Advisory Opinions - Tilting at Windmills

Episode Date: February 18, 2020

David and Sarah examine the decision to not prosecute Andrew McCabe, the eye-opening interview Harvey Weinstein's attorney gave, and answer which novels have most impacted them. Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Spring is here, and you can now get almost anything you need for your sunny days, delivered with Uber Eats. What do we mean by almost? Well, you can't get a well-groomed lawn delivered, but you can get a chicken parmesan delivered.

A cabana? That's a no. But a banana? That's a yes. A nice tan? Sorry, nope. But a box fan? Happily, yes. A day of sunshine? No. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol

in select markets. Product availability may vary by Regency app for details. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we are from thedispatch.com. We would love it if you subscribe to this podcast. We've had tremendous feedback early on and have really enjoyed interacting with you guys. And please, if you have feedback, email us, david at thedispatch.com, sarah at thedispatch.com, and please rate us on iTunes. Well, I'm sorry, Apple Podcasts. It's not iTunes. It's Apple Podcasts. Well, I'm sorry, Apple Podcasts.

It's not iTunes. It's Apple Podcasts. David, by the way, I got a great listener email this weekend of a college student who's going to write his college paper on non-delegation doctrine. How much fun is that? You're kidding. See, this is a podcast that gets results. Yeah. We make administrative law cool.

Well, no vouching for how cool this guy is going to be in school now, but like, it'll be a fun paper. Yeah, no question. So we're going to talk about three things today. We're going to talk about the decision not to prosecute Andrew McCabe, how it compares with the decisions to prosecute some of the defendants in the Mueller or some of the people who were prosecuted and in the Mueller or some of the people who were prosecuted and pled guilty in the Mueller investigation. We're also going to talk about a pretty wild interview with Harvey Weinstein's defense attorney and what it means for Me Too and protecting individuals from sexual assault. And we're going to wind up with a very good question about novels. So let's go right into it, Sarah. So latter part of last week, the Justice Department announces it is not going

to prosecute Andrew McCabe for false statements he made in an Inspector General leak investigation, for false statements he made in an Inspector General leak investigation, investigating leaks made, leaks issued, I believe, to the Wall Street Journal in the closing days of the 2016 presidential campaign. And the weird twist on this case is that these were leaks that were unfavorable to Hillary Clinton, but the people angriest that the Department of Justice is not prosecuting McCabe are Trump supporters. So let's unpack this a little bit. You followed this. You were a high-ranking official in the Justice Department, spokesperson for the DOJ. You're basically, you're familiar with these facts. What did you think when you saw this news? Yes, though I should, let me start by saying on this podcast, this specific one, but also

all of our podcasts, I am never providing inside information on what happened at the Department of Justice, things of that nature. I am happy to provide perspective now that I am gone on generally how things work. happy to provide perspective now that I am gone on generally how things work. So what the IG found in his report, and look, it's relatively short. Everyone can go read it. It's like a 39-page report from Michael Horowitz, who was an IG appointed during the Obama years. IGs are usually not only politically independent, but they pride themselves on being quite separate from the department that they're supposed to oversee. And Michael Horowitz is no exception to that. So he finds that Andrew McCabe, with four specific examples, lacked candor.

And Andrew McCabe was fired based on that finding. What I think is really important when we dive into this in a second is the difference between lack of candor for the purpose of firing someone and 18 U.S.C. 1001, which is the criminal offense of lying to federal authorities, basically. Right. There's a world that lies between. Yes. There's a higher bar for imprisoning someone versus firing someone. Yeah. This is an interesting case. As I said, this was a leak regarding FBI investigation of the Clinton Foundation, whether there was still an ongoing FBI investigation of the Clinton Foundation and exposing rifts between the FBI and the Obama DOJ about the Clinton Foundation investigation. This was sort of part of the

one-two punch the FBI delivered to the Hillary Clinton campaign in the closing days. The biggest punch, the roundhouse, was the news that the FBI was reopening the Clinton email investigation. Sort of the follow-up jab or the jab was this one, which was there was also, by the way, an investigation of the foundation itself. And there were four instances of lack of candor. And one was in a one-on-one conversation with James Comey. Another one. And this is, let's back up one second. Sure. Because what happens is they start a leak investigation within the FBI. Right. And it's both formal and informal. I think that anyone else who does not work at the FBI would find this to be a very formal leak investigation when you're being asked by two FBI agents about a leak. On the other hand,

this is not that uncommon within intelligence community, DOJ, et cetera. If there's a leak, within intelligence community, DOJ, et cetera, if there's a leak. James Comey does not know how the leak happened. And so he first goes to Andy McCabe and is like, hey, you know anything about this? Right, exactly. And that's the first example where Andy McCabe's like, huh, nope, no idea. Yeah, and the interesting thing is Andrew McCabe was authorized to leak. Absolutely. So he would not have been disclosing wrongdoing on his part.

