Advisory Opinions - Throwing Trump Under the Bus?

Episode Date: August 29, 2023

The DnD show begins as David Lat returns to co-guest host in Sarah's absence. David and David discuss a strange First Amendment case out of the Fifth Circuit involving terrorism and COVID zombies, and: -Jan. 6 fake electors case -Non-delegation at the Sixth Circuit -Some drama with Big Law -Breaking News: Trump court date set Show notes: Georgia amicus brief opposing removal Bailey v. Iles (Fifth Circuit free-speech case) Allstates Refractory Contractors v. Su (Sixth Circuit nondelegation case) Chris Geidner on Allstates Jonathan Adler on stare decisis MoFo complaint Perkins Coie complaint Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. Don't touch that iPhone. I'm not Sarah Isger. I'm David French, and I'm with David Latt. So this is going to be what Jonah Goldberg suggested via text message, the D&D show,

to be what Jonah Goldberg suggested via text message, the D&D show, which David would be fulfilling a long time dream as a D&D player in high school that I would have a D&D show, but it's not Dungeons and Dragons. It's David and David. So I'm David French, not Sarah Isger. Sarah is on maternity leave. So everyone send Sarah your good wishes during this time. Baby has not yet come, but she's starting her leave. And so I'm with David Latt. David is the author of the phenomenal original jurisdiction substack, friend of the pod, best friend of the pod, really. Wouldn't you say? Oh, that's very kind. I'm happy to accept that. Okay. He's best friend of the pod, our go-to when me or Sarah is out. And so it's going to be the

D&D show during Sarah's maternity leave. And Sarah is irreplaceable, but we're going to do our absolute best. And we've got a lot to talk about. We're going to start with some Georgia updates with Trump and also D.C., Georgia and D.C. As we record this, there is a hearing in the judge's courtroom on January 6th case. We're also going to talk about a really fascinating First Amendment case out of the Fifth Circuit, a fascinating non-delegation case out of the Fifth Circuit, a fascinating non-delegation case out of the Sixth Circuit. And then we're going to follow up with a little bit more law drama around the affirmative action cases in big law, including MOFO. What does MOFO stand for? Now all I can... Morrison and Forster. Morrison and Forster. That's right. All I can remember is MOFO anymore. We've got a lot. So,

David, let's start with Georgia and we'll move on a little bit into DC and the January 6th case. But we were texting back and forth over the last few days to get ready for the podcast, and I was really struck by some of the filings already made in Georgia in which the fake electors, and this is very interesting to me, David, the fake electors are essentially arguing that what they were doing was acting at the direction of the president of the United States. Now, on the one hand, this is kind of throwing Trump under the bus because one of his key defenses could conceivably be fake electors. What fake electors? These guys were free agents. This was just the conservative movement reacting to all of the election fraud and they were doing it on their own. And so this sort of idea that I'm the puppet master, that I am carrying out this national conspiracy or this Georgia conspiracy is just absurd. I'm not, I didn't direct anybody to do anything. And here they are already coming in and saying, nope, he told us to do it through his legal team. He told us to do it. So David, why are they doing that exactly? Like what, what is going on here? Like what is going on here? Well, I think there are a couple of things.

One, some of them want their cases to be removed to federal court. And as we are recording this right now, there is a hearing before Judge Steve Jones, federal judge in Atlanta, the Northern District of Georgia, about whether or not to remove or move transfer from state court to federal court the case of Mark Meadows, Trump's former chief of staff. And so one of the fake electors, for example, who alleges that he was acting at the direction of the incumbent president of the United States, wants to transfer the case to federal court because you are, as you and Sarah have talked about in past shows, allowed to remove under the so-called federal officer removal statute. If you basically satisfy two requirements, the charged conduct was under the color of federal

office and there is a colorable federal defense to the charged conduct. So that's one. And then two, I think there's also an argument that under the supremacy clause, which displaces contrary state law, if they were acting at the direction of the President of the United States, the head of the federal government, they can't be prosecuted in state court for these actions. So I think that's what's going on in terms of why these electors are trying to say that they were acting at the direction of Trump. Now, it's very interesting. One thing you just said was they were acting at the direction of Trump through his legal team. So Trump himself, I think, still has the ability to say, I don't know what the lawyers were telling people. I don't think any of the fake electors alleged that they personally were told by Trump to violate law.

Right. Yeah. I think that's a key point through his legal team. So he's still going to perhaps be able to try to put them at arm's length and say, look, whatever they were doing, they were doing. And this also strikes me as what you might want to call the Hawaii playbook. Because by the Hawaii playbook, I mean 1960 Hawaii, which was, as advisory opinions listeners may remember, we talked about 1960 in Hawaii in the context of why intent matters. 1960 in Hawaii in the context of why intent matters. And so in 1960 in Hawaii, you had the recount of a very close election between Kennedy and Nixon was going on. Didn't know how it was going to turn out. Republicans submitted a slate of electors and Democrats submitted a slate of electors. And then ultimately when Kennedy won the recount, then there was a third slate of electors,

which was the final slate that was submitted, and there was no criminal wrongdoing in submitting these electors, and so this strikes me as another kind of defense that's saying, whoa, whoa, whoa, wait a minute. We're just the innocent parties here who are doing what the senior campaign officials were telling us to do. We were not trying to lie to anybody. We were doing what senior campaign officials told us to do.

And that strikes me from their perspective as what's going to likely be maybe a centerpiece of their defense, however this plays out in early motions, that there was no intent on our part. We were just doing what we were told. We did not have the visibility that the senior campaign team had. We're just following their lead. And their lead said, we need you to be electors. How on earth can we meet any kind of intent requirement that says that we knew we were fake when the campaign told us we were real? And David, I don't know about you, that strikes me as the kind of argument that has a chance. Yes, absolutely. I think there is a possibility. But again, one thing I'm really wondering about is what's going to happen with the removal proceedings, because we could be in very different territory in federal court. And there would, of course, also be no cameras in federal court, whereas there would be cameras in Georgia State Court. That is one big difference.

