Advisory Opinions - Trump vs. DOJ in Courtroom Battle

Episode Date: September 2, 2022

David and Sarah are here to make sense of the latest back and forth between the Justice Department and Trump’s legal team over classified documents found at Mar-a-Lago. Plus: a closer look at the legal merits of the student loan forgiveness plan and two religious liberty cases.   Show Notes: -DOJ response to Trump's special master request -OLC opinion on student loan forgiveness plan -Fellowship of Christian Athletes v. San Jose Unified School District Board of Education -Yeshiva University v. YU Pride Alliance Learn more about your ad choices. Visit megaphone.fm/adchoices

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Hey, you paid for it, so keep it. Try the other side. Get started at PHYS.ca. If you need some time to think it over, here's five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at PHYS.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got a lot to cover.

We're going to cover the latest developments in the Trump search warrant. Trump's team filed a separate action, a very kind of strange action, trying to get a special master appointed to oversee the... What, Sarah? To over... It's hard to describe what he wanted yeah well we'll get to that we'll get to that we'll get to that and uh so there was a department of justice filed a responsive pleading in this new action in the southern district of Florida. And it was what, how did the kids say it, Sarah? It was lit. So we're going to break that down. We're also going to talk a bit more about debt relief. And don't worry if you're a little bit sick of the debt relief topic. We're just going to dip our toe in the water, not on the standing issue that we talked about with Professor Bode on

Tuesday for the Tuesday podcast, but more on the legal merits of the OLC's argument over debt relief. And then we're going to talk about two interesting religious liberty cases, one in Yeshiva and one involving the Christian Fellowship of Christian Athletes. Very interesting cases. It's going to tear open an old wound of mine, an old legal wound, but we'll wait and we'll get to that. Okay, the Trump case. My goodness, the Trump case. So do you want to kind of set up a little bit about the procedural posture here? What's going on before we got the DOJ motion

or the DOJ's response to Donald Trump's motion? Yeah, let's do some big picture setting here. So the Department of Justice executes a search warrant on Mar-a-Lago, which point they collect a whole lot of boxes with documents and sundries. Two weeks after that, the Trump team files a motion before a different judge, not the judge that approved the search warrant, and asks for, among other things, to have some of the stuff returned,

and a special master. So a special master is someone appointed by the court itself to review the documents. In this case, we talked about this before, the DOJ generally has a filter team, taint team, put in place on these things. Imagine that they executed a search warrant on, I don't know, Hostess Cupcake. They could have attorney-client privilege documents swept up in that or trade secrets or whatever else. And so you don't have the FBI agents who are investigating Hostess review those documents first.

You have a filter team who filters out stuff that the investigators should not see, including attorney-client privilege documents or trade secrets and things like that, and that they don't need to see. So the special master would, in some sense, take the place of the filter team. And the Trump team wanted the special master to review for attorney-client privilege and executive privilege. for attorney-client privilege and executive privilege. So that filing was a, legal term here, hot mess. And the judge came back and was like, hi, can you please answer some really basic questions for me? Like, why is it appropriate for this to be before me? What is my jurisdiction? You know, things that should have been in your first filing, sort of hand-feeding them how to file a motion before a judge. But they did that, David.

And so then DOJ asked for a page extension to respond, which was kind of a flex. Yeah. And upon reading it, I see why they asked for the page extension. Not sure they couldn't have done it in less, but fine. So they asked for 40 pages. And I have to say that the DOJ response,

and mind you, the judge has said repeatedly now that she is inclined to appoint the special master, but is awaiting DOJ's response. appoint the special master, but is awaiting DOJ's response. DOJ's response was a little bit like a very patient parent when your child is insisting on doing something stupid and impossible. I want to get in the oven. Okay, well, that's not going to happen. And here's some reasons why. I can't believe I have to come up with the reasons, but sure, I'll give you reasons why you don't get to go in the oven while it's on. So, David, DOJ here says, first of all, you don't have standing because these aren't your documents. You have no interest in them. I mean, that was their start out argument, which you're like,

ooh, right. Again, to use my parent-child-in-the-oven analogy, you can't do this because it will kill you. Sort of that should stop the conversation. You don't have standing. These aren't your documents. They are all presidential records. They belong to the national archives slash the people of the United States. Like they're certainly not Donald Trump's personal documents. Um, and then there's a whole lot of, even if, even if you do have standing, um, I'll just run through some of them so that David, I can get your reaction. But even if you do have standing, I'll just run through some of them so that, David, I can get your reaction. But even if you do have standing, you can't assert executive privilege against another component of the executive branch, CEG, a page worth of citations. Even if you can't, you can't, you don't need a special master because at this point, the filter team has completed its job and the FBI reviewing agents have completed their job. So it's pointless because the only thing the special master would do is prevent the investigating

agents from seeing materials that they've already seen. Those are just some of the examples. Also, some interesting notes, David. It mentions that, and there was a picture, of course, included, which I hope you'll describe, but it mentions that the lawyers and agents, many of them who serve on the investigating team, by definition, you must have a security clearance as an FBI agent or to work at the Department of Justice, even as an intern. I had to have a clearance, a low-level clearance, said that they had to get read into specific

compartments and attain higher clearances in some cases in order to simply be able to review the documents, some of which were still in the storage room, some of which were not in the storage room. So that's what the filing said. Now, this opens up many questions. One, will the judge appoint the special master? Two, how compelling are DOJ's legal arguments in general. Three, the facts that they laid out in their response to the special master lay out a case for obstruction against Trump's team and potentially against Trump himself. And they lay out a case for at a minimum 18 U.S.C. 1001, the lying to federal investigators. For Christina Bob, the attorney who signed the declaration saying that she personally had performed due diligence in searching for classified documents, including in the storage area where they found 70-plus

classified documents. So a lot to discuss on this filing, David. What were your reactions? Yeah, so first, the legal argument of why are you asking for records that aren't yours was, I don't know, among the more compelling arguments I've read in a while because, you know, this is where that there's been sort of two strands of this. One is the mishandling of classified information that's what i've been focused on uh mishandling of national defense information the art that a lot of people kind of shrugged about a bit and for some good reason on the criminal side is the you know the idea that these are presidential records these are federal records, these are not Donald Trump's personal documents.