Well, and this goes to often and again, I'm not we're going to work very hard not to conflate these two. But oftentimes the reason you use 1001 to prosecute someone for lying is because the underlying thing they did often is not a crime. Right. It's the lie. It's like in perjury, which is separate from 1001 also because that happens after an oath. In perjury, what you're prosecuted for is violating the oath, not the lie, actually. the oath, not the lie, actually. So that's all to say, when James Comey is talking to him and they're having this back and forth,

part of 1001 is that it has to be knowing and willful. And there's a lot going on in those two words, as you know, David. Yes. Including whether willful means that you have to know you're violating the law or simply know that you're not telling the truth. So, for instance, because Jim Comey didn't say, Andy, raise your right hand. You swear to tell me the truth, the whole truth and nothing but the truth. Now, do you know about this leak? nothing but the truth. Now, do you know about this leak? You know, did Andy know that they were having the type of conversation where he was being asked officially, Andy, do you know about this

leak? Or were they sort of having a casual director to deputy conversation where Andy thought that he wasn't doing anything wrong by lying to his superior other than lying to his superior? wrong by lying to his superior other than lying to his superior. Right, exactly. And also there, from a proof standpoint, there's sort of a he said, he said situation here. This was not recorded. It's a, it's a account of a conversation. That's from a, from a proof standpoint in front of a jury when the standard is, again, this is not deciding whether to fire somebody. It's deciding whether to put someone in jail, proof beyond a reasonable doubt. So that initial conversation is not a great foundation for a criminal case. But then I think we can chuck the first one. The first one's gone. He can get fired for that. Of

course, you can get fired for lying to your boss. You knew you were lying to your boss. That's a minimum. But prosecuting that under 1001, we're not even really close. Right. Okay. Let's chuck it. So chuck number one. Next. Then he lied to two internal investigators. I should say allegedly lied, telling him he had no idea, no clue who the source of the leak was. And this is more difficult for him. There's two people that, and the inspector general, of course, saw this exchange, didn't find McCabe's excuses all that credible. And what say you about this one? So, okay, now we're not talking like an informal conversation with you and your boss where you try to like kind of scoot out the conversation. Maybe you were, you phrased it really adorably so that it was not technically a lie, but you know, Comey didn't, you know, the transcript doesn't exist. Okay. So now we have two FBI agents who are sitting you down and saying,

we are conducting an investigation into how this quote occurred as an anonymous source in the wall street journal. Do you know anything about it? And Andy more or less says no. Um, so this is an issue that I have with a lot of these types of cases, which is that until you know what a day in the life is like, to ask someone even to remember very specific things from two weeks ago, a month ago, longer than a month ago, can get pretty tricky. Let's take my job. If you, David, were to ask me now, you know, in July of 2018, do you remember talking to the Wall Street Journal? No, I don't. Did I? Almost certainly. Right. And so, you know, my day-to-day existence was dealing with any number of these news stories, trying my best to, you know, do my job, etc. It is, I think, more possible than most people think to not remember something.

Everyone thinks like, well, now when we're concentrating on it, that obviously memories should be foolproof. Right. And that's essentially... It's not quite that easy. It's essentially his defense here is that he was confused, that the questions were sort of an afterthought type question. He just made a mistake. He was confused. And the law does not put you in prison for a mistake.