Georgia state court, that is one big difference. And so it will be interesting to see what happens. I think the law is also somewhat murky on what would happen if one or some subset of the cases are transferred to federal court, but others are not. Does the whole case move or not? I think I'm a little unclear on that. Yeah, you know, I have received conflicting, there's conflicting information. And as of right now, the case, the whole case is not removed as of right now. So at this moment, you know, we've got a federal proceeding regarding removal. At this moment, the Fulton County courts are still operating with jurisdiction over the other defendants. It's kind of a mess at the moment. We're going to be seeing.

We'll see what the courts say. But there was also, in addition to this filing, there was a little bit of an interesting moment where one of Trump's lawyers went on television. And this is Al, Elena Haba. Now, she is currently the Save America PAC general counsel. She's been a Trump lawyer for a while. And she basically goes on Fox News Sunday and says, you know, Trump doesn't need a lot of time to prepare for this thing. He doesn't need much time. He's ready to go. And I found that amazing, given that he has made court filings asking for trials being

pushed way off into the future. And it just struck me as remarkable mixed messaging. Now, we have the Chutkan hearing going on right now. Judge Chutkan is hearing the request for a, the competing request for trial dates right now. And she's already said right at the start, she said, you know, the prosecution's proposal of early 2024 and the defense proposal of 2026, both of them are crazy. They're both too. I'm not going with either one. And we just don't know which one she's going with yet. But that struck me as exactly the message. While all of your motions are pending to delay these trials, not to send. What the heck, Dave?

So I think this is a classic thing you see in Trump world where there is a conflict between the public relations strategy and the legal strategy. And there's also an unclear sense of who's really in charge. So Alina Haba, who made these statements, and you can see clips of them online on Twitter, is actually not a member, I believe, of that Georgia legal team. And in fact, again, because this is Trump, we had a recent shakeup or a change of lawyers. Trump is notorious for constantly changing counsel. They quit on him. He fires them. And in this case, he just replaced a well-regarded Atlanta trial lawyer, Drew Findling, with another well-regarded Atlanta trial lawyer, Steve Sadow. going to stay around, Jennifer Little, Sado is now in charge. And so he's going to be trying to get more time for this. And so he may have to say, look, Ms. Haba is not a member of this trial team and she was not speaking for us because I believe that Trump has made clear that he wants to have a delayed trial in the Georgia case, which is also interesting because as you see this unwieldy

group of 19 defendants starting to turn on each other, some other members of the defense side have asked for speedy trials like Kenneth Chesbrough, who was one of the president's lawyers, and I also believe Sidney Powell. And so this is going to be a bear of a case, whether it's handled in federal or state court with just so many defendants, conflicting interests, fingers pointing every which way it's going to be. It already is crazy. Yeah, it is crazy. And it really does raise a question about putting everyone together into one case. So you definitely do not have everyone with their interests aligned. As you were saying, Chesbrough and Sidney Powell have asked for trials as quickly as possible.

You have some electors saying, hey, look, we were operating under the pure direction of the Trump team through the attorneys, which is undermining some other defendants. So even if Trump can say, well, wait a minute, this was not my direction. It was my attorney's direction. Well, guess who are defendants in the case? The attorneys, the attorneys, Jenna Ellis, Rudy Giuliani, Sidney Powell, to what extent she was an actual part

of the Trump team was kind of a, is she or is she not dynamic during parts of 2020 and 2021. It was kind of a, is she or is she not dynamic during parts of 2020 and 2021. It's a giant, it's a giant mess. And I honestly don't know and don't have any ability to really predict how the trial court in Georgia is going to sort all of this out. I tend to suspect given the, just the complexity of it, just the complexity of all of these defendants, part of me thinks that the Georgia case will ultimately end up going last. That's quite possible. One prediction I will make is I do not think anyone is going to get this case removed. The cases on the federal side have been assigned to Judge Stephen Jones. He's

a former Georgia State Trial Court judge who was then placed on the federal bench in 2010 by President Obama. And we got an early hint maybe about how Judge Jones might rule because two defendants, Meadows, Mark Meadows, the former chief of staff, and Jeff Clark, the former acting head of the Civil Division of the Justice Department, asked for Judge Jones to stay the state court proceedings and also to block Fannie Willis from arresting them by her Friday deadline last Friday. And Judge Jones denied those requests. So it's hard to read too much into that because the statute makes fairly clear that the state proceedings should continue until

statute makes fairly clear that the state proceedings should continue until federal removal is approved by the federal judge. But it does show to me that Judge Jones is no Judge Eileen Cannon. In other words, he's not going to make any extreme pro-Trump rulings. And I think that if you actually look at the merits, the first prong under color of office, that's not a very rigorous test, but there is one argument that's been made by some. There's a good post over at Just Security about this, saying that the Hatch Act, which prevents federal government employees from getting involved in political activity, should not allow you to, under your office, be engaging in election tinkering. And then the second prong of removal is whether you have a colorable federal defense. That's a higher bar. And I don't think anyone has a colorable federal defense. And I know that AO readers love to have additional reading. Maybe this is worth putting in the show notes, but there was a good amicus brief signed by former judges

and executive officials, including several from the Republican side, including Charles Freed, Bill Weld, Judge Ludig, basically saying there is no colorable federal defense here to these charges. So, and look, again, I know we shouldn't be too eager to say, well, so-and-so was appointed by this person, therefore they're going to do X. But I think the merits are very clearly against removal. And to the extent that we have an Obama appointee rather than a Trump appointee, I think he's going to follow the merits

as opposed to trying to engage in canon-esque contortions to find removal. Yeah, I like the boldness of your prediction, David. It will not be removal. I like it. And I think the Hatch Act argument is really interesting and good. And the Hatch Act, for those who don't know, essentially says, look, when you are a federal employee and your capacity as a federal employee, you cannot engage in

electioneering. Now, if you're a federal employee, you can put a sign in your yard, for example. You can put a bumper sticker on your car, but that's your yard, your car. But using federal resources, operating in your capacity as a federal employee for electioneering purposes, you're going to have problems. And so on the one hand, it's difficult to say, hey, look, I was White House chief of staff. How dare you pull me into this? Then the first question is, what electioneering were you doing as White House chief of staff? Oh, none, Judge. None, I promise.