Well, that's where this legal concept becomes very salient. Because if they're not his documents, why does he have standing to try to grab them? Under what legal theory can he have them seized or returned? Or what kind of standing does he have to supervise or have input into their handling? And so that was, I thought, of the legal arguments was really compelling and very easy to understand. Just wait a minute. For instance, David, my car is at your house. Maybe you stole my car.

Maybe I parked it there. Who knows? The police come and take my car from your garage. And then you file something in court saying that you want my car back. What? It's not your car. I maybe can get my car back. And it doesn't matter whether you stole my car. It wasn't your car. You just don't get it back. And all of this is really sort of communicating one of the sort of simpler explanations for the Trump conduct, which is just can be summed up in one word. Think of the seagulls in Finding Nemo. Mine. Mine, mine, mine. Mine, mine, mine. And which is one of the simpler explanations, it also has no real legal purchase. So... Now, footnote to this, remember that his

passports, he argued that his passports were taken and that DOJ had no business taking his passports. There is actually a literal footnote in the filing that explains what happened with the passports. So if a document that fit into the search warrant was found, they took the entire box. And in this case, it sounds like the contents of a drawer rather than go through all of it. So again, despite the lawyer assuring the Department of Justice in a legal filing, in a signed legal document, that all documents that were all at this point not classified and did not have classified markings were in the storage container, in the storage unit, they found documents, classified documents, in his personal office, including in a drawer. Declassified documents were in the drawer with two expired and one non-expired passports. So they took the entire contents of the drawer, put it into a box, and hauled out the box.

Then the filter team reviewed the contents of that box, saw that there were passports in it, and did, in fact, return those passports because, unlike my car example, they belonged to the person and were not part of the search. Let's spend a little time on the facts here because I think that this is where, as I was reading this, I was thinking we're way beyond Hillary Clinton territory at this point. That the story here has moved considerably. All right. I'm interested in your.

But anyway, this was this was my this was my. So here's this sort of the A to B to C to D. So the part that everyone knows, and this is old news, is that Trump took a bunch of boxes with him. The boxes, when the archives found out that he had a bunch of boxes, that began a process of saying, hey, could you give us our stuff back? So Trump eventually returns 15 boxes. When he returns 15 boxes, scattered in those 15 boxes is a bunch of classified information, marked classified, some of it classified at the highest levels of classification. Some are in their folders, some are just mixed in with other papers. There's no organizational system. They are concerned at this point, they say.

Yes. And so it's important to press pause right here. So if you press pause right here, what you have at this moment is evidence that a crime was committed. Okay, was committed, past tense. In other words, that there is evidence that national defense information was moved from its proper place of storage. All right, now this is where 18 U.S.C. section 793 comes in that we talked about earlier. So this is where you have past tense was

if he had produced everything. So if he produced everything, then for a time he had moved classified information from its proper place of storage, national defense information. So the referral to the DOJ. Well, here's what we don't have a lot of visibility into, but what's apparent is that the DOJ begins to develop information that, in fact, it's not the case that what Trump did was finally turn over everything. And that, in fact, they've developed information that the case is he still has stuff, that he still has classified information he's not supposed to have. So they get a subpoena. classified information he's not supposed to have. So they get a subpoena. When they get a subpoena,

the original date for the deadline was May 24th. The counsel got an extension to June 7th. But on the evening of June 2, the counsel contacted DOJ and requested FBI agents meet him the following day to pick up responsive documents. So agents and a DOJ attorney arrive at Mar-a-Lago to get the documents. So again, you have more documents and then you have a certification letter. And I'll read to you the certification letter. Based upon the information that has been provided to me, I'm authorized to certify on behalf of the office of Donald J. Trump the following. A diligent search was conducted of the boxes that were moved from the White House to Florida. The search was conducted after receipt of the subpoena in order to locate any and all documents that are responsive to the subpoena.

Any and all responsive documents accompany the certification. That's kind of a weird sentence. And D, no copy, written notation, or reproduction of any kind is retained as to any responsive document. So documents are given in a folder representing that all the records that have come from the White House were stored in one location, a storage room, and that the boxes in the storage room were the remaining repository of records from the White House. Council says there's no other records

stored in any private offices. And so the agents were permitted to visit the room. However, the council explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room. So in other words, there were boxes there that were still there, even though council was presenting, saying, hey, I've given you everything responsive. Agents weren't permitted to double check, and they couldn't just override the refusal to permit inspection because they didn't have a search warrant. So then the FBI conducts a review, finds more documents that were secret, including 17 documents marked secret. So then you have not just evidence that a crime had been committed when the first 15 boxes, then you have evidence that the criming had continued. And then they go ahead and continue to get information that, wait a minute, that response

to the grand jury keynote wasn't complete. That in fact, they didn't have any and all documents. So they get the search warrant. Now, again, the source of this information is very unclear. We don't know how they were able to develop this. They go get a search warrant, and sure enough, there were more classified documents, including classified documents not located in boxes, but were located in desks in the, quote, 45 office. office. And so, again, of the seized materials, there were classified materials. More than twice the amount of classified materials produced in response to the grand jury subpoena. So, Sarah, that factual chain of events of which we got sort of the most complete chronology and the most complete story here, is I think the real news item.

It confirmed a lot of reporting that had over the last couple of weeks. But the really interesting thing to me is, the fascinating thing to me is, and I'd love your thoughts on this, the response to the subpoena that the DOJ quickly learns is incomplete to me is the really key fact. That when they came there and when they issued a subpoena for any and all documents in certain categories,

they receive representation that they've gotten any and all documents and they haven't. That's a big deal. thoughts all right i want to separate out what the lawyer signed versus potential obstruction here right yeah i think that it will be very hard for christina bob as the lawyer who said that she had done due diligence to look through the boxes in the storage area to determine that there were no documents that were classified or that bared classification markings to say that she wasn't lying at that point. I don't know why she did

something that stupid, something that was so easily provably false. And I note the classified or classification markings because, of course, one of the defenses is he had declassified everything. They had never asserted that in advance of the execution of the search warrant, first of all. But second of all, the subpoena said classification markings. There is no world in which you can do due diligence by opening the box. They're in a folder. It says top secret. There's yellow markings. They make very sure that you can't accidentally miss classification markings for a good reason. And in that sense, it's quite different, by the way, than the top secret conversations that were found on Hillary Clinton's server.