And this goes to... That's the knowing and willful part. Exactly. The knowing part. And this is something that goes back to why you don't see a huge number of prosecutions in the United States for lying under oath, for example. Although in my litigation days,

Sarah, do you know what I saw happen all the time? What did you see all the time? Lying under oath. But, you know, the other issue here is that Andy is not in the IG report. It's not that Andy calls the Wall Street Journal. It's that Andy approves an aide telling the Wall Street Journal something. He would have talked to that aid any number of times that day not to mention that week probably the conversation in which he approved them calling

the wall street journal included six other things that that person was supposed to do right and so again whether you think uh mr mccabe sort of knew at the time and was like, well, it would be so hard, I think, to prove under oath unanimously to 12 people beyond a reasonable doubt that in the moment that they ask him this question, that he knows exactly what they're talking about. He remembers that conversation he had with the aide exactly and then chose to tell the investigators the opposite. So do you lead prosecutor Sarah Isger? You've checked the first claim. What do you do with this one? Oh, I mean, you know, I've said this before to you, but I did not think that this was a case that one could bring and win. Now, there's a disagreement within prosecutors in general. And I'd be curious what your thoughts on this.

Do you only bring the cases that you believe you can win? Right. Or do you believe that you should bring the cases that are worth bringing? To paraphrase the West Wing, actually. You know, do you only fight the fights you can win or do you fight the fights worth fighting? Right. And, you know, and this is, so perhaps I should have asked you this question after the next allegation, because it's unfair to ask you now. I think the first one is clearly chuckable, the conversation with Comey. Here you're starting to get, you're starting to sort of, if you're a prosecutor, you're starting to raise your hackles and perhaps get a little

bit of anticipation that you might have your man. But then it gets, and then it gets almost very prosecutable and then not with the next one, because there was a recorded interview later. There was a later recorded interview where McCabe denied authorizing his aide to leak and denied being in contact with her during that time. And these are provably false denials. I mean, this is where, if that's the end of the story, if you don't prosecute, then you've got all of these critics of the Bureau saying the deep state or the DOJ, the deep state is protecting its own. You would have to look at this and kind of scratch your head and say, why are you not prosecuting? But then four days after the interview, what happens? McCabe goes back, says he's been thinking about the questions and corrects the record. So he lied and then he had to take back.

Yep. And so. Yep, yep, yep. And so again, this is, do you fire the guy? I think you fire the guy. Like, well, and the lack of candor issue again uh this is the number two at the department of justice they spent an enormous amount of time and resources on this leak investigation right um even if you like lack of candor is different than lying it means you knew more about it than you said maybe Maybe they didn't ask the questions right. It was up to you to volunteer information. Right. It's a totally different standard and one that I think is more than met here.

In part because of the resources and time that was spent. Jim Comey had to sit down, like all of these senior people had to sit down with these investigators and talk about this leak when, in Andy did know something about the leak he did indeed yeah so I mean I think that the firing and his I've read I read the complaint and his retaliation lawsuit that he's filed as a result of the firing and you know and I've read the IG report and frankly I'm not persuaded by his retaliation complaint because he's sitting there. There was a leak investigation. He was the source of the leak. He knew it the entire time. I mean, this was... He was the approval authority. Approval authority, correct. Yeah.

He is not the source. He approved the leak. He knew what had happened. And they're running around conducting this investigation. And there's pretty clearly lack of candor. Now, the last part of it is sort of this idea that was a claim that he lied when he said that he had previously told the truth. Right. That's not incredibly strong. It's a little redundant. A little redundant, yes. It's sort of like, you know, how prosecutors will throw counts in an indictment like croutons on a salad. So I would say if you just stopped everything, if you just stopped your analysis right there, I would say close call, but the accumulated weight of the evidence would indicate close call.

But in my prosecutor, David French would say close call, accumulated weight, accumulated weight of the evidence. I think you you take this. You take this to the grand jury and you go for it. And part of the reason why I say that is because I do think we under-prosecute. We under-prosecute lies to Congress. We under-prosecute lies to federal investigators. But this goes to my question to you. You think it's a fight worth fighting. Right. You don't necessarily think it's a fight you can win.

Correct. I would have fear and trembling going into the trial. I would feel like the evidence was there. I would feel, but I would also know that he would have effective defenses. And I don't think it's the job of the prosecutor to take only a slam dunk. I don't think that that's necessarily the limitation of how a prosecutor should perceive their limitations. However. But let me push. Okay. No, please continue.

