Advisory Opinions - The Flynn Saga

Episode Date: May 1, 2020

David and Sarah discuss the latest after Michael Flynn’s defense claims FBI notes show agents tried to entrap him, the viability of third-parties as Justin Amash flirts with running for president, and some legal news updates. Learn more about your ad choices. Visit megaphone.fm/adchoices

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We're going to be talking today about the news that lit up Twitter last night and lit up Fox News and maybe a few other outlets. And we'll almost certainly light up talk radio all day today. And that's the latest twists and turns in the Michael Flynn plea deal with the FBI. Sarah has thoughts. I have thoughts. We're going to work our way through it. Also, Sarah is going to dunk on my third party idealism. And we're going to talk about an immigration lawsuit, and also we're going to talk about guilty pleasure TV viewing that you're watching alone, away from your family because they don't share your tastes.

So it's a lot to cover, but let's start with Michael Flynn. And Sarah, why don't you sort of fill in on the micro, sort of like the most recent revelation, and then we'll put it in the larger factual context, and then we'll share our thoughts. Okay. So, Michael Flynn pleaded guilty in December 2017 to lying to investigators about his conversations with Russian diplomat Sergei Kislyak. And since then, he has tried to withdraw his guilty plea, and he has switched attorneys from Covington and Burling to Sidney Powell. So on Friday, Powell had this statement in the public docket. The government produced to Mr. Flynn stunning Brady evidence that proves Mr. Flynn's allegations of having been deliberately set up and framed by corrupt agents at the FBI. The government has deliberately suppressed this

evidence from the inception of the prosecution, knowing there was no crime by Mr. Flynn. Powell then yesterday released one set of these notes. Here's, let me just tell you some of the problems before I read you the notes. Yes, please. Problems. We don't know who wrote the notes, who at the FBI wrote the notes. It's a pretty big problem for judging what these notes say. Two, we don't know whether the person who wrote the notes was reporting on their own thoughts,

like their own side of a conversation, or whether they were listening to a conversation of other people and taking notes on that conversation. Both are quite common at the FBI, I will say. And so when I read these to you, just know that we basically have no context whatsoever for what we're reading. And in the notes themselves, it says, and uh in the notes themselves it says on april 24th 2020 the government produced among other things a partial page of redacted handwritten notes to mr flynn uh the government supplemented this production on april 29th with the full page of redacted notes a digitally enhanced version of those notes is attached the following that i'm going to read to you is an attorney transcription of the revised version of the notes. So we're also getting this to something filtered through the defense attorney himself, though again, it's unclear what. So a lot of unknowns on the notes, but here's what they say.

lot of unknowns on the notes, but here's what they say. Uh, we have a case on Flynn and Russians. Our goal is to resolve case. Our goal is to determine if Mike Flynn is going to tell the truth about his relationship with the Russians. Okay. So far so good. So good. Then it says afterwards underlined. I agreed yesterday that we shouldn't show Flynn redacted. I assume it's going to be the evidence itself. We shouldn't show Flynn the evidence. I'm going to say if he didn't admit, but I thought about it last night, and I believe we should rethink this about showing him the evidence, presumably. What is our goal? Truth slash admission or to get him to lie so we can prosecute him or get him fired. We regularly show subjects evidence with the goal of getting them to admit their wrongdoing. I don't see how getting someone to admit their wrongdoing is going easy on him. If we get him to admit breaking the

Logan Act, give facts to DOJ, plus have them decide, or if he initially lies that we present him redacted with the evidence, if he admits it, document for DOJ and let them decide how to address it. If we're seen as playing games, White House will be furious. Protect our institution by not playing games. Right? These are notes. I mean, it's not, this isn't in paragraph form. These are bullets.

There's plus signs and at signs. And so definitely notes. Okay. So there's one part here that's normal. And then there's another part, as you pointed out in our fascinating internal Slack discussions, not normal. Okay, so here's the suspect the evidence we have on him to get him to admit to the crime? Or do I withhold from him the evidence I have on him with the possibility that he might lie about it? And then I have him on two crimes. I have him on the underlying crime and I have him on lying to me on online to me in the course of this investigation. So this is sort of standard FBI tactics. That part of it is normal. If you don't like it, that's, you know, you're going to have to talk to an awful lot of people, talk to an awful lot of judges involving an awful lot of cases across the country. This is sort of the way it is very often done when dealing with somebody when the FBI believes they've kind of

got their guy. That's one part. I think it's also worth noting, by the way, the FBI can lie to you. They can say they have evidence they don't have. I mean, right. You know, there's a lot of things that I think people are faux outraged about today that these same people watch some Law & Order. So I'm a little confused what they thought was going on that the police can lie to you. That is constitutionally acceptable. They can trick you. They can lie to you. They can withhold from you information that they have. And it's a lot of this stuff is conduct that we're