Those did not have classification markings. It was that the contents of the conversation was clearly classified, not that it had been marked as such. marked as such. Okay, so that's why I think Christina Bob has a problem because of the classification marking part, which is just simply a fact. And she said she had done due diligence, and there's just no way. But it does get trickier with the obstruction point. And the obstruction point is that, first of all, just obstruction is a much higher bar that the rest of the team, that Trump himself or the non-Christina Bob people related in the team, sort of willfully withheld these documents. Now, I get that after you just heard what David said, it's going to feel like obviously that meets any sort of layman's definition of obstruction, but it's a really high bar to meet that corrupt intent element. And if he truly believed that he had declassified the documents, then I can imagine a world in which he's going to say could, you know, pass a polygraph saying it, that he believed that they had returned everything that was classified.

That's where I think it's tough on the obstruction thing. I still don't think they're there yet. Now, if the subpoena was written very well and it asked for documents with classified markings, and then he knowingly, they can prove he knowingly refused to give them those documents, regardless of the fact that he believed he had declassified them, maybe then you've met the standard. But it's different than the Christina Bob standard. Yeah, the Christina Bob letter to me is,

I saw that and I had that one word response, wow. And the fact that there were boxes in that storage area when the FBI agent showed up and they were not permitted to look in the boxes, but instead had to rely on the representation that a diligent search had been made of the boxes. Then the FBI comes back, looks in the boxes and finds responsive information. That's a problem. That's a problem for her. And David, can i just read you what mark levin has responded to about the doj filing can't wait um he says if the subpoena you sought and received allowed you

to review and remove documents the idea that one or more lawyers prevent you from doing so is crazy were the lawyers armed were they threatening to wrestle you to the ground or what how could they possibly prevent you from reviewing and removing documents if you had a lawful subpoena? It doesn't make sense. Also, you state that a lawyer represented that you had all classified information. The implication you were trying to create is that you were lied to. So let me get this straight. A licensed lawyer would put his freedom, career, and law license on the line by intentionally lying to the FBI about classified documents, knowing full well that the FBI would eventually find out. That's it.

That's the argument. That was more just like statement of fact than like, yes, by the way, when a lawyer stands in front of a box and says, you cannot open it unless you have a search warrant. I know. I mean,

this is basic stuff. This is basic stuff. Yep. Yes. So all of these things that end in questions are like, yeah, that's correct. Yeah. You are correct, sir. Because the subpoena, when you are producing documents responsive to a subpoena, you are saying, I've done the search. Yes. Not you can do the search. I have done the search and here are the results of the search.

And here's everything that is responsive. Because by the way, if the government shows up at your house and says, can I come into this room? And you say yes. And then they say, can I look into that box? And you say no. And they look into the box anyway. They violated the fourth amendment unless they have a search warrant. That's like literally what the Fourth Amendment says. So absolutely, the lawyer could say no, could say you can come into the room and then can say no, but you can't look in the box because according to the subpoena, you asked me to search for these documents

to find responsive documents and I have done so. And they're like, all right, will you sign something attesting to that since you won't let us look in the boxes? No problem. Here, I will sign that I did, that I've looked in these boxes personally and that

there are no documents with classification markings on them. So yes, I'm confused by Mark Levin's confusion. And extremely confused that he would be incredulous that a lawyer would sign a document that might be deceptive. And only a little bit of sexism that he assumes it's a he. It's not. It was a woman. Thanks. We're lawyers too now. Women can lie just as well as men, Sarah. Some might argue better. And so, but here to me, here are the key missing links. Now, there's another line that I've heard is, is oh where are the nuclear materials well they're not describing what's in the classified documents okay that might be a long time coming before we know or if we ever really know what was in these classified documents one of them by the way that was compartmentalized so it was a top secret then, so they include that in the photo,

but then it's whited out everything that comes next and, um, uh, compartmentalized stuff will normally just be an acronym or a short word or something. This is a really long whiteout at the top of the classification, which means that it was heavily compartmentalized, multiple compartmentalized. That document in particular, and it was not in a folder, it was on the presidential seal, was particularly fascinating to me. So we don't know what was in those documents. And, you know, here's one point I would like to make. If you have top secret SCI, or if you have top secret compartmental SCI, or if you have top-secret compartmentalized information, the declassification defense is really lame. Not just in this sense, and not just in the sense of,

okay, well, I declassify. But it goes to mens rea. No, I know. But here's when it goes to, now, declassifying doesn't make it not national defense information, by the way. Now, declassifying it doesn't make it not national defense information, by the way. So if you're talking about 18 U.S.C. Section 793, you're talking about national defense information or information pertaining to the national defense. That is not a synonym for classified. So declassifying it doesn't make it not information pertaining to the national defense, although it does absolutely impact the gravity of the crime. But here's an interesting question, Sarah. Are they wanting to go with, we have now made top secret SCI information available to be FOIA'd?

So in other words, because the president wanted to just remove it and chill out with it wherever he wanted to be, it's now subject to Freedom of Information Act requests by anybody. And by the way, anyone listening to this who thinks that filing a FOIA right now would be a fun idea, I assure you that the current President of the United States has issued a blanket reclassification for any and all documents found at the premises of Mar-a-Lagoago time notwithstanding, so that all of those have been reclassified. Yeah. Just in case they were ever declassified. There's going to be a lot of hedge, like, these documents were never declassified, but to the extent a court in the future finds that they ever were, I hereby reclassify, you know, all of that. But they're not foiable now, I assure you.

So here's the part that I think is very, very crucial that we still don't know. And that is, between production of the documents to archives and grand jury subpoena, and between grand jury subpoena and search, the DOJ was obtaining information about the state of documents at Mar-a-Lago. It was- Including, by the way, that boxes were moved intentionally,

perhaps to hide them from Trump's counsel? Yeah. That was an odd sentence. It's like one line. There's not a lot of explanation. Maybe we'll hear more about it. Maybe we won't. I actually, you know,

everyone's pointing to that as the smoking gun on obstruction. There's no sourcing. There's no details. Okay, sure, maybe, still doesn't necessarily. They're importing a lot of willfulness into that very short sentence. So, okay, not enough for me.