I was going to say, however, there are factors here that would say that in this case, under the facts that we haven't discussed yet, I would not take it because I feel like I would lose and probably lose badly. And that is the president's campaign against him and the public campaign against him by the president. And here's why that would tip against. If I'm a defense attorney, not only do I play up all of the ambiguity, and for listeners who might be hearing a little background music, I'm recording this podcast from a hotel in Atchison, Kansas, and a freight train is going right outside my window. So a little lovely local atmosphere. But so anyway, I am, so I've got a tough case, a case I think in good conscience I should bring. But then you have the President of the United States, my ultimate boss of the prosecutor,

But then you have the president of the United States, my ultimate boss of the into this jury with a gift-wrapped narrative that says political prosecution. That's why I would tip against it. And I think that the fight worth fighting versus fight the fights you can win is more than that, because it goes to actually what the role of the Department of Justice is or the role of prosecutors in general. In general, David, I am very much a fight the fights worth fighting person. Right. I would say most of my career has been largely tilting at windmills. But we have something in common, Sarah. That's right. However, I think there is a real case to be made.

And in fact, the vast majority of prosecutors would tell you that you do only fight the fights that you believe you can win for a few reasons. One, there's pure resources. There are a limited number of resources, prosecutor's time, but also monetary, FBI agents time to be witnesses, etc. If you do not believe that you can prove the case beyond a reasonable doubt to 12 jurors, you're wasting a lot of those resources compared to other cases. You know, just finite resources being what they are. Two, the toll that you are taking on someone's life, the time that you are taking of theirs, but also the reputational hit, etc., because you think they're a bad person, but you don't think

that you can prove it beyond a reasonable doubt, calls into question, I think, the appropriate role of prosecuting someone. Just because you, David, think that they've done something wrong, but you, David, also don't think that you could prove it beyond a reasonable doubt, what gives you that sort of authority and right to bring that case then and to put that person through the reputational harm, the time harm, potentially time away from their family, time away from their job where they may not be able to keep their job, all because you think it's a fight worth fighting.

Well, let me push back a little bit against your pushback, if I may. There's a difference between saying, I'm going to take a case that I think is tough to win on inadequate proof and saying, I believe based on the evidence that this guy on purpose lied to these investigators and met the elements of the statute, but I know enough in the real world that he's going to be able to mount an effective defense. And an example is sometimes prosecutors will shy away from cases where they know that a defendant or treat defendants differently when they know a defendant has very formidable resources to bear. Yeah, and that's the problem. You're right.

That's the best argument against my argument. And I think he always find it. I think he would have formidable resources to bear. And in fact, it's the Trump sort of direct, continual direct assaults on him that would tip this over for me that I would think he would have such a formidable defense that I think you would be, it moves into tilting at windmills. And especially that this would be brought in the District of Columbia. And this is not the Trump-friendliest jurisdiction in the United States of America.

It's not the Daytona 500. It is not. Here's a trivia question that a very good thinker and writer and lawyer put in a really excellent Politico piece. Renato Mariotti, he broke down this case. He believed it was weak and not worth bringing. And his trivia, and this is from the piece, that what was the trivia question? What percentage of voters, what percentage of the vote did Trump receive from D.C. residents in 2016? I mean, it's definitely in single digits. 4.1%. I wonder if that's also the percentage of people who accidentally miscast

their ballot. It could well be. Like if that's user error on voting. Look, you know, white evangelicals get a lot of flack for being so unanimous against Trump at 81 percent, I mean, for Trump at 81 percent. But man, the D.C., the residents of the District of Columbia were in lockstep for Hillary Clinton. Not much intellectual diversity there. Also, to your point about the importance of bringing more cases about either 1001 lying to federal investigators or perjury cases, which is lying under oath. Losing those cases also sends a message. Right. Right.

It does definitely send a message. Now, before we move on from this, let's talk briefly about, okay, the DOJ looked at this with Andy McCabe and said, no, not the kind of case we feel like we should prosecute. We're not going to prosecute it. But they did prosecute Michael Flynn for lying. They prosecuted Roger Stone for lying. They prosecuted Michael Cohen for lying. Does this indicate a disparate level of zeal here? Or were there valid reasons why Andy McCabe would receive one form of treatment and they would receive another form of treatment? I've got my thoughts, but I would love to hear Assistant U.S. Attorney Isger's thoughts. I think that you and I should take Flynn, because I think it's the closest analogy in a lot of ways. And a lot of people online are

taking Flynn. Yeah, that's a good one. Let's fight the Flynn fight. Michael Flynn's conduct that was in question was after the president's election, but before his inauguration. And it centered on whether Michael Flynn had talked to Ambassador Kislyak and what they had discussed regarding sanctions on Russia. Right. The timeline of this is much tighter. The FBI talks to Flynn very soon after these conversations occurred. And, you know, the FBI agents come to the White House. very soon after these conversations occurred. And, you know, the FBI agents come to the White House. I think it is, at least again, according to an outsider, it looks like a far more formal process.