sitting there watching television and cheering it on when it's like, oh, they're going to get their man now. So this is normal stuff. My very good friend, Ken White, who tweets under the moniker at Popat, don't ask about how Popat became. But anyway, I've even forgotten the story. He's a federal criminal defense attorney, former federal prosecutor. And I would urge you to go to his Twitter feed and he'll put this in a lot of legal context for you. But the short answer is, as he says, if you're even tangentially involved in something and the FBI comes to talk to you about it, just don't talk to the FBI. That's my free legal advice for the moment. But so that part of it is not that unusual. Now, the part that is unusual and disturbing at first glance

is the part that talks about a potential goal of getting him fired. Sarah, do you want to wax eloquent on why that caught your eye? I do, because this goes back to the Comey-Clinton presser in July of 2016, where the reason that Comey violated the Department of Justice's policies was because he did not have indictments to bring against someone, but listed out the evidence against them in what could be interpreted as an attempt to shame, smear, publicly humiliate someone that the FBI had investigated. That is very, very much against FBI, Department of Justice, and really all police department protocol. You either bring your legal case or you don't. There is no world in which you find

out you don't have a legal case and therefore go for some non-legal option. For instance, getting someone fired from their job, even though you can't prove that they committed a crime. That's a huge, huge no-no. Right, right. And so if there was an object here, a goal here to get him fired, and that was the purpose or policy of the FBI. That's a real political problem. That's a real political problem. And let me make one caveat, which is in public corruption cases, which are, you know, the FBI has a public corruption unit, the Department of Justice does. I do want to, like, put a little asterisk that having saying like, you know, someone resigning from their office as part of a plea deal, for instance, or something like that, like I'm let's put that in a totally separate

category. This was not a public corruption case. And also just the phrase getting him fired. This person is not an elected representative, for instance. Right. And let's just dot one I. And that is I've heard the phrase entrapment used a ton. And this is not evidence of entrapment. OK, this is not evidence of entrapment that entrapment has particular related. Pardon? unrelated. Right, right. I mean, I know it's a word that's constantly used, but you got to show that the law enforcement induced Michael Flynn to commit the crime and he wouldn't have been predisposed to commit the crime without inducement. So, you know, entrapment is, A, it's hard to prove as an affirmative defense, but it's, you know, I'm just sort of kind of minding my own business. And law enforcement comes along. Here's some weed, dude. Have you ever tried it? No, I don't want to.

You really should. Come on, man. You know, it's really a, I'm minding my own business and law enforcement has tried to manufacture the crime. Now, let's put this in bigger context because there's a part of you. I don't even know how that would work, by the way, in the context of lying to the FBI, how you could entrap someone to lie to you. You would need to tell them to lie to you. Basically, like what if you lied to us?

Wouldn't that be interesting? Why don't you try lying? I guess might be entrapment. It's a very weird. It's all very, very weird as a legal defense. But let's put this in broader context because when you're looking at the Flynn case, you have to sort of peel this onion. Now, Flynn's defenders will focus on one aspect of the case. And this is the aspect of the case that I'm most sympathetic to Flynn's defenders on. And it's this, that this is all Logan Act BS, that this is a politically

motivated prosecution over a statute that has never been really enforced, that was fully pretextual to try to nail Michael Flynn to the wall. So if you're just thinking about Logan Act, I'm kind of sympathetic to that argument, to be honest. So what is the Logan Act? It's a 1799 law that basically says, I'll read it. Any citizen of the U.S., wherever he may be, who without authority of the U.S. directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer agent thereof with the intent to influence the measures or conduct of any foreign government or of any officer agent thereof in relation to any disputes or controversies with the United States or to defeat the measures of the U.S.

shall be fined under this title in prison not more than three years or both. than three years or both. So this is essentially, it's a law prohibiting freelance diplomacy. And it's never really been enforced. And one of the reasons why it's never really been enforced is it's extremely suspect constitutionally. And why would it be suspect? Well, for one thing, you're involving individuals who are trying to influence the course of public affairs in the United States, involving the United States, and it's prohibiting them from doing so if they're communicating with foreign officials. There's some real First Amendment implications there. And if you look at actual the things that Flynn was actually accused of doing, and I'm looking at the statement of offense here. The statement of offense here says there were false statements made regarding Flynn's request to the Russian ambassador that Russia refrain from escalating the situation in response to U.S. sanctions against Russia. Now, think about this.

Flynn is the incoming national security advisor for the United States, and he's reaching out to the Russians to talk about an issue that he will have to be addressing from the moment he hits the ground, from the moment he hits the ground. And this is in the transition period between Obama's election and Trump's inauguration. Trump's inauguration. I don't know, Sarah. The idea that we would criminalize an incoming national security advisor to have a conversation about policy that's going to be immediately relevant from the moment Trump is sworn in, and that's criminal? I'm extremely dubious that that is something that should be prosecuted. Another one was false statements regarding Flynn's request that foreign officials vote against or delay a United Nations Security Council resolution. Again, this is stuff that is going to be immediately relevant. Now, is it possible that Flynn, what Flynn should have done is go to the Obama officials and say, can you please communicate to the Russian ambassador that this is going to be the

