Advisory Opinions - Time's Up. Let's Do This...

Episode Date: May 11, 2020

The Supreme Court hears oral arguments in Our Lady of Guadalupe School v. Morrissey-Berru. Secretary Betsy DeVos releases new regulations to overhaul Title IX. New details in the shooting death of Ahmaud Arbery. The Justice Department drops its criminal case against Michael Flynn. David and Sarah have thoughts. Show Notes: -Our Lady of Guadalupe School v. Morrissey-Berru oral argument -Betsy DeVos Strikes a Blow for Due Process Learn more about your ad choices. Visit megaphone.fm/adchoices

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For those who are unfamiliar with this hallowed day, May 11th, 15 years ago today on May 11th, the greatest comedy skit in the history of massively multiplayer online role-playing gaming occurred with the famous Leroy Jenkins skit. I won't break it all down for you. If you don't know what it is, you're hopelessly uncool. But anyway, how are you marking this day, Sarah? I'm more of a, all your bases are belong to us. Now that is a deep pull right there. That's... Thank you. Thank you, David. I didn't even know we were doing this bit, and so I'm extra impressed with myself for being able to pull that while you were talking.

You should be. You should be. Well, you know, I know it'll come as a great disappointment to listeners, but we're actually not going to focus on Leroy Jenkins today. We do have just too much going on in the world of law to spend any time in the world of video gaming, and that's always a tragedy. But we're just fresh off the Our Lady of Guadalupe oral arguments of the Supreme Court, which refers to a discussion slash debate that Sarah and I had in a previous podcast. We're also going to talk about Betsy DeVos's Title IX reforms.

We're going to talk about new developments in the Ahmaud Arbery case and some of the really nasty, bizarre rhetoric that's grown up around that. We're also going to talk about Michael Flynn. And we're going to, if we have time, talk a little bit about the Bridgegate case. And we're going to wind up the whole thing by correcting a serious omission in our comedy sitcom rankings, for which we, from the bottom of our hearts, apologize to our readers. So, Sarah, do you want to start us off with Guadalupe? Remind the listeners what the case is about and what are your thoughts about the oral argument? I mean, an exciting Monday in our second week of the May oral argument calendar kicked off with the Oklahoma case, which is lovingly referred to in conservative world as

does half of Oklahoma still belong to Oklahoma? But we'll skip right over that. And Guadalupe was the second case argued today. This is on the ministerial exception. Basically, can private religious schools fire teachers but claim that that can't be reviewed under current employment law, et cetera, because they are ministers of the faith? be reviewed under current employment law, et cetera, because they are ministers of the faith and therefore sort of excluded from a bunch of these employment-related laws. Three different advocates today, one from the Beckett Fund, who argued that sort of a broad ministerial exception, one from the Solicitor General's office, which gets time in these cases from time to time. And then the attorney for the two teachers who were the plaintiffs in this case.

One had argued that she was fired for her age and the other had argued she was fired for seeking cancer treatment. So it was a disability claim. Because of the posture that the case is in, we accept both of those things as true. that the case is in. We accept both of those things as true, regardless of whether in a trial it would turn out that they were fired because of age or disability. So for the sake of this argument, we assume they were fired for age and disability. How did argument go? So the argument itself was fairly predictable. For most of the justices, this turned on a very simple, very complicated question. How much should courts get, quote unquote, entangled in the question of who is a minister of a faith? And, you know, one of the best moments for me was this, you know, 10-part

hypothetical where Kagan just says, how about a nurse who tells a patient to look to God? How about a coach who has a prayer at the beginning of the game? And just hypothetical after hypothetical. Because part of the issue here is, does the ministerial exception apply to a few thousand people around the country? Or does it apply to the 300,000 teachers who teach at private religious schools around the country? Or does it apply to far more than that if you include, for instance, nurses at private religious hospitals? Right. And how much should the court be in the business of saying, you're a religious leader in your school. You, sir, are not. That's a big problem for the court.

But, okay, so that's the legal side, David. But I also want to talk about just some practical things that came out in this argument. A, who argues these cases and do oral arguments matter? Because I think today was one of the rare days when oral argument mattered. And two, mattered. And two, the makeup of the court was more important or relevant. The Supreme Court has six Catholics and three Jews on it. Well, to be clear, Justice Gorsuch has never discussed his religion publicly, but he was raised a Catholic and is a member now of an Episcopalian church. What'd you think? Well, so a couple of things. One, it really pointed out to me, and this is going to be a little bit counterintuitive for readers, about how robust our religious liberty protections already are, and that this is about sort of pushing to the bleeding edge. Like, this is like,

is this, this isn't, is there religious liberty or no religious liberty? Is this a more religious liberty or very slightly less religious liberty? As the oral argument kind of made came from two specific religious traditions, one of them the Catholic Church that is very hierarchical, shaped – it sort of permeated the questioning was dominated by considerations of religions that aren't necessarily the religions that most practicing, especially like practicing Christians in the United States have, which are much less hierarchical and take religious instruction and spread it out across the congregation, spread it out across teaching staff, spread it out across coaching staff, so much more. And a couple of the justices seem to get that more than others. Interestingly enough, you know, I thought Breyer kind of got that. Kagan had some interesting questions along those lines. questions along those lines. And that actually circled back to a lot of the discussion we had previously about titles and how little titles communicate function, especially like a lot of

Protestant schools, a lot of Protestant churches. If I teach Sunday school, I don't have a title, I'm just David. Well, and in fairness, you know, and you and I had this argument last week. If this turns around whether we should only look at titles, I don't think there was a single vote on the court. The question was whether you use quote unquote objective criteria, even though when you actually get down to it, those criteria aren't particularly objective. It's really more of like a, do you use a multi-factor test? Or do you let the religious schools simply decide for themselves? Do you defer to their definition? If you say it's a minister, we, the court, are not going to look past that. You know, on the religious tradition, though, to me, it makes such a broader point.

