Advisory Opinions - Tom Hanks' Face

Episode Date: January 6, 2020

David and Sarah engage in a wide-ranging analysis of John Bolton's potential testimony before the Senate, whether Trump can tweet his way through the War Powers Act (or legally bomb cultural sites), and we discuss whether Chief Justice Roberts will touch Roe v. Wade. And then they talk about Tom Hanks at the Golden Globes. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. We are at The Dispatch and we're recording this on Monday, January 6th, Sarah Isker. We are at The Dispatch and we're recording this on Monday, January 6th, one day before the official launch of the Dispatch.com website. So you might say, weren't you already launched? Because aren't you already deluging my inbox with scintillating email content? Why,

yes, we have been. But that's what we call the soft launch. The full thing is launching. The full website is launching tomorrow. We're going to be adding new podcast content. So if you haven't subscribed, it's still free for now to go to the dispatch.com. We're giving it to you free, sort of like the first few rocks of crack so that then you can, you'll be addicted to the content and you'll want to become a subscriber. Sarah, is that a good, do you think that's a good high quality sales pitch? I'm making my E face, but maybe that's because I worked on the opioid crisis for too long.

Oh, okay. Okay. I retract all of that. Anyway, we're giving you some free content in the hopes that you love it so much. There we go. There you go. There you go. Chocolate. Like chocolate. Yes, exactly. Like a few squares of a Hershey bar and then you'll want all of the rest of it.

S'mores. More. That's why my dad's favorite thing was to say, do you know why they're called s'mores? Because you want s'more. Exactly's why my dad's favorite thing was to say, do you know why they're called s'mores? Because you want s'more. was willing to testify if subpoenaed in the Senate trial of Donald Trump, Donald Trump's Senate, the impeachment trial of Donald Trump in the Senate. So we're going to talk about that. We're going to talk about sort of the legal background of it, political ramifications. We're also going to talk about some of the fallout since the killing of Qasem Soleimani, some of the more recent developments, which involve more international law, law of armed conflict, believe it or not. Can you, in fact, bomb cultural sites? And then we're going to wind up with some more domestic talk returning back to the Supreme Court. And then finally,

if we have time, we're going to talk a little Ricky Gervais monologue. So let's get right to it. So Sarah, Bolton signals he's willing to testify. Maybe you could walk through with the listeners, why was he or and some other senior administration officials, why were they resisting testimony previously? What was the legal argument that they were making to resist testifying before the House? So it's largely the same legal argument that every president since Nixon has made whenever anyone wants anything in particular from them, which is that the executive branch as a co-equal separate branch has this absolute and an entire immunity. I don't know that many legal scholars have ever fully bought in to the absolute total.

You can't touch me. Freeze tag immunity style. But, but it, we were, as we were discussing, if you were a defense attorney defending the presidency, why in the world would

you not start with that argument and go from there uh so that's where mcgann and some of these others have been of course and this is perhaps not worth getting too big into the footnotes the house originally wanted several people they then dropped some of the lawsuits, continued with the McGahn one. There's then a mootness question in play on some of this, especially now that the articles of impeachment were passed. Although, of course, they haven't been transmitted yet. And the House has argued that they, of course, could pass additional articles of impeachment. They could always impeach him again. Who knows? So that's, is that, that was sort of a terrible jumbled summary, but it's a summary nonetheless.

Yeah. And when you're talking about absolutely immune, what you're talking about is absolutely immune from essentially congressional process. In other words, Congress cannot summon senior advisors to the president, to Capitol Hill. That's the argument. And it was first articulated, I believe, let's just see if I'm right on my trivia, before he was Chief Justice, Rehnquist, in the, what was he, in the Nixon administration, Deputy Attorney General, somewhere in the DOJ, in your old universe. And so it was Justice Rehnquist before he became a justice who articulated that position. It was reaffirmed by Bill Clinton in his battles with Congress and reaffirmed again by Barack Obama. So

when people are saying that this is an unprecedented Trump administration action to claim absolute immunity, as you say, no, it's not. The legal merits of it— I didn't want to correct you. I didn't want to correct you on the Rehnquist thing, but I have confirmed. He was the head of the Office of Legal Counsel, which are thedery throughout the executive branch and actually serve as the intra-executive branch judicial arm resolving disputes between two executive branch agencies etc so that's what william rinkwas was doing it is the place where they write basically law review articles for presidents please continue so i appreciate the immediate fact check far be it

from us at the dispatch to traffic and fake news. But I had the name right. I just didn't have the title. You had the name? You mean you had William Rehnquist's name right? Yes. Yes. Okay.

You don't get a lot of points for getting William Rehnquist's name right. You didn't call him Bobby Rehnquist. Okay. Okay. All right. I'm trying to take whatever little solace that I can. But the bottom line is, this is an argument that has been advanced by multiple administrations. It was an argument the Trump administration was advancing. But the interesting thing is, if Bolton agrees to testify,

even though the administration is making this argument. Bolton's not currently with the administration. The administration doesn't have any real ability to stop him if he wants to do it. If he just wants to go ahead and testify, he can go ahead and testify. And so right before the podcast, you and I were walking through what might be going on here politically, and then we'll walk through maybe what might be going on here politically. And then we'll walk through maybe what might be going on here substantively. But you're mapping out an interesting scenario to me about negotiations between the administration and Mitch McConnell and some of his more moderate-leaning senators like Susan Collins. Well, and there's some reporting that while Bolton did not tell the White House in advance of sending out this statement, he did tell Mitch McConnell's team. We have not independently confirmed that reporting yet, but that is word on the Twitter street from other good reporters.

