that stay. But because you were also interested in the smooth administration

of any law, you didn't appeal to stay. So the question for the Supreme Court is, can a state be represented by two separate state entities? Right. And look, the oral argument was actually really interesting. David Thompson argued for the state of North Carolina. He's a partner at Cooper and Kirk, where I summered. He's also the one who hired me to summer at Cooper and Kirk. So it was really fun to hear him argue. And I would say one of the big problems for him was this idea of like, okay, but is it the first legislator who tries to intervene? What about the fourth legislator who tries to intervene? And about the fourth legislator who tries to intervene?

And Hitta's answer was no. The first one who walks through the door with that separate interest gets to be the intervener, which I think sets up some odd incentives on that. Yeah, yeah. But David, the other thing that was really fascinating about this oral argument is it is the most I think I have ever heard the chief justice like show his cards talk maybe even it was a lot so let me read you one example so I'm going to skip some of the opening long questions but here's the one that I thought really showcased um where the chief is it this may be along the same lines as Justice Alito's, but it does seem a little unfair to me that you're, you're asking us to let you pick your opponents. I'd rather in court, I'd rather have only one person arguing against me rather than

two. But I think that's a little bit of a conflict there. I mean, what are you afraid of? You should, you know, I'm sure you could handle two of them as easily as one. And then she answers and the chief justice says, well, you keep saying that. I mean, the point is that if it's in the court's interest and the question is whether the court should be letting the state have two representatives that under state law, they say they should have, I don't mean this in the way it might sound, but I don't know why we're terribly interested in what your views are on that in the first place, because you're the one who's going to benefit if we throw one of your opponents out. Now, this is the NAACP representative who is the other side of the lawsuit. And I was sort

of wondering when someone was going to ask, like, why is this person arguing about intervener status for the legislature just because they happen to be on the other side of the case? I have never heard the chief be quite so blunt. I don't know why we're terribly interested in what your views are in the first place, because you're the one who's going to benefit if we throw one of your opponents out. So I think we know where the chief is coming down. Yes. Yeah, it's an interesting case. And some people might ask, well, why is it a big deal to intervene if, for example, you can always file an amicus brief to state your argument or interest? But there is a massive difference between weighing in with an amicus brief and having the ability to, for example, take depositions and conduct discovery and direct the strategic course of litigation overall, rather than just sort of

merely have your legal argument heard. So this is, really fascinating question, but this idea that first a courthouse, a sort of first a courthouse rule, I'm uncomfortable with that. There have to be limitations here. What are you going to have? 200 separate interveners, three separate, four separate? Is it a committee? Is it one house? Is it the other house? Is it both houses? It's, you know, so this strikes me as one of these cases where there is going to be a sort of hovering in the background. There are going to be a lot of prudential, and not just in the background, but in the foreground, a lot of prudential considerations. All right. So a couple other things going on at the court this week, David. We had three cert grants, but two of which are biggies that we've talked about a little bit

before, but I'm so excited that they were granted. The first is the Andy Warhol case. So David, this is a question about whether Andy Warhol's, well, now estate, can continue to use and sell a drawing that Andy Warhol did based on a picture of Prince. And the question is, what is transformative for fair use purposes? And did Andy Warhol transform this picture that the photographer took, which she claims is her intellectual property? Or is it fair use? And the question's really going to turn on whether we look at the piece itself. Is it recognizable? Is that what transformative means? Is it a visual question in some respects? Or is it actually about the message that it's sending? And of course,

you can remember back to Andy Warhol's Campbell's Soup pictures. He didn't transform it. It was obviously still a can of Campbell's Soup, but the message wasn't to try to sell you Campbell's Soup or, I don't know, make money off the Campbell's Soup can. It was about consumerism. And I don't know, is it just a totally different thing? I assume Campbell's soup enjoyed the publicity. But in this case, the photographer's picture of Prince was taken back before he became particularly famous and was supposed to show his vulnerability as an up and coming artist. And Prince redid it. I'm not going to use the word transformed it, because that's sort of the point of the whole thing, for a magazine cover back in the 80s.