There's a debate that goes on. Maybe it's not even a debate in conservative circles about whether diversity for diversity's sake matters. Right. Think about how much more interesting this argument would have been with a Seventh-day Adventist on the court. Yeah. Or, I mean, any religious minority or for that matter, a religious majority, like an evangelical Christian. Like a Southern Baptist, maybe? A Protestant of any kind? Or think about, you know, like a member of the LDS church. And when

you are somebody, if you're an LDS missionary and you leave and you're young, you are young when you're an LDS missionary, and you go and you, and when they knock on your door, the title on their little name tag is elder, you know, but the title elder, say in a Southern Baptist church, you ain't having a 20-year-old elder in a Southern Baptist church. It's just a very, and so this incredible diversity of religious belief and practice, it was nodded at, it was sort of acknowledged, but it just didn't feel comprehended fully. But I will say this. But to me, this is a point that I will just make broadly, which is diversity in boardrooms, in any room, like having voices with different experiences, whether those experiences are

based on gender, religion, race, rural, urban, anything else. Diversity is actually a good thing to have in these arguments. Yeah, I mean, that's interesting you bring up that point because I kept being frustrated during the argument that I felt like rarely was the actual practice or the actual way in which Christian schools are run actually fully comprehended in this discussion. And I say this as a former chairman of the board of a Christian school. say this as a former chairman of the board of a Christian school. I thought the best and most penetrating question and the one that came closest to sort of saying, okay, if there's a ground between whatever we say as a minister is a minister, which has a, let's just say it has a weakness in that it lends itself to perhaps bad faith. It lends itself to a permission structure that can be exploited for nefarious ends,

which I think is different from the actual functional test that I discussed and advocated in our previous podcast. Here was a question that Justice Thomas asked that I thought was really interesting, and that was, are the actions by the employee of the Christian school, are they the kind of actions that if engaged in in a public school would violate the establishment clause? That I thought was a fascinating question. It was a good moment. Now, I think there was a good answer to it, actually. But I do think that for anyone, you're like, oh, interesting. If I'd object to this in a public school, by definition, does that make it a ministerial action?

However, the attorney for the two women made the point that you would still have free exercise protections, even if the ministerial exception didn't extend to every teacher. The question is whether it sort of goes into this establishment realm, if you will. and but it when when thomas asked that and the attorney for the schools brought it up very very briefly as well but you do sort of like step back for a second you're like oh that's a funny point yeah that's a that's one of those things that sort of like cuts through a lot of the rhetoric and you know because uh eric rossback was having was making this argument that if it's sort of devotional in character the attorney he's back at fun yeah argument that if it's sort of devotional in character. He's the attorney. He's the attorney for the schools.

Yeah, yeah. Yeah. So he was sort of, he was making an argument that, well, this, if this is sort of devotional in character, if this is sort of, if the religious conduct is devotional in character, then it's, you know, going to be veering much more towards ministerial. And then I thought Justice Kagan did a really good job of sort of showing how, wow, that sort of devotional versus de minimis was the way sort of Rasbeck was casting it. And I thought Kagan did a really good job by asking a series of questions, and I kept answering them differently from Eric. Like, I'm going along saying, yep, that's devotional, and Eric would say, well, no, I think that's de minimis. And I'm like, well, no, wait. Well, let's take that opportunity for a second to talk

about oral arguments mattering today. Yeah. So, it was clear to me that really all nine justices are having a debate about entanglement, like I talked about. How much should the courts get involved in making these decisions? And then how, you know, after that question, if you decide that the court isn't going to simply defer to the schools themselves, how would they define that? However, Eric Rosbach, who was the attorney for the schools, works at Beckett Fund, was the first advocate up today. And this was his first argument at the Supreme Court, as far as we know. His background, Harvard Law, of course, because it doesn't there don't seem to be other law schools, I guess. But did not clerk at an appeals

court and I do not think has significant appellate experience. I did not do a deep dive here, but I can't find a lot of other oral arguments. He certainly worked on appellate briefs for the Beckett Fund and has been with them for a long time. I think his argument failed to read what the justices were struggling with. He skipped over the entanglement thing almost entirely, which was the main core of what they needed guidance on. His concessions were large. And now the justices who want to rule in favor of his side are going to have to grapple with the concessions he made. Justices who want to rule in favor of his side are going to have to grapple with the concessions he made. I felt like Gorsuch, in particular, essentially tried to unconcede.

I feel like Gorsuch sort of came back in and said, and really, you know, he focused down on the entanglement point. Look, I mean, the core of the issue, I feel like going back to our previous podcast, the core of the issue was the functional test. It's really, and I felt like even the more progressive justices at the end of the day came around to this, that the functional test is really the heart of this thing. It really is the heart of this thing. And how much are they going to dive into whether or not the court evaluates the functional test versus defers to the religious institution to sort of make the functional determination for the court in much the way that courts defer to the sincere expression of religious belief to the believer rather than sort of adjudicating sincerity. That's the key point I want to make about the oral argument is we've sort of, let's call it like from the beginning of the progressive movement, maybe at the turn

of the 20th century, saw the rise of expertise. And then in the last 20 years, 30 years, we've sort of seen the death of expertise, a populist movement that wants to reject expertise. And I know this is a very, very small niche topic on this, but I thought today's oral argument was a really good example on why expertise can be a very good thing. Because you had someone without a lot of Supreme Court expertise or argument expertise, who I think missed a lot of the point of where this opinion is going to turn on. And then you had the representative from the U.S. Solicitor General's office who came up on the same side, more or less, who made exactly the point that you're referring to and walked it through in a really logical way of you should defer to these schools, don't get the court entangled. However, you know, if we're

then doing the entanglement thing, here's how you do it. It should be the function test. Here's how the function test would work. And like really felt very comfortable, very prepared, very articulate on this. And this is someone who's argued, you know, probably dozens of cases at the Supreme Court and understood how to read the justices, I think, with a level of expertise. So, you know, we've seen a rise of these small advocacy groups using their own counsel. And it does. It helps with their name, ID and fundraising, no doubt. And oftentimes they have figured out oral arguments don't matter to the end result. So you might as well use your own guy and be able to say like, you know, Beckett Fund argued this case before the Supreme Court. ADF argued this case before the Supreme Court. But I think today was a good example of why having an expert come in from the outside can be a good thing.