Assuming that's the case, I think it backs up my guess on this, which is while Pelosi has not transmitted the articles of impeachment and Chuck Schumer and McConnell have not agreed to rules for the trial, this is an ongoing negotiation. And in any negotiation, you want as many chits on your side as possible. What makes this a little unusual, of course, is that Collins and Murkowski, possible. What makes this a little unusual, of course, is that Collins and Murkowski, a couple others, sort of serve as the referees almost in this negotiation. And so if you're McConnell and you want to be able to offer something to Collins and Murkowski, I think this is a good one to offer, which is we're not going to call 17 witnesses on both sides. We're

not going to call Hunter Biden. We're not going to call Don McGahn. John Bolton's willing to come. He was in the room for the call. You know, he's the national security advisor at the time. Really, that's all we need. And look, you can have him. There was also some reporting about the White House over the weekend refusing under FOIA to turn over 20 emails, about 40 pages of email, between some of the folks involved on that funding question. And I think it's the same thing, right? The White House can give sort of a blanket, it was almost Glomar-esque in its nah response. And then, of course, the White House can voluntarily turn those over to McConnell, again, as a way of saying, we're not going to have any of these witnesses, Collins and Murkowski, but look, the White House doesn't have to turn over these emails, at least at this point,

but they're going to turn them over voluntarily in exchange for us agreeing to all of these other rules. So I think this is smart politically to collect everything you can on your side of the negotiation. Whether Bolton's decision was actually part of that yet to be seen. But the fact if he did call McConnell first, I think backs up that theory. And so, in other words, we could end up with a deal where the trial is based on the record from the House, with Bolton's additional testimony, with the 20 additional emails, and that's basically it? I think that would be a pretty reasonable end to that negotiation. I can imagine that there would be some Democrats that would be happy just for the sake of getting Bolton in the middle of the public eye.

I think they're assuming that Bolton is going to come in and have some sort of John Dean moment. I saw I saw that throughout. I've seen that comparison on Twitter. I've seen that comparison sent to me via email. And I'm just not so sure that that's what's going to happen. just not so sure that that's what's going to happen. No question. John Bolton's not John Dean, whether he'll be somewhat critical. But I mean, John Dean was like guns blazing. This guy's, you know, people didn't believe John Dean. He was so far out there until, of course, you got the transcripts. I don't have any reason to think that John Bolton would be that good a witness for the Democrats. I don't see that he would be either. I don't see. You know, now there has been reporting of a few that that he's nursing a grievance against Trump and Trump is nursing a grievance against him.

And the people on Capitol Hill, you don't want nursing a grievance against you. John Bolton is in that number. So, you know, you've got this sort of background intrigue that I think is more sort of the stuff of like Twitter frenzied Twitter dreams than it is like realistic, some sort of dramatic game changing moment. He does have his book. John Bolton wrote a book, we're told. He does have a book. Written it or writing it. So who knows? He might withhold some stuff from Congress for the book. If I were his book publisher, I'd be a view that this scandal was sort of the reverse chronological, went reverse chronologically from Nixon and from Clinton.

With Nixon, you had months of investigation. You had a huge fight. And then out come the Nixon tapes, you know, out come the White House tapes. And then, wow, wow, he, you know, look what he really did. With Bill Clinton, you know, I did not have sexual relations with that woman. Absolutely, totally lambasted the idea that anything could happen. They smeared Linda Tripp. They smeared everyone involved and then blue dress. And oh, I'm sorry. Sorry about that. started with the Nixon tapes. This started with the blue dress, so to speak, when the, not really transcript we know, but when the memorandum of the call was released, and we saw right in front of us the linkage between military aid and investigating a insane conspiracy theory and investigating a political rival. It was all right there. And then everything

else has been sort of filling in the details. And I'm not so sure, you know, what's John Bolton going to do? Say the transcript didn't, that transcript is wrong? Doubtful. I guess it would be. Just as a footnote to PR types, definitely get the bad stuff out first. I mean, there's a reason that one of the two of those resulted in, I think, far worse situations for those principles than this one has so far. And it's for exactly that reason. A different topic perhaps, but nevertheless worth highlighting for those who think hiding things is a great PR strategy. Well, you know, I have not heard anyone say that because that was certainly not the spin when it was released. The spin was, hey, this is no big deal.

I remember talking to people and they said, hey, I think when you read this, you're going to see it's no big deal. And I read it and I was, what? This is a big deal. But yeah, they got the worst. Imagine where we would be. Just imagine where we would be if we'd had Sondland's testimony, if we had all of that Fiona Hill's testimony, if we'd have all of this testimony, deny, deny, deny, deny, and then that transcript comes out. Totally different. That's the Nixon problem. And again, from a PR

standpoint, I'm not talking about morally or anything else, but just in terms of how that ball started really rolling downhill, I don't think Goldwater makes that trek over to the White House without that order of operations. Yeah. Okay. I want to make sure that we get to talk about the tweet and the War Powers Act, David. Yes. Okay. Let's do it. I want to know from you. So wait, first set up the tweet for us and what happened with the president's tweet today, but then give us a little on the War Powers Act, a little jazzy number, if you will, and whether a tweet can satisfy the War Powers Act.