Oh, OK. Then what federal function were you performing here? How were you performing in your office? So it is a very interesting question. Now, I think Clark has a little bit better argument to say, well, okay, my federal office, part of what I do in DOJ is try to ferret out what DOJ will do is investigate election fraud. He has a bit of a problem in that this was not his bailiwick at DOJ at the time. He was free agenting within DOJ. And so it's going to be, I like the boldness of the prediction there.

I tend to agree with you. I tend to agree. And my initial thought was, hmm, you have these two full time executive branch employees that are pulled in. They're a little bit different from, say, a Sidney Powell or a Rudy who are clearly private citizens who are clients whose client is a president. But the president operating in this capacity is a presidential candidate. And Meadows and and Clark felt different to me. But the more I've looked into it, the more skeptical I am.

So I'm going to join you. I'm going to join you. I don't think removal, I don't think removal is happening. Could be wrong. I don't think it's happening. But it does delay the proceedings because we are kind of waiting

to figure out what happened. So I think Judge Jones should rule expeditiously on this. He's having this evidentiary hearing as we record this. You know, so right now we are looking at tentative trial dates in April for the Hush Money case, which nobody is talking about that case. Nobody. It's really interesting. I saw a, in the post, and we can put this in show notes as well. I saw in the post, what are people's attitudes towards the four big cases? Sort of what's the general Republican, independent, democratic attitude. And when you looked at their attitudes to the four big cases, there was a very clear, one of these things is not

like the other. There was a very clearly negative view of the Manhattan case versus the other three. And I'm going to, I want to say this and then we can move on to our other cases and controversies. But, you know, look, I think this speaks well sort of of the overall approach that an awful lot of people sort of in this media environment and legal analysts have taken to these four cases. Trump have said this Manhattan case has problems and said it and were jumping up and down and waving their arms even before it was filed, saying this potential Manhattan case has problems. And then when they read the indictment, they go, yep, this has problems. And so it is just not the case that everyone's monolithically for or against Trump just based on their political priors. Exactly. And you and Sarah, I think, have done a very good job in past episodes of teasing out the different prosecutions, identifying which ones you think are strong and weak.

And again, I tend to agree with you on your assessments. I share your skepticism of the New York case. I share your confidence in the documents case. And I know that you and Sarah have had some disagreements on the two cases in between. So we'll see where this all goes. Yeah. You know, Sarah has a point of view, which is documents case plus fake electors. And that should be that. That should be the whole prosecution. And, you know, if when push comes to shove, I think I agree with her. I think I agree with her that the best, clearly the best cases are documents, fake

electors. Like if you're just going to drill down to the best, the more I thought about it though, it's interesting to me if the prosecutors had just charged only their best cases or their best counts in an interesting way, they would not be acting like prosecutors. Because we're getting this sort of introduction to the criminal justice system and awful lot of people. And if there's one thing that is an element of the criminal justice system is that an awful lot of prosecutors throw counts on a criminal complaint the way in which, you know, I might throw croutons on a salad. I don't think there's quite enough croutons here. And so there's just a lot of counts that are thrown into criminal complaints. And now there's kind of a method to that madness. My wife and I were watching our latest guilty pleasure show of Lincoln Lawyer on Netflix.

And I say Guilty Pleasure because it is not prestige TV, David. It is much more like a 1990s era ABC primetime legal procedural. But I love it. It's so fun. And at one point, though, there's this plea bargain dilemma presented to one of the defendants because she's charged with premeditated murder while lying in wait. So like one of the worst murder charges and she's offered a voluntary manslaughter plea. Now, you're led to believe as the audience that she's innocent, right? And so, the voluntary manslaughter plea is six years. The sentence for premeditated murder, lying in wait, is life. And so, as the innocent defendant, you are flirting with massive risk, massive downside risk. And it feels like this is something that prosecutors will do often, place massive downside

risk in front of a criminal defendant, often to induce the plea. But in this case, a plea is not in the offing. I just don't, certainly not with Trump. And so what you're left with is the overcharge. You're left with the overcharge with no plea in the offing. And in that circumstance, with as many resources and as talented a legal team as he'll likely end up assembling, however many times he cycles through various lawyers, strikes me as a vulnerability in the case. David, do you think I'm wrong about that? Well, one possibility is maybe Fannie Willis can extract pleas from some of the minor defendants.