So, I've been involved in a lot of discussions internally with these organizations about whether or not you bring in outside counsel or whether or not you use in-house talent to argue. And my general bias has been in favor of in-house talent, but not as an absolute rule because I've had bad experience with outside talent, very bad experience with outside talent. Very bad experience with outside talent. And I've seen very good things from in-house talent. It's just got to be talent. And the other thing I would say is, you know, but I would say that there were times when I thought very strongly that sort of outside counsel sort of giving that, you know, how the manager in baseball gets the sign and in comes the scorching closer to end the game. Sometimes it's absolutely vital. So this would be like back when I was at ADF. If we are, if there is an important, an issue that is very important to the First Amendment, but it's not like one of the big sexy cases, like that you just sort of feel like we could kind of like stumble over ourselves and get cert granted because it's just one of those cases.

But instead, it's a, it's an interesting, it's a very important point of law and there's nothing sexy about it at all. It doesn't have a lurid fact pattern. It doesn't have a lurid fact pattern. It's not a crazy media case. My argument was always, hey, you could bring in a big gun, and the fact that the big gun is on the cert petition will mean that the cert petition is going to be read carefully. And whereas if the, if my name is on the cert petition, um, you know, I'm not, you know, I'm not saying that they're going to go, Oh, well, look at David French has a brief. Uh, and so I think there is some value there. It's a, but, but I will say this. I think that I'll also say this. Everybody, if you're going to be a Supreme Court advocate, everybody has to have a first argument. And I remember my first appellate court argument. And I will tell you this, Sarah, I am glad no tape exists of it. No tape exists of it.

But I guess, well, here's the problem. What you're deciding between often is having a true believer up there who really understands why you're passionate about the case you're passionate about, or someone with expertise with the justices and able to read them and what they need, where to give a little, where to take a little, when to concede, when not to concede, which is a pretty nuanced art form. And I understand having groups, having to weigh that of like, well, we really want someone up there

who understands the importance of religious liberty and Hosanna Tabor to our clients, but you do have to find that balance. And I think often the true believers have trouble understanding the other side and why someone might not agree with their argument, what the weaknesses in their argument are. And even if they understand them, maybe at an intellectual standpoint, they don't really understand that for the exact reason that they're a true believer. So anyway, I just thought today, it was interesting because of that to me, especially because you had the SG. Imagine if the SG's office hadn't gotten any argument time, David.

Yeah, yeah, that's a good point. A good point. But let me just share a brief war story about how that has influenced my thinking. And it goes back to my first oral argument. my thinking. And it goes back to my first oral argument. So the previous counsel who had handled the case from when the client came in the door through discovery, through trial, left the firm, gone. So I come in, it was not a super, super high stakes case, great way for a young attorney to sort of cut their teeth in appellate court. And so I'm arguing, I'm paranoid, I'm nervous about it. I know the record inside out. I know the law inside out.

I get up there and one of the first questions from the judge is related to the history of the case that is not in the record. And so what I should have said, an experienced litigator would would say, I'm sorry, your honor, that case is not that that question is not answered by the record of this case. I cannot answer that question. It is not in the record. My actual answer was something along the lines of gibberish. lines of gibberish. Okay. And then when I call, you know, I was talking to the attorney that practiced the case and he said, oh, here's the answer to that. And I thought, well, you know, there are some real advantages to having the person who has been with this thing from day one. It's just a hard formula. There's no formula here is what I'm saying.

There's just no formula. And that's one of the reasons why I think, you know, a lot of the smarter of the sort of religious liberty firms like a Beckett, like an ADF have, and again, full disclosure, I'm a former ADF, I ran their Center for Academic Freedom. What they've started to do is really pursue top level talent, both as a lateral hire and to bring them in from the beginning in a way that where they truly try to compete with the top tier law firms. And more to the point, they pitch their donors on why they need to be able to fund top tier lawyers. And the donors say yes. Okay, David, let's put a pin on this until the argument comes out because we've got to get to Title IX.

I've got to take some beef with you here, but I want you to lay out your case. Okay. So, for those who have not followed this issue very closely, in 2011, the Obama administration wrote a dear colleague letter. It's a letter from the Department of Education to Title IX recipients, which is almost every university, public and private in the United States, those institutions bound by Title IX, which are recipients of federal funding, federal education funding. And the letter essentially said, look, to sort of summarize a complicated document, you're doing poorly in prosecuting sexual misconduct on campus, which is everything from sexual harassment to sexual assault. Here is some guidance from us.