position of the incoming Trump administration. Would that have been preferable? Yeah. Was there a super low trust environment between the incoming Trump team and the outgoing Obama team? Yeah. I'm not even sure it's preferable in fairness, but continue. Okay. Yeah. I mean, that's just spitballing as to how he could communicate incoming Trump administration policy without violating this act. And you're beginning to see the problems of the act. So if you're talking about this prosecution of Flynn is about the Logan act and only the Logan act, I'm really, I really don't like this prosecution,

only the Logan Act, I really don't like this prosecution. But should I pause there, Sarah? I'd love to know what you think. I think everything you say is up for totally fair debate on the emphasis that we put on different prosecutions, whether the Logan Act should still be on the books, whether we should keep criminal laws on the books that we don't have any intention of prosecuting, or if we do, we say that it's an unfair prosecution, I think we could go down a whole rabbit hole on that. But get to the next part, because I think we're going to circle back to these notes. Yeah. So here's the thing. If you're listening to somebody and they're talking about Flynn and the only thing they talk about is the Logan Act, they're not dealing with the Flynn situation. And so, the Flynn plea deal, when you look at the totality

of everything that the FBI was investigating about Flynn and alleged Flynn has done, it looks a lot less like an unfair targeting of somebody over a 1799 statute and a lot more like a kind of sweetheart plea deal in exchange for cooperation when he could have been charged for a lot more. So what do I mean here? There's another false statement part of Flynn's statement of offense. And it says on March 7, 2017, which is when he's the sitting national security advisor of the United States, he filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act pertaining to a project performed by him and his company, the Flynn Intel Group. pertaining to a project performed by him and his company, the Flynn Intel Group.

Now, in this, he materially misstated his involvement with the Turkish government and the Turkish government's controlling interest or controlling aspect of Flynn's actions in the United States. Now, that's bad. It gets worse. So Flynn has been sort of a cause celeb for a while and on various different grounds. And one of the reasons why Flynn was a cause celeb in 2018 is there was a strong argument that made by lots of folks in sort of Flynn apologist world that said, hey, the FBI should have told Flynn that lying to the FBI was a crime and should have told him that he should have not been dissuaded from having a lawyer present. So this was the big deal about two years ago. Well, there was actually a hearing that occurred. And this hearing, which was in December 2018, says the court just cuts right to it. The court says to Flynn's lawyer, who's not his current lawyer, do you believe the FBI had a legal obligation to warn Mr. Flynn that lying to the FBI was a federal crime? Here's Flynn's own

lawyer. No, your honor. Is it your contention that Mr. Flynn was entrapped by the FBI? No, your honor. Do you believe Mr. Flynn's rights were violated by the fact that he did not have a lawyer present for the interview? Answer, no, your honor. Do you believe his rights were violated by the fact that he may have been dissuaded from having a lawyer present for the interview? No, your honor. Okay. And then, and then the prosecutor gets up and he says this. The prosecutor says, your honor, having not conferred with attorneys from the Eastern District of Virginia, I just want to be sensitive about. And then the court interrupts. I think that's fair. I think that's

fair. Your answer is he could have been charged in that indictment. What? Another indictment? So the exposure would have been grave then. It would have been exposure to Mr. Flynn would have been significant had he been indicted. Yes, and your honor, if I may, and then it goes on. So what was he talking about there, Sarah? He was talking about another indictment. And this indictment is wild. It was an indictment of colleagues of his at his firm who conspired covertly and unlawfully to influence U.S. politicians and public opinion concerning a Turkish citizen living in the U.S. whose extradition was being sought by the government of Turkey. In other words, they're trying to get a Turkish dissident out of the country and into the hands of Recep Erdogan. And-

And relevantly, they're accepting money from the Turkish government for that purpose. Yes. Which that's the fair violation. Yes. You're being paid by a foreign government to advocate or do something here and not telling our government that you're accepting money for that. Yes. And here is, there was a great summary that Natasha Bertrand did of the indictment in the Atlantic. And here's the, just to sort of whet your appetite about the craziness

of this. Here's the first sentence. It began with a meeting in New York in September, 2016. sentence. It began with a meeting in New York in September 2016, by the way, when Michael Flynn is campaigning for Trump, between future National Security Advisor Michael Flynn and Turkish government officials, in which they discussed kidnapping an exiled cleric and turning him over to Ankara. So, when you look at the whole thing, this plea deal feels a lot less like a, hey, we're going to resurrect the Logan Act and pursue a political opponent, and a lot more like, we've got a lot of stuff on you, guy, and we're going to give you a sweetheart plea deal. That's kind of where I am. So this brings us back to the notes. What is our goal? Truth, admission, or to get him to lie so we can prosecute him or get him fired.

