Advisory Opinions - What Were You Thinking?

Episode Date: February 17, 2022

On today’s podcast, David and Sarah are amazed by developments in the Sarah Palin trial, and they explain why. They discuss some excellent commentary on the latest Durham allegations, and spend some time talking about Florida's "don't say gay" law and wonder whether it might have constitutional problems. They end with the Rule 22.4 discussion that the people demand.   Show Notes: -Andrew’s piece: “Making Sense of the Latest Clinton-Trump-Russia Court Filing” -Julian Sanchez’s thread on the Durham filing -Letter asking Justice Gorsuch to block New York City’s vaccine mandate  -Rule 22. Applications to Individual Justices Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And this is going to be a good podcast. We've got a lot that we're going to cover. We're going to start with, well, wow. We're going to start with a puzzler, a puzzler in the Sarah Palin case. I have to also start with a mea culpa in the Palin case and that I was wrong about the outcome. Sarah was right. But then there's this huge asterisk that we're going to talk about.

So we're going to talk about the Palin verdict, kind of verdict, not going to be a verdict. We're going to talk about that. We're also going to talk more about the Durham matter, the John Durham matter, and some very illuminating commentary and explanation that has occurred since then. We're going to talk about the Florida laws that are called the Don't Say Gay laws that have been burning up controversy online. online for this is a state law in florida that is going to restrict the way in which or whether people can talk about lgbt issues or sexuality in the classroom public school classrooms uh we're going to talk about that we're going to talk about an 11th circuit qualified immunity case that is disturbing and then i mean in the peak of it all i mean in the peak of it all are it would you say it's going to be our discussion at the very end that we're going to say for the very end about Rule 22.4 in the Supreme Court? Yeah, I mean, everyone already knows Rule 22.4, but I just figured we'd rehash some old ground. I mean, obviously, right? 22.4, like you have that tattoo of it, I think.

I do indeed. Let's start with the Palin case. Okay. Before we dive into what actually occurred here, I feel like, Sarah, what we need to do is talk about what normally happens. Here's what I want to do. I want to set the stage for what normally happens procedurally in a trial, and then you just go with what actually happened in everything that's happened since. So here's what normally happens. And trial lawyers, litigators who are listening will know this, but there's sort of a rhythm to the way that trials go. So often what will happen, or almost always, in fact, what will happen is once you finish presenting your proof to the jury, what will happen is if I'm the defendant in the case, if I have been sued, I'm going to make a motion to the judge before the case goes to the jury called a motion for a directed verdict. And this is saying essentially even if you take everything that the plaintiff said was true in trial, even if the jury believed all of their factual assertions in trial,

it still didn't meet the legal threshold of proof necessary for the jury to be able to lawfully rule in my favor. So it's essentially saying, let me just grant the plaintiffs are right on all their factual assertions. The law means that we win. And so you normally do this as you normally do this in the close of proof and you present the argument and the judge rules on the argument before the judge rules on the motion before the jury deliberates. So then after that motion is made and if it's denied, if a direct motion for directed verdict is denied, the jury deliberates and then they'll return a verdict. And suppose the verdict is against you. And again, you're the defendant,

which you'll then file is something called a judgment, a motion for judgment, notwithstanding the verdict that says that the law doesn't support whatever jury verdict that the jury came down with. And then the judge will rule on that. And that sort of closes off

the trial court proceedings. And then you start heading up to the appeals court. So it's a very formalistic kind of process. Process number one, motion for directed verdict. Process number two, jury deliberates, returns a verdict. Process three, if you don't like the verdict, it's a judgment notwithstanding the verdict. But at no time in that point where the jury is deliberating,

does the judge reach a ruling on the merits of the case? That's not what normally happens. In fact, it's never happened in my practice of law, which was 21 years, although I did not have a lot of trials. I still had trials. That was not something that happened in our trials. In fact, it's something I've never heard of happening during my 21 years of litigation where the judge reached a ruling while the jury was deliberating. If you don't like the outcome, motion for judgment, notwithstanding the verdict. Sarah, tell us what happened to the other Sarah, Sarah Palin, in her trial in New York, because this is wild. Yeah, got real weird real quick. Okay, so right after we finish the pod, word goes out that Judge Rakoff has basically ruled on the judgment notwithstanding the verdict motion in the middle of deliberations. And he has found that the plaintiffs did not meet their legal burden. And therefore, regardless of how the jury comes back, the New York Times wins.

Right. Very strange. I, of course, take to Twitter immediately to point out that this was a weird, pointless decision that only creates an issue for appeal. And David, I want to take, not issue with, I want to add to your explanation with one other thing, because you said that a judgment notwithstanding the verdict, that you would only make that motion if the defendant lost the jury verdict. So the jury finds for the plaintiff and then defense moves for a judgment notwithstanding the verdict, which just grammatically makes more sense. But there is a reason if you know you're going to be going up on appeal, that even if the defense wins the jury verdict, that you still ask the judge for a judgment notwithstanding the verdict. That way you have alternate ways to be upheld on appeal,

that they can say legally there was a finding from the district judge that they didn't meet their legal burden. And factually, there was a finding from the jury that they didn't meet sort of that credibility fact finding burden. So that's all to say, like, it's not unusual to make the JNOV motion while when the jury goes out, because you're going to ask for it no matter what. Right. It's insane to grant it. jury goes out because you're going to ask for it no matter what. Right.