Unlike McCabe talking to a subordinate that he presumably talks to quite a bit in any given day or week, Michael Flynn presumably does not have that many conversations with the ambassador to Russia. And in fact, he's just asked if he's ever had any, you know, really at the start of it. And it's kind of like, no, I've never, you know, don't know. I've never heard of him. There is no correction four days later. And it is far more provably false.

Right. What do you think? I mean, I think that with Michael Flynn, it's an evidentiary slam dunk. With each one of the big three, the Cohen, Stone, Flynn, it's an evidentiary slam dunk. Stone, Flynn, it's an evidentiary slam dunk. And the best argument for Flynn is that, but for an improper investigation. So the defense for Flynn really doesn't bear on, and what I have not heard people say, is that he didn't lie. So, and he didn't intentionally lie. People who defend Flynn,

defend Flynn on other grounds. Well, he shouldn't have even been talking to these investigators. There was nothing wrong with the underlying communications with the Russian ambassador. This was part of the witch hunt. This was, and so- And this is pre-Muller's appointment.

So this is not special counsel, although the special counsel is the one who ends up bringing the case. Also worth noting, it does not go to trial. Flynn pleads. Flynn pleads. And so there's a lot of sort of underlying sense of grievance on Flynn's behalf that he should not have been asked those questions. And that even if he did lie, that there should have been prosecutorial discretion not to prosecute him. What you don't see much defense of is that the guy just didn't flat out lie. Just flat out lie. And I think that that's... Right. There's no, and to be more specific, there's no argument that he didn't remember right exactly exactly which is

mccabe's argument you may not buy it but it is certainly his argument that he just didn't remember what they were asking about specifically he did not believe he was lying that's why he called them back four days later flynn's argument is if at least people on behalf of flynn i knew i was lying but either um i shouldn't have been asked the question to be required to lie in the first place. Which is a weak defense. I mean, it's not the best. No. Or two, and I've heard this in some corners, and this goes to what the willfully means.

Right. I knew I was lying to FBI agents. I didn't know that was against the law because I wasn't under oath. And I will just say this, like this guy was Lieutenant General, one of the most sophisticated intelligence operators in the modern United States military. When I was in Iraq, he was at the peak of his intelligence powers, helping run one of the most lethally effective special operations, one of the most lethally effective special forces operations in modern history that helped turn the tide in the surge. I mean, really, the story of our more effective intelligence officers in modern times. lethal and precise machine. But something happened. Something happened to him. And he, you know, he became a foreign agent. There are elements of his, you know, he wasn't just indicted

for lying. He also didn't follow foreign agent registration requirements, lied on other counts, not just regarding the communications with the Russian ambassador, received hundreds of thousands of dollars from Turkey, tens of thousands of dollars from the Kremlin. Something happened to this guy. And so this narrative that's around him of this magnificent patriot who was wronged by a duplicitous entrapping FBI is, shall we say, incomplete. And it's really one of the, it's a really a modern tragedy because he was a hero. I mean, he was incredibly effective and then something happened. And look, you know, those people who critique the FBI and say that they came in with a friendly demeanor for the interview. Well, welcome to the FBI.

We can probably leave it here because this saga continues. Flynn is trying to withdraw his guilty plea. There will be more news on on that side coming soon. Yes. Yes. Well, let's move on from that. And let's talk about shift gears pretty considerably to a pretty wild interview on The Daily, the New York Times podcast, which is almost as good as this podcast. And Harvey Weinstein's trial attorney gave an interview to The Daily, which incidentally she might get in trouble for, for violating the court's gag order.

And it was a really interesting interview between one of the reporters who helped break the Harvey Weinstein story and Harvey Weinstein's lawyer. And they really went back and forth over MeToo-related issues, over the evidence against Harvey Weinstein. And they were just about to wind down the interview. And I'll read the back and forth, and then— Well, wait. This all comes about, though, because I see the headline of this one quote and basically text you and are like, this must be unfair. basically text you and are like, this must be unfair. This must be out of context.

