Advisory Opinions - The Presidential Assassination Argument

Episode Date: January 11, 2024

Sarah and David address a few corrections from Tuesday’s episode before turning to the oral argument on Trump’s prosecutorial immunity. On the Agenda: —Can presidents order Seal Team Six to assassinate rivals? —Who is going to win this case? —Did we just fix qualified immunity? (No.) —Political advertising at the Ninth Circuit —Should I go to law school? Pt. 97 Show notes: —Marbury v. Madison —Mississippi v. Johnson Learn more about your ad choices. Visit megaphone.fm/adchoices

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Welcome to Advisory Opinions. It's Sarah Isner. It's David French. And we're going to do the oral argument. We're going to do the Ninth Circuit en banc. We're going to do a to law school or not to law school from a listener. And it's not being error free, but it is rather owning up to one's errors that gives this podcast credibility. That being said, I'm about to issue three corrections, which is embarrassing. And I don't know, I've just been really beating myself up over it. So here we go. Here are the three corrections. One, the main, this is probably the most embarrassing. The main secretary of state actually did state her evidentiary standard.

She said that she was deciding it by a preponderance of the evidence, but she was getting that standard from the main Administrative Procedures Act. And, okay, so I had said that she had not stated her standard. She had. That is embarrassing. Second correction. I had said that the Supreme Court had granted cert in the Colorado Republican Party version of the Colorado case. They had, in fact, granted cert in the Trump version of the Colorado case. I feel a little less bad on that one because there'd been a lot of confusion,

but it's still wildly embarrassing because I could have just scrolled up and checked. The third scrolling error is that we said that Newsom concurred with himself. In the opinion we talked about last episode, he in fact did not write the majority. So he did not concur with himself. He just concurred the normal way. We regret the errors. And I really, I sound like I'm not serious about that, but I can't tell you how much I hate making sloppy errors.

sound like I'm not serious about that, but I can't tell you how much I hate making sloppy errors. Oh, and I'm 99.9% sure I made the error on Newsom as well, but not on the podcast when we talked about it in a podcast where we previewed it. I was like, oh, we're going to talk about Newsom concurring with Newsom. And that was not right. But Sarah, it happens. I made a mistake in my column, my newsletter about the 14th Amendment. It was not a mistake material to the argument at all, but it was a mistake and it was dumb how it happened. It was stupid. And I was actually alerted to the mistake by a close friend of the pod. And we immediately made the correction. But it does stink, you know, like when you have that feeling. Especially when you know it could have been avoided. Like, and you know how to avoid it.

And you just didn't do the work. Yeah. It's one thing to make an error where you, like, couldn't have helped it or it would have been so difficult to catch it. But, like, no, this was so easy to catch. It drives me crazy. We really, really work hard to be right, even if the stakes are pretty low on a podcast. But it is worth noting that the Newsome error was sent into us by someone who created a Gmail account called ConcernedListener17 at Gmail. So first of all, congrats to the other 16 concerned listeners out there who got that email first. 17 if you include the one without a number.

But look, Judge Newsom, Judge Newsom clerks more likely, you can just shoot us an email with your real names. We're not going to use them. We know it's you guys. Concerned listeners. I love that. All right, David. Look look right off the bat here we've got to talk about the oral argument that happened this week in the dc circuit on trump immunity and if there is one value add that this podcast can provide it's that we listen to it so you don't have to

i listened to it twice because there were parts that were actually a little hard to follow and I kept having to go back and sort of start over entire sections. So in the end, I listened to it twice, maybe a little more. Okay. So I have like an order of operations here that I'm going to talk about and then David, you're going to jump in. You ready? Okay. Let's do it. First, the three judges on the panel, Judge Childs, Judge Pan, and Judge Henderson. Childs and Pan are both Biden nominees. You may have actually heard of either or both of them. Childs was on the Supreme Court shortlist for the spot that Jackson ended up getting. She's a South Carolina judge who then got put on the D.C. Circuit.

Pan is the one who took Judge Jackson's spot when she went to the D.C. Circuit. So she took that district court spot. Then when Jackson got the Supreme Court nomination, she took her D.C. Circuit spot. So both of them, and this will become somewhat relevant, whether they have Supreme Court ambitions or not, certainly are on Supreme Court shortlists. Judge Henderson is interesting. She is a Bush appointee, H.W. Bush appointee. She is very conservative. She's not the most conservative judge on the D.C. Circuit by any means.

She's 79 years old, though, and she is a stalwart on the D.C. Circuit. She's 79 years old though. And she is a stalwart on the DC circuit. So I went in very curious. Now she doesn't talk a lot at oral arguments. Generally, she actually talked more at this oral argument than she does most of the time. And nevertheless, it was very, very little compared to the other two judges. Okay. Now let's talk about the advocates you have from Jack Smith's team, a guy named James Pierce. He is a DOJ lifer in criminal appellate. This is his bread and butter, right? He argued those obstruction cases to the DC circuit, David, the one that's now going to the Supreme Court about that statute and what corruptly means and the documents and such.