Yeah. OK, so we got to moving to moving. We're moving rapidly transitioning from Bolton and Ukraine to Trump and Iran. And so the background is yet they somehow feel not that far apart, honestly. Oh, no. No, they don't. And Bolton was tweeting about Iran. But anyway, so over the weekend, there was this escalating war of words between Iran, the president, the Iraqi parliament, lots of developments, lots of moving parts. But a couple of really relevant things happened. One is Trump tweeted in response to Iranian bluster that there was that they were going to strike Americans. Trump tweeted that he had selected 52 targets in Iran,

symbolic for the 52 U.S. hostages taken in 1979, and that those would include, those 52 targets would be very important to Iran and include cultural sites. So that was one tweet. Then the other one was he tweeted yesterday that these tweets, sort of all taken together, would constitute whatever notifications he would be required to give Congress. So in essence, I have tweeted Congress, therefore you are notified. And I fulfilled my legal obligations to notify. So do we want to go cultural sites first, or do you want to go war powers first? I have passed the marshmallow test as an adult now. And so even though I really want to get to war powers first, I'm going to forego that.

Let's do cultural sites first. Okay. So there was a lot of debate over whether it would be a war crime if the U.S. targeted a cultural site like an ancient temple or ancient ruins or a museum. And the short answer to that is absolutely 100 percent yes, that's a war crime. And the longer answer is yes, but maybe not. OK, so here's the yes. The yes is under the laws of war, not only are cultural sites protected specifically under international treaties, as a general matter, you are prohibited from attacking non-military targets in a military operation. But could you, I'm not familiar with all Iranian cultural sites, there could be a cultural site that is also a military site. Sure. That's the but. Now, the but is military necessity can override the default protection of a cultural site or a civilian site. So, for example, a classic protected civilian site is a mosque. You do not bomb, you do not blow up mosques. But if somebody is using a mosque to fire at you, that protection is removed and you can

open fire. Similar with a hospital. If a hospital is being used as a firing point, you can fire in a hospital. So that applies to if you've got troops sheltering in an ancient ruin, you can turn that ancient ruin into rubble, but you cannot just target the ancient ruin. I think I know the answer to this, but during the Civil War, for instance, we turned the Capitol building into a makeshift triage center with some wounded, some dying, obviously some tending to, and some who were just fine and wanted a break, I assume, in the Capitol. It was no longer used for legislative purposes at that point. Could you target the U.S. Capitol during the Civil War? that point, could you target the U.S. Capitol during the Civil War? Not if it's being used for medical purposes. So now the laws of war have evolved a lot more since 1861 to 1865,

but applying a 2020 framework, you're not supposed to attack clearly designated medical facilities. So a helicopter with a red cross on it that is picking up wounded. Even military medical facilities. Yes. Exactly. Exactly. So the short answer is a unilateral bombing of a cultural, a civilian cultural site is a war crime. Period. Straight up. A war crime under what? Geneva Conventions? Well, it's under international law and American law. So the Uniform Code of Military Justice

binds American military officers. International law, conservatives at least, have not been keen on that legally speaking. So I... Right. But you're saying

it doesn't matter. What I'm saying is the vast bulk of the laws of war have been imported into American law. So, so in other words, let me put it this way. The Pentagon, mindful of the UCMJ, is not going to transmit to the president a target list that includes prohibited targets. So, but wait, David, if it's, there's a difference here of what you're saying. So I'm just going to

clarify. There's a difference between codified into law passed by Congress in which the president, his opinion makes no difference. Right. Or UCMJ, which is very much within the executive branch that the president can override any day hour he feels like. day, hour he feels like? Well, the UCMJ is not overridable by the military. Now, the president, now the question is going to be, here's a war, let's do the real, the way this would work in real practice. In real practice. Okay, but I'm about to have a song that I'm going to sing in this podcast called the Unitary Executive Song. And I'm going to have a whole doo-wop beat to it. So you can go ahead, but then I'm going to sing my Unitary Executive Song. Well, the way it would work in practice is the president would say, I want to target Iran. I want to hit, I want to strike Iran, provide me with targets.

And the Pentagon operating under its legal, the actually existing legal restrictions would provide a target list that is compliant with the law. And the president would choose from that menu. Now, there is a chance that the president could say, I don't agree with the target list and I want to include, because we all know the president's extremely literate in Iranian and ancient Persian history. And he could say, I want to include the ancient temple of such and such in this target set. At which point, unless he actively repeals the UCMJ, the military officers would be duty bound to refuse because. But you're acting like that's like like this is some crazy hypothetical and i disagree i think it is actually well within reason to think that the president could instead

of saying i want to attack iran give me a target list instead say um i don't want a proportionate response i want to attack iran uh in a symbolic and disproportionate response, including 52 sites to represent our 52 hostages from 79. And I want to make sure to include sites that are cultural. I understand that the UCMJ currently bans that. And under executive order, yada, yada, number, number, I am overriding the UCMJ. And I want a list of those targets. You know, that's not, that doesn't sound like something so beyond the pale. You know, until November 2016, I would have said it's so beyond the think I know where this is going. Yeah, I would have said it's so beyond the pale.

But, no, I see what you're saying. I think what you would then see... I think you would then... For instance, let me jump in and just add, Hassan Rouhani has tweeted, those who refer to the number 52 should also remember the number 290, never threaten the Iranian nation, which, while incorrect, we are assuming is a reference to Lockerbie.