So maybe that would thin out the case a little bit. But I agree with what you and Sarah have said on past episodes. The thing is horribly overcharged. There are gazillion counts. There are too many moving parts. Whereas look at Jack Smith. He had six unindicted co-conspirators, any of whom he could have charged, but he charged just basically one. could have charged, but he charged just basically one that is in the January 6th case. And so, I think that this is definitely really messy. There may be this argument, and I think I've seen you articulate it maybe in your New York Times column, that, well, maybe to the extent that part of this trial is some kind of national reckoning with the events of January 6th. We should have something broader than just the fake electors and get it all out there and talk about it and have some

catharsis. But just given the polarized state of our politics, I do not think that we're going to have that day of reckoning. Or if we do, it's not going to lead to any kind of catharsis or a new consensus or national consensus or anything. Well, yeah. I mean, I think even just a narrow fake electors case, you would have to, if you're Trump and you're dead set on relitigating the 2020 election, you could relitigate that through the fake electors. And also as an element of proving the fake electors case, you're still going to have to prove intent, all of the same intent elements that you'd have to prove in all of the other counts is just there's just such a neat and easy straight line of proof to say you induced people to cast fake ballots for president of the United States. You can make the fake electors case in terms that people, average ordinary people can completely

understand about, hey, people cast fake votes and casting fake votes is illegal. Inducing people to cast fake votes is illegal. And so I do think there's this kind of nice simplicity about it that still meets that interest of sort of showing for those who have their minds open at all, which is, you know, a relatively small percentage of people that, hey, look, there really wasn't a leg to stand on here in contesting the 2020 election. But, you know, we'll we'll see. We'll see. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura

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Use code advisory at checkout to save. Terms and conditions apply. Let's move on to the Fifth Circuit. David, do you want to take us through our little Facebook post case? Sure. So this is a case called Bailey v. Isles, I-L-E-S. It is a case out of the Fifth Circuit, which you have discussed extensively on this podcast. I think it is one of the most Circuit, which you have discussed extensively on this podcast. I think it is one of the most interesting and controversial circuit courts out there. One of the readers in the comments to AO suggested that it's almost like the mirror image of the old notoriously liberal ninth. And some people now think maybe it's too conservative activists.

But anyway, this opinion, though, is not by one of the conservative firebrands. It's by Judge Dana Douglas, who is President Biden's first and so far only appointee to the Fifth Circuit. And it concerns a fellow by the name of Waylon Bailey, who in March 2020, the first month of the pandemic, went on Facebook and posted this. This is in all caps. Share, share, share, just in. Rapides Parish, that's in Louisiana. Sheriff's office have issued the order. If deputies come into conflict with, quote, the infected, close, quote, shoot on sight. Lord have mercy on us all. Hashtag COVID nine. Number 19. Hashtag. We need you, Brad Pitt. The hashtag we need you, Brad Pitt, as Judge Douglas explained, was trying to make clear

this post is a joke, specifically a zombie joke, because the hashtag We Need You Brad Pitt is a reference to the zombie movie World War Z, which featured Brad Pitt. But the police in Rapid Day's Parish, I don't know if I'm pronouncing that right, did not find this very amusing. And before he knew it, Mr. Bailey was accosted in his own home garage by around a dozen officers with bulletproof vests and drawn weapons. And one of them said while he was being arrested, quote, next thing you put on Facebook should be not to F with the police, close quote. So Bailey was arrested for, quote, terrorizing, close quote, under Louisiana state law, based on this simple joke Facebook post. Not surprisingly, the district attorney never brought charges. And then Bailey filed a 1983 lawsuit claiming violations of his first and fourth amendment rights. He lost before the district court, but the Fifth Circuit in a unanimous opinion by Judge, reversed. So that's a short summary of the case. Yeah. Okay. So let me ask you this. First, when you read that post, did you read it as a threat to the police or as a threat from the police?

Because I read it as a threat from the police issued the order, if deputies come into contact with the infected, shoot on sight. Like I read that as he was saying that deputies were going to shoot the infected. But it appears from the case that they were interpreting as if you come into contact with deputies, shoot on sight. Exactly. And I think that's one of the basic misunderstandings.

And I think the opinion clears that up. One of the things that Judge Douglas said was it was not a true threat. She argues that it lacked believability. But I think just even more fundamentally, as you're pointing out, it wasn't a threat to, say, shoot the officers. It was clearly the officers are going to shoot the infected, meaning the COVID-19 zombies. So that's the first thing. And then the other thing that was pointed out in the opinion, which I also happen to agree is to the extent that this is viewed as a threat or inciting people to attack sheriffs or our officers, it doesn't meet the standard of Brandenburg v. Ohio, which you've talked about quite a bit here before, but that's a very high standard. But again, it wasn't even worded as a threat. It was worded as a description. So he couldn't have been charged with terrorizing and they hold there was no probable cause and therefore nobody gets qualified immunity. Maybe if you charged him with something different, like is there some crime about disseminating misinformation or something?

But the other thing I should mention also in his defense and Mr. Bailey's defense was he was not impersonating the police. One case that this reminded me of was that fun case you talked about before. This was Nowak v. City of Parma. That was a Sixth Circuit case involving a guy who basically set up a fake Facebook page for his local police precinct and started saying all kinds of crazy stuff. The reason the case became famous was The Onion filed this hilarious, brilliant Supreme Court amicus brief when the case sought cert at the Supreme Court, which was denied. But that was also a case involving

a Facebook post and humorless police officers. In that case, though, the police won because they had neutral magistrates who had basically signed off on them going after this guy. Therefore, they had probable cause. Here, there was not that defense. But it just reminded me again, it's another one of these Facebook post meets free speech meets qualified immunity cases. But this time, kind of like the zombie, the First Amendment came back from the grave and, you know, took its revenge on the on the dour police officers. Yeah. I mean, the we need you, Brad Pitt part of this. I mean, come on now. But here's the thing, David, you might be asking astute listeners might be asking, why is this a Fifth Circuit case? Like, what is going on? How did the district court find that this was, how did the district, because this is reversing the district court,

I should have said that up front, this is reversing the district court. How did the district court find that post actionable? Now, and this is the part that's wild about this case. And every first amendment lawyer who's listening, when I say these words is going to almost have an involuntary convulsion. And some of you might, the district court found that the language used in the post was a quote, clear and present danger, clear and present danger. Now, First Amendment lawyers, when you hear those words, clear and present danger, what immediately comes to mind is early 20th century, immediate post-World War I era, free speech, jurisprudence. It includes the infamous phrase, falsely crying, you know, falsely

crying fire in a crowded theater. That is not the standard any longer. You do not ask whether speech is a clear and present danger. Instead, for example, you ask whether it's incitement, which is an entirely different test. That was shocking to me, surprising to me, David, that you had a clear and present danger case in this, the year of our Lord, 2023. It was pretty amazing. Yep. And Judge Douglas does explain why that was the analytical mistake of the district court. The only thing the district court tried to rely on was what was the mindset of the country like in March 2020? It was a time of great fear.