So that was his case. He could not be more comfortable in this environment. This is his home, the D.C. Circuit. The other guy arguing for Trump, John Sauer. John Sauer's come up maybe on this podcast before. He was the Missouri Solicitor General when Josh Hawley was Attorney General. He went to Harvard Law School, clerked for Ludig, then Scalia. And David, I know it will shock you, but I know John Sauer. What? What? John Sauer actually invited me out to dinner one night. He took me to a lovely Italian dinner and then to a Shakespeare play. And I wish so badly in this moment that I could remember which one. It was definitely a Henry or a Richard.

But the thing that struck me, he under his breath was reciting the lines along with the actors. He knew so much of the play. He's a Rhodes Scholar. I think he's the smartest person I've ever had dinner with. Wow. Yeah. And you've had dinner with some smart people. I think he's the smartest person I've ever had dinner with. Wow. Yeah. And you've had dinner with some smart people. I mean, maybe not, but like. Maybe not. I mean, I'm not saying I'm one of them, but I've been with you when you've had dinner with really smart people.

Fair, fair. Yeah. But yeah, no, I think he might be the smartest. He is a sort of a kind, gentle person. And I say all that because you wouldn't know it from this oral argument. All right. So let's dive into the argument itself. I want to start with what they all agreed on, because I think the headlines have been a little misleading here. All right. So everyone in this courtroom, the judges and advocates on both sides,

agreed that a president could be charged with a criminal offense for personal conduct. Like if you punched your wife, it doesn't matter that you happen to be in the White House, for instance. That's purely personal conduct. Second, both sides agreed that a president couldn't be charged criminally while he was president. So we're only talking about official acts, whatever that may mean, after leaving, sorry, official acts while you're in the White House, but being charged after you leave the White House. Also, interestingly, everyone seemed to agree that Donald Trump has been charged with official acts, seem to agree that Donald Trump has been charged with official acts. Particularly, they focused on the DOJ-related charges. But there was pretty broad agreement. There wasn't a lot of disagreement

over like, well, this was official or it wasn't official. We'll get into where that disagreement was because that's maybe a little bit of a broad brush. But official was a really big, broad term used in this oral argument. OK, so the Trump position was that you can only charge a president, sorry, you can only charge a former president with a crime for something he did, official act, while in office after he's been impeached and convicted. This is interesting because you may be wondering like, why did they even concede that? Why not just go for sort of, you know, blanket fun time immunity? And I'm going to read you the impeachment clause from the U.S. Constitution. Judgments in cases of impeachment shall not extend further

than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. So like they're really laying it out there. You're not going to skip any of those steps. So they can't go into court and argue that a president can never be charged because it's contemplated right there in the text. So instead, they're going to argue that a president can never be charged because it's contemplated right there in the text. So instead, they're going to argue that the only way to be charged is through that impeachment, since it's the only time that charging a president is ever mentioned. Interestingly, footnote here, they had earlier argued that this was a double jeopardy problem

because he had already been impeached and acquitted. But they abandoned that here at the D.C. Circuit, and you can see why, because it would be totally contradicted by what they're actually going to argue. You can't argue that the impeachment trial is a trial for double jeopardy purposes, because if you're convicted, you still couldn't be tried again than in criminal court, or you'd have to argue separate sovereigns or something. court or you'd have to argue separate sovereigns or something. So instead, they simply argued that you needed to be impeached, convicted, and then you could be tried after you've been removed from office. Okay. And the money line, by the way, from that argument is the one you've seen in the headlines. When pressed about whether a president could order SEAL Team 6 to assassinate a political opponent.

And then before he's impeached, let's say that president resigns. So he's not impeached and convicted. Could you charge that former president with the assassination of a political rival? And John Sauer's answer was no. That's where you saw the headlines. Okay, now let's move to the Smith team. Now, here's what didn't get headlines and is going to make this a way more complicated case. The Smith team actually didn't argue that presidents are never immune from criminal prosecution. They said that, yeah, sometimes they're going to be immune, but not always. So the example was given from the Obama years. Could Obama be charged with capital murder for ordering drone killings of American citizens? And Pierce said, no, probably he couldn't be charged with that, but that it

wasn't a form of absolute immunity, but some other type of immunity that would have to be raised later. Okay, but like now we're just moving the ball to like something like qualified immunity or just later fun time immunity. We'll get to that when we talk about it. Oh, I have so many thoughts on that drone thing. OK. OK. He was also pressed on could Biden be charged for mishandling the border, for instance, after he leaves office. He didn't really say yes or no to that. Instead, he said

he just wasn't worried about it because this had been the law for 250 years in the country, and we hadn't seen the kind of politically retributive criminal prosecutions during that whole time. So why would we see them now? To which many of you may be wondering if he'd been living under a rock. We'll get to that. Finally, worth noting what Judge Henderson wanted to talk about. She wanted to talk about different types of official acts. And she's going to go back to Marbury versus Madison, which we're going to talk about a lot. It's very rare that you get to reread all of Marbury versus Madison and really, like, not the outcome, but like, what all it's saying. She you get to reread all of Marbury versus Madison and really like not the outcome, but like what all it's saying.