Or could it be a reference to the downing of the Iranian Airlines flight by the USS Vincennes in 1988? You might want to, we might want to fact check. Do you have instant fact check capability? I do have instant fact check capabilities. Yeah, the USS Vincennes. So after Operation Praying Mantis in 1988, where the U.S. sunk a large proportion of the Iranian Navy, there was, this was near the end of the so-called Tanker War during the Iran-Iraq War. The U.S. was safeguarding free passage through the Straits of Hormuz, got into a real – one of the largest naval surface actions since World War II in the Persian Gulf with the Iranian Navy. And then several weeks later, the USS Vincennes, an Aegis guided missile cruiser, mistook an Iranian Airlines jet for an F-14. A civilian airliner. Yep, civilian airliner, and shot it down.

Killing all 290 passengers and crew on board. Wow, David. We've now, okay, we fact-checked each other. We're one to one now. Yes. Have I redeemed myself? It's tied going into the half. Oh, I actually think that's such a deep track, like that you knew it was 290 people. I think you're actually up on me, but yes, more than redeemed.

Yeah. So, yeah, so we've, so let's put it this way. Your nightmare scenario, let's put it this way. Your nightmare scenario, there's a non-zero possibility of it. I wouldn't call it a probability. And I'd also say you would then have White House counsel, you would have the leading, the Jags and the Pentagon saying to him, if you did that, not only, you know, if you did that, not only would there be hell to pay domestically you might be impeached again you might actually get an international arrest warrant against you uh that and and if nothing else it would be hard to argue that our civilian sites airliners etc aren't fair game like why would any ally argue we would would lose a lot of international support. It would be, it would be, I don't, I don't like to use the word catastrophic. It would be a serious

blow to our own interests if we did that. Serious. Now that's not just- Okay. Have I, have I put off my marshmallow enough? Can we get to the war powers yet? Yes, yes, yes. So anyway- I want my marshmallow. I get two marshmallows now, but I put off my marshmallow enough? Can we get to the war powers now? Yes, yes, yes. So anyway. I want my marshmallow. I get two marshmallows now that I waited. of the Vietnam War and the immediate as it was winding down, Congress became, and as the Nixon presidency was beginning, and as the Nixon presidency was at its height, Congress got to be quite concerned about the imperial executive, especially in the aftermath of Vietnam of the executive's war-making authority. And so it passed the War Powers Act, which is a complicated, convoluted act that almost, I think every president, Nixon tried to veto it.

It was overridden. I believe basically every president has taken the position that it's unconstitutional. But what it does- And that would be under the Office of legal counsel as previously mentioned exactly but what it does is it it basically says if the president is going to unilaterally initiate military action he has to formally notify the speaker of the house and the president pro tem of this of the senate and has to provide an outline of sort of the actual expected duration of the hostilities, the purpose of the hostilities. He has to give Congress a roadmap, in essence. No more secretly bombing Cambodia.

Exactly. And so he has to notify Congress. And then Congress has, essentially, the president gets about 60 days of war on his own. And then Congress... That's your free trial period. Yes. 60 days of war. And then Congress can step in. That and Apple Music is what you get with that if you give us your credit card. Exactly. And so that's the way it works. And so Trump struck Soleimani without going through War Powers Act notification. Now, I think, for the reasons we discussed yesterday, that he can do that because those troops were already under a congressionally authorized mission.

Acts of self-defense pursuant to a congressionally authorized mission are absolutely legally acceptable, arguably do not even represent a new act of hostilities, but part of the continuing mission. So I think that that's fine. But if he's going to strike Iran in Iran, if he's going to take extra overt steps against Iran, yeah, the War Powers Act would kick in. And that's where his tweet said, essentially, consider this a notification. Well, it doesn't meet, you might be surprised to know that that tweet does not meet the statutory standards, but you also might be surprised to know that I can imagine tweets that could meet the statutory standard. Imagine if he begins a tweet thread by saying,

Dear at Speaker Pelosi and at President Pro Tem, I am hereby utilizing this written tweet thread by saying, Dear at Speaker Pelosi and at President Pro Tem, I am hereby utilizing this written tweet thread to notify you of my intention to engage in military action in Iran. And here is the outline of my course of action as prescribed as required to be produced under the War Powers Act thread one out of 100. So I haven't, I actually think this is such an interesting question far beyond the War Powers Act that we could dedicate tons of time to, which is what is the president's Twitter account at vis-a-vis the executive branch? Which sounds like a really vague thing to say, but let me explain. So, for instance, the reason that the War Powers Act is interesting to me is because I believe, and please correct me, David, that the War Powers Act does not require, it simply says in writing, it does not require the president's signature.

No. says in writing it does not require the president's signature no so the president could send over anything in writing as you know it has like the white house maybe seal on top uh dear speaker pelosi all of the content that david has mentioned and then that shows up on speaker pelosi's desk and you're saying that in theory at at least, that would be sufficient. Yes. And a tweet in that sense is sort of a modern version of that. I have some problems with that being sufficient because the president's Twitter account, we know, is not always run by him. In fact, I think there's reason to believe it's not usually run by him.