That's our remaining black box in some really important ways. What's the source of information? What was that source telling? Or who's the source? What was the source telling them? What was that source telling or who's the source? What was the source telling them? What was the activity occurring that led the DOJ to accurately believe there was still more classified information?

What led them to believe that there was more classified information? Those are two black box moments in the chronology, Sarah, that really go to what you were just talking to about obstruction. Sarah, that really go to what you were just talking to about obstruction. This is where the evidence or lack thereof of obstruction is going to really become clear is in those black box moments. That's where we're going to know more and we don't have that information yet. That's why I think it's way premature to say, that's it, obstruction. But you've still got all the prudential considerations. Right.

Versus saying, okay, I can see the basis for a search warrant now. I can see, you know, we've gone from search warrant was per se outrageous, defund the FBI, to, okay, outside of the hard, hardcore MAGA, right, okay, I can see the search warrant. Now, how much of this is prosecutable? That's a big change in the conversation away from, was this search warrant an outrageous abuse of power? Now it's, okay, see the basis for the search warrant. now what? And the now what part of this is where we still have some voids. And of course, the next legal question that we will have answered is the appointment of that special master.

And again, the department arguing that it's moot because the filter team not only already did their job, but in fact, the investigative team has already now reviewed the documents that were filtered, meaning that there's nothing the special master would prevent the investigative team has already now reviewed the documents that were filtered, meaning that there's nothing the special master would prevent the investigative team from seeing at this point. The damage, to the extent there has been any, has already been done. And then there's like all of these, but also the executive privilege can't be asserted against the executive, but even if it can,

we overcome that because a criminal investigation trumps executive privilege, CEG, Nixon, I mean, just some really settled law stuff. Again, this judge had said she was inclined to appoint the special master. Very curious how she responds to this mootness argument in particular, and some really just slam-dump legal arguments on, again, not possessing, he's not the rightful owner of the records in question, executive privilege doesn't apply, even if it did. I mean, a lot here. So I think we'll get that in the next day or two. Very curious about it. David, we have more stuff from the Department of Justice. We have an Office of Legal Counsel opinion on the student loan forgiveness program, and it is long. It is long. It is long. So it's long, but the bottom line is really pretty clear. I'm getting that deja vu feeling, Sarah, which is enabling statute has

very broad and vague language. So therefore, does said broad and vague language, is it broad enough to encompass the precise question at issue here? And one of the deja vu moments is with the eviction moratorium. The relevant CDC, the relevant statute was really broad. It was really broad. And so it is here. Let me read some of the key language. This comes from the HEROES Act of 2003. This is a post-9-11 act that was really fundamentally designed to aid people who were serving post-9-11 and post-9-11 military conflicts. modify any statutory or regulatory provisions applicable to federal student loan programs if the secretary, quote, deems such actions necessary to ensure that, and then this is where the OLC steps in and says certain statutory objectives are achieved. One of those objectives is to ensure that, quote, recipients of student financial assistance are not placed in a worse position financially in relation to that financial assistance because of a national emergency.

Okay, that's a long way of saying the Secretary of Education is empowered to provide relief if a national emergency has burdened your ability, is burdening your financial position. So this is something where, for example, the student loan debt repayment moratorium, where people are not being asked to pay their debt payments in response to, for example, the COVID lockdowns and the COVID-induced economic crisis seems to fit pretty well in that category, where you can trace directly, here's a lockdown, a lot of people are out of work, we're in the middle of a free fall recession, unlike anything we'd seen in modern times. We're going to step in and a direct causal line between here is a national emergency and here is a potential worse financial position makes sense. But what the Biden

administration is doing is saying that the current COVID pandemic emergency conditions are authorizing the waiver of $10,000, not just a delay of repayment, but an entire waiver of $10,000, and in some cases $20,000 worth of debt obligations. That's, in a nutshell, what this long OLC memo says. In the last podcast, we talked a lot about standing. This podcast merits. Sarah, your thought on the merits. Okay, so the first, it's a 25-page memo. The first 20 pages are on the HEROES Act itself, the statutory interpretation of whether the secretary has the authority to do this, thereby the president has the authority to do this, any administrative, legislative history, memos that might contradict it, etc. That's 20 pages. And it finds, and I don't disagree,

that the secretary does have the authority to do something. And then on page 19, we thus conclude that the HEROES Act authorizes the secretary to waive or modify statutory or regulatory provisions in a way that results in the reduction or cancellation of student debt. I agree with that sentence. Do you, David? I do agree with that sentence. Great. This leaves the question of whether the reduction and cancellation of the principal balance of student loans as a response to the COVID-19 pandemic on a categorical basis comports with the remaining requirements of the act. The act authorizes waiver modification and thus death cancellation or reduction, quote, as the secretary deems necessary in connection with

a national emergency as may be necessary to ensure that recipients of student financial assistance who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as an affected individual. This text imposes a number of requirements. One, the beneficiary of the cancellation must be an affected individual. Two, the harm sought to be avoided must arise because of the beneficiary's status as an individual. And three, the secretary must deem the cancellation necessary to ensure the beneficiary is not placed in a worse position in relation to the individual's financial assistance. After considering these requirements, we conclude that invocation of the HEROES Act to provide debt reduction or cancellation on a class-wide basis, two individuals affected by the COVID-19 national emergency

could be structured as a permissible invocation of the act. And then it goes on to say all the ways in which you would have to hedge all of this. Now, we don't need to spend too much time on this, David, but to me, for instance, there is a big problem on the class-wide certification if the class is everyone who has

student debt. And I'm not trying to be cute here. They differentiate it between Pell and private. I'm not. Forget whether it's 20K or 10K or anything else. But having student debt is in and of itself enough to place you as an affected individual. Now, in the OLC memo, it goes on to say you'd probably have to live in the United States because that's where the national emergency was declared. I actually have not seen anything limiting this to people who lived in the United States from 2019 to 2022, for instance. So right off the bat, you've got a very simple problem to solve there.