She's going to distinguish between ministerial acts and discretionary acts. Ministerial meaning you are bound by law to do them. Discretionary meaning it's within your discretion. Right. I mean, what's in the description. But maybe counterintuitively, she's going to talk about how you can be charged for failing to do a ministerial act, something you were bound to do, but that you can't be charged with those discretionary acts. All right, David, that's sort of the lay of the land of the argument. Let's start at the beginning. Who wins this case by how much? And then dive into the rest of your thoughts. Oh, okay. So I don't think it's as complex to make that prediction. I think Jack Smith wins this case. I think he

wins at 3-0. Yes. But can I note a distorting effect and a distorting factor in this argument? And I I'm not claiming a claim. I have read everything on this because there's been already a lot out there about it. But I've read a lot on this. And I've not seen anyone note that there is a distorting effect on having executive branch lawyers being on the other side of the immunity argument. And the distorting effect is evident in the drone response. So Smith couldn't quite, the Smith team, I don't think, couldn't quite give up its kind of executive branch privilege sort of mindset here. And I think that colored the answer there on the drones. And we can get into that. But I do think that was an interesting overlay because I think that Smith conceded some stuff on the immunity point that wasn't correct, in my view. Both of them did, right? Like both of them actually, for some reason,

answered incorrectly to their worst hypotheticals. The SEAL Team 6 answer wasn't necessary for the Trump team to give up, to concede that you couldn't be charged with killing a political rival. That's not going to win the day. You're never going to get a vote for that. And at the same time, not conceding that, yeah, under our rule that we're creating here, that there's no absolute immunity. Yes, Barack Obama can be charged with a crime, capital murder, for that. Like, it was weird. And you're right.

The distortion was Donald Trump is sitting in the front row watching John Sauer argue. And that James Pierce has, of course, been an executive branch lawyer for basically his whole career. Right, right. So I think I am with you 100%. I thought the argument was distorted in some interesting ways. And I think that I think the drone answer is actually a really good place to start because the question, it would never have crossed my mind that a president would be immune from an actual war crime prosecution if the president ordered the war crime. OK, so if the president like if the

president ordered a strike on SEAL Team six, I mean, a strike by SEAL Team six on Biden, that's a crime going 19 different ways, right? I mean, but and it would also be, you know, the SEAL Team 6 would be the individuals in the SEAL Team would be guilty of murder as well. I mean. But worth noting, nobody disagreed that it was an official act because it would be a president giving a command within his commander in chief powers. But we'll get to whether it's clearly outside his authority. But I don't believe that every single member of the United States military up to and including every single official of the Department of Defense could be liable for war crime prosecution except the commander in chief.

So the issue with a locky, you know, the drone strike that Obama ordered on an American citizen who is also a member of Al Qaeda, the the issue with the Lockheed, what there are American there are people who believe that there were somehow some additional protection he gained, even though he's a member of an opposing enemy combatant force by virtue of being an American citizen. That's not the law of war. That's not the traditional law of war. You can have an argument over whether an American citizen who becomes an enemy combatant by actually becoming a part of a combatant force should enjoy some extra special protection beyond the protection given to

combatants, enemy combatants, but that's not the environment here. And so the, um, the issue, the answer to the question should have been your honors. There is no immunity for ordering a war crime or for committing a war crime. Um, there's not immunity for that. That's the answer. And then if you want to press some Obama battle Lockie, that wasn't a war crime. That wasn't a war crime. So he, the, the protection for prosecution there's Obama did not, you know, he did not violate the law of war. But it seems to me very dangerous to say that the commander in chief of the most powerful military in the world is immune from prosecution from war crimes so long as he was acting as commander in chief. Yikes. For those wondering how much they pushed back against the

hypotheticals, the answer is not much. It was odd to see Pierce, for instance, from the Smith team, not push back on that hypothetical at all. He seemed prepared for the question, and that was the answer they had prepared. Now, Sauer pushed back a lot, but not really on the hypothetical, but rather he wanted to add to the hypotheticals. So for instance, there's this moment in the rebuttal where he pushes back enormously, where she says, Judge Pan, I believe, I just want to make sure I understand your position. If Donald Trump had been convicted at his impeachment trial, you would say that under your theory of the impeachment clause, this could move forward. And Sauer kept saying no, because there's all sorts of other

problems with this prosecution. And they kept going back and forth. And so finally, she had to say a president who was convicted in an impeachment for the same types of offense. I mean, we basically just had to change the articles. And eventually he agreed to that. But he wasn't pushing back against, again, the purpose of the hypothetical, if you will. Right. So both sides were fully prepared for what they were going to get asked. And these were the positions they had chosen. And again, the reason that I agree that it's 3-0 is because if you're asking judges to pick between the two parades of horribles, they're not going to pick the one where presidents get to murder their political rivals with no repercussions ever.