It was a time of great anxiety. And sure, that's true. I get it. I spent a good part of March 2020 in the hospital. But again, that doesn't allow you, that state of emergency doesn't allow you to just override or run roughshod over very well-established First Amendment jurisprudence. Well, and the state of emergency might come into play as far as what is or is not incitement under Brandenburg. In other words, what kind of language would be likely to create imminent lawless action? So if you're not in the middle of a pandemic

at all, there's no pandemic, and you put up a post about the infected. That's going to hit differently from the middle of a pandemic. But you still apply the Brandenburg analysis. And then you also just read the post. You just read the post. We need you, Brad Pitt. I mean, unless Brad Pitt is a notorious actual spree killer, then yeah, that was a clear, clear signal. But a fascinating case, nonetheless,

that does demonstrate how a panicked moment can yield bad law. Because I don't think there's any circumstance outside of a pandemic where a district judge, either clear and present danger analysis or incitement analysis would do one thing about that post. Yeah. Well, you know, it's interesting. This is interesting. The Fifth Circuit drew a contrast between another case where they did find a true threat. And this involved, and I'm quoting, Facebook posts made in April 2020 in which the speaker falsely claimed that he had paid a person infected with COVID-19

to lick everything in two specific grocery stores in San Antonio. And they held that was a true threat. Now, maybe with the benefit of the pandemic, someone in the rear view mirror, I kind of find that funny that somebody was just paying somebody to lick items in a grocery store. But that was held to be a true threat. Fine. But this with the hashtag, we need

you, Brad Pitt, and all caps and all of that really could not be taken seriously. Yeah, yeah, absolutely. All right. Well, let's let's move on. We've done Trump criminal law. We've done First Amendment. And then I said, I think I said earlier, we had an interesting non-delegation doctrine case. You really have to be an advisory opinions nerd to hear that and say, oh, goody, I cannot wait to get to that. So this case is called All States and All States Refractory. And this was an interesting case because not so much because the outcome, because I thought the outcome was really predictable, that OSHA's that OSHA's workplace safety standards are unconstitutional.

Boom. OSHA's. I'll just I'll just read what it says. same simple but poignant challenge whether congress's delegation to the occupational safety and health administration osha to set workplace safety standards is constitutional so this is called swinging for the fences david yep they're trying to get osha its workplace Russia's workplace standards ruled unconstitutional. Big swing. Sixth Circuit. It's a big swing and a miss, at least so far. Sixth Circuit rules against them, says there are intelligible standards for the delegation, essentially applies decades of precedent. There's a dissent, though. There's a dissent.

Um, there's a dissent though. There's a dissent. And what's interesting to me about this case is, and I'm going to link this to, to the Alabama Voting Rights Act case in this sense. I think that there are a number of litigants who are looking at the new court and saying previously unthinkable arguments are thinkable. So Voting Rights Act case was a prime example. Preclearance is gone. Now we're going to essentially try to gut the jingles test, essentially take the rest of the Voting Rights Act and not exactly overrule it, but limit it dramatically. So that was a big swing on voting rights. This is a big swing on OSHA. And look, the fact that there was a dissent says it may be swinging a miss. Maybe they fouled it off is the better analogy. What are your thoughts? So I agree with you that this is a time where people are now willing to mount these full frontal assaults on very established precedent. And I like what Chris Geidner, who writes a Substack newsletter, Lawdork, who's really smart, had to say about this. And he kind of makes the same point you did, David.

He said, Trump appointees and today's Supreme Court make this sort of big scale, nothing is off the table approach our reality, even in a case in which two George W. Bush appeals court nominees considered and ultimately dismissed these arguments. So I don't know if we had the old Supreme Court before the three new Trump justices, whether somebody would have tried to do this, because you're right, this is a very bold assault at the core of the authority of OSHA, the Occupational Safety and Health Authority or agency, what have you, to regulate workplace safety, which they've been doing for decades.

It's not like the case that Husband of the Pod prevailed in about vaccine mandates and whether OSHA can impose vaccine mandates on large employers or something like that, which is the scope of that authority. It's the existence of that authority to begin with. But I think what some in the conservative legal movement might say is, if you don't swing for the fence, if you don't swing at all, you'll never get a home run or even a single. Because before, the idea of toppling Roe v. Wade would have been seen as a waste of time. Even the conservative Fifth Circuit in the case that ultimately went to the Supreme Court

as Dobbs ruled in favor of the abortion clinics. But somebody had to raise it. And if you never raise it, you never it's like a lotto. You got to be in it to win it. Right, right. You know, I think there are it's going to be a really interesting, it's going to be very interesting over the next five years, because I think if you look at Alito's most recent discussion with the Wall Street Journal, Alito talked about the difference

between sort of originalism and consequentialism was, I believe the phrase that he, or the word that he used. I've talked about and we've talked about on this pod a ton of times originalism versus institutionalism. And after the Bruin-Dobbs term, I think an awful lot of people thought the court was going to really move a lot more towards originalism and away from that kind of incrementalism or consequentialism. And I think after three terms, I could be totally wrong about that. I think the consequentialist wing of the court is stronger than the purely originalists, because we just saw a term in which Kavanaugh, Roberts, Barrett, and by the way, Kagan, and I believe Jackson were in the majority more than Gorsuch and Thomas and perhaps even Alito as well. And so it's a strong indication that what you have was a court that is much more consequentialist slash institutionalist than maybe some folks anticipated.