And what's happening right now are that Flynn's new defense attorney has two different branches going. One, trying to withdraw Flynn's guilty plea. And two, collaterally attacking his previous defense attorneys who allowed him to accept this guilty plea, saying that they had a conflict of interest. Do these notes, are these notes legally relevant to either of those issues. I don't see how. I don't see how either. I think they're politically bad. And I think that they, getting the fire him aspect of this should, depending on the context, because there's, as you very accurately-

Yeah. And let me explain what I think. I've read these notes over and over and over again. It's like a third of a page. So I'm agonizing over like something, you know, like a junior high note that got passed between classes, sort of how these are written in terms of their length and description. But nevertheless, many, many, many times, my best reading is that what you're actually seeing is a straw man argument in the prosecute him or get him fired. Let me explain. If you and I are having an argument over using a no-knock warrant, meaning we just bust through a guy's door with the SWAT team, guns out, God only knows what he's doing. Those are very, very dangerous warrants to execute. There's a reason to do them. Safety of the officers. If you think this person is going

to shoot back, you want to have a no-knock warrant, so you surprise them. But instead of having that conversation, and I'm here against the no-knock warrant, and you're for the no-knock warrant. And so what I say to you is, look, David, what's our goal? Is our goal to arrest this person peacefully? Or in that case, I think that we should use a regular warrant, knock on the door, identify ourselves as police, and go in and arrest him. But look, if our goal is to shoot the guy and kill him, by all means, let's use the no-knock warrant and just go in and, yep, we'll probably end up killing him. Does that mean I'm advocating for killing someone? No. It also doesn't mean you're advocating for killing someone. It's a straw man argument

that I create on your behalf in order to get to persuade you to come to my side of the thinking. And so this person's argument, instead of about a no-knock warrant, is about whether to show Flynn the evidence. I agreed yesterday that we shouldn't show Flynn the evidence if he didn't admit. I thought about it last night and I believe we should rethink this. What is our goal? Truth admission? That's, you know, me saying to arrest him peacefully or to get him to lie so we can prosecute him or get him fired, to go through the door, guns blazing, and kill the guy. There's a very good chance that this person is intentionally misrepresenting the other side's argument

in order to make a persuasive case. Not in a mean way, not in a lying way, just the way that we all make arguments when we're trying to win them. And the reason I think that is because of the next line. We regularly show subjects evidence with the goal of getting them to admit their wrongdoing. I don't see how getting someone to admit their wrongdoing is going easy on him, which implies, by the way, that they were using

a straw man argument against our writer by saying, you just want to go easy on him. Right. So we're tossing back straw men back and forth, I think is what's happening here. But you have a very good defense attorney who has put these notes out I see an explosive phrase. And I also know I have an audience out there that is hungry, that is thirsty. It's like throwing chum into the water and it's going to get magnified and it's going to get magnified and it's going to get magnified into something that is well outside of its precise legal bounds. Now, it's going to be very interesting to me to see how this plays in court because the judge is not, does not, this judge does not suffer fools lightly. No, it's actually been pretty entertaining thus far. Yeah. Yeah. Judge Emmett Sullivan.

I mean, he's an ornery little thing. Yeah. Let's put it this way. There's sort of this stereotype of the U.S. federal district court judge as a, this is an often unfair stereotype, Sarah, as kind of a raging tyrant within the confines of their own power. And when a federal judge is operating within the confines of his own courtroom in his own cases before appeals, of his own courtroom in his own cases before appeals, et cetera, et cetera, et cetera. They have an enormous amount of authority and some of them can really unleash on an attorney.

I mean, attorneys who've practiced in federal court for a while, almost all of them have that story of, oh, let's have drinks and talk about when a U.S. federal district court judge in X district absolutely tore me a new one for 45 minutes straight. Well, he's kind of legendary for this. And so it's going to be very interesting to see how he responds. I mean, he may have greater sympathy for General Flynn than he had before. I don't know, but this doesn't strike me as the kind of thing that he would love that much because it's a political manipulation, not a legal argument mainly. And you have this, the ending of the notes where it says,

if we're seen as playing games, White House will be furious. Protect our institution by not playing games. I could see the judge saying, so let's be clear, this person was advocating for not playing games and showing your client the evidence. Now, on the one hand, the person who wrote these notes lost this argument. They did not show Flynn the evidence. And that is interesting. And that is legally interesting to some extent, although I don't think persuasive to withdraw a plea deal. But I could just see Judge Sullivan saying, but to be clear, you're sitting here playing games. Right, right. Now, let's just put a period on this Michael Flynn discussion by, I have to do my lament of the fall of General Flynn because I served in Iraq when General Flynn was running intel mainly for special operations forces in Iraq during the surge.

And he put together an intel operation that was one of the most effective, and I mean ruthlessly effective, intel operations seen in modern warfare. I saw it unfold with my own eyes. The ability to exploit intelligence and to follow one raid with another raid before the enemy even knew his information was compromised was amazing. And had he retired after the surge and his victories in the surge, not gotten sort of mixed up in some of the controversies in Afghanistan, and then done what a lot of retired generals do, become a consultant for a major American corporation, become a think tanker. We would be hailing him as an American hero, but man, he took a turn. You know, when you're taking, he took money from the Kremlin. He took hundreds of thousands of dollars from what is and what has been plainly revealed to be a very, a Turkish government that is not always aligned with our interests and our

values. And then, you know, he didn't just lie to the FBI about his contacts with Russia. Remember, he was fired because he lied to all kinds of people in the Trump administration about what he'd been doing. He's a really interesting person to be seen as a hero now, and there's a good chance Trump might pardon him. But he had a fall from grace, and it's sad. And the president has tweeted about it this morning, just to say once again that what happened to Michael Flynn is a disgrace. Yes. But first, Sarah, we've got a sponsor. It's ExpressVPN. Being stuck at home these days, you probably don't think much about internet privacy on your own home network. Fire up incognito mode on your browser and no one can see what you're doing. Right? Wrong. Even in incognito mode, your online activity can still be