We know he does tweet from it. We also know that other people tweet from it and that there is no way to distinguish between those two. So you're saying just for instance, in plain English for people who don't know what's happening with the Twitter account, you're saying Dan Scavino cannot declare war. I don't think that Dan Scavino can declare

war, except that maybe the War Powers Act is written poorly enough that actually, you know, to the extent we're talking a semi-coup situation here, but that sort of any aid from the White House could send over a War Powers notification to Nancy Pelosi because it doesn't actually really require it to be from the president. And in that sense, a tweet is somewhat similar to that versus I think that most departments, if not all, have come up with their own systems in the last three years. And I believe all that I'm aware of have decided that a tweet from the president is not a presidential order. Yes.

So if the president, just for example, tweeted arrest, Hillary Clinton, arrest Jim Comey and put him in jail. That is not a presidential order because you don't know that it's coming from the president. And for all these other reasons that make make twitter kind of this weird weird 2019 2020 little unique situation yeah uh so i'm not sure that i agree

that you could ever satisfy the war powers act really uh on twitter But I take your point that in theory, maybe you could. But if I'm Nancy Pelosi, I am not accepting even a correctly documented tweet storm because I do not know that it came from the president. So we're in this weird world where there is a practical reality that we can think we can mostly depend on, but there's a non-zero chance of something really strange. And the tweeted War Powers Act notification, I think Trump failed in that attempt just by the plain terms of the statute. by the plain terms of the statute. But I was trying to imagine, is there a way that under the plain wording of the statute that he could satisfy the War Powers Act on Twitter? Maybe. Why would I even be saying that? I think we all know why. But you do raise a really good point. And this is something that I think that people who have sort of been out in the larger country and they say his tweets are just tweets don't realize how much those tweets have caused an awful lot of confusion in many of the, you know, in the executive branch as to how do you respond. So, for example, his commander-in-chief powers, the executive is arguably at his height in his commander-in-chief powers. Does the military salute in response to a tweet and move on and accomplish the mission according to the tweet or what?

For example, he tweeted out a ban on transgender individuals serving in the military. This is such a good example, actually. Please continue. Yeah. So, you know, what do you do in response to that? Do you, do you then immediately implement a ban? That's not what happened, right? That's not what happened. And the DO, the mind. In part, because as, as I've said, departments, you know, from as soon as he got into office and he was tweeting things at various secretaries, at various departments, a decision had to be made pretty quickly. Is a tweet a presidential order? And in my experience, no one currently believes that a tweet is a presidential order. There's the way I understand things that you understand.

There's the way I understand things that you understand. The way I have heard is it is there's a tweet. People pay attention, but wait and see if there's a follow up. Right. And then that's where the White House counsel will send you a memo or pick up the phone. Right. You know, you want to talk about how things work in reality, like phone calls start getting made. work in reality, like phone calls start getting made. And the transgender tweet that you're referring to, I believe was over the Christmas, New Year's timeframe at that point. So everyone was at home separately and there were a lot of phone calls and conference calls that went into the wee night as I happen to remember. I'm sure you do. Yeah. But the tweet, you're right.

The tweet was almost a notification of what was to come if you were to try to put it into non-21st century terms. Yeah. Sort of not, the tweet itself isn't binding, but it's a sign of, sort of like how people sign an agreement to an agree before a contract. The agreement to agree isn't binding, but it's a clear signal that the underlying contract is on its way. And though the transgender one is a great indication of that example of that. And then on the other hand is my Jim Comey example, some of the things about indicting Republican congressmen versus Democratic congressmen, Hillary Clinton, where in fact there was no follow-up. So if the tweets are not orders and there's no call from the White House

counsel's office with a presidential order, it is considered a PR statement from what amounts to the White House communication shop, which is nothing in any serious sense. And so then the question is, where does the War Powers tweet fall in between those two extremes? Yeah. And then you involve a second branch and it gets very, very messy, which is why this was my marshmallow. Yes. I think that tweet, the actual tweet that he gave falls in the category of unless there is absolutely clear follow up from White House counsel, it is in the put in the ignore dustbin that that is the that is a pr statement yeah yeah it is a pr statement that is to be paid you pay about as much attention to that as you would pay to you know some sort of

formal blustery announcement from the dprk or from okay i'm going to object to comparing any anything to a statement from the dprk i don don't know. Little Rocket Man, Fire and Fury, very DPRK-ish kind of rhetoric. Never thought I'd see it coming from our White House, but that's where we are. But I think the 52 targets, I don't think that there are, I think there is a slight possibility that there are people in the Pentagon right now putting together a 52 target target list. But the idea that that that created a formal contingency plan for a 52 target strike, I think that's less likely. But I think on the spectrum, that tweet is actually more serious than the consider this tweet notifications tweet is.

And that's why David has a different set of marshmallow needs than I do. Why we host this podcast together. So you. All right. What else on. We haven't done a lot on Soleimani other than the tweets. So anything you want to you want to hit in the quick. Yeah.

Of our FOPO side. Yeah. Just just real quick. And this is something that I think that if you don't have any experience in the Middle East, particularly in dealing with, say, rival Iraqi factions, dealing with- I don't. Yeah, I have a little. I have a little.