That, that that's the power of a King and we don't have a King. And it just seems like a no brainer that you can't sit there and argue that, but you want to talk about a distorting effect. I absolutely think Trump in the audience was a distorting effect on the Trump side. It was, you know, I don't know that even Trump did not get that many headlines for it. So I understand why he wanted to go. We wanted the attention for it. He wanted to show that he wasn't this wasn't a political liability.

It was a political asset. But I think it made Sauer dig in at points and be a little bombastic on points that weren't helping with Henderson, right? Your goal here is to get, I mean, a dissent is your goal, but a concurrence at least from Henderson. And I feel like he might have lost her because he was pushing so hard against Childs and Pan. I will tell you, I thought Childs and Pan came in a little hot. And so I want to skip ahead to what happens next before we go back to some Marbury versus Madison stuff. I went into this oral argument thinking there was really a chance the Supreme Court might not take this case if there's really a 3-0 decision from the D.C. Circuit. Like, eh, it's decided the same way we were going to decide it. Why do we need to up the temperature, so to speak, on this question? But I felt like the oral argument was

so muddy, and I feel like the opinion coming out of it is going to be really mushy, muddy stuff. I think the Supreme Court may take it just to clean that up a little bit like that Fifth Circuit Indian child welfare case where you got 120 pages of garbled stuff where every judge basically wrote their own thoughts. The Supreme Court didn't necessarily take that to change the outcome, but rather like that. No, that's not the law. What? The law is much cleaner and easier than that. Yeah, it's not the law. What? The law is much cleaner and easier than that. Yeah, it's it will be very interesting because I expect a three zero. And, you know, as and I can't remember if this was green room conversation or podcast conversation, because sometimes we have great green room conversation. One of the two, you made the very astute point, which is if Smith

had said to the Supreme Court a few weeks ago, take it, take it, take it, take it, take it, and then he wins 3-0, it'd be a little weird to say, nope, move along, nothing to see here. I mean, there's legal doctrines in which he kind of can't take that position. This is not a legal argument he'd be making, really. But I don't know that they would take that chance of how awkward that would be. Yeah, yeah. Very interesting. But yeah, I think it's going to be 3-0. I agree with you about two of the three judges coming in really hot.

And I just my hope for the opinion is that it actually goes beyond the DOJ position. Because I think the DOJ position is actually kind of untenable, which is it's almost like the obscenity standard in Miller. You know, you know it when you see it. It was literally what he argued. Yeah. He's like, well, you'd have to do that. You know, that one just like strikes me as different. And she's like, so are you saying we have to do this on a case by case basis? And he kind of was like, oh, maybe. Yeah, I think the better answer is if you if you violate a constitutionally valid federal criminal statute, either in your personal or official capacity when you are president, you are subject to prosecution after you leave. That's actually where I came out of this argument. You know, I walked into it on the fence isn't quite right, but not quite sure where I'd end up. And I left with you that actually both sides were too far to the not to the immune side than I turned out to be.

In part, here's the other part that's weird about what the Jack Smith team was arguing by saying it's a case by case or there's some kinds where it would be immune. Remember, this part of the Jack Smith indictment that I've said is not just the weakest, but the weirdest, which is the DOJ part. This idea that the president is being indicted for thinking about appointing a different attorney general because the attorney general wouldn't open an investigation that he wanted, a thing he ended up not doing, that is such a core official act. Also, there's the attempted inchoate crime, which is not a thing. They've never tied which statute it goes with. So there's all sorts of other problems. But

in just this version of it, the Jack Smith team has made clear they want this to move quickly. They literally sat there in court this week and said, look, all we want is that he's not absolutely immune, but then we are going to have to go litigate whether he's like immune on each different act. Talk about slowing this down. That could take a year. You know, look, I know there's separation of powers concerns that have been raised, but if you're talking about a constitutionally valid federal criminal statute, you know what? All of the separate powers have been a part of that process. The legislature passes it, president signs it, courts uphold it, separation of powers concerns taken care of. Rule of law now applies. I don't know why this is so difficult.