Because, you know, everyone loves to jump on someone and cancel someone. But this is a pretty well regarded defense attorney. And I just find it hard to believe that this would be sort of the tax strategic tax she would take. So read that one quote that made the headline. Yes, yes, yes. Okay, so the interview is winding down. And here's the question. Yes, yes, yes. Okay, so the interview is winding down, and here's the question. Okay, actually, I had one other question, which is whether or not you've been sexually assaulted. I have not. Okay. Then she says it again. I have not. Okay. And then when you listen to the pod, there's like a one or two second beat it's long enough to where you feel a little uncomfortable you know how silence is uncomfortable and then and then she says because i would never put myself in that position that's yeah now we can have an uncomfortable silence where i that's what i like was like, what? Yes.

Huh? Yes. I think a lot of us were, huh? And so, Megan, the. Because, wait, to back up on the, what Weinstein has been accused of. And David, if I'm getting any of this wrong, correct me. But really, we're talking about two specific instances where women have accused him of sexual assault. And the defense that I have seen put forward by Weinstein's team is that these were women who maybe did not want to have sex with him, but consented to having sex with him. As in, they may have found him disgusting.

with him but consented to having sex with him as in they may have found him disgusting they may have um you know uh not been sexually attracted to him etc but they thought they could get a benefit from it either career-wise monetarily etc they consented to having sex and then they regretted it that's the defense of harvey that's the defense correct so if that's the defense, correct. So if that's the defense, let me tell you strategically, as someone who has worked in communications for a long time, that your communications argument is something like, I know sexual assault. This wasn't sexual assault, and it's a disservice to all true victims of sexual assault to lump this in. That doesn't seem to be the so but that's not i've never been sexually assaulted because i would never put myself in that position so then it goes back and forth so she it keeps going and and this is where it gets really like so that's that's sort of your

record scratch sound when she says, but then it keeps going. And so here's Megan. Well, yeah, because the reporter's now like, oh, let's dive into this. Yeah, yeah. As the kids say, it got lit. Do they say that, David? They say that. I'm sure they do.

So you're saying, okay, actually, I'm sorry. You could tell Megan Toohey was really taken aback. She says, okay, actually, I'm sorry. So you're saying that you've never been sexually assaulted because you had never put yourself in the position of being sexually assaulted. And she says, the attorney says, no, I've always made choices from college age on where I never drank too much. I never went home with someone I didn't know. I never put myself in any vulnerable circumstance ever. Well, bully for her. I mean, I'm not, I applaud her for making good choices.

But again, this is not the scenario or the story of so many countless women. There are countless women. It's not even the story here, by the way, for her defendant. Correct. Those women, I'm not aware of allegations that they had so much alcohol that they could not consent or that he was a stranger that they met at a bar and made the mistake of bringing back to their place or going back to his place. What? Right. Okay.

But then she does acknowledge the difference between this and what she, they get into this discussion of alleyways. Yes. Being pulled into an alley. She does acknowledge the difference there yeah um but again the wide gulf between having so much to drink that you can't consent and the you know sort of violent stranger rape in an alleyway and she i mean you go and read the transcript and she actually doesn't really acknowledge a lot that could be all the other places in that universe. Well, and she even uses this term of there's equal responsibility between the women and the men.

Oh, yes. I actually laughed out loud at that one. Okay, so there is. And she actually, she doesn't say equal responsibility. She says equal risk. Yes. Women should take on equal risk that men are taking on and the responsibility should be equal as well. What? Honestly, equal risk. That's, you know, I we don't want to overuse this term on our podcast. That's far more offensive than equal responsibility.

this term on our podcast, that's far more offensive than equal responsibility. Well, you know, the longer I live, the more I'm convinced that the first rule of politics and political and cultural conflict is that every overreaction is met with an equal and opposite overreaction. And there are people who say it's you should not tell women not to binge drink or go into a person's apartment drunk that they don't know because that's victim blaming. No, that's. Or let me let me I'm going to be a little more fair to that side. It is still a crime. It doesn't matter whether you're too drunk. It doesn't matter whether you went to someone's house.

They committed a crime. You are a victim of that crime. Correct. Regardless of whether you drank too much. It doesn't give someone else license to rape you. Right. That's a one million billion trillion percent correct. Just like if I choose to go down a dark alley rather than a well-lit road and I'm mugged in the dark alley, the jury doesn't say, well, you idiot, and acquit the mugger.