But, you know, one of the first things that I had to learn when I landed in Diyala province, and we were in a region of Iraq that was split between Sunni and Shia, that was torn apart by an insurgency. And so we were having to fight a war at the same time as we're navigating a lot of local Iraqi politics. And one of the first things that you learn is the very loud public statement is often exactly contradicted by a very quiet private assurance. And so one of the things that I have learned in watching developments in the Middle East is you just have to, you cannot look at almost any sort of public, angry public announcement and necessarily take it at face value. You always, like, hey, let's connect this with Trump tweet. You always have to see about the follow through. So there is this, there was a vote in the Iraqi parliament that the Sunni and Kurdish MPs boycotted to throw, it was presented as throw the Americans out of the country. And it was like, oh, look, this is a mistake. We're being tossed out of the country until you learn that,

wait a minute, it was really to end the anti-ISIS mission. It's not binding. It has no timetable. And it doesn't revoke the agreement that keeps American forces in the region. And so then you look at that and you say, oh, that's looking a whole lot like an angry outburst to kind of keep domestic peace than it does look like a sea change in Iraqi policy. Or you see Iran saying, we're pulling all the way out of the nuclear deal. Okay. Well, that's bad if that's the case, but we will then wait and see if they take actions to follow up on their formal revocation of the deal. Do they start spinning more centrifuges? Do they engage in work in prohibited sites? So you're always having to sort of press the pause button here and see if the actions match the bluster.

I've already gotten indications from people that on the Iraqi side of things, you don't want to necessarily be paying attention to all these public statements because they're not necessarily consistent with what the Iraqis are telling American military officials behind closed doors. So you have had a lot of hot takes on Twitter about how this is all blowing up in our face right now. And it might, it might. I am not saying that the strike on Soleimani won't ultimately prove to be a mistake. But what I am saying is- But you're saying in a shocking, you know, I don't even know what to make of this, that we shouldn't make foreign policy judgments in the following 20 minutes after a decision. That's interesting. Yes. You know, it's counterintuitive. Counterintuitive. Yeah. That we should wait a few more days.

Yes. Just wait. Before forming conclusions. Maybe even weeks and maybe even months. I don't know, David. Sounds crazy. Yeah. So I do think it's highly likely that the Iranians will respond. I also know that in the not too distant past, we hit them unexpectedly hard and they quieted down for a while. They quieted down for a while. So we have so much of this depends on the Iranians' next move, because I don't see any indication.

It's not like we've sent a few thousand troops into the Middle East. But trust me when I say that that's not enough to wage an actual war with Iran. If we had intentions to wage an actual war with Iran, the buildup you would see would probably be bigger than the buildup we had before the Iraq war. There would be no mistaking it. So when you look at what we've done, our actual military maneuvers are not posturing us for war with Iran. So it's as if- Which Iran sees. Which Iran sees. It's also a signal to Iran. Exactly.

We're not, yeah, we're not setting up at the border. So it's sort of like, imagine you, it's like punching a bully in the nose and then not throwing the second punch and waiting to see what the bully does. And it's kind of the way I would categorize this. And there's a chance the bully backs away for a little bit. I don't think it changes the nature of the bully, but there's also a chance that the bully tries to strike back twice as hard to make you back away. So that's why we're at the knife's edge. That's why it's very dangerous. But also at the same time,

I don't think we can look at all these public statements and take too much from them. And of course, we like to point out gender differences on this podcast. That is how junior high boys deal with bullying. But if it were a junior high girl bully situation, you would simply psychologically torture the bully until she hated herself. So yeah, no, I see the difference. Well, isn't that kind of Trump's Twitter feed? That's what I'm saying, actually. I point this out because you're assuming a certain masculine bully response, and I'm pointing out that perhaps women have a far more damaging bully response than men have come up with.

Yeah, no. Far longer lasting. You have girls. Yes, yeah, absolutely. No, and I also know one in the middle school stage now, one who's thankfully passed through the middle school stage. But yes, the psychological torture can be extremely real. Extremely.

And way more effective than the punch in the face. So, I just, I point that out. I, yeah, we'll leave it at that. You raise an important point about psychology because this is also a region where leaders do not like to be shamed and publicly humiliated. And there can be extreme reaction to public humiliation. So it's such a toxic, complicated stew. You can't ever say, well, it's a shame, honor culture, therefore they'll always react. You can't say that. Or you can't say, well, they often do one thing in public and another thing in private, therefore never pay attention to the public statements. No, that's not quite it either.

And so you have this super complicated stew and then all kinds of voices on the outside of it saying, no, here's the key to understanding it. Here's the key. Here's the key. And all in 280 characters, which as we know is exactly how many letters it takes to make big foreign policy pronouncements. Yeah. So, you know, public statements don't matter until they do. Shame on our culture is overblown until it's not. I mean, and that's why, you know, the counterinsurgency effort when I was involved in Iraq. involved in Iraq, I mean, the ups and downs that we experienced over the course of a year and the feeling that we're trying something and we don't know if it's going to work or this thing we thought was going to work didn't work. It's one of the most humbling experiences. It's probably

the most humbling experience of my life is just trying to navigate that and just being a small part of trying to navigate that. And at the end of the year, we had done a pretty darn good job of it. But, oh, my gosh. And so that's why I wrote a newsletter last week saying, man, this stuff is complicated. That's why I say today this stuff is complicated. And it's also why I say one of the fastest ways you can know that somebody doesn't know a huge amount about the Middle East is if they go, you know, here's this one thing you can do. And in that sense, it sounds a little like parenting. Yes.