It's insane to grant it. But what makes it particularly insane to grant it while the jury is deliberating in this case is the reason that a judge might go ahead and do that while the jury is deliberating. And again, I don't know a ton of litigators who've ever seen this happen. But look, if you've got some weird, not weird even, some run of the mill civil case, the jury's expected to deliberate, you know, for a few hours, maybe a day. Nobody cares about this case. There is zero media attention. Then it doesn't really matter when the judge decides that motion because the jury's not going to hear about it. What made it egregious in this case is that there was so much media

attention. And so the idea to me that a juror wasn't going to hear about this in the meantime was like actually insane. Yes. The jury comes back. They find for the New York Times and Judge Rakoff says, you know, my job is the law. Your job is the facts. And, you know, it's great that they have, we both are in agreement in this case. And off it goes. And I'm like, yeah, no, that doesn't matter. You've still got a huge problem. Right. Because all the Palantir needs to do now is find a juror who learned about it during the deliberations because they had a whole evening and the whole next day of deliberations at least. Right, David? Am I off? Even they had two? Most of, yeah. No, I mean, they had an evening and most of the next day. Yeah.

Yeah. So I was like, yeah, they're just going to be able to find that because there's no way, the jury wasn't sequestered and sequestered means that like they have to stay in a hotel and their phones and everything are taken. You know, juries always get instruction not to go like Google the case, learn about outside things, talk to people about the case outside of the jury room. But, you know, when you go home at the end of the night, your spouse is like, looks like your job is over. And you're like, what?

That's sort of how I envisioned it happening. and you're like, what? That's sort of how I envisioned it happening. What I didn't envision was this note that came from Judge Rakoff yesterday. It is the court's uniform practice after a verdict has been rendered in a jury trial to have the court's law clerk inquire of the jury as to whether there were any problems understanding the court's instructions of law so that improvements can be made in future cases. Late yesterday, in the course of such an inquiry in this case in which the jury confirmed that they had fully understood the instructions and had no suggestions regarding jury instructions for future cases. I mean, that clause is just so wildly unnecessary and hilarious in this case, but several jurors volunteered to the law clerk prior to the rendering of the jury verdict in this case

they had learned of the fact of the court's rule 50 determination that's the jnov on monday to dismiss the case on legal grounds these jurors reported that although they had been assiduously adhering to the court's instruction to avoid media coverage of the trial, they had involuntarily received, quote, push notifications on their smartphones that contained the bottom line of the ruling. The jurors repeatedly assured the court's law clerk that these notifications had not affected them in any way or played any role whatever in their deliberations. The court also notes that when it proposed to the parties during an oral argument on Monday

to render its Rule 50 decision later that day, but to permit the jury to continue deliberating so that the Court of Appeals would have the benefit of both the court's legal determination and the jury's verdict, no party objected. Okie dokie. Oh, okay. Lots of problems here. By the way, that sentence stood out to me almost as much as the push notifications.

All right. Now, break, break, as they say. I want to back up in this case a little bit. as they say. I want to back up in this case a little bit. So David, when Sarah Palin initially sued, this case, Judge Rakoff actually dismissed this case on a summary judgment motion. That then went up to the Second Circuit Court of Appeals, and they reversed Judge Rakoff, saying that there were factual disputes in this case and they sent it back down for trial. Now, in the trial, the Palin team had the burden to prove that there was clear and convincing evidence of actual malice, which would involve a reckless disregard for the truth. Now, we didn't talk about this in the last pod, and that's when i used my two plus two equals four but we were sort of talking about the policy aspect of why you would want libel law on one side or the other but let me just like

clue everyone into the law side there is no duty to investigate under current defamation law. And political bias is not evidence of malice or reckless disregard. So again, the policy discussion we were having last week is different than where the law currently is. Now, that could change, of course. They could say, you do have a duty to investigate, and we were discussing why I didn't think there should be one, but like right now the law's on my side. Okay. So in order to get the JNOV, the judge has to find that no reasonable juror could have found clear and convincing evidence of actual malice, a reckless disregard for the truth. Based on what happened at trial, you know, I'm not sure that's a crazy ruling, by the way, David. I think it's a bit of a closer judgment call. I'm not sure it was necessary. It certainly didn't need to happen before the

jury came back, and we'll get to the effects of that in a second. But in order to, I think, say there was clear and convincing evidence, you have to go to Bennett's testimony. Bennett, of course, says, well, I didn't disregard the truth. I had no reckless disregard for the truth, no actual malice. That's, of course, not enough. It's up to the jury to determine that credibility finding. And what Rakoff is saying is no reasonable juror could say there was clear and convincing evidence in Bennett's testimony of that. I think that that's where the, here's what I'm going to say. It's like a little bit of a closer call. That clear and convincing standard is so high. But, you know, when Bennett is testifying and saying that basically all of his staff is off trying to find examples of violence, violent rhetoric from left wing politicians and they're really struggling and they can't find any. And that's their whole point, right, is that there's violent rhetoric on both sides and it's really bad. And then nobody bothers to spend any time. He doesn't ask any staff to do any fact-checking on right-wing violent rhetoric after he's put in the Sarah Palin line.

I think that the Palin team could argue that that is clear and convincing. That meets the clear and convincing standard, not because that shows the reckless disregard for the truth, but it shows that Bennett is lying. The reason, and bear with me here, but the reason he sent all of his staff to go research left-wing violent rhetoric and not research that line he just put in about Sarah Palin is that he knew it was false. He knew if he told them to investigate that part, that they would come back and take it out. So he didn't tell them to investigate it. He didn't do any fact checking on it. He didn't want anyone to Google that because he knew or had reason to believe that if they did, they would find out it was false. I'm not saying I actually believe that to be true, but I think a juror, if that's argued by the Palin team could find that

to be true. And that would meet the clear and convincing standard, kind of, at least, you know, potentially. So, and when the Second Circuit sends it back saying there are factual disputes, the gap, David, the play in the joints between the Second Circuit on a motion for summary judgment saying, no, there are factual disputes here. And then after the trial, the judge saying, no, there are no factual disputes. It's still on the law. That's summary judgment to JNOV. That is a tight squeeze. That's pretty dovetailed, really hard to see the space in between those two. There is some, that's what I'm trying to say about like on the Bennett testimony, a judge

could say that no reasonable juror after listening to Bennett's testimony could say that was clear and convincing evidence. But again, you had his deposition before. And so it's almost a thumb at the second circuit but what makes it particularly thummy is that you did it before the jury finished deliberations so let's get to the result of why this could matter a um the palin team of course just has the argument that the deliberations were tainted and therefore it needs to be sent back for a new trial because we don't have a jury verdict, basically, because the jury verdict was tainted. Some notes on that.