You know, that, so that's, when you talk about victim blaming, that, if the jury was to say, well, you shouldn't have been there, acquittal, that's victim blaming. But to then say, it's not good to ask women to be careful because there are bad people in this world. That's where I have a problem. I think that there are bad people in this world is precisely why you say, hey, be careful of these bad people. But... Well, it's why we lock our cars, for instance.

However, this is all being taken a little out of context. Part of the reason that we got to that point was because for decades, you know, if you wore a short skirt, you were inviting something. Right. And so there was not just victim blaming, but like she's not a victim because you saw what she was wearing. She clearly wanted it. I mean, that's not an exaggeration on what was said for decades. Yes. And that's the giant error. That's a giant error. But you don't want to respond to the giant error by saying to women, you shouldn't have to worry about being careful or you don't need to worry about being careful as a prudent prudential matter as opposed to

a legal or a legal matter and and that seems to be what this attorney is is essentially saying is i'm wanting to go back to the giant error of the past and so she's objecting to people who say well women should not take or that there is no obligation, sort of prudential obligation to take care. And then she's saying, no, this whole responsibility is equal here. Equal risk. Equal risk and equal responsibility. And by the way, when you read it, the risk that she appears to be talking about is the legal risk to men of being accused of sexual assault. So women take on the risk of being sexually assaulted, and men take on the risk of being

accused of sexually assaulting someone. Right. I would argue those are not equal risks. No. No, they're not equal risks. They're not equal risks. And it was just a really fascinating, And the other thing, aspect of this is the bottom line is those people who have not experienced something as profoundly traumatic

as sexual assault, they should be thankful for that and grateful for that and not overwhelmed and not quite obviously arrogant about that. You know, nearly prideful, prideful about that. I mean, you know, when you say something like that in such a way and look, you know, I'm a I'm a huge believer in living prudently. That's why I lock my car, lock your house. You're very prudent. I'm not characterized by living recklessly. But the fact that no kind of criminal tragedy as a result, I have taken precautions, and as a result of some of those precautions have maybe stopped some criminal activity from occurring.

You're not proud of that. You're thankful for it. And look. I also find it hard to believe as a woman. And while we do dive into personal things, I'm not going to dive into a ton of personal things on this podcast in my own experience. But regardless of whether you have been a victim of sexual assault, I do not believe that a woman, any woman in this country has not walked down a dark alley clutching their keys or their phone to think of how quickly they could call 9-1-1, um, or that they've never been in a position of fear that, that just, uh, I don't believe that.

Uh, when I've been completely sober, by the way, or, you know, you know, it's only 9 PM, it's still dark. Um, and you just don't know, and you don't quite know, you know, am I going to make it all the way to my car in the parking lot? And, you know, conversations that mothers and maybe fathers, David, I don't mean to discriminate, have with their daughters. And it's a pretty common one is let him shoot you in the head in the parking lot. Don't get in the car. What will happen after that is far worse. Those are the conversations that ring in a lot of women's heads. And to dismiss that fear element, I, she, I think was playing a caricature of herself. I find it hard to believe that in a quiet moment with this defense attorney, that she actually believed what she was saying.

Right. Maybe I'm being nice. Well, I mean, and also, you know, I'm not telling any stories on my wife that she hasn't told in the Washington Post. Nancy and I have bonded quite a bit over some of this. Yes. She went home with somebody she knew who was her youth pastor when she was 12 and terrible things happened. And so, you know, that's why I say if by God's grace, nothing has happened to you. You've lived your life into adulthood and you've never faced the horror and trauma of something like that. The arrogance of believing it's all because of you is off the charts. So I think we can leave that one. I just thought it was a momentous enough comment from a person of enough consequence in the number one sexual assault, the leading sexual assault trial in the whole United States of America. Also from a comms perspective, fascinating because we've seen, and not just this decade, let's go back to OJ or even in the 80s with Dersh and some others, the rise of celebrity defense attorneys where you take on a big enough client, Michael Avenatti comes to mind, and then you do the media blitz because you've told your client they can't say anything.