It seems to be that we're sitting there going, man, but what if we have another really bad person at the White House who does stuff that's almost as bad as Trump, but not quite. What are we going to do? Oh, I don't know. Let's look at the law and apply the law. Milestones aren't for looking back. They remind us to keep moving forward, to turn what we've done into what we can do,

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plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, so now let's go to the good news, because David, I think I've got good news for you. Oh, let's hear it. I think one thing that could come out of this, and bear with me here, I think we might be about to fix qualified immunity in the weirdest avenue possible. I'm all ears. I'm all ears. All right. So we're going to have to go back

to Marbury versus Madison. And for those who had on their bingo card, Sarah is going to read us large chunks of Marbury versus Madison and be tickled pink by how delightful some of the language is. You win today. Today is your day. So bear with me because, oh, this is so much fun. And for those who have their Marbury versus Madison at hand, I believe this is page 107. The intimate political relation subsisting between the President of the United States and the heads of departments necessarily renders any legal investigation of the acts of one of those high officers particularly irksome, as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination, and it is not wonderful that in such a case as this, the assertion by an individual of his legal claims in a court of justice to which claims it is the duty of the court to attend

should at first be viewed, considered by some, as an attempt to intrude into the cabinet and to the inner metal with the prerogative of the executive. That is all one sentence, David. Love it. Okay, but let's get to hold that what Madison has done in refusing to deliver the commissions is illegal, but that the act under which it is illegal is unconstitutional, and therefore the court has no power to order him to deliver the commissions. It's this beautiful Chief Justice Roberts-esque opinion in many ways. But the part that we care about right now is the part about the powers of the judiciary to reach executive action. So, an extravagance so absurd

and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political or which are by the constitution and laws submitted to the executive can never be made in this court. What is there in the exalted station of the officer which shall bar a citizen from asserting

in a court of justice his legal rights or shall forbid a court to listen to the claim or to issue mandamus directing the performance of a duty, not depending on executive discretion, but on particular acts of Congress and the general principles of law? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised. It is again repeated that any application to a court to control in any respect his conduct would be rejected without hesitation. That's wild, Sarah.

Yeah, right. It's like spot on in some ways. So here's where I'm going to get to, David. See what you think. And it's almost like there's a certain law review article that was written three and a half years ago. I happen to know the date on which it was started, at least. It was a memorable day for me about the common law pre-1871 before our qualified immunity jurisprudence got all woofed up. That was really the difference between ministerial duties and discretionary duties. So a neglected ministerial duty, no absolute immunity. A discretionary duty clearly outside delegated authority, also no absolute immunity a discretionary duty clearly outside delegated authority also no absolute immunity and so what i think that actually they should have been arguing about is not these parade of horribles but how to determine when a discretionary duty is clearly

outside delegated authority and if that's where this fight actually should be. That yes, there is absolute immunity for something that was discretionary and within one's presidential authority. And so that's where like, yes, maybe the DOJ thing would fall on the other side of that line, but sending in fake electors would not. And Obama's example of drone killing an enemy combatant, clearly within his authority to do so and discretionary. Biden not securing the southern border. Sorry, that's also discretionary. Congress hasn't even given him the money to do it. So there's a whole different thing. And within his delegated authority. So if they decide that way, David, and that, yes, that will be on the absolute immunity question, not the qualified immunity question, but don't you think we'd be heading in a direction

where qualified immunity would also have to, I don't know, lean to the gravitational pull of a Gorsuch opinion on such a thing, for instance? Interesting, Sarah. Intriguing. No, that's fascinating. That's fascinating. Although I got to say the language you read regarding the limit of the judiciary to deal with discretionary acts, that's really broad language. It's very, very broad, but you can see where then between Marbury versus Madison in 1871, that clearly outside the delegated authority hymns that in a little. And this was what Henderson was arguing. So I'm expecting a concurrence by Henderson where she comes out the same way, but says we're drawing the wrong lines.

This is actually about something else entirely. And that we're about to fix accidentally, albeit qualified immunity. And if that's Trump's legal legacy, David, is it really so bad? I'm kidding. I'm kidding. Yes, it's really that bad. It is really, really bad, very bad. But it's a very dark cloud.

But there's some silver linings like the Electoral Count Act has been fixed. We may fix it. We may clarify presidential immunity. Like we may end up after this nightmare, assuming we survive it, that with some much better guardrails. That's what I'm hoping. I'm hoping that we emerge from this, how in whatever state we emerge from it with better guardrails. But I'm at this point, Sarah, where I'm not taking for granted that we're going to emerge from it. Last piece of precedent worth mentioning, Mississippi v. Johnson. This was an 1867

case where the state of Mississippi sued Andrew Johnson for enforcing reconstruction. That sounds to me actually very similar to the hypo about Biden and the border, for instance. Right, yes. And that's where the court says, you know, Johnson was acting in an executive and political capacity. It was discretionary. It was within his discretionary authority.

Therefore, he could not be sued. Now, mind you, yes, that's civil suit, not criminal. And, ah, David, I found this so interesting because to me, of course, when you first think about the difference between civil and criminal liability, you think the criminal standard should be higher. But I do wonder now whether the criminal standard should in fact be lower or the same in the sense that, yes, but the criminal standard already has so much more process associated with it. You fix the problem within the criminal part. You don't need to fix it in the immunity part. As in the immunity standard maybe could be the same for criminal and civil liability. Yeah. No, I could see that emerging.