A juror saying that something that would really obviously affect their deliberations didn't affect their deliberations, the Supreme Court has held that is not evidence of a lack of harm, right? So you don't, they're not really going to need to prove the harm of it. But David, there's something else too. You would have, as I said, with a JNOV and a jury verdict on your side had alternate means for the second circuit to uphold the outcome. the outcome. But because of the timing of the JNOV and the fact that the jury heard about it, I believe that the Palin team will now argue that it was the equivalent of a motion for a directed verdict, which you explained so well, means that it never went to the jury in the first place. So it's not that they will ask for it to be set back because of sort of the mistrial aspects of it. But in fact, that basically they had, they lost, Rakoff

ruled against them on summary judgment. The second circuit said, nope, go back. There are factual problems here. And then they're going to say, now we've lost on a motion for a directed verdict, which is not that different than a motion for summary judgment in terms of the legal standard. And the Second Circuit very well could say, yes, once again, there are factual disputes here. You need to let a jury sort this out. Stop not sending this to the jury. And or the Palin team could say, great, we have a motion for a directed verdict and we want to take that up actually on the merit side then of defamation law because we don't really want to do this on the facts anyway. We want to do this purely on the legal standard for defamation and that actual malice standard. Second Circuit to the Supreme Court, you don't want to have a jury's findings on this question,

actually. You want to simply argue that you lost because the actual malice standard is so insane. It has to be actual malice, and then it has to be clear and convincing evidence of actual malice. Woof. All right. So that's what happened, why it's crazy. David, fill in all the gaps that I left. Okay. So there's more here. All right. So there's more here that is very interesting to me. So I have been in this position. In fact, the last really big case that I had before I left the practice of law entirely was a long and winding case where I lost on summary judgment, then went to the Fourth Circuit Court of Appeals, won at the Fourth Circuit Court of Appeals, reversing the summary judgment claim, came back to the trial court.

And it was obvious to me the trial court didn't want to have this trial. I mean, here's a clue. They granted summary judgment. I mean, here's a clue. They granted summary judgment. So what do you do as a lawyer who knows that the trial court doesn't really want this case and they're being made to hear the trial by the court of appeals? What you do is you look at the court of appeals opinion and you make darn sure that the proof that you introduce in the case matches exactly with the factual allegations that the court of appeals claims raise the factual dispute.

So that when the inevitable motion for judgment as a matter of law or directed verdict comes at you, you can go to the trial court and say, look, remember the fourth circuit? They said we had evidence that said A, B, C, D, E, and F that raised an inference to a jury. We introduced A, B, C, D, E, and F. You can't grant judgment as a matter of law. You've got to let this go to the jury. This has already been settled as that this is a jury question. So I went back to let this go to the jury. This has already been settled as that this is a jury question. So I went back and I looked at the Second Circuit and the Second Circuit decision says that the amended complaint contains allegations that paint a plausible picture

of actual malice in three respects. Bennett's background as an editor and political advocate provided sufficient evidence to permit a jury to find that he published the editorial with deliberate or reckless disregard for the truth. Two, the drafting and editorial process also permitted an inference of deliberate or reckless falsification. And three, the time subsequent correction to the editorial did not undermine the plausibility of the inference. not undermine the plausibility of the inference. And one of the things that the, um, one of the things that the second circuit emphasizes is that, uh, in essence, there was a predetermined argument that he wanted to make in the editorial. It says in both the original complaint and the amended complaint, Palin's overarching theory of actual malice is that Bennett had a predetermined argument he wanted to make in the editorial. Bennett's fixation on this set goal, the claim goes, led to him to publish a statement about Palin that either knew to be false or at least was reckless as to whether this was false.

that actually kind of matches a lot of the evidence that was brought into the trial that they wanted to and that they wanted to introduce this element of political rhetoric can lead to violence. And here's our right wing example. And it's Palin. Full stop. It's Palin. End of discussion. No investigation, et cetera, et cetera. So my question is going to be interesting on appeal. If you're, when you're going back up to the second circuit, you've got two big things hovering out there. Big thing number one is on the jury side, as you're saying, do you even treat that as a jury verdict? I mean, really? Is that, you know, and there's a word that jumped out to me in the Rakoff ruling, which was several, several, several jurors, several jurors said, and this is the exact quote, several jurors volunteered to the law clerk that prior to the rendering of the jury verdict in the case, they had learned of the facts of the court's Rule 50 determination. determination. These jurors reported, although they'd been assiduously adhering to the court's instruction to avoid media coverage, they had involuntarily received push notifications. Several. That's a key word there. And then the other thing that I'm saying on appeal

is, wait a minute. Didn't I just introduce all of the evidence that you said raised a plausible case of actual malice? What am I missing here, Second Circuit? You've already ruled on this and said that that raises a plausible inference. Now, I think the New York Times has answers to some of this stuff. But one of the issues about having answers to some of that stuff is then you're then able to say, okay, I get it, New York Times, you have answers to this, but that's what the jury's for. And the whole jury process was ruined. So I'm going to be intrigued as to how this comes out. What's funny though, is again like actually sarah palin's team wants to get a

move on you know like they don't want to redo this trial honestly they'll lose a trial again and it's because this bar is so high i happen to think that probably we want a bar this high i mean i think it's a close call this is very very As I said, clear and convincing evidence of actual malice is like a double bounce on the trampoline. But I just don't see how the Second Circuit can say that this was a jury verdict. And instead, they're going to have to say this was a motion for a directed verdict, treat it as such. By the way, a couple notes here. One, I'll be very interested to know whether the New York Times sent out push notifications. I hadn't even thought of that.