We're going to change the definition of sexual harassment, expand it, make it a little broader. We're going to mandate a particular burden of proof, which was preponderance of the evidence because the schools were kind of all over the place. Some were preponderance of the evidence, some were clear and convincing. And we're going to give some guidance that, for example, while not prohibiting cross-examination, it didn't protect the right of cross-examination, didn't require cross-examination, while not prohibiting sharing of exculpatory evidence or prohibiting sharing evidence with accused students, didn't require it. So in essence, what they said is prosecute sexual assault, lower standard of proof, and

we're not going to require a lot of the basic elements of due process. And oh, by the way, we're currently investigating a bunch of you guys for investigating sexual assault, being dilatory and investigating and protecting students from sexual assault. So this sort of built a wave on campus that said, wait, whoa, we really need to hold more people responsible for sexual assault on campus. And so a lot of campuses began to put together tribunals, sexual assault tribunals, that for somebody who's used to dealing with sort of a civil justice system that has, for example, the ability to know the charges against you, the ability to cross-examine an accuser, the ability to cross-examine witnesses, the ability

to receive all the evidence in the case. When you're used to that, in many schools, none of that was present. In some schools, they could even find against you without ever hearing live testimony from the accuser. And so what then began to happen is a bunch of students who were subject to these proceedings began to file lawsuits by the hundreds from coast to coast. And judges from every kind of legal background were ruling against schools. And so it was creating, even in California, California state court judges. Now, these are not the most conservative originalists in the United States, shut down all sex assault or sexual misconduct prosecutions for a period of time in the University of California system to fix due process issues. So here comes Betsy DeVos. Betsy DeVos revokes the Dear Colleague

letter and then says she's going to promulgate new regulations. And the new regulations came out last week. And they're long, they're complicated, but the main things are they require an express presumption of innocence, live hearings with cross-examination conducted by an advisor of choice who can be an attorney, sufficient time and information, including access to evidence, prepare for interviews and a hearing, impartial investigators and decision makers. In other words, a lot of these cases where someone was investigating and then also deciding. And requirement that all relevant

evidence receive an objective evaluation. They also permitted schools to use a higher, clear, and convincing standard and required schools to use the same burden of proof for employees that they do for students and vice versa. And then they required schools to adopt the definition of sexual harassment that's outlined in a case called Davis versus Monroe County Board of Education. So those are the changes. I like them. That was a long intro. Sarah? I thought it was a great intro. Okay. David, you also wrote about this. Yes. In an article for the Dispatch called Betsy DeVos Strikes a Blow for Due Process. in an article for the Dispatch called Betsy DeVos Strikes a Blow for Due Process.

Correct. Subtitle, Joe Biden Fumbles the Response. And I want to be clear, every time you take on a topic that I disagree with, you do such a wonderful job not coming off like, you know what word I want to say. We're trying to keep the rating of this pod nice. And you never do. You're never flippant when you discuss these things and i so i just want to be clear at the outset of that like i do disagree

with you but you're not flippant about it but i guess this comes the closest to david french flippancy as i have seen um and and i don't even think you mean some of it. So I want to co-opt you to my side a little. Okay. First of all, no question that the pendulum after the Obama guidance letter swung super far the other direction. And I think you point out some important cases that are egregious and that courts found to be egregious. For instance, where you use one case in particular, where the decider never heard from the accuser. Right. That seems odd. And I will acknowledge that. The cross-examination, even the presumption of innocence, all of those things, I think that the pendulum swing was pretty far. However, what I don't think you acknowledge is what was happening beforehand and why the pendulum swung

that far. This wasn't like someone woke up one day and was like, you know, it'd be fun to do is find a lot of young adult men and kick them out of school on arbitrary reasons that are meaningless out of nowhere. Out of nowhere. And two, the sexual harassment standard that now has to be unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it denies a person access to the school's education program or activity. Do you know an employer who uses that standard for sexual harassment in the workplace? That would be crazy. Yeah, this is the student-on-student harassment standard. Correct.

But again, I want you to think of like you and I in a workplace. I will never have to show that your harassment of me was so pervasive that it denied me access to my workplace. Of course not. In fact, most workplaces have a zero tolerance policy. If you are found to be harassing me, you're the one who gets punished. I don't have to prove that it's so pervasive that it's affecting my ability to do my job at all. And I think what you will, so there's a few buckets I want to push you on here. And I think what you will, so there's a few buckets I want to push you on here. One, you're pointing to some really egregious cases on the one side that I don't disagree with. And the courts have not disagreed with. There are due process issues involved here, no question.

However, the vast majority of these cases are going to involve, on the assault cases, two drunk students. True. And those are hard cases to deal with. And they're not these simple, egregious ones that you're pointing to. And so rather than swing the pendulum all the way back this other direction, I wonder whether we should try to make schools less like courtrooms and think of more creative ways to address a problem on these campuses that is huge and was very big before the Obama administration. And that's why they came up with these rules in the first place. And then the next bucket is the sexual harassment bucket, which I don't think in a million years we want this to be the standard that we teach

people, that basically the woman needs to prove that it is so outlandish, the harassment she is experiencing, that she is about to drop out of school. And unless she can prove that, we don't even care what he's doing. David, you have a 12-year-old daughter. I don't believe you believe that. But see, here's the thing. So this is, what is the standard of sexual harassment? That's a legal. What is the it's a legal question. This is not when you're talking about a private workplace. A lot of private workplace sexual harassment rules are prophylactic. of what violates their own policy versus what violates the law. Okay. So, and they set a policy that is short of what, that is well short of what violates the law. So the problem you have here is you have this Supreme Court case that provides a sexual

harassment definition. And so what Betsy DeVos is doing is saying here is what the legal definition is under this Supreme Court authority. And what the Obama administration said is essentially we believe we can define this standard differently from the Supreme Court. different from saying, I have a policy in a workplace that is prophylactic, that is short of the actual standard of violating of the law, right? And so, I think- And you don't want schools to be able to address sexual harassment that is short of this pervasive and objectively offensive standard? Well, what we have here is a messed up situation because if I have a sexual harassment situation, they're filtering all of this through Title IX and what Title IX requires. That's your problem. If you're saying that Title IX is going to define sexual harassment, then you're going to be looking to case law to define what that sexual harassment is. It's almost as if in what you have in – and most of this is public universities. But David, are you setting both a floor and a ceiling, I guess?