And he made many, many different versions of it. And it's a fun brief, David, because there's so many pictures in the brief, and you get to look at sort of the before and after. And so is the transformative, quote, that it recognizably derives from and retains the essential elements of its source material or when it conveys a different meaning or message from its source material? And I think that's going to be a really interesting question because frankly, you can see abuse on either side of where the court comes out. question because frankly, you can see abuse on either side of where the court comes out. You know, and there's just something, just as an aside, I was looking at the New York Times story about it and went back to the 2019 district court opinion, Judge John Keltel, Keltel, K-O-E-L-T-E-L. Okay, Keltel. Okay, my apologies, Judge. I know you're listening. Please send us

the proper pronunciation. But this is how interesting judges' jobs can be on occasion, because listen to the way the judge phrased it. So it says, a 2019 Judge Coulthul of the Federal District Court in Manhattan ruled for the Andy Warhol Foundation for the Visual Arts, which held the copyright, and said that the artist had transformed the musician depicted in Ms. Goldsmith's photograph from a vulnerable, Koldell wrote. Moreover, each print series work is immediately recognizable as a Warhol rather than a photograph of Prince. So this was Judge's art critic, Sarah. I mean, quite literally, the person depicted has been changed from a vulnerable, uncomfortable person to an iconic, larger-than-life figure. How is that not art criticism? But it's very good art criticism, David.

It is. It's very interesting. I'm not saying it's bad. I'm just saying how fascinating. Here are the problems to me. He takes, and they do lay out in pretty long description everything that Warhol did to change the colors, color in parts of his face. But at the end of the day, David, it is quite recognizable as the picture that she took of Prince. And in that sense, it's just not transformative in the visual sense. And so

the only option is it's transformative in the message sense. But then if you say, yeah, but look, the message is only available to art critics. The rest of us just see a cool pop version of Prince. Well, then you run into other problems, which is, okay, so what if you take a photograph that the AP created of Donald Trump or something, a Getty photographer, AP created of Donald Trump or something, a Getty photographer, but you add on a clown nose and clown shoes. Well, it's still clearly the picture. You didn't transform it in the sense that we don't recognize it, but you obviously changed the message and it's now satire on the president. To say then that that's not fair use is crazy to me. That's sort of the definition of fair use. So it's a very interesting case because I think

it could undermine intellectual property if they say it's up to sort of art critic understanding of a difference in message. But I don't see how you can say otherwise, because to say that you have to transform something so that it's unrecognizable visually will be sort of an end to satire, which relies on a previous, on a recognizable piece of art oftentimes. And it's funny, this very art critic point, when the Second Circuit reversed Judge Coulthold, Judge Lynch, writing for the panel, said the district court should not assume the role of an art critic and seek to ascertain the intent or meaning behind the works at issue.

This is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective. And then went on to say, the task is to assess whether the later work, quote, remains both recognizably deriving from and retaining the essential elements of its source material. But that's not an objective test either, Sarah. None of it is. None of it is. This is the problem with intellectual property overall. And there are treatises on why the law around intellectual property has, I mean, I don't want to compare it to antitrust, but a little bit, it's hard. It's hard. Because you're creating disincentives on any side. I mean, patent law, right? It has a whole series of disincentives that it creates

and distorts our economy. At the same time, if you want people to put in all that effort, time, and money at the first place, then you need to give them some sort of right to use that so that the second person can't come along and copy it in five minutes for no money or time. And that's where things are. Okay, David. So the next one, the next super fun cert grant is the pork case. California passed a, one of its ballot measures as they are want to do. They're very big into ballot measures as we know. And this one was about the space that is required for, well, for our purposes, mother pigs. Um, so in order for pork to be sold in California, the mother pig has to have a certain amount of space during her lifetime. And this case is going

to be arguably, David, the sleeper case. You know, everyone's going to talk about Harvard and the Voting Rights Act case, but this is the case that could have the largest implications for actually law moving forward because of the Dormant Commerce Clause. prohibition implicit in the Commerc Clause against states passing legislation that discriminates against or excessively burdens interstate commerce. However, David, you will find it nowhere in the Commerce Clause. That's why it's called the Dormant Commerce Clause. Yes. It's implied. It's just sort of a penumbra and emanation. And conservatives, by and large, sort of a penumbra and emanation. And conservatives by and large have very much liked the dormant commerce clause because it has, I think, been the impression that states are kind of this one-way ratchet in a liberal direction. They're sort of climate change policies. Think back to California's emissions policies. Because they are such a large market. If they say that there's a new emission standard