Yeah, because my guess is that they did. Now, it doesn't mean those are the push notifications that the jury got, and it would not be the New York Times' fault in a traditional sense of jury tampering. Obviously, the New York Times legal team was not telling the editorial team to send out push notifications. I'm sure the two have never spoken to each other about this case, but it's going to be an even bigger problem if the Palin team can say that some of those jurors, in fact, got the push notification from the defendant, like directly, from the defendant, like directly disaster. Bad atmospherics, as one might say.

Uh-huh. Second, you know, Rakoff is noting that nobody objected when he said he would do this. Look, for people saying like, aha, there's a waiver issue. No, no. Because they may have said, they may have not objected to the idea of him ruling sooner, but they certainly didn't approve of then the jury finding out about it. And so it's that element that's the problem in terms of the

actual legal standard on appeal. Also, some people have noted that you have to both prove that the jury knew about it and prove that it had an actual effect on the jury deliberations. True. If it's harmless, you can't just point to anything the jury happened to find out. They found out Sarah Palin changed her hairdo. Well, that didn't have any effect then on the jury deliberations. You'd have to show that it did somehow. But in this case, again, the jury knew about something super material to their deliberations. It doesn't matter that the jury said that it was harmless. That's that distinction that I was trying to draw. You do have to prove that it had an effect, but you don't have to take the juror's word for it

that it didn't. And again, there's Supreme Court precedent on that. So the Palin team will have no problem, I think, with that aspect of it. I don't see, I actually don't really see the New York Times team's ability to defend this on appeal in terms of there actually being a jury verdict. I think they can defend the directed motion, you know, treat as a directed verdict, and then defend that, that they didn't meet their burden. But this is where the Rakoff thing becomes really weird because so much of his Rule 50 motion relies on the no reasonable juror. They did present evidence. Just as you said, the Second Circuit gave them three buckets to put that clear and convincing evidence of actual malice in. They put evidence in all three of those buckets. Do I think it was enough to clear the clear and convincing standard? No, I don't. But could no reasonable juror think that they

had cleared that standard? That's what Rakoff's going to hang this on? I don't think that that's really even an appropriate Rule 50 motion. You don't have to grant a Rule 50 motion at the end just because you think that no reasonable juror could find that way. Let it go up on the jury verdict alone. He didn't have to do any of this, and he didn't have to do it while the jury was deliberating. I've seen no... There wasn't some cost-benefit analysis, and I just disagree on the benefits. There were no benefits to ruling while the jury was deliberating, none whatsoever. It didn't speed up the appeal. It didn't like nothing. It had no bearing. And he still, as I said, even when the jury found for the New York

Times, he still could have given his rule 50 verdict decision at that point. And so to the extent he was even worried that maybe the New York Times wouldn't move for a JNOV after they'd won the jury verdict, first of all, they would have. But second of all, because you already had the motion, so you can just decide not to decide on it until after. But second, if the New York Times team doesn't want the JNOV after the verdict, that's up to them. Yeah, that's their call. Now, of course, they would move for it. They would move for it. And you can hold your ruling on the Rule 50 motion in abeyance until the final bell rings with the jury. It's one of the more puzzling things, Sarah. It is really, really, really puzzling. And Rakoff's incredibly well regarded. This isn't some like weirdo fly by

night judge. And he's not, you know, senile. I'd put him in the top five best known district court judges in the country, perhaps. Easily. Easy. Look, he's 78 years old. He was appointed by Bill Clinton. He did get his law degree from Harvard. So strike against him there. Yeah, I'm shocked by this. It was just an unforced error.

And the statement from him reads so defensively, much more like an advocate than a judge. You know, well, we always pull these jurors about the jury instructions. And by the way, they had no problem with the jury instructions. Nobody thought they did. What? Why are you including that? And nobody objected when I said I would rule. Yeah, they don't have to object to that. If you want to screw up your own trial and create a mistrial, why would the Palin team stand in your way of that? Yeah. Yeah. It's remarkable. It's remarkable. So I'm going to be fascinated to see how this goes.

The reason why I wanted to go back to that Second Circuit decision is because it's entirely possible that the Supreme Court says, I mean, Supreme Court that Second Circuit decision is because it's entirely possible that the Supreme Court says, I mean, Supreme Court, Second Circuit says, okay, we're just treating the jury verdict like the jury never happened. Like there were never any deliberations and Palin still loses,

which is an entirely possible outcome. That's what the Palin team wants. Right, right. That's probable. And no, That's what the Palin team wants. Right. Right. That's probable. And no, I'm saying the Palin team doesn't want the Second Circuit to say that. Oh, I think they do. Oh, you think they want... But see, I don't think this is a great vehicle for the Supreme Court because we're talking about New York state law regarding what is defamation of a public figure, which mirrors Sullivan. I don't think it's the vehicle.

Okay, fair enough. But if you're in a normal situation where you're not gaming for the Supreme Court, like 999,999 out of a million cases, you would be saying, okay, wait a minute, let's treat the verdict like it never happened. And by the way, Second Circuit, you gave us the roadmap and we introduced all that evidence. It's all right there.