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That's expressvpn.com slash opinions. Expressvpn.com slash opinions to learn more. So thank you ExpressVPN for sponsoring Advisory Opinions. All right. So Sarah, do you wanna, we talked about Justin Amash in the Flagship Dispatch podcast. And I feel like of all the four of us, the person with the single most experience in presidential campaigns, you, had the least time. had the least time. And so I think I want to hear more of Sarah's thoughts, including why my idealism about a protest vote for Justin Amash may be misguided.

So I wish you could see this, listeners. Sarah has both of her fingers on her temples. I think she's in actual pain. I don't have a high horse on this. I really don't. There's this one group of people who are like, it is a binary choice because one of the two people is going to win the presidency. And so therefore, anytime you vote for someone who's not one of those two people, you are affecting the overall vote totals.

And that's the binary choice argument. And then there's this other very passionate group of people to which I think you belong. It's not a binary choice. My vote is my vote and this is America. And I don't know, there's eagles soaring and flags a-waving. I would prefer if you make that argument while the battle hymn of the Republic is playing softly in the background. To do it justice, really, to make it fair. I think I totally agree. Totally agree.

And I guess I come at this from a very practical, on the ground, how you run campaigns, how you win presidential campaigns, how you think about presidential campaigns. And so to me, both of those well-intentioned, passionate groups have generally never worked on a campaign. And so to someone like me, that both arguments are sort of naive, I guess. I don't know what the right word is. Naive sounds patronizing, and I don't mean it that way because I agree with both groups. Yes, every time that you don't vote for one of the two people who's going to be president, you are affecting the overall vote totals. But we could also have a conversation about the rational choice theory that voting doesn't matter at all. Like, okay, let's go down that little cul-de-sac, which I don't want to do because I think voting does matter.

And then on the you people, yes, of course, you should register your protest. In 2016, the Libertarian Party got its record high vote totals that it had ever gotten. And that is meaningful in and of itself. That record vote total, I believe was 3.27%. Wah, wah. Uh, okay. So if you're sitting on a campaign and it's for me, like, I just think like, if I'm on the Biden team, what am I doing? If I'm on the Trump team, what am I doing? So that's why I guess for me, like, it's not that I disagree with you in some passionate sense. It's that like what you're saying is irrelevant to me. Right. Because if I'm the Trump team, I'm looking at these polling numbers and let me just read them to you again.

and let me just read them to you again. Voters who have a negative opinion of both Trump and Biden are voting for Biden 6-1. So that means if you offer them a third option, that Biden will get hurt probably 6-1 compared to me, the Trump team, in this scenario. Next poll. 6-2-1 compared to me, the Trump team in this scenario. Next poll. If you do the vice, sorry, the head-to-head matchup, but with, you know, third party options,

Biden is ahead by six points. If you take away the third party options, Biden jumps to a 10-point lead. So that would tell me on the Trump team that a third party option with high name ID that can like actually make voters, you know, think their protest vote matters, wins me out four points potentially. Gets me four points closer to the White House. Four points is so much, so much, David. Oh my God. Four points. Like you just dream about living in a four point world. So I'm going to do a Sarah, my best Sarah Isger impersonation. Why are you quoting to me one poll? That is a good impression. Okay. And I'm going to even make it a better Sarah Isker impression. That doesn't even poll the actual candidate, Justin Amash. I know.

So. I know. There's problems. There's problems. I agree there's problems. But it's an overall trend issue. And if I'm sitting on the Trump campaign, overall, I think this hurts Biden more than me. So what am I going to do?

With the information that I have? That's the difference, David. I'm not saying that we should make assumptions on what's going to happen in November based on this information. I'm saying if I'm on the Trump campaign and this is all the info I have, here's what I'm going to tell my troops. We have a lot of other goals going on, but let me tell you in the top 10 list what number nine is right now. Up Justin Amash's name ID. We have the largest bully pulpit in the world right now and forever. So anytime that it, you know, pops into your head of ideas for how we can get Justin Amash's name out there and make him seem like an attractive option to disaffected Republicans who are going to vote for Joe Biden, let's do it. Because the best thing that we can do is make Justin Amash a viable name so that, by the way, David, next time there's a poll with his name in it. And if I'm the Biden

folks, I'm going to stick my fingers in my ear and say, la, la, la, la, la, la, and hope that Justin Amash, his name ID stays where it is now, which is, you know, in these single digits, probably maybe a little higher in Michigan, but maybe not. So can I tell you a funny story that's not exactly responsive to your statement, but has something to do with it? Isn't that all we do here? isn't that all we do here? So that what you're, I think when you're, when you're talking about poll, here's what I, here's what it has to do with the conversation. When you're talking about polling, that is person A, person B, and unknown third party idea, ideal. Polling is super different from when it's person A, person B, person C. And when I was back in May 2016, after, well, not all that famous, but famous to me,