Someone says there's one thing to parenting. They probably are not a parent. Which, you know, like me, I like comparing my two cats to raising kids and think it's pretty similar. Yeah. Well, just wait. You know, I will say this, though. If you come into the French household, you'll see that we are actually better at parenting children, by God's grace, than we are at parenting dogs. The three dogs.

Our kids are great. Our three dogs are at parenting dogs. The three dogs, our kids are great. Our three dogs are an absolute mess. Well, if you had to pick though, I think you'd pick the kids over the dogs. A hundred percent. In terms of who's going to be disciplined and has a bright future ahead of them. Yeah, exactly.

Oh gosh. So before we close it out, we had some Supreme Court talk. Yeah. Yeah. A little bit. Go, Sarah. We'll do some Supreme Court teaser talk, I think.

Yeah, yeah. Let's do it. The new year has started, and it's a big term this year. And so I want to make sure we're spending some time before we get to the end here, sort of setting this stuff up so that when we do, we're not like, oh, and by the way, the Supreme Court. So this term, just so far,

we have the three consolidated, and yeah, it's actually two were consolidated, and then there's the third one, but whatever, three consolidated cases about the disclosure of Trump's financial records. We have the rescission of DACA. We have the Louisiana abortion law on doctors, which requires doctors to have admitting privileges,

similar to the Texas one from a few years back. We have whether gender discrimination laws apply to gay and transgender employees, which you and I have sung a few bars on. We have the other Second Amendment case, which we have talked about. And then the whether they're going to take that Fifth Circuit Obamacare case, which I think we both think the answer is no for this term. Right. And we talked about that. So like we've talked about some of them. We have a lot left to get through. And then, of course, there's what's looming over all of this, which is what if there's another vacancy? Right. Right.

And if there's another vacancy before 2020. Oh, my gosh. Like like the Iran situation is abroad, the domestic situation will be here. Oh, my goodness. goodness. I, you know, I, I, I literally, I, I don't want to think too much about what that political situation will be like. Um, especially if the vacancy is one of the liberal four, uh, if the vacancy is one of the conservative five, it will be much less contentious if it's one of the liberal four. Oh my, oh my. But I, you know, I think that Ruth Bader Ginsburg is 86 years old and Stephen Breyer is 81 years old. I throw out there as a fact for you. Yes. Just stating facts.

Just stating facts. So there's interesting polling on this. Oh, OK. Well, interesting polling in terms of Republicans have traditionally cared about the court more than Democrats. The conservative movement has trained its voters, if you will, to care about it. We can go into that. Maybe it's the Federalist Society. You know, it starts in 1982 and its growth to some extent mirrors the growth of conservative voters caring about the court. But we could point to any number of other factors that probably helped that as well. Bork, for instance, was a lightning rod moment. There's the abortion cases in the 90s.

There's other things. So I say all this we have polling on how much more republicans care so like exit polling from 2016 of those voters who said the supreme court was a very important part of their decision right 15 point gap republicans above democrats yeah that doesn't surprise me in, there's plenty of reporting on the Kavanaugh effect. Was it real? Was it not real? Did it matter? Because, you know, the problem with Senate races is you can point to all of the local factors, some of the senators lost, some of the senators won who voted against Kavanaugh. But, you know, let's just drill down on North Dakota for a second. Forty seven percent of North Dakota voters, which I mean is just very, very high.

We just don't get polling like this, said that their senators vote against Kavanaugh was a quote, major factor in how they voted. Yeah. It's just like healthcare normally isn't a major factor to 47% of voters. I mean, my thought is that in 2020, those numbers will be even larger because there isn't really a Republican legislative agenda that anyone will be voting for. Like there's no Republican health care plan. There's no. So it's it's just can Mitch McConnell keep confirming judges is becoming essentially the agenda of the Trump administration.

will keep confirming judges is becoming essentially the agenda of the Trump administration. Yes, but David, what if Ginsburg or Breyer, whatever, he fills a liberal seat over the summer. So it's done before 2020. So Republicans have now gotten three additional seats. So for those, we'll call them the Butt Gorsuch voters. I mean, they didn't know it was Butt Gorsuch at the time they voted in 2016, but we're now going to call them Butt Gorsuch voters. For the Butt Gorsuch voters, to quote Donald Trump, like they might be sick of winning by 2020. Right. Well, and certainly like psychologically, we know that loss aversion is bigger than winning. And so for Democrats, will this finally be the election where the Supreme Court as an interest overtakes Republican interest because they have just lost the Ginsburg seat or the Breyer seat? And it is galvanizing at the exact point in which you had a fractured Democratic primary need to circle a rally around a nominee.

So, you know, you have a messy, messy primary situation. You're finally into April or May. It's Biden, let's say. And everyone's kind of like, eh, OK. And then you lose the Ginsburg or Breyer seat. Trump confirms someone. You could really see that being the number one vote for me Biden issue and that maybe that 15 point gap closes,

but maybe it even reverses itself. Yeah, that's interesting. And that would be a huge, huge shift in partisan, you know, what issues do they care about? What do you run on? Because what Trump can't really run on the Supreme Court at that point. I mean, we could get more seats would be a weird rallying cry. Not not impossible. There will still be some but Gorsuch voters.