We introduced it all and see what they say. But my goodness, Sarah, let's just say this set legal Twitter a flutter. Oh, but also, David, there was a tweet that you sent sort of in the middle of all of this that I just was wondering if you would read out loud. Oh, which one was that? Which one could it be?

Hmm. Hmm. Oh, yes. Oh, I don't know. Suddenly I've forgotten again. Yeah, you did? Weird. I could find it for you. You know what just happened, Sarah? I went to my Twitter page and now it just says something went wrong. Try reloading. Oh my gosh, it does actually. Twitter just went down and now you can't

read it. Okay. Well, look, I'll paraphrase. The tweet said Sarah was right. Very right. And I just wanted to take my own victory lap. Sarah, I think it said other, it was to the effect of Sarah was right. Because as listeners will remember, we had a disagreement about the outcome. And you were right. You're right. Though, as we just said, the jury didn't actually get to have fair deliberations. If you just heard that a federal judge that's, as you said, one of the most well-respected judges in the entire federal judiciary just said that there's no reasonable juror could come out the other way, then I mean, I'm right asterisk. Yeah, but you're right. You're right. That's the top line. That is true. Yes.

And there's a little bitty asterisk there. All right. Shall we move on? We're going to talk next about a couple of people. Let me do two things. Let me hype our work in the dispatch. Andrew Egger wrote a lengthy piece called Making Sense of the Latest Clinton-Trump-Russia Court Filing that is very, very, very much worth your time. That really tries to separate through a lot of the bluster and a lot of the rhetoric, both those who are trying to minimize what the revolutions are and those who are trying to amplify them to sort of a worse than Watergate status. So we're going to put that in the show notes. Highly recommend it.

We're also going to put in the show notes a really fascinating Twitter thread actually. And I'm just going to go ahead and apologize for referring to a Twitter thread. And so Julian Sanchez, who somebody I follow, Sarah follows really, you know, just an outstanding legal Twitter follow, outstanding legal thinker. He had a Twitter thread that mirrors a lot of the information that Andrew had in his piece, but because it's got a few quick little bullet points that are, of course, that's all Twitter is, is bullet points, but a few quick little bullet points that I think are helpful for understanding.

Might be worth, Sarah, running through a couple of those. Sure. So his first point is we didn't actually learn anything really new here that almost all of this had already been put up by the Durham team in form or fashion. The New York Times story from four months ago had a lot of it. His other point is that there's nothing about hacking here or infiltrating. The tech company in question had access to this information and had legal access to it. So hacking would mean not access and that they broke in. Same with infiltrating. And so he was just clarifying some terminology there. But here's the part that I think is meaningful. As he notes, Joffe, the tech guy, nor the researchers are accused of any crime. Sussman, the lawyer, is accused of lying about whether he was working on Clinton's behalf

when he passed the tech company's findings on to the FBI, which he denies. And so then Sanchez says, so is there anything to this? Well, maybe, but probably not a ton. It's possible that Jaffe, the tech guy and the researchers read the data is more suspicious than it really was. And that their negative view of Trump influenced their interpretation of what they were seeing. That's clearly Durham's view. I don't know. He says again, I'm not competent to check their work, but it's possible. That said, I haven't seen anyone who is competent suggest that this was some crazy fabrication. In other words, it's not that it wasn't suspicious. It's that it was suspicious, but maybe there turns out to be an innocent explanation. In any event, it's a little difficult to see what any of these parties are supposed to have done wrong. They found suspicious traffic and data. They were lawfully provided to analyze for that

purpose and reported their findings to law enforcement. I would take a little note with that because the tech company found something suspicious in the data they were supposed to be looking for suspicious data in, but they didn't report it to law enforcement. They reported it to a lawyer who was working for a partisan campaign at that point. That person reported it to law enforcement, but okay. Maybe it turns out there was nothing there. It's frankly still not completely clear what the traffic was, but there's no evidence suggesting any of this was elaborately masterminded by Hillary Clinton. The rather tenuous Clinton link is that Joffe, the tech guy, passed the researchers' findings on to FBI and CIA via Sussman, the lawyer, a prominent

cybersecurity lawyer who'd also done work for the Clinton campaign. Again, I would asterisk that and just say currently doing work for the Clinton campaign as well. Durham says Sussman was working on Clinton's behalf as well as Jaffe's when he met with FBI officials to convey the data and lied about it. Sussman denies this and the evidence seems pretty thin, but right, that's why we play the ball game. That's why you go to court. And then he has two pertinent points. The White House data concerning Russian phone dated from the Obama administration and was shared with the CIA well after the campaign. So is this all a big nothing burger? No, not entirely, especially when you think about

whether these companies that are able to look for suspicious traffic that you hire can then turn around and give that data to third parties that can then use it against you by going to law enforcement, et cetera. And there's no particular law against that. So definitely a cybersecurity issue and a privacy issue and about them making, as Sanchez says, ad hoc decisions about when to disclose non-public telecommunications data to the government. And of course, you've got these like Russian pings that are happening. But as Durham says, there's three million that happened. A thousand of them happened to happen near Trump Tower. But as the Sussman people have pointed out, yeah,

three million is nothing compared to the number of pings that happen like in an hour in the United States. So as Sanchez concludes, so there is, I think, a potential story and a serious policy issue here. It's just about a million miles away from ZOMG, Hillary hacked Trump's computers at the White House. And I really liked that line. I like the way Andrew put it. So this is the way Andrew put it, which I think is the strong version, the steel man version of this is a problem, okay?