Absolutely could see that emerging. Okay. So maybe we're going to fix qualified immunity. That could be really exciting. I'm not sure we're going to fix qualified immunity. That could be really exciting. I'm not sure we're going to fix it this time around, but if the Supreme Court takes it, if Gorsuch is feeling in the mood, feeling his oats, I don't know. I could see it happen.

Well, I'm going to do something right now just to do an immediate fact check. You're checking the URL, aren't you? Yes. So have we fixed qualified? Just to make sure that something hasn't happened before this opinion? The answer is no. We have not fixed qualified immunity yet as of today. Just fact checking that real time.

We're about to fix it. I'm so excited. Okay. Next up on our agenda, we do have a few interesting circuit cases to talk about. One coming out of the 11th Circuit that was just decided hot off the presses is that prosecutor, David, who was fired by Governor DeSantis, who said that he wouldn't enforce abortion laws in the state. who said that he wouldn't enforce abortion laws in the state and DeSantis fired him. At the circuit court, all three justices on the 11th, sorry, all three judges on the 11th circuit,

Newsom was on the panel, interestingly, said that no, that was First Amendment protected speech and that that prosecutor couldn't be fired. David, maybe you and I can dive into some of that First Amendment law coming up. But first, we've got this Ninth Circuit case that was actually decided now a little while ago. Yeah. But it's an en banc decided by the Ninth Circuit I thought was just worth a little bit of our time. OK. And then we're going to get to part 77 of should I go to law school? We love when you guys ask us, should you go to law school? Each version is different and fun. So I'm going to explain this California, the San Francisco ordinance, and then we'll dive into some of the law around it. Also real fast, Sarah, since we're on this free speech world, there was a Trump appointee judge who just ruled in Florida allowing a suit to proceed challenging library book removals from libraries. And so that's a Trump appointee judge allowing a lawsuit to proceed on a library book removal case.

So we'll definitely read that. You know, we've talked about that a lot. So just throwing that in there. Sorry. No, not to worry. So in this Ninth Circuit case, I mentioned before that we've got two dissentals in the en banc, one from Judge Collins, the judge most likely to have his dissentals granted for Supreme Court review review and one from Judge Van Dyke, the least likely judge to have his dissentals granted for Supreme Court review. And by least likely, it's not just the percentage, but the raw number has to be taken into account as well. OK, so the San Francisco ordinance is a disclaimer law. And it basically says, you know, right now

you're very used to seeing political ads, especially you guys listening in Iowa and New Hampshire, where it says this ad paid for by Americans for David French. The San Francisco ordinance says you not only have to say who paid for the ad, but if it's a committee of some kind, you have to say who paid for the committee. So it's secondary disclosures. And that can take up a lot of space, a lot of space. So the question was, is that so onerous as to violate the First Amendment? The majority of the en banc court saying, no, this is not materially different than other disclosure requirements. And the both dissentals in different ways saying, are you kidding?

This takes up the whole ad space. You literally can't see what the person is trying to do. It takes up 40 percent of the visual space of a flyer or a mailer, et cetera. And judges talking about math is the funniest thing. So you have the majority in the en bloc talking about how, well, lots of disclaimers can take up 40%. In a 10 second ad, you have to have that disclaimer at the end. And it's like, yes, but it's tiny and at the bottom. That's not the same type of 40%, etc. So a lot of argument over how percentages work. So David, I love this because, of course, I'm for a full disclosure,

no limits world. And so this actually pushes me a little on that full disclosure side, So this actually pushes me a little on that full disclosure side because it is, look, it is misleading if you can just start a pact that's like Americans for puppies. And that's all anyone knows about who paid for the ad. And it turns out that Darth Vader is the one supporting Americans for puppies. But if Vader supports puppies, do you suddenly dislike puppies? No, the point is he made up a stupid name. True, true. By the way, there's this amazing, to go back to my Carly days, the campaign, of course, was like Carly for America, whatever it was called. And the SuperPAC was Carly for America, all caps. And it was an acronym. And I forget what the acronym stood for,

but the Wall Street Journal wrote this whole piece on how that was skirting campaign finance laws. And there's a quote from our super PAC director that says, I can call my super PAC whatever I want. I can call it Carly for puppies if I want. And it ends up in the Wall Street Journal. And he's like, I can't believe that's my quote in the Wall Street Journal. I was like, it could have been worse. Like, at least it was Carly for puppies. I was like, it could have been worse. Like at least it was Carly for puppies. Yeah, that's it's it's really I think this is one of the few free speech areas where we disagree a little bit, Sarah, because I'm not in love with all the disclosure requirements. There is that NAACP versus Alabama element. There's also there's also the recent case. What was it, an AFP case? There's also the recent case. What was it, an AFP case? Yeah. Yeah.