Bill Kristol tweet, where I was suddenly actually thinking about mounting a third-party run, and then my name leaked. And for a while, I opened up an incognito window on Google just to see what the non-my-algorithm-influenced Google results were. And when I typed in who is, it auto-filled David French for one glorious moment. But anyway, so I was looking at what was the news coverage of this sort of trial balloon. And there was this hilarious interview. I hope I need to try to find it. But Nashville newspaper or Nashville TV station goes down to Columbia, Tennessee, where I lived. It was about an hour south of Nashville, small town, great town.

And they did what big city news folks do, which is, of course, what? Go to the local diner. city news folks do, which is of course, what go to the local diner. It's like all public opinion in small towns is generated in the local diner. And so they find three people and they say, do you, would you, do you know David French? And one person says, never heard of him. And the other person says, now this is my own home, my own town, by the way. I've lived there 10 years at that point. The other person says, I think I've heard of him. And then the other person says, I've never heard of him. But if his name ain't Hillary and his name ain't Trump, I'm voting for him.

Yep, that's about right, actually. And the funny thing was, I was looking at all this polling that in the abstract in 2016, people were willing to entertain a third party option. And so a lot of times people look at that abstract polling and say, look at that lane, which usually what that that means is I'm just answering this poll in a way that expresses some frustration. some frustration. But the bottom line is, as I was looking at it, I thought, I have to make people know who the heck I am for that to mean anything, which would have been a monumentally difficult task. So I think a lot of- Especially up against the earned media monsters that were Donald Trump and Hillary Clinton. Yes. You know, we talk about how Donald Trump got all this earned media. He was also running against the second highest name ID person in the world, basically.

Yeah. Yeah, exactly. Exactly. And, you know, this is the way I would put it. I would say, look, I fundamentally refuse. This is just, you know just the way I approach voting. I fundamentally refuse to grant the two major parties an entitlement to my vote. You're not entitled to it. It's not like I'm going to just sit there and try to use whatever influence I have in the primary. And then if I lose, then whatever, then it's the menu of two. I just refuse that. The only way you get my vote is you have to, number one, have a degree of character that

is commensurate with the office that you're seeking. And number two, you have to, and again, not perfect. I don't need perfect people. You have to have a degree of character commensurate with the office that you seek. So the higher the office, the more I'm going to be looking at your character. And then number two, you've got to largely agree with, certainly agree with more than any for the coveted, coveted, Sarah, David French endorsement, which brings with it potentially dozens of supporters. I want to be clear to our listeners that Justin Amash has not actually announced for president. He has opened an exploratory committee in the last 48 hours. So, like, let's give it a little more scrutiny, David. Oh, I will. Like, okay. I said so far lapping the field. I did not say that it is in the last 15 minutes. He's really made some progress. Well, I mean, this is not the first

15 minutes that I've looked at Justin Amash, but I'm one of those political nerds who actually knows who he is. But the, yeah, so I- 15 minutes being a sizable percentage of the amount of time he's had a federal campaign account to be able to accept money to run for president. True, true. But anyway, so I'm not saying I'm going to vote for Justin Amash, but I am saying there is a pro-life candidate who is a fiscal conservative, and I know of no significant character issues attached to him. And as of right now, I think he's the only guy on all 50 ballots who's not facing a corroborated sexual assault claim. corroborated sexual assault claim. I mean... On the flip side, listeners, I will continue to live in the world in my head where you think about how to win a presidential race and bringing you those insights while David ponders his endorsement. It's a serious decision, Sarah. It's a serious decision.

Okay. I have a couple legal updates I want to give. Okay. Before we get to our cultural topic, one quick update. We talked about the McGahn case and whether Congress could force him to come testify or whether, in fact, the executive branch could, in fact, insist that he not go testify. And we've given some time to that. I just want to update you that the en banc hearing happened this week. It was heard by nine judges via teleconference that, you know, depending on how your family's Zoom happy hours are going, maybe about that well. Which is to say there were glitches, there were problems, whatever. There are actually 11 active judges on the D.C. Circuit, but two of them, the Trump appointees, recused themselves for a variety of reasons, I suppose.