and these car companies obviously still want to sell their cars in California, all of a sudden California just set the emission standards for everyone. With pork, it is probably even more so. When California says that pork being sold in the state has to meet a certain standard for the pigs being raised, that means that unless you want to segregate out those pigs and sell all of that pig within the state of California, you couldn't, for instance, chop up a pig and sell part to California without raising the prices on everyone in the country. So by California changing the standard for pork sales in California, they're changing the sales nationwide, they're changing the price of pork nationwide,

unless people just don't want to sell pork in California anymore. But David, this is why I wanted to raise this. A, we've talked about non-delegation doctrine and major question doctrine as a way for the court to get out of the business of over-interpreting things Congress does and doesn't do and saying, Congress, if you want to do something, you have to do it. And if you don't do something, that will itself be the action that you've taken. Status quo is a choice. And David, I think that conservatives should think long and hard about the Dormant Commerce Clause and whether, in fact, this is an area where you don't want the Dormant Commerce Clause beefed up, porked up anymore. You, in fact, want the court to get rid

of the Dormant Commerce Clause and this balancing test about excessively burdens interstate commerce and instead say, if Congress wants to preempt California's pork law, they can do it tomorrow. And it is up to Congress to do so. And let me give you the best conservative argument that the pork producers are making for this. And by the way, if you read my newsletter, The Sweep, are making for this. And by the way, if you read my newsletter, The Sweep, through a series of totally unrelated things, I have become wonderful email and Zoom buddies with the vice president at the Humane Society, whose case this is. Because we were talking about, I know, we were talking about ballot measures related to cage-free chickens. And then this case come up. So I, of course, emailed him.

And they make an excellent point here that I'm going to read. So for instance, David, pro-life advocates have concerns that an adverse ruling in this case could set a precedent to reverse abortion laws that could be argued to cross interstate commerce territory. And I think that is a very valid concern the same way that SB8 isn't limited to abortion in Texas and can be used for guns or free speech in my mind to set these bounty laws. I think that having a rule that says that California can't set its own policies for what meat can be sold in the state, again, without Congress speaking to the question, is actually pretty analogous to other things that conservatives may want states to be able to regulate, including abortion, which obviously would have an effect on interstate commerce. We've already seen the states around Texas seeing an increase in their abortion rates as people travel to those states. Just one little statistical point,

and I agree with you, one that is interesting as to why people would say, well, wait a minute, this is really mainly regulating people outside of California who are wanting to do business in California. Californians account for 13% of the nation's pork consumption, but raise hardly any pigs at all. So there's no question this impacts out-of-state pork producers. There's no question about that. But the question is, if Congress believes that this is an inappropriate burden on interstate Congress, they can do something about it. They can do something about it. And maybe one of the judicial revolutions of our age is a judicial revolution that basically says, look, if you have a problem, stop punting them to us all the time. Do your job. And I think there's a lot to be said for

rethinking the dormant commerce clause. And it also goes to my own theory in my book, Sarah, divided we fall, still available, still purchasable. We need to have greater authority and autonomy to states. We need to be de-escalating a lot of our national disputes and instead focusing a bit closer to home and providing autonomy to states to set the terms and conditions of commerce in their states and leave it to Congress to intervene if the burden on interstate commerce, in fact, works out to be too much, is, I think, far preferable. It's fascinating.

We're going to spend a lot of time on this case next year. So no need to dwell on it too much right now, except to say that the dormant commerce clause issue, I think, could really break within just the conservative side of where people are going to fall on this case. Yeah, it's going to be fascinating. Fascinating. More interesting than intervention. I mean, we'll see about that. All right. Well, I think that's it. We've hit a

bunch of stuff today. So we're going to be back Monday. I've already got some topics in my mind for Monday. I tell you, it's just getting rarer and rarer that we come up on a podcast and say, I don't know what to talk about. There's just so good grief the amount of legal contention right now in this litigious society of ours, Sarah. But we'll be back on Monday to talk about it In the meantime, please rate us Wherever you get your podcasts Please subscribe wherever you get your podcasts And please, as always, check out thedispatch.com I'm draining from the face holes.