2022, for instance. So right off the bat, you've got a very simple problem to solve there. Two, that the harm sought to be avoided must arise because of the beneficiary's status as someone who had student loans in the United States during a national emergency. Well, that to me is actually the biggest problem because the majority of people who had student loans didn't, you know, kept their job throughout the pandemic and were continuing to have the same financial resources that they had in 2019 that they had from 2020 to 2022. So I don't see how they're going to draft a class-wide situation that shows that they would, that because of the pandemic, everyone in the United States with student loans was worse off because of the pandemic.

David, for instance, I worked here at the dispatch. Yeah. My salary didn't change. In fact, Steve Hayes gave me a nice yearly raise, I will tell you. Well-deserved. Thank you, David. So how could I possibly meet the statutory requirements that my status has arisen because of the national emergency? Yeah. And the OLC memo walks through all of this, and there's a lot of coulds, and you could frame the relief this way. I don't doubt you could, but they didn't. Yeah. And I've had a

number of people, read a number of people who have sort of excused this language by saying, well, an OLC memo isn't a you can do this. It is a guidance. It's an explanation of the law. Okay, fair enough, but your explanation is undercutting your justification. I just looked it up. Right now, the national unemployment rate is 3.5%. The unemployment rate for college graduates is 2.9%. So you're talking about a community of people who are receiving relief that have a lower unemployment rate than the national unemployment rate. It's really hard to sort of say,

COVID has created an emergency for this hyper-employed set of individuals. Now, I could see a situation where you had regulations that said, for example, if you're unemployable due to long COVID, which is a thing, right? Absolutely. And that you're going to have- And warrant some student loan relief as far as I'm concerned. Absolutely. If the president chooses to do that. Yep. Absolutely. That seems to me- And that looks much more similar to the PPP

loan. And we've gotten that question of how would we differentiate between PPP loans and this student loan relief? Aren't they the same thing except one went to rich people and this is going to poor college students who we think are liberal? To me, there is a large distinction in that the PPP loans were directly tied to COVID, A, and B, were intended to keep people employed. In fact, you only could take the loan if you said you were going to therefore keep all of these people that you currently had employed through the course of whatever the loan length was, I forget how long, it was directly tied to the national emergency. This, as we just discussed, is not narrowly tailored such. Well, and the PPP loan, calling it a loan is really deceptive because they were intended as

grants with some clawback provisions if you didn't actually utilize the grant in the way the grant was intended to be utilized. But it was administered really for speed and convenience through banks and as a loan program. But from the beginning, this was keep people employed and this will be forgiven. That was the understanding from day one. That was the deal. That is not the deal with student loans. The deal with student loans is you pay them back.

It is not that this is really a gift. And you're going to, and at the end of, when you finish your education, you can get loan forgiveness unless, you know, you mishandled the funds in some way. Now, I fully grant that the PPP program, like any massive financial programs instituted in a state of emergency with extreme haste and speed, you're going to find abuses there. And those things are now coming out. But the fact that the PPP program administered- And lots of people going to jail, I'm pleased to announce. Yes, people will be prosecuted. But again, that is not-

Yes, that is not a legal reason justifying, or as far as I'm concerned, a political slash moral reason justifying the current loan program. But yes, Sarah, you hit on exactly the point that I was thinking about as I read this. Because yeah, this is a statute with broad language. You can't unwrite the statute. It has very broad language. And you can say, well, it has broad language within a specific context of taking care of post 9-11 folks. But the language is broader than that. It's very broad language. But where it has its limits is when it's talking about affected individuals,

is when it's talking about affected individuals, affected by the national emergency, and that's where you're stretching this really far. And now again, if you go back and re-listen to our Tuesday podcast, the standing issue is a looming. It is absolutely looming, but it is the legal reasoning here justifying blanket relief feels weak. Agreed. And OLC, you know, people were like, well, this is bad lawyering and this is the politicalization of OLC. I don't know if you read the memo.

Actually, I think this is a pretty good legal analysis. Yes, are they intentionally sort of hedging so that if one's doing a very cursory read, it looks like they're like, yeah, yeah, definitely go ahead, do whatever you want, maybe. And did they give sort of short shrift where it's 20 pages of yes, you can

and five pages of like caveat? Yeah. Sure, but the caveats are very clearly there. Oh, they're so there. It's kind of like you read for 20 pages and then all of a sudden you reach that. Do you remember that show, Different Strokes with Arnold? Yes. And he'd say, what you talking about, Willis? You get a point where you're like, oh, what you talking about, Willis? Because this, I'm following you. I'm following you. I'm following you. Wait a minute.

We have left the realm of convincing legal analysis here. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving.

And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy.

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still healing scars, scar tissue. All right. Okay. I want to talk very briefly to set this up, a case called CLS v. Martinez. And yes, okay. So for a big chunk of my litigation life, I confronted an issue on campus that went like this. And the issue was, we're going to have a student organization program. And under our student organization program, if you're a student organization, you're going to be able to reserve rooms on campus. You're going to get student activity fee funding. You're going to be able to advertise on campus. You're going to be able to recruit on campus. In other words, you're going to get student activity fee funding. You're going to be able to advertise on campus. You're going to be able to recruit on campus. In other words, you're going to be able to exist in the way that clubs exist on campus. But every single club that exists on campus has to sign on to a non-discrimination agreement.

And that non-discrimination agreement is going to prohibit discrimination on the basis of many factors, race, religion, religion, national, that's the key, national origin, veteran status, sexual orientation, gender, sex, you name it, gender identity, you name it. And so a lot of, for years, I represented Christian organizations that were being thrown off campus because their statements of faith that they required the leaders to sign were discriminatory on the basis of religion. I mean, they just were. You know, you're saying if you want to run a group called Campus Crusade for Christ, you should be a Christian. If you want to run InterVarsity Christian Fellowship, you should be a Christian. If you want to run InterVarsity Christian Fellowship, you should be a Christian. And I had, Sarah, I don't know, hundreds of controversies along those lines,

hundreds of controversies. And over time, the thought was this issue is going to hit the Supreme Court. And so we had multiple cases. We won the vast majority of them, won them at the district court level, settled them. Vast majority we won. What ultimately filtered out is that the cases that were still remaining by the time Supreme Court got around to reviewing them were some of the cases

that had some of the least favorable facts. And there was this one called Christian Legal Society versus Martinez that involved the Christian Legal Society and its statement of faith applying to leaders and I believe members also at a law school, UC Hastings Law School. UC Hastings Law School is interesting because it's, I believe, it is only a law school. There is not an attached undergrad and everything else.