And then you do the media blitz because you've told your client they can't say anything. And oftentimes we're like, see, look at all these people becoming famous off their defendants that they're representing. Not always the safest course of action. Correct. And, you know, successful, extremely successful celebrity defense attorneys become powerful cultural forces all in their own right. I mean, until his fall, Avenatti was one. Dershowitz has been a potent commentator on law and culture for decades now. Yeah, so this was... And I have to say, despite who she's representing, I believe, first of all,

that everyone deserves a good defense, and I'm of the John Adams school on this whole thing. I'm rooting for some woman out there to become the defense attorney a la Avenetti and Dershowitz and the OJ team. Like, yes, I would like to see that glass ceiling broken. I'm not sure it was this week. Well, not a promising start for her. Let's just say that. All right. Novels. Yes. So we're going to end with a culture point, as is our custom. And I saw this question asked to me, and I thought, huh, I wonder how Sarah answers this. And it was four novels you read that made an impact on your life and why. I have my four.

Do you have your four? Sort of. Go with yours. Okay. So one, The Silmarillion by J.R.R. Tolkien, which I think is, Lord of the Rings is his iconic work, but The Silmarillion for me is more poignant because it is a remarkable story of pride, a terrible fall, and the futility of man's efforts to redeem himself. And so it's just really, if you can, like for a lot of Tolkien works, if you can guess, just get through the first 60 pages, you're golden. But often like the first 30,

60 pages, you're golden. But often like the first 30, 40, 50 pages are either dull or so steeped in ancient lore that you really have to push through. So The Silmarillion, War and Peace by Tolstoy, which I read that on a mission trip to Honduras and profoundly impacted me. Les Miserables, which I read in college after I saw the musical and was also just incredibly moving. And the last one is by C.S. Lewis and it's part of his space trilogy and it's called Paralandria and it's reimagining the temptation of man except with a different cast of characters. And it's really, really well done. It's a really small, slim read, and it's just fantastic. So that's my four.

Okay. So in order, I think this one will not surprise you. Anne of Green Gables. Yes, I've heard you talk about it. Got to start with that. Catch-22. Oh oh that's fantastic to me open my eyes to a different form of humor that was not particularly prevalent in my household like how a single story can get told so many different times and what starts as funny can be not and um audience and perspective and like to me that was just like the first real novel where i

appreciated it not just the story but how it was told um franny and zoe so my cats are named franny and zoe so you had to know that one was coming um uh the relationship so i hated catcher in the rye but for some reason the the story of the glass children um has always been these fascinating character stories to me and zoe sitting in the bathroom and his mother his sort of neurotic mother coming in and and you know bothering him with all these questions and he says you know whenever i have a big question i just invite everyone into the bathroom and we talk it out like that you know as a teenager that sort of sarcasm just reaches you in a new and fun place but so there's also an important part of this that like fiction's never been that big a part of my life so i don't

read a ton of fiction but i went through this kick where i just read a ton of 19th and early 20th century sort of feminist novels. Oh, really? Portrait of a Lady by Henry James or Middlemarch by George Eliot. There are all these tragedies. Tessa the d'Urbervilles is a good example of the tragedy of the fate and plight of women. It's the opposite of Jane Austen where the purpose of a well-lived life for a woman is to marry well, basically. If that is your only purpose and it doesn't work out, you marry poorly, how badly that can turn out.

And boy, does it make you appreciate being a woman in 2020. And how women were seen. And again, it goes sort of back to what I was saying before. There's a history to a lot of these things, whether it's wearing short skirts or that your purpose is to marry or anything else. Very little of what we talk about now, particularly when it comes to women, is in a vacuum. And so those books had a profound influence on sort of how I thought of my place in the universe. Fascinating. Well, since you've also said that you mainly read nonfiction,

we'll have to do this again with nonfiction books. Oh, yeah. Oh, so many feels on my nonfiction loves loves i tend to alternate between fiction and his and military history one one fiction book one military history one fiction one military history i read a lot of books on parasites oh interesting now that's a podcast that's a podcast right there okay david so i have this horrible cold. So thank you all for bearing with my nasally-ness and to Caleb for helping me sneeze during this podcast

without you guys hearing it and being disgusting. And thanks for bearing with the trains and trucks of Kansas that have been outside the window. And we will be back again later this week. As always, thanks so much for listening. And again, please go rate us on iTunes. This has been the Advisory Opinions Podcast with David French and Sarah Isker.