That's the problem here. Because it'd be one thing if you just were setting the bottom most standard, like, yes, schools, at the point that the sexual harassment has become so pervasive that she's about to drop out of school, you must take action. But that's not what I see here. I see a ceiling and a floor, which is a huge problem for me and why we don't want our schools to be teaching something better than and providing an environment that is more conducive to education than I'm about to drop out because the sexual harassment I am experiencing is so pervasive that I cannot learn here. But see, here's where we're going back to what I think is the core problem here.

And this is what the regulations do not fix. But here is the core problem. The core problem is that unlike in the private workplace, for example, Title VII does not require the private employer to adjudicate sexual harassment. Okay. It does hold the standards under which the private employer can be held liable for sexual harassment. And then it, and then the private employer says, oh, if I can be held

liable for sexual harassment, what I'm then going to do is I'm going to establish a prophylactic policy that's well short of sexual harassment to protect me from liability. The problem with Title IX is, and this is, so this Davis versus Monroe County is when an entity can be held liable for sexual harassment. What they're then doing is saying, not only are we, the mindset of Title IX is not only are we articulating when you can be held liable for sexual harassment, what we're doing is we're requiring all of these institutions, something that we don't require in the Title VII context is, which is to adjudicate. And that is, to me, a very big problem. I feel like to require them to adjudicate Title IX is a burden that is put on universities that is not put on private entities on Title VII.

And that opens up Pandora's box. And then if you're going to have the federal government saying you must adjudicate, that's the federal government using the awesome power of the government to say you must adjudicate. Well, then, you know, what is the standard? What is the standard? Do you just set it up? Does whatever school want to, you know, just set it up however you're going to set it up? I mean, what is the due process? Are they just going to set it up?

I don't want to put you on the spot here, and we haven't talked about this off pod, but you're involved. You always have great war stories on these things, and so I have to ask, have you ever been involved in one of these on the side of the female complainant? Oh, you mean actually involved in a sexual misconduct allegation one side or the other? Yeah, but on the woman's side. I have not been involved in a sexual misconduct case on the plaintiff's side or the defense side. I've been involved in discussing these. I've been involved in these issues from a legal standpoint for 20 years, but I have not been involved in an actual on-campus adjudication.

So, when I was a college student, so before the Obama guidelines, by a few years, a friend of mine was attacked by her boyfriend at the time. We had pictures of the bruising. He had threatened to rape her if she tried to leave. She managed to get out while he was asleep. Police did get involved. So there's also this discrepancy we've talked about between when police should be involved versus when these schools should be able to sort of cover it up on campus, if you will. This is the egregious example on the other

side, David. So she did call the police. She did everything that was asked of her. She got a temporary restraining order. Guess who shows up at our dorm room walking through that restraining order several times and it's you know me a 120 pound college girl who has to stand at the door and say I have 9-1-1 on the phone you need to leave Um, the school adjudication process, David, was egregious. He had high-priced lawyers, and the school basically decided in the end that, um, he was to try to stay away from her on campus. Why was he not arrested? Why was he not arrested for violating the TRO? Well, David, welcome to domestic violence cases. No, I know.

So one of the problems that we have here is— I mean, the answer is because he was on campus and the school—you know, these schools are considered sort of separate in a lot of ways. And so if the school's not willing to say that he has to, you know, keep a certain distance from her because they found that would affect his educational experience. And I understand that these are tough because it's going to affect someone's educational experience or not. And look, he was not, she got the TRO. He was not convicted in a court of law, the same way a lot of these cases work. They get very messy. So is your main beef with the definition of sexual harassment? I mean, I presume you support the presumption of innocence. Of course. And I support cross-examination, and I support trying to help these schools come up with a way to do this. But I think that it's important for people who are applauding this to recognize how bad it was before and how lopsided it was before as well, because all I hear about is how lopsided it was

after 2011, and I don't hear a lot about what was happening before 2011. Right. No, I mean, I think the answer to an injustice is not another injustice, which is what I think the 2011 situation was. And I also think that we have a real problem. We have a conceptual problem when you're forcing a non-judicial system to become a judicial system. So you have criminal law, you have civil law, you have criminal law conducted according to rules of criminal procedure, you have civil law conducted according to rules of criminal procedure you have civil law conducted rules of civil procedure and then you're telling the dean of students and six faculty members and maybe a couple of student tribunal and let me come up let me give you another pre-2011 example from our own harvard law school um uh skipping ahead basically the female student had to tell her con law teacher about her thong and

her sex life and the various aspects of who all she had had sex with, how the night progressed, what kind of sex she had with this individual, to her con law teacher. Who was sitting on a tribunal? Yes. That's post-2011 too. My point here is that there are, I agree with you, that there are big, big problems here, but you don't just swing the pendulum all the way back and say, oh, see, we're pre-2011 now, everything's fixed.

No, no. But, you know, I just, I look at this and I'm just kind of gobsmacked a little bit at what the federal government is telling these these public and private institutions to do that it doesn't tell other entities to do. Like I've worked at law firms subject to Title VII. We have had sexual harassment policies. We even had sexual misconduct complaint policies and informal adjudications set up according to how the law firm wanted to do it. What we did not have was the federal government saying, you have to adjudicate a Title VII violation on site. And I think that that's the root of a lot of this. And the other thing that I would say is one of the things that ends up happening, and this is, there's so, it's like peeling an onion of awful in so many ways. So I don't disagree with that. And we're dealing with young adults

on their own for the first time often. There's a lot of things getting put into a pot of awfulness. Yeah. And we're stirring it. Yes. And one of the things that I think that's unfortunate also from a standpoint of protecting victims is you often have an intake process where someone's first resort is to, I'd say a Title IX officer as opposed to say a police officer. And often what'll end up happening is you'll have an actual crime,

an actual crime that the victim of the crime is channeled away from the criminal justice system. Yep. And what ends up happening is you'll have a finding of responsibility and an expulsion of a criminal. And that is the end of all adjudication. Oh, and I think you and I are in such agreement here, and I think it goes to what I think the solution is,

and that I even think you probably agree with, which is that the school's incentive structures have been so screwy on this for exactly this reason. Their incentive structure is to keep this out of the criminal justice system. You don't want prospective students or donors looking at how many sexual assault cases were convicted of your students. So they want to keep it in-house and then they try to adjudicate it poorly because as you said, their only option, their toughest option is to expel a student who's a rapist the criminal justice system where that actually encourages good behavior and finds new ways to deal with my,

I think the hardest and the most common example, unfortunately, which is two drunk students. And I don't think we've solved that with these DeVos regulations. I don't think the 2011 rule solved it either by any means, but I don't think that we're just looking like, well, 2011 was bad. Let's erase that and go back to pre-2011 fixes this. Yeah, I think that there is no clear fix.