And it imposed, after the litigation was started, what it called an all-comers policy. It said, we don't actually, what our non-discrimination policy means is that every student organization is open to everybody without regard to any factor at all, that every student organization is open to everybody. And the reason why that was very important is one of the key arguments that was mounted in defense of these religious student organizations is that you were dealing with viewpoint discrimination when you were talking about limiting only certain kinds of factors that could be considered, that you weren't dealing with a general law of neutral applicability, perhaps, that there was a lot of reasons why what ended up happening is we would constantly have these lawsuits

and you would say, wait a minute, you're saying that intervarsity is subject to a nondiscrimination statute, but not a fraternity or sorority? It got very messy and it began to look a lot like targeting. And the way UC Hastings dealt with it is they said, it's an all-comers policy. Then CLS entered into a stipulation, Sarah, a stipulation that said this is viewpoint neutral. So there was a all comers policy that was stipulated to be viewpoint neutral. This was not my case. This was a Christian Legal Society case. And the Supreme Court accepts review. This is the case that they accept review on. This is the case, Sarah. I know. I know. Yeah. So, in a really kind of a one-off decision,

Christian Legal Society lost. It's sort of the last big loss in the religious liberty world, and it's more than 10 years old now. And interestingly enough, even though Christian Legal Society lost, the issue just kind of went away. There was still some litigation out there, but Christian organizations are on campuses all over America. They have statements of faith. And the reason why CLS didn't have any real resonance is you just can't have an all-comers policy at most universities. It's just not feasible. That would mean no men's intramurals. It'd have to be all-comers. It would mean no women's a cappella groups. It would have to be all-comers. It would mean no sororities. It would mean no fraternities. And universities kind of got the message that they're going to lose this unless they have an all-comers policy. All-comers policies are completely impractical.

So in a weird way, we actually won the issue even though we lost the case. That's a super long intro. No, no, but now we have two cases. Yeah, yeah. I want to start with the Fellowship of Christian Athletes case. This is a high school case. And it's very similar to what you just described, so we don't need to belabor the facts.

But high school group, Fellowship of Christian Athletes, same thing. The leadership needs to sign this Statement of Beliefs Pledge. It includes affirmation that God believes that marriage is between one man and one woman and that there are two genders,

something to that effect. And a teacher gets this bee in his bonnet. Oh, boy. And that bee, I got to tell you, it's very buzzy. It never stops buzzing. It keeps buzzing. There's a lot of buzzing.

And the teacher just repeatedly keeps trying to get this group un... So first, he just wants them unrecognized by the school. He gets that. Then he wants them found to be violating the, like, even existing, even if they're unrecognized, violating the hostile school,

environment, sexual harassment policies, etc. He gets that. And they have an all-comers policy, David. But what is so fascinating is as you settle those problems with an all-comers policy, that like they couldn't have a senior women's club. Oh, but they still did. So they had an all-comers policy. They just only enforced it against the Fellowship of Christian Athletes. And as you will remember from Masterpiece Cake Shop, perhaps, you also have emails from teachers to other teachers, to students, where they are saying really mean things,

sometimes in the front of the class. At one point, a different teacher sent an email to a student in which she wrote, even with the Biden win, millions of people voted for the real devil and evangelicals like FCA are charlatans and not in the least bit Christian based, or they quote conveniently forget what tolerance means. They choose darkness over knowledge and they perpetuate ignorance. what tolerance means. They choose darkness over knowledge and they perpetuate ignorance. That is like one for one what happened in Masterpiece Cake Shop where you show such animus to religion that any argument that you have that like, well, we just had this all commerce policy and we didn't know about the senior girls club. No, you actually just wanted to find a way to prevent a Christian organization from meeting on campus.

At one point in one of the depositions, this is about the school's enforcement of the all comers policy. Question. So for this coming school year, could girls who code still limit their membership to students who identify as female? Yes.

And could the girls circle, the same club we were discussing earlier, still limit their membership to students who are female? Yes. So it's not that they didn't notice that their all-comers policy was being violated that wasn't raised to their attention. It's that they just wanted to enforce it against these kids.

Yep. So the Ninth Circuit, and look, it was a two-to-one opinion in some respects in the sense that there was a dissent. But interestingly, it was the dissent is talking about standing, that these students don't have standing for a variety of reasons. But at no point does the dissent actually defend what the school did here, David. Yeah, yeah. And there's this paragraph, and this is interesting because I'm glad you mentioned Masterpiece Cake Shop because there

was this interesting divergence when Masterpiece Cake Shop came out. A lot of people who were sort of more legal academics were saying, super narrow ruling, right? They punted on the really big question, which by the way, they're going to have another bite at that apple at this next term with this case called 303 Creative, but they punted on the really big question about the conflict between a non-discrimination policy and free speech. Punted on that because they found religious animus, and that makes Masterpiece Cake Shop really narrow. Well, my 20 years of religious liberty litigation self said, not as narrow as you think, because I have seen so many of these cases where animus, anti-religious hostility, is very clearly expressed.

And what Masterpiece Cakeshop gave was essentially an I win card when you show this anti-religious animus. And my goodness, there's a concurrence that really focuses on this, but here gives you a bit of the flavor. It says, a teacher was the most forthcoming about his contempt for FCA's religious beliefs. The day after learning about FCA's religious-based views on marriage and sexuality, Glasser channeled his inner Martin Luther, pinning the statement of faith and sexual purity statement to his classroom whiteboard along with his grievances. But instead of a reformation, Glasser demanded an inquisition. As he explained in emails sent to the principal, FCA's, quote,

bullshit views have no validity and amount to heresy because they violated, quote, my truth. Glasser believed attacking these views is the only way to make a better campus and proclaimed he would not be an enabler for this kind of religious freedom anymore. By the way, not only... So it's very funny to me, and we see this over and over again, frankly, so it's very funny to me, and we see this over and over again, frankly, from each side in their own way, of the fight for tolerance becoming very intolerant. So he's literally citing the student, the school's policy on creating a hostile educational environment. He is creating, undoubtedly, a hostile educational environment because of someone's religion.