So we are left with nine, seven Democratic appointees and two Republican appointees. And I mention that only because they were pretty harsh on the Department of Justice. Who's the they that was pretty harsh? The judges. Oh, OK. Collectively. OK. It was a hot panel and the hot panel was spicy. Hot and spicy. OK. Hot and spicy. Hot and spicy. Okay. Hot and spicy. So I have picked out just one quote to read,

and we will talk about it when the en banc decision comes out. Not a whole lot of updates, except that they were very skeptical of the government's approach to this, the executive branch's approach to this. Him Mupan arguing for the Department of Justice, quote, issuing subpoenas, that's a prerogative of Congress. Enforcing subpoenas and enforcing laws, that's a prerogative of the president. Congress doesn't have any express authority to go around arresting people. There is simply no historical support for the notion that they can arrest an executive branch official following executive branch directives. And you had a lot of judges saying, like, isn't this basically just leading to revolution where we don't have checks and

balances and that, you know, you're asking people to take to the streets and there was this parade of horribles. So I think we know where this is headed, David, and it's not going to be close. Yeah. And I think this will not be a close vote and it may go to the Supreme Court. Yeah, I think it's likely to go to the Supreme Court. And I I think I'll be siding with the overwhelming majority on this one. You said you had another legal update. Yes. This case is very interesting to me. So in the Corona Aid Relief and Economic Security, or CARES Act, the one that sent out $1,200 to single taxpayers earning less than $75,000 and $2,400 for married couples earning less than $150,000. This was the initial, the $ 2.2 trillion, David. Everyone, yeah, okay.

We all know about the CARES Act at this point. Many checks were sent with signatures on them. Here's the little nugget, though. If you are married, in order to receive any money, your spouse has to have a social security number. There's two exceptions to this. If either spouse is a member of the armed forces at any time during the tax year, only one is required to have a valid social security number. Second, if you are married but file separately and your spouse lacks a social security number. Second, if you are married but file separately and your spouse lacks a social security number but you filed separately, you will receive half of the payment for married couples. So you'll get $1,200 if you filed separately from your non-social security number holding spouse. What this means is that if you are an American citizen eligible for $1,200 if you are a single taxpayer, but you married someone who is an immigrant who does not have a green card, basically, you get $0. That's amazing.

Right. So, surprise, surprise. There's a lawsuit. Discrimination based on the alienage of a U.S. citizen spouse is presumptively unconstitutional and subject to strict scrutiny. As the lawsuit claims, it was filed in federal court in Chicago. I think that's a really interesting case, David. I think it's a fascinating case. I think politically, it's really hard for me to justify that as from a policy basis. I mean, it seems to be intentionally leaving behind and punishing Americans who've married immigrants, which is, I mean, it feels gratuitously cruel. I mean,

to be honest, it feels a little bit cruel, maybe a lot bit cruel, especially because we're talking about people who might be in financial crisis right now and who are Americans. Also, you can imagine a scenario where my cousin is engaged to someone who is not a U.S. citizen. Well, when they get married, she doesn't get a green card right away. There's going to be a lag time between getting married and getting that green card. And this crisis could have happened in between any number of reasons why your immigrant spouse does not have a green card. And I actually think that the discrimination claim is unique and they might be right about strict scrutiny. Yeah. You know, I have to think this through more, but I think I think there is there's a there's a compelling argument.

There is absolutely compelling argument. Where where is it filed? Do you know? Chicago. Chicago. OK. They're winning first. That's right. Yeah, no question. Yeah. So they win in the first round. They even, well, actually the Seventh Circuit has gone both ways. So whatever. Yeah. It's going to be fascinating. Listeners, we will keep an eye on this case. I think it's very interesting. And I'm still just kind of gobsmacked at the actual substantive policy, because here's the thing. The number of people this impacts,

while it's important to them, it's a rounding error on a rounding error on a rounding error of the $2.2 trillion. The material financial impact to the United States Treasury of excluding these people can't be measured and seen on an electron microscope. But the impact on the families denied money in the time of what is rapidly shaping up to be an economic depression could be very substantial. I also think there's a weird thing about the filing separately. So first of all, many people would have already filed their taxes before the CARES Act was passed,

so they don't really have an option and they filed jointly, let's say. But second of all, there is a very narrow chunk of income in which filing separately would actually help you. But for the majority of people, filing separately would create a tax penalty in order to get your $1,200 in stimulus, which also seems bizarre. Bizarre, bizarre, bizarre. Okay. Well, you know, one hesitates to jump to too

many conclusions, but a theme of the Trump administration on occasion has been the cruelty is the point. And so we'll see. We'll see. This feels cruel. Speaking of cruel, sometimes our spouses and loved ones don't want to watch the things that we want to watch. And that is cruel. That is cruel. So I want to hear what you're watching, but I just like when you suggested this, I was like, oh my gosh, yes, of course, that's exactly what's happening over here. So Scott and his best friend

do like an online. I don't actually, I tried to watch the other day. I'm not sure what they're doing online, but they're do something online together once a week. And that's my time to then do my thing by myself of things he does not want to watch. Yes. And it's like my special two hours. Actually, it's about three hours. He does from five to 8 PM with his bestie on Tuesday nights. And that's my like secret Sarah time. So what are you watching that Scott's not would not watch with you? Well, the one that I wanted to talk about because it fits into so many of our other conversations, because it's not a guilty pleasure, actually. It was just something I wanted to watch that he was like, please don't make me do this. And because I love my husband, I agreed. I watched the 2019 remake of Little Women.