Where not the worse than Watergate, blah, blah, blah version of it, but this is a credible assertion of why this is a problem. It said, Yaffe, a tech executive with non-trivial ties to the Clinton campaign, they shared a lawyer in Sussman, and Yaffe believed he had been offered a tentative position in the Clinton administration, used his position atop a company with extensive government and private sector contracts to go digging for information on Clinton's opponent, an effort which Sussman was involved and for which Durham asserts Sussman billed his time to the Clinton campaign. So a lot of the question here is if Yaffe had this access,

is the way in which he used this access, not that the access was illegal or his access to the information was illegal, but was the way that he used the information was that scandalous, was that problematic. And so what makes this sort of more problematic as you unwind it is sort of how quickly the Clinton administration jumped on this information. Computer scientists have apparently uncovered a covert server linking the Trump organization to a Russian-based bank, Jake Sullivan said in a statement. Again, this is from Andrew's excellent report. The secret hotline may be the key to unlocking the mystery of Trump's ties to Russia. So here you have a person who has an interest in Clinton potentially winning, using his legal access. He's not actually hacking and infiltrating and all this, but using the access that he had and providing a Clinton

lawyer, who should also be said was known as a cybersecurity expert and all of that, with information that then was directly utilized by the Clinton campaign. And by the way, so far, so far has turned out to be kind of nothing, a nothing burger. So that's the, I think that Andrew has presented very well, the sort of the steel man version of this, which reeks of dirty trickery, right? It reeks of, you know, kind of an inside game to undermine and dirty tricks to undermine Trump. It does not reek of illegality, which is perhaps one of the reasons why Durham has not charged any illegality in relation to this, at least as of yet. So I thought we'll put that Twitter thread in and we will put the Andrew's excellent report in.

And I think it's going to give you a much better sense of what actually occurred. And one last thing on this, Sarah. This is exactly the kind of story that is sort of most difficult to. Break through partisan predispositions on because it involves technology that basically nobody understands. And I'm not going to stand here in front of or sit here more precisely in front of our podcast audience and say, I am the expert on DNS lookups. on DNS lookups. I'm not going to say that, but it's enough of a black box for people's basic knowledge set to where you can almost sort of filter any kind of interpretation you want into it in a way that will confirm an ideological prior because people don't understand the underlying thing nearly as much as they might understand some of the other aspects of the Trump-Russia controversy, like Donald Jr., Paul Manafort, and Jared Kushner taking a meeting with a Russian lawyer hoping to get dirt from the Russian government.

That's an easy thing to understand, or Paul Manafort sharing confidential polling data with a suspected Russian agent. That's an easy thing for people to understand. A controversy involving DNS lookups is susceptible to an awful lot of twisting with no real accountability because very few people understand the underlying technological reality, if that makes sense. 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.

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Okay, Sarah. We're going to talk about state laws again. And this time we're going to talk about what has been called the Florida Don't Say Gay legislation that is being talked about a bunch on Twitter. about a bunch on Twitter. Okay. Um, and this is a full, a Florida law, and there are versions of this, uh, that have been introduced in other States, including Tennessee here that, um, this is not an anti CRT law. This is a law that deals with, um, that deals with, uh, sexuality. And I was waiting for some of these laws to come because I remember talking to a state legislator not long ago, and he said, a lot of people are pressing me

to introduce anti-CRT legislation because of trans issues. And they said, and he said, they don't realize that CRT doesn't deal with transgenderism or LGBT issues. So I knew some LGBT type laws were coming down the pike. And here is, um,

here is what this law says after a bunch of, uh, verbiage about parents rights to information about their own, about their, their child's mental, emotional, physical health, or wellbeing.

You get to this really key language. It says this. A school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age appropriate or developmentally appropriate for students. age-appropriate or developmentally appropriate for students. Next, a parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney's fees and court costs to a parent who receives declaratory or injunctive relief. Okay.

So a lot of people have said a lot of things about this. I've seen some folks and Ben Shapiro and everything's talking about, I don't want to hear about the sexual orientation of those who are teaching my six-year-old. This is obviously, and they keep going back to the six-year-old, six-year-old. This is not something that is just limited to six-year-olds. It doesn't even appear to be limited to primary grade levels because it says a school district may not encourage classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age appropriate or developmentally appropriate for students. Okay. We have talked quite a bit. Let's just think about this legally. Okay. We have talked quite a bit, Sarah, that if you are a K through 12, if you're a K through 12 public school teacher, that as of the state, the state of the law right now is that when you are on the job and you're acting in your capacity as a teacher, there is virtually no authority that is still valid that says you have sort of your own independent free speech rights in your on-the-job communication. on-the-job communication.

So therefore, a lot of folks have taken that to mean that we have carte blanche, we have carte blanche to legislate the speech or the curriculum or the way in which teachers interact with students. But I want to raise a couple of things about this, Sarah. One is, as a matter of sort of due process, there is a doctrine that is called void for vagueness. In other words, the law needs to give me fair notice of what is or is not prohibited. of what is or is not prohibited.

So in other words, I'm not running into, I'm not, a reasonable, a person of reasonable intelligence has to know what's allowed and not allowed so that I don't inadvertently violate the law. This is how, by the way, I struck down speech codes all the time in the college level was by saying, wait a minute, the language,

for example, one case I had was the language was acts of intolerance will not be tolerated. Well, that's vague. What's an act of intolerance? So there's a vagueness issue here that raises a question of whether you can actually know what's prohibited or not prohibited. What does it mean to encourage classroom discussion? What is an age appropriate or developmentally appropriate level? Very unsure about that, but there's something else I want to raise. And that is,

I'm wondering, I'm wondering, and I wanted to, to, to get your, to get your thoughts on this. When I read these laws, I'm thinking, I'm getting a little whisper in the back of my head and the whisper is Romer V. Evans. Okay.