He is saying the views of a person who holds these religious beliefs are bullshit. I mean, that is, and he's repeatedly doing it in the front of the class. He's calling out students for it. That is the definition of a hostile educational environment. I'm a little surprised they didn't sue on that. Yeah, it's interesting.

It's an interesting question because I do think there was some real grounds there. Because it looks pervasive. Yeah. It has to be hostile, pervasive, obvious. This single teacher, it seems to me, meets all of those if you were in his class. I think he's very lucky

because I'm not sure he would qualify for qualified immunity under these circumstances either because this has happened in other schools before. It's pretty obvious. You can't personally harass students in your classroom. The federal law, though, is, you know, Title VI is race, Title IX is sex. Title VII includes religion, but that's an employment.

So a federal hostile environment claim here under sort of classic nondiscrimination law, but there's expansive state. I was going to say, I'm sure California does. Oh, California has something called the Unruh Act. And look that sucker up. That is broad. That is broad. So yeah, that's a fascinating case. And it really illustrated the point that I was making earlier. Yeah, that's a fascinating case. And it really illustrated the point that I was making earlier. If you have outside of the very, very narrow confines of UC Hastings School of Law,

an all-comers policy is really tough. And what was interesting is that they then were saying, well, they technically comply with the all-comers policy because they signed on to it. Yeah, they literally saw the policy and signed their names at the bottom of it. But then they actually crossed stuff out. Amazing. They said that counted. Amazing. But David, we should get to Yeshiva.

Yeah, yeah. So this is quite the case. So Yeshiva University, which is one of the premier Jewish universities, religious institutions, Jewish religious institutions, not just in the U.S., but in the world, rejected approval of a Pride Alliance student club on the grounds that the tenants and the beliefs of the Pride Alliance club violate the sincere religious beliefs about how to form and educate the undergraduate students in Torah values. So in other words, this is different from the FCA case because in FCA, you had a public school

dealing with a private religious organization. Here you have a private religious institution that is dealing with another private organization, the Pride Alliance, and saying that this private organization, the Pride Alliance does not embody our values. And so essentially what happens to Cut to the Chase is a state Supreme Court. Now, when you say state Supreme Court in New York, you're meaning the trial court, which I've never gotten used to, Sarah.

I've never gotten used to it. But the trial court in New York saysork says sorry no yeshiva you do not have the ability to exclude the pride alliance yeshiva seeks relief from a temporary injunction in the appellate division seeks is denied seeks relief at the highest level of review at the state Supreme Court, at the state level, and the Supreme Court doesn't receive it. Then the trial court issues a permanent injunction against Yeshiva. And so now Yeshiva is bouncing all the way to the U.S. Supreme Court to try to get relief. And interestingly enough, one of the elements of relief they're seeking is that they're asking Employment Division v. Smith be overruled. Your thoughts on this case?

Yeah, so interesting. First of all, on the merits of the case, I don't think it's a close call. Under current law, the underlying opinion was so wildly unpersuasive. Whether someone explicitly says that they are a religious institution in their charter, the Supreme Court has repeatedly said is irrelevant. We don't have some shibboleth, say the magic words, password. You look at the totality of the school. By the way, if they said they were a religious institution. Like, you know, if Stanford University somehow declares itself a religious institution in their charter, you actually then look to see whether they are,

and they're clearly not. So it doesn't matter what's in their charter. So on the merits, not a close call. However, there's two other questions. One, will the Supreme Court grant this? And two, can the Supreme Court grant this? Because this is under state law, and there's actually rules determining when the Supreme Court can take up a state case on sort of this injunction basis. And I didn't see a whole lot in their petition about this, right? They send it up as a

emergency application for stay. And, ooh, I think, I don't know know i'm not an expert on supreme court procedure but that's a red flag for me um i don't know yeah this is really interesting and and this is one where um i'm trying to remember my fed courts exactly yep i just like i'm issue spotting it yeah because you sort of have two things going on here. One is if you're denied injunctive relief, you typically can appeal denials of injunctive relief. And they're stating a constitutional claim that the state court relief granted to the Pride Alliance violates the United States Constitution. You have a federal question. And so if you're appealing from the denial of preliminary injunctive relief, that seems right, okay? If you're appealing from the grant

of a permanent injunction from the trial court... Right. It has to be a final judgment or decree. And so... Unlike in a federal court. On a federal court, you actually can appeal up on some of these things. But in a state court, you have to have the final judgment. Is the permanent injunction the final judgment? And so essentially what they're saying is, wait a minute, if we wait, because what the permanent injunction did is it just made sure that the Pride Alliance is going to be on campus, but they're still determining damages. So there's an entire, the state Supreme Court, the trial court, again, I'll just start using the term trial court. The trial court isn't done with this case. It's done with

injunctive relief. It is granted a permanent injunction, but it is not done with this case. And so what Yeshiva is arguing is, wait a minute, we're kind of up a creek without a paddle because if we wait until the Supreme Court, the state trial court is completely done with this case, we're going to be operating under this unlawful permanent injunction for a long time. We've already been denied our request for preliminary relief from the preliminary injunction. So we kind of have no choice but to vault to the Supreme Court. Now, I wonder if the argument really is, wait a minute, this is actually an appeal to the Supreme Court from the denial of preliminary injunctive relief. I know.

Yeah, it's going to be messy. And you're going to, I think we could, I think this would go either way. I think it could be granted. I think it could be denied. And I think you're going to see some statements about this specific jurisdictional issue. If it's granted, I think you're going to see that in dissent on the grant. If it's not granted,

then I think you'll see some statements on the merits of Smith in dissent for not granting it. But this is all going to turn on that jurisdictional problem with the state courts. I think the bottom line is Yeshiva wins. Does it win in four months or does it win in five years? Yep. Which is, that's the key issue.