But at the point that you have six seats that have been confirmed by Republican presidents, it's that's where you get to the winning versus loss aversion, Daniel Kahneman, you know, fun books around that. Oh, that's interesting. Well, we're about out of time. What do you think? This is my first time running this today, but I just want your like, your 10 second reaction. No, I would say, I would, I would say this. I think that both, on both the court and guns, both on both the court and guns, the the gap has been the most people are most committed on both of those issues have tended to be more Republican on the court and on the Second Amendment. And I do think that continued victories in both of those areas can lead people can lead those continued

victories for conservatives in both those areas can lead that dynamic to shift. I think that the find a new battleground. Right. Yeah. And I think that the Supreme Court's decision in the Louisiana admitting privileges case could have something to say about this as well. There is that is going to be a fascinating case because and I'm watching it like a hawk because I have you know, I was around in Planned Parenthood v. Casey when a lot of people thought a Republican majority Supreme Court was going to overturn Roe. And it reaffirmed the essential holding of Roe. It gave more wiggle room to regulate abortion, but reaffirmed the essential holding. abortion, but reaffirmed the essential holding. And so ever since then, I have been a pro-life person who's been very skeptical of the idea that we're just that one justice away from overturning Roe. And I have a theory, and I want to get your 10-second take on it, that what we will see in the Louisiana admitting privileges case is that this court has a 5-4 majority for granting states more leeway

under the undue burden standard on Casey, but it is not anywhere near prepared to reverse Roe v. Wade. And that will have an interesting effect on the electorate. effect on the electorate. Let me even put a finer point on that. John Roberts is nowhere near Roe v. Wade. Yeah. Not interested and not interested in talking about it. I think you could see an opinion if he were the one to draft it,

to author it, for instance, that doesn't mention Roe v. Wade. Yeah. I mean, I could see an opinion that doesn't, that tries to thread the needle with whole women's health and tries to find some way to distinguish the Louisiana situation from whole women's health. And if that's the case, then the Gorsuch and Kavanaugh nominations have not fundamentally changed the picture on American abortion law. The only way you would say that, okay, things are starting to really change is if there's an outright reversal of whole women's health, which I don't know if that's in the offing. I think that's all true. I think electorally in the, what, you know, the thing that you and I say won't happen

if Roe is touched. Again, in June of this year, in advance of a 2020 election, I think that you do, there have been a group of conservative voters who vote primarily on Roe.

If that were ever taken, like done, they will go find something else to vote on. And Democrats might be the ones voting on Roe from now on. And to that end, it could be politically quite damaging to Republicans if the court were to touch Roe. Yeah, it absolutely could.

I mean, it absolutely could. You know, I think the... Again, I think that's very, very unlikely that they will touch Roe at all. I think there's a chance they don't even mention Roe. It's like the Scottish play. I think a friend of mine said that John Roberts is a rock solid seventh vote to overturn Roe. Oh, God, I haven't heard that that's really funny it had the ring of truth to it oh man oh that's i think we have to end on that because that's perfect yes yeah we can end on that we can end on that uh all right real quick on the golden globes like one minute ricky gervais there There's, look, liberal Twitter is very upset at Ricky Gervais. Conservative Twitter, though, isn't exactly embracing him. They're

like, look, look, he doesn't actually like conservatives. So you, David, as a religious conservative, Ricky Gervais, what'd you think? I laughed out loud and I cringed out loud at the same time. You know, that's the thing is like good comedy to me is sort of an equal opportunity offender. You know, a good comic can see the absurdity in basically every side. And look, Ricky Gervais and I are, could not be more different in many ways. I mean, the guy's a very outspoken atheist. And, but I got to hand But I got to give him credit.

The guy seems to me to be one of the more fearless comics out there. And you're just not safe. I don't care who you are. You're just not safe if you walk into a room with him. And him singling out Apple in particular, and the hypocrisy of the tech companies that are often engaged in economic sanctions against cultural opponents at home while willingly doing business in China. That was beautiful. I loved it. Didn't love all of it, but I certainly love that. I did think you could put it side by side with the NBA's reaction to China. Yeah. As like just brave versus not brave.

There was some brave humor in it. And he didn't need to tell those jokes. He could have told much easier jokes on himself, for instance. And these were hard jokes on himself, in a sense. Yeah. To take on some of those. And I don't even like his sense of humor. But, man, it was fun to watch.

And Tom Hanks' face was just priceless. It's amazing. It was amazing. So we can. And Tom Hanks' face was just priceless. It's amazing. It was amazing. So we can end on Tom Hanks' face. Tom Hanks' face. Tom Hanks' face. Well, that has been, maybe that's the title of the podcast. We'll see.

Tom Hanks' face. For those who are wondering why we titled it that, only in the last 10 seconds do you find out. That's why. Exactly. Well, this has been Advisory Opinions with David French and Sarah Isker. And I should have done this at the beginning of the show or the podcast, but please go rate us.

You guys have been fantastic about rating us so far. You've given us some great feedback. And Sarah gave out her email last time. I'm going to get out my email, david at the dispatch.com. Love to get your feedback. Some people have already tracked me down and given us some good and thoughtful feedback. We're just starting this podcast. So we covet your input. So david at the dispatch.com. And I promise I'll read it. I'm, I'm, David's just jealous. Cause I got so many great emails this week. So feel free to keep emailing me and not him.

Ha ha. I know. And I'm even happy to get the 50th email that says, Sarah's great. David, you need help. So that's good feedback. It's good feedback. I need to hear it. It's good feedback.

All right, David, go enjoy your day. Yes, you too, Sarah. Thank you all for listening.