And it's making me rethink Dobbs and Bruin in this very specific sense. was there an incrementalist or institutionalist way to deal with Roe that was in any way consistent with originalism? And in my view, and this is something we talked about before Dobbs came out, there was no way consistent with originalism to be incrementalist on Roe slash Casey, because anything short of overruling it is just making up another standard entirely. And so my view of the more incrementalist judges is they will be more incrementalist, but from within originalist framework. So if there is an originalist approach that yields a more incrementalist result,

they're going to tend to go with that. That was not an option with Dobbs. Now, what about Bruin? Bruin is interesting because an incremental slash originalist approach on bearing arms, look, New York was going to lose that case. Like New York, there was no scenario under this court majority where they were going to be allowed to continue

to withhold, grant and withhold carry permits on the basis of subjective criteria. Like that was out. That was not going to happen. So what was bold about the case was this text history and tradition test. That was sort of the swing for the fences originalism. But I'm not sure if you read the Kavanaugh concurrence that he thinks that's a swing

for the fences kind of test. So I don't know. That's kind of my uber theory right now is that if there is a framework where originalism and incrementalism can go hand in hand, most of the, or at least half of the Supreme Court's six Republican appointed judges, justices are going to lean in that direction. If there is not a way that incrementalism is consistent with originalism, If there is not a way that incrementalism is consistent with originalism, they'll go with originalism. That's my working theory right now, David. That's my working theory, and that's how I'm harmonizing the three Barrett terms so far. seizing upon Justice Alito's distinction between the originalists and the consequentialists,

because in this Sixth Circuit case, it's interesting. The dissent is by a Trump appointee, Judge John Nalbandian. It's a long dissent, 29 pages longer than the 15-page majority. And what's interesting is he's sort of giving the originalist roadmap. And he argues, one, the petitioner here should, the plaintiff here should win even under the intelligible principle test, which is the regular standard. But then he kind of articulates sort of a text history tradition approach saying, but if I had my druthers, we would focus more on how non-delegation of the legislature's, you know, legislative powers to agencies was understood at the founding. Now, it's a little weird to think about that because we didn't have anything resembling

the current administrative state at the founding. But that's basically his argument that, you know, so but again, if you think of the consequences of this, they would be mind boggling to basically just abolish OSHA. I mean, basically saying gnaw dog to an entire agency that's been around for decades. Again, even if there's a decent originalist argument, I just don't know if you can get a Kavanaugh or a Barrett to go along with that. OSHA regulates so many things. And a lot of them

are probably pretty popular with the American public. Yeah, it would, you know, and this is when you get into sort of the reliance interests on precedent as well. So it's not the case that when you look at this originalist court or this quasi-originalist court, that they also don't care about stare decisis. That's a myth. They actually, by some measures, especially in the last term, overall precedent at a lower rate than previous courts. And so they have respected stare decisis. Again, Dobbs kind of overhangs everything right now in a way that I think distorts how people view the court. Because look, the reality is, as I've written a million times, Roe was, and I'm going to quote Justice Ruth Bader Ginsburg here, breathtaking in scope. Okay. So anything touching on Roe,

if you're going to, Roe was a big freaking deal when it happened. And the rollback of Roe was a big freaking deal when it happened. And the rollback of Roe, the elimination of Roe, is in many ways less consequential in the real world than Roe was itself. Because what Roe did is it took all of the state laws regarding abortion and just removed them from the democratic process or the vast majority of them. What Dobbs does is it's not Roe in reverse. Reversing Roe is not Roe in reverse, if that makes sense. Reversing Roe just returns it to the state. So in that way, it had less sweeping application than Roe itself had. But the emotion around the case just kind of completely distorts the analysis of the

case in my view, and is thus distorting the analysis of the court itself. It's that abortion distortion that works its way into all kinds of issues, and it's really distorting the way people view the court. Now, I might be willing to eat all of these words if one of the consequences, for example, of Bruin moving from Dobbs to Bruin is just a wholesale elimination of traditional gun control under the text history and tradition test. I don't think that's going to happen. I do think the text history and tradition test has sort of created a state of confusion right now, but I think it's a temporary state of confusion and you're going to see a lot of kind of status quo anti-Bruin emerging from it. But I could be wrong about that. But yeah, again, I just feel like the Dobbs situation just is so coloring.

Even like Harvard is red in sort of this in a particular light because of the Dobbs. When the fact of the matter is the courts had been broadcasting for, you know, almost two decades that we don't think it's permanent to have race based affirmative action in colleges. So this actual outcome in Harvard had been predicted for a long time, but because it's read through that Dobbs prism, oh, look at the court just going crazy over ruling precedent. Yeah. Well, you know, one thing I would mention also is, and maybe we can put this in this show notes, is Jonathan Adler had a very good piece analyzing whether or not the current Roberts court with the three new Trump appointed justices is more or less respectful of precedent and stare decisis than past courts. And it actually found that the court is more respectful of stare decisis. Now, look, I think some people might argue, well, some of this is the chief justice's sort of faux stare decisis where they leave something technically on the books, but they've completely gutted it. You know, like in the, you know,

there've been a whole number of cases about that. I mean, there was the one I think of most recently was the religious accommodation case about the fellow who, you know, didn't want to work on Sunday. And I guess technically that case wasn't overruled, but it kind of was overruled. Or even in the affirmative action cases where they don't hold or write explicitly, you know, Grutter is hereby overruled or something like that. But again, I would refer people to that piece because there actually is some empirical analysis in some attempt to basically go through cases and code them like a political scientist would and see things. And so if you're going to breezily pronounce that this court runs roughshod over precedent

and stare decisis, you need to actually look at the arguments that Jonathan Adler makes in that piece and grapple with them rather than just saying Dobbs, Dobbs, Dobbs, because Dobbs, despite sucking the oxygen out of the room for the courtroom for a time, as you point out, it is not the only precedent, even if it colors how we view every other precedent. Right, exactly. All right, our time is fading and I want to get to mofo, maybe just because I like saying mofo. So we talked about this a little bit before, but you have written, it's your litigation of the week in original jurisdiction is American Alliance for Equal Rights versus Morrison and Forrester and Perkins Coie. That's correct pronunciation.