But when I saw this, I remember thinking, oh man, Professor Fallon, I've forgotten too much of Fed courts. I know. Oh, we both had Professor Fallon? He was my favorite professor at law school. I have to say, I thought he was pretty young when I had him. I don't mean like young, young. I don't mean he was 30, but I thought you were pretty old. I thought he was too young to have taught you. That timing doesn't work out. He must have been young when you had him. Yeah, he was, oh yeah, definitely. So I had him for con law

and then I had him for the best class at Harvard Law School, period, bar none, called the Foundations of Constitutional Wisdom. And I think that he devised the class. I think it's his class, you know, that he devised. And it was incredible. Like it was incredible. You're reading Federalist papers.

Well, we're sorry we let you down, Professor Fallon. I know, this is lame, but- Students across generations vaguely remembering the final judgment or decree. My God, should I be quoting Erie right now? I don't remember. But hey, look, Sarah, this is an ideal opportunity to appeal to our advisory opinions listener base. I know beyond a shadow of

a doubt that there are folks who have definitive ideas about this, and I want to read them in the comments. I just want to be really clear. I'm not sure that I do, A, but also B, please do not tell me what eerie is again. That was an eerie joke. It was not an invitation to eerie lecture me. And yeah, some of whatever. Yep. But you'd better be a real expert. I don't want to hear armchair Fed Courts-ing. I want a Fed Courts textbook writer, if you're going to hop in those comments section on this one.

Will we allow a law student who just finished FedCourts? You know, our law students, by and large, are very clever who listen to this podcast. So we'll allow it. So as long as the law student has discussed it, I mean, ideally with their FedCourts professor, but I will accept in a group of other law students. I want some crowdsourcing if it's a law student.

I don't want any B-minus FedCourt law student in there either. That's right. Yeah. B- for those who are not up on law school grading. That's like a... It's the lowest grade you can get. Think of it as a D. Think of it as a D.

David, can I confess something to you? Yes. I got a B- in torts. Did you really? I did. And it was like this, like the, at that moment, the most embarrassing thing that had ever happened to me in my entire life. And I went in and talked to my professor about how this could have happened. And he told me that I should drop out of law school because I was clearly unqualified to be there and that I should go pursue some other interest. Are you kidding me? No, it was actually, it was one of those conversations where you're

like, you start like phasing out everything he's saying and just focusing on don't cry until I get out of the room. Wait to cry. Do not cry in the room and then excuse yourself as quickly as possible. Get out of the room and cry. But then I was like sitting in the bathroom down the hall and was like, wait a second. I got into Harvard Law School, getting a B minus at Harvard Law School in torts, a class that I still don't understand, to be honest. The exam was all on comment K and the torts restatement. That is something I have not needed to know in life. But like, that's okay. And it doesn't mean that I'm stupid and don't belong here and can't keep up with my fellow students.

And I think the rest of my grades, for the most part, bore that out. So my torts professor was a visiting professor who was, I believe, Scottish and a critical legal theorist. So torts by a Scottish critical legal theorist was exciting. One quick question, and now we're into the super inside baseball phase of the podcast. At the time when you were there, did people share their grades? Did they tell each other what they got?

You know, certainly within your very close friend group, it was a very awkward thing to do, but some people would occasionally do it. So for us, it was, you absolutely shared with your friends. Like that was a, that was what you did. That was a sign of who was friends and who wasn't friends. But then when people did well, that rocketed outside the friend group. Yeah. We'd heard about that, that like, and also the idea that the people who had raised their hand first semester,

once they got their grades back would suddenly stop raising their hand. Like the whole who raised their hand, who was more confident about their answers, would really shift once people actually got real-time feedback. Yeah. That certainly happened as well. My contracts professor used to do handstands in class. Oh, nice. Do you remember the song by Right Said Fred, I'm Too Sexy? I'm Too Sexy.

Yeah. Of course. So that was at peak popularity when our first round of grades came out. Oh, good to your God. Doesn't that mean the Macarena was also very popular? Oh, yeah. It was a dark- I think those were about the same time. Yeah, that's a really dark time. Dark time. Neons, scrunchies, and Macarena. So the lyrics were changed to i'm too sexy for my grades and people were singing that relentlessly so anyway now we have lost all of the listeners well speaking of law school exams we will save our fourth amendment uh college exam case for next time in which what can a professor do if they want to ensure you're

not cheating, but you're taking your exam at home due to COVID? Yeah, it's a fascinating case. So stay tuned. And, you know, here's the good news, Sarah, the people who are still listening must only be our advisory opinions core. So those are the ideal people to ask to go rate us right now. Because if you're still hanging with us and you haven't rated us, please go do it. Please subscribe. And to be clear,

this is like, it helps like when then someone searches for legal podcast or something, the more ratings, not even just higher, more ratings are what help other people find this podcast. So I know that you law students out there

like, yeah, but we get to law school and then everyone knows about it. But what about the non-law students? Don't be selfish. Yes, please. Go right. Exactly. Thank you, Sarah.

And also please check out thedispatch.com. And we will not be back next Tuesday because that's the day after Labor Day and we're taking Labor Day off and I'm going to be on vacation. So next week, Sarah is going to bring in a mystery co-host. Oh, I have one really exciting guest lined up for, I forget which day now, but yes, it'll be exciting. Excellent. Don't you worry. Oh gosh, I'm going to

have FOMO. I'm already can, if it's an exciting guest and I'm not a part of it. But I'll be in Alaska. State Supreme Court Justice. Oh, nice. Okay. That'll be fantastic. But I'll be in Alaska. First family vacation in seven years, which is absurd. David, frankly, that's not good. I know. That's terrible. I know. It's awful. We've had some long weekends, but this is like the first real vacation.

But we're going on an Alaska cruise. With a toddler. With a toddler. Cool plan, bro. But it's a Disney cruise. If anybody can handle a toddler, it's the Walt Disney Corporation. I don't know.

We're still in the phase where the brisket can't really focus on TV for very long. I wish we could do more screen time. Not much. Yeah. So, yeah. we could do more screen time. Not much. Yeah. So, yeah. But it's one toddler and six adults, so... The ratio's good.

The ratio's very good. Very well, not six adults. One is a 14-year-old, but she's as good as an adult. She's able to manage a toddler. Yes, exactly. In this capacity, she is an adult. Absolutely.

All right. Well, I won't be back with you next week, but Sarah will. But as always, thanks for listening and check us out at thedispatch.com.