Term or two ago involving mandatory disclosures in California and other contexts. I have a lot of discomfort, especially in this atmosphere of swatting threats, intimidation, et cetera, et cetera. et cetera. So I have, I have my issues with, um, now I mandatory disclosures to political campaigns. I'm even not all that enthused about it. Like I'm grudgingly okay with it. Grudgingly not super enthused about having to dump out to every single American. my mom writes a $25 check to Asa Hutchinson, right? Or something like that. So I'm not in love with it. And if I'm not in love with even making people disclose a formal campaign contribution to a candidate,

I'm definitely, I'm out of love with the secondary disclosure. This is something that, again, that the I think of the the NAACP versus Alabama line and and to sort of bring listeners up to speed or not familiar with that backdrop. the state of Alabama during the civil rights era, trying to require the NAACP to disclose its associates and associations as a precondition of doing business in the state of Alabama, which for some of those people at that time could have been essentially a death sentence. It would it wouldn't. But it wasn't just that it could leave, although you never want to say just and death in the same sentence. But it wasn't only the reason for the ruling wasn't only because people could potentially

be killed because they're in double ACP association. But it was also a lot of other things that resonate today with boycotts and and intimidation and threats and things of that nature. So I am very down on most forms of mandatory disclosure, Sarah. Interestingly, it's worth noting that a previous Ninth Circuit en banc actually held that a San Francisco requirement that soda ads contain a health disclaimer occupying 20% of the ad's physical space was unduly burdensome. So political speech getting less protection than commercial speech in the Ninth Circuit, something pointed out certainly by the

dissentals here. I think this one will go to the Supreme Court because we haven't really had a disclosure law in a long time. I'm torn on what I'd actually want in terms of disclosures at all. I think I'm still where I am, but in terms of disclosing it on the ad, yes, at some point you lose the message and the message is your core first amendment right. And so that to me has less to do with disclosures than it does your actual right to political speech. If you can't get your political speech out because the disclosure takes up 40% of the page and no one can see it, then I don't think that clearly infringes on your right to have the speech itself.

Right, right. And to dot our I's and cross our T's, the case I'm talking about is Americans for Prosperity Foundation versus Bonta, Attorney General of California. This is 2021. This is Bonta, Attorney General of California. This is 2021. Sarah, it's a fun thing. We've been doing this podcast long enough that I can't remember, like, if we've talked about a case this year, last year, the year before.

But yeah, 2021. And this was California's rule that charitable organizations soliciting funds in California must disclose the identities of their major donors to the attorney general's office. So this was charitable organizations more broadly, wasn't the PAC arena specifically. But I do think that case will inform and I think should inform this one. But we'll see. And also, by the way, how perfect is it that we're having a First Amendment conversation and it's completely about Florida and California? Nailed it. And all about the First Amendment. Yeah. And all about the First Amendment. All right, David, we've got a longtime listener, first time caller with a classic A.O. question to law school or not to law school.

But it does have a bit of a twist from some of the previous questions we've gotten on two different ends of the spectrum. So I'm going to read you this. I wrapped up my undergrad studies right as the pandemic started. Since then, I've been stuck in the quagmire of sales. I really want a way out, but have very little specific interest in any particular job. I've considered going to trade school, law school, grad school, looked school, grad school, looked at teaching and accounting, construction and nonprofit work. Nothing has stuck. Additional context, I have unused education benefits through a state program where I live

equivalent to four years tuition. I'm engaged and my fiance is currently finishing her full-time degree. The current financial situation in our house is, shall we say, sketchy. He's talked to his dad, who's a former JAG, and his uncle, who's a former corporate attorney in a midsize regional law firm. I asked him some additional questions. He has a 3.38 from a state school. He's a double major in business administration and music theory. He would not have to take out any loans per that previous comment. And he has not taken the LSAT. Okay, David. So the question is to you, to law school or not to law

school? Against that backdrop, I would, can I throw a curveball? Consider the military? But you're not answering the question, but I'm going to let you do both. I'm going to let you go down this path, but also you need to answer the question. Yes, yes. No. So I would say I think that law school in those circumstances, what I would do is take the LSAT, see where you are. And then if the LSAT is quality enough to where you think you could get into a law school that's good enough to where it is a truly option-expanding law school, as opposed to I'm getting my law license and the degree and the law license. Really, what they give me is the job of being a lawyer, and then I can make of that what