Yes, it is. And so, yeah. So why did you call it your litigation of the week? So this is really interesting. And I think talking about the Harvard case is a good segue to this. The American Alliance for Equal Rights, the organization you just mentioned, it is led by Edward Bloom, the affirmative action opponent who successfully challenged the Harvard and UNC affirmative action policies.

His organization is suing these two top law firms, Morrison & Forster, originally San Francisco, but now national, even global firm, and Perkins Coie out of Seattle. And they sued them in two different districts, one in the Southern District of Florida, that's MOFO, which has a Miami office. Perkins Coie was sued in the Northern District of Texas because it has a Dallas office. And the argument is very simple. These are short complaints, 11 pages for Perkins, for MoFo, 12 pages for Perkins Coie. There's a single count. The count is under the Civil Rights Act of 1866, or 42 USC 1981. And this provision prevents racial discrimination in the, quote, making and enforcing of contracts, close quote. It has been held to apply to the employment context, employment contracts. And what is going on here is MoFo and Perkins Coie have these fellowships, these diversity fellowships. These are available to 1Ls and 2Ls, first and second year law students. But both fellowships are very explicit, and they differ

slightly in what they include. But the gist of it is, you can't apply for these fellowships unless you are a member of an underrepresented minority. And they list those, for example, the MOFA criteria, you must be African American, Black, Latinx, Native American, Native Alaskan, or a member of the LGBTQ plus community. Perkins Coie is basically the same, except they also say you can apply if you have a disability. But if you don't fall into these categories, you can't apply. You are not eligible for this. And what's also striking about this is this is explicit. I think that a lot of employers these days are not explicitly saying they have a racial preference, but when they see a black or Latinx or other underrepresented minority who's applying and who's a great fit for the position and has

great qualifications, they do give that person a plus, even though in theory, you really should not give anyone a plus or a minus because of their racial or ethnic background. But they don't say that in the job listing. This basically says it in the job listing. That's what's so bold. Yeah. No, I think that these, you know, I've said this post Harvard, I think the basic rule is going to be that you're going to see emerge over time is anything that is preemptively granting an advantage or a disadvantage on the basis of sort of that box checking, as opposed to an individualized determination. Anything that's based on sort of the checking of the box that your status as a member of one race or the other,

granting you an advantage or a disadvantage is going to post Harvard be unlawful. It's really hard for me to imagine a sort of a blanket box checking kind of program surviving. Now, the interesting question is to what extent will the race neutral initiatives that have a race disproportionate effect be legal. So for example, what if MoFo said, we're going to have a special fellowship for first generation college students who go to law school? Well, that's going to have a different composition, uh, racial composition, that, that group of people, um, or we're going to have a, uh, a bonus for, or we're going to have a fellowship for people who come from a disadvantaged economic circumstance. I mean, you name it, that is race neutral,

but might have race disproportionate applications. I think it's a general rule that is going to be okay with the possible exception of that Thomas Jefferson admission circumstance, where if you can trace the adoption of the race neutral rule to targeting, to race targeting, but we'll see. I mean, we'll see. I don't know. But at the same time, I do think if you have an individualized experience that includes racial discrimination, Justice Roberts and Harvard said,

fine, you can take that into consideration. It would be hard for me to imagine that that couldn't also be taken into consideration in the employment context as well. Yep. No, I totally agree with you. So, for example, if these law firms wanted to have programs in conformity with law, I think they could really even just say this. They could even get a little closer to the line and say, look, these programs are for people with a demonstrated commitment to diversity. But then they can explain that diversity is about diversity of experience and diversity of viewpoint. And they can also talk about community engagement. And so maybe if you are a cis straight white male, but you have been an ally, you have a demonstrated commitment to DEI,

you've done all kinds of things to help minorities, help women, help LGBTQ people, even if you yourself are none of those things, then maybe you'd be eligible for this fellowship. So I think that they could redesign this fellowship in all sorts of ways. You mentioned a couple that would make it comply with law. Now, the complaints are seeking injunctive relief. They want these programs to either be shut down or redesigned in a race neutral way. And I was really racking my brain to figure out how would you defend this under current law? Because look, MoFo and Perkins Coie, by even the left leaning standards of big law, Because look, MoFo and Perkins Coie, by even the left-leaning standards of big law, are some of the more progressive firms. After Dobbs came down, a lot of big law firms didn't really say much because they may have some clients or some lawyers who are pro-life.

Contrast this with Black Lives Matter, where pretty much every law firm under the sun announced its support for racial equality. every law firm under the sun announced its support for racial equality. But MoFo was one of the few firms that basically had a full-throated attack on Dobbs. MoFo is definitely on the left side, even by big law standards. Same thing with Perkins Coie. And so I'm sure that if they could come up with an argument, they would love to, but I don't really know what the argument would be. The complaint preempts a couple of arguments. It points out that there's precedent saying you can't defend the program just by saying, well, we threw disability in there too. That doesn't work. And then I was doing some sort of independent research. There is no so-called BFOQ or bona fide occupational qualification defense to this civil rights

statute basically saying, well, there's something in the job description or the duties of the job that makes race a plus. Maybe you could say, well, we have a lot of minority-owned clients or something, and so we need minority lawyers. No, that doesn't work. I don't really know what does. The statute has been held, as the complaint points out, to apply to at-will employment and to independent contractors. So you can't say, well, these are just quote-unquote fellowships, or well, these are just summer jobs. That doesn't work. So I was really racking my brain. I'm not aware of precedent saying that you can get away with this if it's remedial.