And what Romer V. Evans, uh, held it, what Romer V. Evans did is, is a 19, this is a 1996 Supreme Court case. Um, after a bunch of Colorado towns had passed laws banning discrimination on the basis of sexual orientation, Colorado voters adopted a statewide referendum, Amendment 2, which precluded all legislative, executive, or judicial action in any level of state or local government designed to protect the status of persons based on their homosexual, lesbian, quote, homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships. What the Supreme Court did is it struck this down as essentially saying that the targeting of this community, of the LGBT community, for exclusion, for deliberate exclusion from the protections of civil rights law, did not bear a rational relation to an independent and legitimate legislative end. In other words, when you pass a law that is designed specifically aimed at LGBT Americans to restrict their ability, for example, to gain access to the protection of civil rights laws,

that's in essence just a targeting. It's a it's an imperm constitutionally impermissible targeting of a particular community. And I was wondering, I was wondering and thinking, does this raise a Romer kind of aroma separate and apart from the free, that sort of vagueness and kind of issues surrounding it? I think the vagueness issues are much more front of palate, if you will. Right, right. I think your Romer aroma is sort of a lingering tannin effect. Because no, I don't think it does.

I think it doesn't target someone because of that they happen to be married or dating someone of the same sex. It targets them because of what they're saying about themselves or other people. And so I don't think it comes in the roamer world. But I think the vagueness thing is important. I also, my God, with all the problems we have right now, is this again, when I think about the concerns I have over my child's education, and I have many, um, you know, mostly that, uh, he thinks the word door applies to everything that could possibly open and shut the lid of his orange juice is a door, you know, and I don't know how he's going to make it through life

with such a limited vocabulary. But seriously, I am far more worried about making learning fun, letting children follow their own passions, because the point isn't actually to teach them calculus. It's to let them explore areas that might trigger other parts of their brain to figure out how they can contribute to our society. Having assigned reading be joyful

instead of teaching kids to hate books. STEM stuff so that our country doesn't fall behind other nations. And look, some of the culture war stuff is a concern to me. I'll be honest, especially raising a boy right now and all of the data out there we have on boys falling behind. Yeah, there's some of that. But I can tell you that the concern about a teacher saying stuff about their own lives or offhandedly, you know, the female teacher's wife drops off her lunch that she forgot or heart medication or whatever and saying, you know, bye, honey. Like, nope, that's not there. That's not one of my concerns. Yeah. You know, the interesting thing. So I agree with you. I think one of the reasons why

the aroma over Roma, the Roma aroma may not be strong enough to actually strike down the law is that it doesn't specifically address, it doesn't specifically say that they can't encourage classroom discussion of LGBT issues. I'm confused.

That goes back to the vagueness point then. I don't understand what's being covered. The school district may not encourage classroom discussion about sexual orientation, right? Or gender identity. Well, there's homosexual sexual orientation. There's heterosexual sexual orientation. There's transgender identities. What is Valentine's Day? Yeah. it's a giant, giant mess. Valentine's Day isn't about your identity, but it's about love. My son, by the way, got his first Valentine from a five-year-old girl, and he actually is very much in love.

That's all that there is. He's done now. He is in love with Cameron. Well, and one of the exchanges online was, well, wait a minute. What if a kid asks a teacher about their boyfriend or girlfriend or a teacher about their husband or wife and the boyfriend or girlfriend or the husband or wife is of the same sex is the rule that they can say who their husband or wife is. If the husband or wife is, you know, uh is opposite sex, but they can't say who it is if it's same sex. And one of the responses was, what are kids doing asking about families anyway?

Yeah, which that was the silliest response. Because look, and the idea that somehow a homosexual teacher's explanation of their private life would be, you know, really in detail. Yeah, I don't want the heterosexual teacher talking in detail about their sex life either. That would be equally concerning and inappropriate to me. But look, when a child asks, where do babies come from to their teacher? I'm expecting a certain level of appropriate response from the teacher to the age level of my child i don't need a law about that um and this falls into that category for me i think i know what you're trying to prevent here maybe but again

like if they ask where a baby comes from and all of a sudden like a vagina mold comes out and we're talking about you know semen and by the way this is a kindergarten class all right wait i'm this is an adult podcast i'm already uncomfortable like right that's that's not appropriate for a kindergartner so if you are asking about your teacher's personal life and the teacher suddenly is like talking about explicit material it doesn't matter what their sexual orientation is or gender identity. And so maybe we're trying to legislate further. And this goes to the vagueness point. You're not going to be able to legislate exactly what you want here because you don't know exactly what you're trying to prevent. Like pornography,

you know it when you see it. I don't know, man. Like, yep, this is public schools. You can't dictate everything coming out of the teacher's mouth all the time. That's real. You know, that's what, and I'm glad you said that because what's happening here is people, if you really drill down to a lot of the people. Now, there are radicals out there who want public schools to indoctrinate. They just want them to indoctrinate in their direction 100% of the time. I mean, there's some wild laws that are being proposed right now, including some that are mandating patriotists. I mean, there's some crazy stuff

out there that almost certainly won't make it into law. But if you really drill down to what is the reasonable sort of objection that people have to a lot of what's happening in public schools is they don't want indoctrination. They don't want like a third grader being told what to believe about all, you know, essentially saying being indoctrinated into a particular extremist view of race and the United States. But we had this problem around evolution, David. Remember in teaching dinosaur bones and how old the dinosaur bones were? We have done this before. There's nothing new under the sun. This to me has far more of the creationism versus dinosaur bones aroma to it, where it was, yeah, I mean, and that would at least, you had something specific you were telling the public school teachers not to teach.

Please don't teach the dinosaur bones are more than 6,000 years old or that God could create dinosaur bones that looks like they were more than 6,000 years old or whatever. Yeah, now there was an establishment clause issue that's not present here, but that's a good educational analogy.