I just don't think there is a clear fix. And I think that a federally mandated judicial system that exists outside the normal judicial system that consists mainly of non-professionals is a bad way to try to fix a bad situation. Well, it didn't work. Yeah. But if you are going to have a federally mandated, again, federally mandated judicial process, you're going to have to have basic due process protections. Correct. And so, you know, so I remember,

so where I have had a lot more experience with sexual assault issues and sexual misconduct issues is in another institution that's had a huge problem with it, the military. You cannot be a JAG officer in the military as I was and not wrestle with all of this stuff a ton, both in working with students, not students, of course, soldiers who are accusers and working with soldiers who are accused. You spend 10 years being a JAG officer, you're gonna work with both. And also working with teaching soldiers how to act because you have college age,

this is a college age community. And Sarah, can I tell you the single most frustrating aspect of this? The single most frustrating aspect of this was the formal briefing materials that are prepared from on high didn't deal with the real world. They didn't deal with the real world. And what was the real world? Drinking. Drinking. But this is exactly, I think this is actually a really good example because in the military, you have a criminal justice system and you have behavioral encouragements short of the criminal justice system. And I don't feel like we've found that in Title IX and the education

system yet, but I'm glad we're struggling with it. I hope that we're heading towards a better place and the pendulum continues to maybe swing towards that middle good place. But I do want to make sure we have time for the pendulum having swung to a very bad place in the Ahmaud Arbery case since we last talked about it on Thursday. Let's pause for a moment and thank our sponsor, ExpressVPN. Being stuck at home these days, you probably don't think much about the internet privacy on your own home network. Fire up incognito mode on your browser and no one can see what you're doing, right? Wrong.

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Sure. Okay. So I do think there has been a positive cultural change in the last three, four, five years. And that is the stigma of coming forward. Hopefully, seemingly is less than it used to be. I'm not, you know, I think time will tell. On a college campus at a big SEC school? I don't know that you're right about that, David. Big SEC schools are different from Ivy League schools, are different from community colleges. I think there's a lot of statements about higher education that we use in generalities that are inappropriate depending on the institution. But yeah, I would grant you big SEC schools. Not so sure about that. Many, many other kinds of schools. I feel pretty comfortable making that statement. Overall, I will agree progress is

being made okay i don't know we're not there yet yeah no of course not of course not and uh history we have a long long long amount of history that says that we don't know that we'll ever be there yet, sadly. Okay. Speaking of never being there yet, let's, so do you want to dive into the muck first or me? Sure. So a few things have popped up in the Ahmaud Arbery case that are worth discussing. One, we found out that it was, in fact, the friend of the two people who have been arrested in this case who released that video. The video that we all saw that started this.

The Ahmaud Arbery case, yes. Correct. He thought that it actually was exculpatory, that it showed that if Arbery had simply, quote, frozen, that he would not have been shot. With friends like these, David, I mean, thank God he released the video, and I do want to get back to that, but second thing we saw was another video,

and this time it's of, um, Ahmed Arbery potentially, but, uh, let's assume it's him for a moment, uh, on a surveillance video inside the, uh, construction, the home being constructed, the construction site. Um, this is by no means a completed home. You're seeing two by fours he's walking in he looks around that's the end of the video as far as i've seen it um you do not see him committing any crime other than trespass probably uh a crime that i have committed many times uh third me too i'm now admitting to criminal activity on my own podcast. Three, the Georgia Attorney General has asked the Department of Justice to look at this case. And the Department of Justice has put out a statement saying the Civil Rights Division of the Department of Justice,

the FBI and the U.S. Attorney for the Southern District of Georgia have been supporting and will continue fully to support and participate in the state investigation. We are assessing all of the evidence to determine whether federal hate crimes charges are appropriate. That is a new development, though not a surprising one at all. And in the Slager case, for instance, which is different in a million different ways, but worth mentioning briefly, this was the case where a police officer shot an unarmed black civilian in the back and then planted a taser on him to claim that it was self-defense. That was pursued both state and federally. He was acquitted at the state level in a shocking acquittal. And I think it's a hung jury. I think it's a hung. I think you're right. Actually, it was a mistrial. Sorry, it was just so stunning to me. And then the feds came in and, you know, took care of that. And full disclosure, that was during

my time at DOJ. But that's all to say that this is not unusual for the feds to sort of hang back, see how the state, how that goes, and then come in later if they need to. But there's a presumption that this should get handled at the state level. So given those three updates, David, what say you? Yeah. And so building on the update you gave about there's video of Ahmaud Arbery walking around in an open, empty construction site. So let's say let's also note it was not walking into a closed building that was still under construction. It was an open site. You have seen a number of people in sort of vile, nasty right wing world, which sadly also includes people with accounts millions strong, with millions of followers, essentially saying, trying to say, hey, look, your guy wasn't just a jogger. Or,