I will over time versus the degree from the particular school. Yes, it gives me the option to practice law, but it also may give me some other options, such as consulting, because, for instance, this four year tuition program, he would have to go to a state school and the premier state school in his state does not have a law school. So he's going to like a not famous law school. Yeah, I think it's option. Option expanding is contextual. say from the University of Tennessee Law School, is an absolute option expanding in Tennessee, in particular, and radiating outward from Tennessee in a diminishing, it gets diminishing returns the further you are out from Tennessee. But in Tennessee, it is absolutely option expanding. And not all of us are in this position or would even want to be in the position where they say, I want whatever education I want, I want it to expand my options in Tennessee and Idaho. So I do think if you know, and this is something I've said to people a lot, that if you live in Kentucky and this is where you have roots and you want to live and practice in Kentucky

and this is where you want to be, you may want to forego even going to one of the premier law schools in the country because what the University of Kentucky will do for you in the context you're committed to and also at a much lower cost, by the way. So I do think take the LSAT, see what kind of option expanding choice you're going to have with the law school, but also military. So if your financial situation is sketchy and you want to make an option expanding choice in life, the military is a really good option. You can become an officer depending on the discipline you choose. There may be enlistment bonuses. There might be bonuses available to you to put you on sound financial footing early in

your marriage. The downside is, of course, you'd be early in your marriage in the military, but lots of guys are in that position because guess what? Young officers get married. And you talk about option expanding. Holy smokes. It is option expanding. And so I would answer that a little think out the box. I would say law school is a real option for you, but also go back and talk to your JAG. Was it father? Dad, talk to your JAG dad, not just about being a JAG, but being an officer in the military and whether that could be a kind of option expanding choice. Fun fact I didn't include, Jagdad says, don't go to law school.

Corporate attorney uncle said, yeah, go for it. And I don't know whether Jagdad is saying that because of his own experience as a lawyer or because he knows his son. That's a little bit of a wrinkle in this that we just don't know. Look, the interesting part of this question to me is the no loans part. It really does change things when it's a three-year degree that didn't cost you anything except time. Yeah. But you're still not bringing in income during those three years.

So you are losing income in that sense. But it's different than taking out huge amounts of loans, for instance. Right. I'm with you, David. I think keep exploring something else to do. I mean, you know, my overall stance on advisory opinions has been don't go to law school unless you want to be a lawyer. It is very clear from this email that he does not want to be a lawyer. He's maybe fine with being a lawyer and he certainly knows some lawyers. So that's good.

So he knows a little bit about what it's like to practice law a little, but that's not enough for me. You actually have to affirmatively want to be a lawyer. That's not it. So it's still an easy call for me. Don't go. I love the military option. I actually think for someone who really doesn't know what they want to do, which is sort of what he's describing, the military makes even more sense than business school or any other grad school option. Although I will say when I read it, I was like, oh, construction sounds nice. Just being outside. Oh, yeah. Construction.

You know, these are good options. But the reason I raised the military is I do think not enough young men think about the military right now. There is a you know, we're in this atmosphere where there's sort of this crisis of purpose of young and young men. And I'm not putting our listener in that category, right? This is, this is a, I've now, he's engaged. He's living a happy life. Yes. He's, he's on his way. Okay. He's on his way. So this is not to you, young listener. This is to sort of in the broad, a broader, you're triggering a broader commentary. And then that that, we have two things going on at once in this country, a loss of hope and purpose

in young men and a recruiting crisis in the military. David's going to fix them both. Come on, guys. I got this. I've got it right. And that's not because the military is some sort of perfect institution. It is absolutely not. Like one of the things you do in the military

when you're in the military is bitch about the military. It's like, wow, David used effing last week and the B word today. I'm on fire, Sarah. No, but one of the things that you do in the military is complain about the military. I think every vet who listens will, will echo me on that. Brace the suck, right? Exactly. I was also in an Uber in, in Chicago and I was talking to the driver and he, I was wearing my third cavalry regiment jacket that I have. And he said, you're a vet. And I said, yeah. And he said, I am too. Young man, um, married. And he says, yeah, I served for four

years and now I'm out. And I said, what's your, how do you feel out? And he said, I want back in. And he's almost certainly going back in. And he said, when I was in, I complained a lot. And when I left, I missed it desperately. He said both the career opportunities, but also one thing that he said was the camaraderie, the people. And so I think that if you really don't know what you want to do, think through that as an option. And it's not just men, of course, women too. Think through that as an option, understanding that it's got a lot of problems. But also one thing you will note is vets across the political spectrum, across the demographic

spectrum, almost universally say they are proud to have served. It's very rare to find a vet, even if he had a bad experience, who says, I'm not proud that I served. And so, yeah, I think, you know, especially with a jagged dad who can kind of help you navigate all the unbelievably frustrating bureaucracy, you know, especially with a jagged dad who can kind of help you navigate all the unbelievably frustrating bureaucracy. You know, I think maybe give that a thought. I like it, David. We've gotten some other emails on various other parts of law firm life.

So we'll get to those in future episodes. But you have to start with the OGAO question, to law school or not to law school. And with that, thank you listeners for joining us for this exciting episode of Advisory Opinions. Lots more to come, First Amendment and otherwise, in the next episode of Advisory Opinions. you