And so what people are really wanting is what they want is to have a greater say over their kids' education. They don't want indoctrination. And the answer to that is not these really vague, sweeping laws that might as well be drawn in crayon. They're so poorly drafted. The answer is, Hey, here's, here's some good curriculum. Here is good K through 12 curriculum. Why don't you teach from the curriculum, have normal human interactions between teachers and students? I mean, because again, a lot of this is trying to regulate just that informal human interaction that people have that is going to be almost impossible to regulate.

And look, if you have an individual teacher who is departing from the curriculum or is departing from the normal kinds of human interactions that people have in a pluralistic society where guess what? You're going to meet people who don't agree with you and have different ways of living from you. And in fact, one of the purposes of public education is to train people to live in a pluralistic society. If it crosses a threshold beyond that sort of normal human interaction, have a normal human interaction, talk to a teacher, talk to a principal. But these laws are just a remarkably blunt instrument that are designed to intimidate and punish. And, you know, it's just fascinating to me to see people, especially in a movement that for

a long time had been sort of centered around, we like free discretion, we like pluralism, we like free speech, we like to train students to believe in free speech, because people aren't sprung from the womb believing in free speech. You have to sort of train people to believe in free speech. That no, now the message is, if you don't like something, run to the state legislature for the hammer of Thor to come down. Except the hammer of Thor is a far more precise weapon

than some of these statutes. And I knew we'd be moving on to more and, and more sweeping, more vaguely written and more vaguely drafted laws. And we're, we're doing it at scale. There's more than a hundred of these, um,

education gag order oriented laws. And now dozens of them are aiming at higher education where they're going to be unconstitutional. Um, but I wanted to highlight this because it's just a sign of how much there is a desire to regulate. There's such a desire to regulate what happens in the most normal human interactions in school, but you can't possibly do that in any way that's specific enough to encompass all the

situations you want to encompass. So you're left with these incredibly broad, incredibly vague laws that nobody knows what they mean. All right, let's move on. Let's table 11th circuit. Okay. We'll table 11th circuit because I, I, I want to actually give that the treatment I think it deserves because, and I'm going to table it because another police shooting issue arose over the last couple of days that really brings into relief a lot of what we'll be talking about. And it's not worth four minutes before we do rule 22.4, which is what everybody's here for. That's right. We can't table that. All right. So on Valentine's Day, the teachers who had sued to block New York's vaccine mandate

sent a letter to the Supreme Court. Now, mind you, they had previously sent an emergency request to have New York's vaccine mandate blocked. Justice Sotomayor oversees the Second Circuit. She denied their emergency request. So their letter on Valentine's Day was to Justice Gorsuch. It says, we write on behalf of applicants in Kiel. Early Friday evening, Justice Sonia Sotomayor denied our application for a writ of injunction in support of this court's jurisdiction. We write pursuant to Supreme Court Rule 22.4 to refer the application to Justice Neil M. Gorsuch. And then it talks

about the merits of their case. I just thought that there might be some confusion out there of how when one justice denies your emergency application, like, first of all, why is that the justice getting it? And then what do you mean? You can just keep going back to each justice? Why, yes, you can actually. So this is pursuant to rule 22.4 of the Supreme Court, applications to individual justice. It talks about how you need to address it. They did all of that correctly. A justice denying an application will note the denial thereon. Thereafter, unless action thereon is restricted by law to the circuit justice or is untimely, the party making an application, except in the case of an application for an extension of time,

making an application, except in the case of an application for an extension of time, may renew it to any other justice subject to the provisions of this rule, except when the denial is without prejudice, a renewed application is not favored. Yeah, so look, each justice is assigned a circuit or circuits, right? There's nine justices and there are 11 circuits plus the DC circuit plus the court of federal claims. Did I get them all? Anyway, so there's more circuits than justices. And so when you initially file your emergency application to the court, it's going to go to the circuit justice. As I said, second circuit, Sotomayor, she denies it. And then according to rule 22.4, hey, you want to try again? You want to go through all nine? Be my guest, says the Supreme Court. But they put in the rule,

a renewed application is not favored. Obviously, it's not favored. I mean, the idea that Justice Gorsuch now, who you clearly think is the one most likely to favor your plaintiffs on the New York teachers who don't like the New York vaccine mandate, that makes it all the more likely that Justice Gorsuch can't take your application because you just highlighted that you think he has prejudged this case. I mean, what a mess. I can't think of when a 22.4 shopping letter would be appropriate or would be successful. So I just thought I'd highlight that. What were you thinking, teachers?

Bad, bad move. I think we could entitle this entire podcast, Caleb. What were you thinking? What were you thinking, Judge Rakoff? What were you thinking, teachers? What were you thinking, Florida legislature? It's true. Steve Vladek, who's a University of Texas law professor, said this kind of transparent justice shopping used to be more common in the 1970s, especially when the court formally adjourned for the summer. Now that it never adjourns, requests to second justices are both disfavored and usually dealt with by the full court to

disincentivize them. And let me be clear, by the full court to embarrass you as publicly as possible to make sure that nobody else tries to do that in the near future. So awkward. Yeah, very awkward. All right. Wow. Well, that was one fast hour plus. I looked up, we were just rolling on the rake off situation and I looked up and we were at half an hour and I thought that felt like 10 minutes. But yeah, so we got through a lot. We got more to get through. So we already have topics for Monday. I'm telling you, Sarah, it is getting rare, more and more rare that we walk into a podcast, you know, on the day before a podcast and are saying, I don't know what to talk about. It still happens on occasion on very, very, very slow news weeks legally, but that it's but it's definitely more rare than it used to be.

So we'll be back Monday. We've already got good topics. So please tune in. Please rate us on Apple Podcasts. Please subscribe. And please check out thedispatch.com. Oh, oh, oh Oh, oh, oh