hey, look, he was not so innocent, is he? Which is really gross. But Sarah, I knew this would happen. But more importantly, it's also irrelevant. Yes. And that was what I was just going to say. So Sarah, I knew this would happen. I knew this was happening, which was exactly why I wrote my legal analysis, assuming that he wasn't just jogging, assuming that he was actually in the construction site, and even assuming that he might be a viable suspect in a previous burglary. Even if you assume those things are true, Georgia law does not allow you to mount up a posse, chase him down on a Georgia street, try to at gunpoint stop him for questioning. try to, at gunpoint, stop him for questioning. It doesn't allow you to do any of those things,

nor does any prior shoplifting conviction or any other thing that he's ever done in his life. It does not permit you to do those things. And it's almost as if there are some people on the right who will not focus on the actual injustice in front of them unless the person who is killed is actually Jesus. And that they are actually just this sort of completely perfect human being. Now, what happened here, and that's what I explained in great detail in my piece, is absolutely impermissible under Georgia law. Well, and can I, I want to break down two aspects of this that I think you did well, but I want to highlight them. And I'm going to set aside your somewhat biased language here, a bias that I share. But one, a citizen's arrest in Georgia requires firsthand knowledge. So a surveillance video is irrelevant.

Whether he did it is irrelevant. The only relevant factor on the citizen's arrest portion is whether these two people who have been arrested were firsthand witnesses to it. And by their own account, they have said that they're not, that they simply might have seen the surveillance video and maybe a different surveillance video. Not even this one. Second of all, the self-defense question is one that I keep seeing pop up quite a bit. Oh, yeah, good. The two people who have been arrested were simply using self-defense. using self-defense when Arbery, you know, touches their gun, then it's sort of,

you know, how I love hungry, hungry hippo analogies. It's sort of the hungry, hungry hippo of self-defense. Everyone defend themselves at that point. And that's not how self-defense law works. It's an affirmative defense, first of all, and one that at that point belonged to Arbery. Yeah. I mean, let's make this about as blunt as possible. If I'm jogging in Arbery's circumstance and a person is unlawfully chasing me and then unlawfully points a gun at me, I would have much more than a right to attack him with my fists. If I was carrying a gun, I could immediately pull it out and shoot that person. And that would be my right of self-defense attaching to that moment. Because I got a great email since our last podcast, Sarah, from a Georgia cop.

And he said, I was actually understating the severity of the offense that those men were committing when they pointed their weapons at Arbery. He said, I was right to point to the misdemeanor Georgia law that says, you know, it's a, you point a gun loaded or unloaded. You cannot point a gun at another person loaded or unloaded without legal justification. But he said they actually committed a felony when they were doing what they were doing. And it was beyond false imprisonment. And so, he said that, you know, their actual charge would not be false imprisonment, the Georgia misdemeanor, and felony murder. Their actual charge would be the, you know,

the felony of the menacing of, and I'm going to pull up, I might need to pull up his exact because I'm- Yeah, I mean, a lot of states have felony menacing laws. Yeah, it wasn't menacing, but it was essentially like a felonious assault, what they were doing. And they would be guilty of that and felony murder. So I was actually even understating the extent to which their brandishing of the weapon and pointing the weapon at him as they attempt to seize him violated Georgia law. I was actually going easy on them, according to this Georgia cop. I thought that was a really interesting email. And so, again, when you have that level of apparent criminality, to then sort of spend your time talking about, well, look at this

guy walking around an empty construction site. I mean, look in the 911 calls, the first 911 caller says he was walking around an empty construction site and the 911 dispatcher says, is he doing anything wrong? Right. So, yeah. Well, we'll continue to follow that. Should we do the dropping the Flynn case briefly? Yes. And so I would say, oh, I found the email.

I found the email. What he says, it's aggravated assault. It's aggravated assault and felony murder. Assault in Georgia is any unlawful act that places another person in reasonable fear of harm to their person or property. Assault with an offensive weapon likely to cause death or grievously body harmed. So it's basically, it carries a 20-year jail term. So what they were doing was not merely attempting false imprisonment. They were engaging in an aggravated assault. So Flynn. Okay. So last week we didn't get to this. Let's do it briefly. The Department of Justice dropped their case against Michael Flynn

in a 20-page memo attached. And we don't need to get into all the details. And there's been a lot of ink spilled, virtual ink at least, on this. I just have two points to make. Well, yeah, two points. One, I don't, I'm not so much aggrieved by the Department of Justice dropping the case. For a lot of the reasons that we talked about, there may have been some actual problems with this case. What I'm unclear about is why the memo didn't say, upon review of the evidence, we have decided not to pursue this case further, period. In a very short one-page, maybe three-page memo. The memo itself had two major problems to me. One, it redefined the standard that the Department of Justice uses

for 1001 violations, which is lying to federal investigators. And I think it made it a very high standard of materiality to the investigation, that has to be like really to the heart of what they're there asking about. Two, and this one I think is more concerning to me. They rely pretty heavily on the text messages between Strzok and Page to determine that they're going to drop this case. What's the problem with that? No other criminal defendants, federal criminal defendants, gets to look at the text messages of FBI investigators. And if the Department of Justice just relied on text messages to drop a case, why shouldn't future defendants, and for that matter, previous defendants or

current defendants, get to say that I want to review the text messages of investigators because the department now has a policy of being able to rely on those to find exculpatory evidence and drop charges, in which case we need to review all of these text messages. That is going to be interesting. Well, and the text messages weren't showing illegality or a constitutional violation, which I think is a really important point here. This case was not dropped because of an illegality in the prosecution of Flynn or a violation of Flynn's constitutional rights. It was dropped basically because of a subjective determination that the FBI was out to get him. And there's a lot of evidence that it was. There's a lot of evidence that it was. But the FBI is, you know, this might come as a surprise

to some people, is often out to get people. You were noting, I think in the very first podcast we ever did with, to the extent anyone could hear me through my awful audio that day, you were noticing that there is a, there's often a bias in prosecutions and it's maybe a political bias, maybe, but what's more common is the anti-suspect bias. Right. It's the hammer nail bias. Yeah, exactly. The FBI is a hammer and you, sir, are a nail. Exactly. And so look, my basic view of this case has been from the beginning, if all that existed to the case against Michael Flynn was a setup, a classic sort of perjury trap kind of interrogation based with a counterintelligence slash Logan Act motivation. When you already

had the tapes of what Flynn did, so you could share them with the administration did so you could share them with the administration for counterintelligence purposes. If that's all there is, don't prosecute him in the first instance. But my issue here is that was not all there is with Michael Flynn. He made more than a half million dollars as an agent for Turkey engaged in a scheme to try to get a Turkish dissident deported back to Turkey. Didn't disclose this until after the election. When he finally did disclose it. All of this is true. Or not true.