And David. Yes. Have you ever watched any of the Little Women or read Little Women? I can't say that I have. Fine. Just, but feel free to monologue on this. Well, no, because the, the, I think I might actually, by the end of this, convince you to go spend the hour and a half or whatever to go watch this because Little Women is a well-known story. Uh, Louise, Louisa May Alcott, um, is telling this story. It's set in the Civil War. And it's a story about sisters. And it's sort of like Sex and the City, where like, which sister are you? You know, there's like the musical sister, the actress sister, the painting sister, and the writing sister. And Louisa May Alcott is clearly writing, the story about the writing sister is about Louisa May Alcott.

It is a thinly veiled autobiography. And in the various tellings of this and movies that have been made of it, they really reflect their own times culture about women far more than they reflect the original Louisa May Alcott story. about women far more than they reflect the original Louisa May Alcott story. And Louisa May Alcott story reflects her own times view on women as well. So what I loved, what I found so interesting about the 2019 version is I think, like this is my college paper on it. I think it is the definition of third wave feminism, David. Oh, interesting. Okay. Say more. Okay. So, uh, we've talked a lot about second wave feminism and how this was like adopting a man's role and like wearing pantsuits

and short haircuts and bra burning and like, you know, F the patriarchy and third wave feminism, uh, it was struggling and like backlashing against that. And like, well, F the patriarchy. And third wave feminism was struggling and like backlashing against that and like, well, maybe the term feminism isn't right. And I don't know, and this is hard and work-life balance. And I do want to be a mom and all of these things. And what the 2019 Little Women does is shows the feminist decisions that Joe, the writer character, is making, but then the consequences of those decisions and her loneliness at times because of her decisions. And also then it has this really meta ending where the whole book is about how Joe doesn't want to get married and she turns down all these offers. And then all of a sudden at the end of the book, Joe gets married. And you're like, what now? To like a random dude who we don't even know that well in the book. And in this movie version,

it has this like meta breakout where she's meeting with the publisher who's going to publish her book called Little Women. And he reads it and he's like, well, it can't end that way. And she's like, but the whole time Joe's been saying she's not going to get married. And he says, look, lady, this is, you know, 1864 or whatever. You got to end with a marriage. And she says, well, I guess I've always said marriage was an economic proposition. And I suppose writing is too. And so she has her character get married to fulfill sort of society's expectation of a character, even though she herself is not going to. I blew your mind. I'm just so my mind is so blown. Like, I think I'm just going to skip out on my newsletter today and watch Little Women.

So, yeah. So, Little Women as the new definition, two-hour definition of third wave feminism. if you want to know what it's like when a loner mercenary from a planet that was demolished by a genocidal death cult ironically ends up as leader of the genocidal death cult by vanquishing its uh lord marshall in combat, this is the movie for you. Starring Vin Diesel, I believe. Starring Vin Diesel. Extremely underrated sci-fi flick. What I like about it is that it's original sci-fi. This is not derivative of comic books, so far as I know. I don't know of a Riddick comic. It's not derivative of anything else this is original sci-fi it is classic vin diesel you can tell when vin d the when when vin diesel is deeply

involved in a production and the tell is it the movie portrays vin diesel is nearly godlike that's that's how you can tell that but i'm here for it. He's awesome. He's one of the top five greatest living Americans, along with Dwayne The Rock Johnson. And that's one of the reasons why the Fast and Furious franchise has become so amazing. It features both Vin Diesel and Dwayne The Rock Johnson. And by the way, about Vin Diesel, he's also, if I recall correctly, very famously a fan of the game Dungeons and Dragons, which is, I mean, at this point, we're basically the same person, except I'm slightly more physically fit and stronger. So are you watching, did you watch both the original Chronicles of Riddick and

the sequel Riddick? Sarah, have we met? Of course. Okay. Yeah. I just want to shock you with something, David. What's that? I am a Vin Diesel fan and I've watched Chronicles of Riddick.

That is fantastic. That is fantastic. I mean, I don't want to sound like the perfect woman who's ever been put on the planet that I both move from little women third-wave feminism to watching Chronicles of Riddick. But that's me. I am the full package. I mean, if that isn't third-wave feminism, I don't know what is. That's right. Yeah. That's right. Yeah, but it's funny because I have, as I've said many times before, we have six people in the house. The college kids are in the middle of exams.

Nancy has a lot going on. So late into the night, once I wrap up all the work, like if I want people to come in and watch season four of Last Kingdom, no one's available. I'm not going to watch ahead. I'm not going to watch ahead. So I got to figure out something so the most recent was chronicles of riddick and it was better than i remembered uh my other like my you know now that i obviously i finished little women um going back and watching all of 30 rock has been a guilty pleasure as well because you know tina fey oh we we could have a whole podcast

on best comedy series including most underrated comedy series and i don't know why more people don't talk about 30 rock i mean you talk about you know what let's put a pin in it i think that's a great conversation yeah most underrated comedy series let's do it next time. Yep. Let's have that conversation. All right. I think that's a complete podcast. Of sorts. Indeed. Well, thank you as always for listening. And again, please rate us on iTunes. I keep saying iTunes.

It's Apple Podcasts. Sorry. Rate us on Apple Podcasts. Please subscribe. And please check out thedispatch.com. This has been Advisory Opinions with David French and Sarah Iskra.