So I don't think MoFo or Perkins Coie could say, well, we have this terrible discrimination legacy ourselves of having discriminated in the past against these groups. First of all, I don't know that those firms are any worse than any other big law firm. But second, I don't know that that's a defense. So I'm fascinated to see what the law firms do. It would be a really great legal challenge. Maybe people can post this in the comments. How can you defend this program under its current framing? Yeah, I've racked my brain. It's very hard for me to think about under current precedent how you can defend this program. Very difficult. And it's no defense to say the person hasn't been hired yet. It applies to the formation of contracts. It has been held to protect job applicants. So that's not it. One

thing I am wondering about is why they didn't also bring this under Title VII, because Title VII also applies to job applicants. I was very curious about that. Yeah. Yeah. And it also authorizes equitable relief. It applies to private sector employees with 15 or more employees. So that's not an issue here. These are giant law firms. Title VII doesn't apply to independent contractors generally, but nobody's arguing these people are independent contractors. So I was curious about that.

But look, this is a very clean case. And if I'm a judge, I am hard pressed to come up with a defense of this. The complaints make the point that this was illegal even before students for fair admissions beat Harvard. But they make clear, quoting the SFFA opinion, that if the firms, I think they have this line in the complaint, if the firms needed a reminder, SFFA provides one, and then they quote from the opinions about how racial discrimination is basically a quote, eliminating racial discrimination means eliminating all of it. Close quote. All right. Well, let's close with a little bit of breaking news. The first D&D show,

no 20 side to die were harmed in the filming of this episode. All right. So a little bit of breaking news. We have the trial date. Oh, okay. March 4, 2024. Okay. Okay. So that means, all right. I was mistaken earlier. I had said April and May. No, no, no. So March 25th is the Manhattan hush money case. March 4th is the January 6th case. And May 20th is the Mar-a-Lago case. So here's the order as of now. The order as of now is number one, Jack Smith kicks it off in March 2024 with the January 6th case. with the January 6th case.

Three weeks later, three weeks later, Trump goes to Manhattan for the Stormy Daniels hush money case. And a couple of months after that, he's down in South Florida for the documents case. And we don't know the trial date for Fulton County.

Surprised at how soon that is? I guess it makes sense to me. I was thinking that Judge Chutkin, if she said she didn't like both proposals, was not going to do something super early in the year, but also wants to get this done before the election. So the spring does make sense. But one thing that you're going to bump up against is, does the defendant, these are criminal, not civil cases, does the defendant have to be physically present in the courtroom for all of these, whether he wants to or whether he doesn't want to? Because remember, the defendant here is in theory going to be campaigning across the country

during all of this. And some of these cases under that current timetable you just outlined are surely going to overlap. I don't think Jack Smith can get his case done in three weeks. I think that would be tough. And some of these other cases will take even longer. So I don't know. It's fascinating. So March 4th, if that date is pinging in your brain and you're a political geek, there's a good reason for that

because the very next day, March 5th, is what? Super Tuesday. Wow. Yeah. So that is when Alabama, Alaska, American Samoa, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, Virginia go to the polls. And that's going to, in all likelihood, if it's not decided by then with Trump bulldozing everybody, that's likely going to be the ballgame. Yeah, exactly. And if past performance is a predictor of future results, the greater the Trump jeopardy, the more the rallying around Trump.

the more the rallying around Trump. And so in a weird way, this might be a political gift to him to get to be a criminal defendant the day before Super Tuesday. I mean, we don't schedule criminal trials on that basis, but part of me is just sort of thinking through this dynamic. That's interesting because Judge Chutkin was very explicit at one of the early hearings saying, part of me is just sort of thinking through this dynamic. That's interesting because Judge Chutkin was very explicit at one of the early hearings saying, I'm keeping politics entirely out of it. So, the timing is interesting. Well, and she used an analogy that was interesting. She said, I don't,

I'm going to not put politics, I'm not going to include politics as a factor any more than she was what was she talking about a professional athlete using their you know their season and keeping their season in mind which makes sense because if i'm a criminal defendant nobody cares about my schedule you know i've got a big powerpoint presentation on tuesday too bad you sir are in trial um So it makes sense, you know, on a level playing field, treat everybody the same to not take that campaign schedule into consideration. But we also live in a world where that campaign schedule is going to matter a lot, a lot. And I find that fascinating. I mean, my instinct is that that will give him a boost right before Super Tuesday. The Republican voters might regret so quickly that that rally around the flag, because I just don't know. I don't know. I mean, obviously, I don't know if he's going to be convicted, but I just don't know what the dynamic would be post conviction. If he does get convicted, what what how will that land politically? And that's I have suspicions.

I just don't know. Yeah, yeah, exactly. Big, big question mark. Fascinating. Yeah, yeah. Well, there we go. The first episode of the D&D show. Well, there we go.

The first episode of the D&D show. And once again, Sarah, if you missed the front of the show, is on maternity leave. So no baby yet. And please, you know, we're going to be, even though Sarah's out, I'm going to be lurking in the comments. I'm going to do my best Sarah impersonation, trying to lurk in the comments as diligently as she does. Really appreciate you guys listening. Really appreciate you sticking with us. And David and I will be back on Thursday for another exciting episode of Advisory Opinions. Bye.