Yeah, all of these are points that have been made. But here's my other concern moving forward. What I also don't want to see is the, you know, Biden Justice Department recharge Flynn with what you're talking about in this increasingly ping ponging justice system. We want to depoliticize particularly federal criminal charges here. It's why, you know, there were a lot of calls on the right to go back and investigate some of Hillary Clinton's aides for perjury, for 1001 violations also. And I thought that was really dangerous because I don't think you want to reopen cases because your political opponents are now in power. And so there's just a lot of issues here that, you know, they dropped the case. At this point, I hope that's it. I think it raises problems for the Department of Justice.

But I don't think justice has been better served in two years or six years, whatever it may be, to reopen them on those things either. No, I think there's this whole separate question of whether a Biden administration, if one occurs, should use prosecutorial discretion to go ahead and prosecute him on the FARA elements of his case. I don't think they should for the very reasons you outlined, unless there's some facts we don't know. But what I think how justice would be best served in this case is, look, he pled guilty to one thing when he could have been indicted for other things in exchange for cooperation. It is not doing justice to drop the one thing he pled guilty to while ignoring the other things he could have been indicted for. And then turning around in sort of the political project of what comes next is then turning around and talking about the one thing that was dropped endlessly as if that was the entire case when it never was. And it's interesting to me how much it is permeating the sort of, especially the conservative public, that the only thing Michael

Flynn ever did wrong was nothing. Maybe he forgot elements of his conversation with Ambassador Kislyak. Maybe that the only people who did anything actually wrong were the FBI here. And that's just rewriting history to a pretty considerable degree. Though worth pointing out, since he was never charged with any of the things you're mentioning, he is not guilty of them. so we don't actually have that. But he did admit to one of them in his statement of offense. He admitted in his statement of offense, signed confession to the FARA, one of the potential FARA claims that could have been filed against him.

All right, so I don't think we have time for Bridgegate. It's downright boring by comparison to all of this other stuff. Bridgegate, colon, not everything is a federal crime, but we should probably figure out what to do about political corruption. The end. XOXO, Sarah. That might have been our most succinct and informative part of this podcast. So I think it's time, Sarah, that we correct an egregious pop culture mistake we made in our previous discussions of all-time great sitcoms. Is it time? it's time we totally neglected to mention any of the hbo great comedies not curb your enthusiasm not veep not silicon valley not

barry which is sort of lesser well known than those And so that's a whole other area. And all four of those, in my mind, are like, are all-time classics. I've watched Veep all the way through three times. You know, Veep struck maybe a little too close to home for me, and I would have to stop watching it because it wasn't funny anymore. Like, if you're just casually... If you're working on the Carly theory in a campaign,

there's just moments where you're like, you know what? Uh, this I'll, I'll wait. It'll be funnier later. Oh my goodness. And then Silicon Valley,

I have to tell you, um, you know, and, and now I will say this for our, our listeners who do not like R-rated comedies. All of these comedies are R-rated. So just warning you there.

But if you can tolerate R-rated comedies, there are times in Silicon Valley I cannot remember laughing from the depths of my soul more loudly and long than watching Silicon Valley. Can I tell you my favorite R-rated comedy, which is actually not an HBO one? And it's like, it's more than R-rated. Oh, no. Big Mouth on Netflix. Oh, I've never even heard of that. Okay. Caleb is nodding.

Caleb is nodding. I'm not sure if your college-aged children are old enough to watch this they definitely won't want to watch it with you but uh it is South Park-esque in the sense that um it's about two middle school boys uh and they are going through puberty uh and they have they there's the boys themselves which are delightful characters and then there's their hormone monsters, which are actual physical embodiments, monsters. And it's, it's just, you want to talk about laughing so hard. And of course then the girls come in later, they have their own hormone monsters and their

own problems. Yeah. It's again, your kids will problems. Yeah, it's again, your kids will be so uncomfortable watching it with you, but it is incredibly funny if you don't mind body humor. Okay, noted, noted. I'm a little surprised to see Caleb nodding his head. So Caleb and I, we might need to talk about his viewing habits.

I told my college students that it was my favorite sitcom, and their faces were just like, oh, God, old people are allowed to watch this? But I think I'll wind down the sitcom discussion by, I've got to plug Barry. It's dark humor. It's dark humor. But there's a character in there his name is soho hank wait soho hank yes soho hank one of the funniest people on any show of the last five to ten years just absolutely a classic classic character so that's my endorsement of barry just absolutely a classic, classic character. So that's my endorsement of Barry.

Oh, Soho. Yeah, Soho is, that's Soho, Manhattan. No Ho Hank, says Caleb. That's right. North Hollywood Hank. No Ho Hank. That's his name. So thank you for the immediate fact check, Caleb.

Deeply appreciated. Well, as always, thanks so much for listening. This is you for the immediate fact check, Caleb. Deeply appreciated. Well, as always, thanks so much for listening. This is David French with Sarah Isker, and this has been the Advisory Opinions Podcast.