Advisory Opinions - When to Recuse

Episode Date: May 21, 2024

Is Justice Alito a secret election denier? Is his wife chronically online? Were these allegations the point of a New York Times article about hanging the American flag upside down? Or is this a nothingburger? Sarah and David discuss. The Agenda: —Appearances of impropriety —Husbands: What would you do if someone called your wife the C-word? —Asserting executive privilege over audio recordings —No, Zina Bash did not make a white power symbol —Nixon tapes and Biden’s interview —The opposite of a nationwide injuction —Tacos are sandwiches —Tacos are not sandwiches —David on how to deal with bullies Show Notes: —Results: ACLI Capital Challenge —Justice Ruth Bader Ginsburg on Trump's taxes —Judge Stephen Reinhardt refuses to recuse in 9th Circuit case —"Trump faker" accusation —Hur/Biden transcripts —Akhil Amar: "Second Thoughts" Learn more about your ad choices. Visit megaphone.fm/adchoices

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If you need some time to think it over, here's five seconds. Ah, do, da, da, da, da, da, da, do, do. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And David, I've come loaded for bear today.

We have a list. We've got a lot to get through and I'm not in a bad mood anymore, probably because of various self-inflicted injuries I sustained. I managed to kick the door to my shower with my ankle right on the corner of it. Don't recommend that. Also pretty sure I broke my toe in a separate toddler-related incident. So yeah, so both my feet hurt and I'm pretty pumped.

Well, pretty sure you broke your toe. That's a big statement. I would not be podcasting with a broken toe. Seriously? You can't push through a broken toe, David? I mean, if I had just broken my toe, I don't think I'd podcast. I would go somewhere to do something about it. I allowed the brisket to stack various stools

on top of each other so that he could get higher, knowing that this was a terrible idea. And so I was sort of like poised to catch him when the inevitable tumbling happened. I did catch him and all the stools fell on my big toe. Oh no. Oh no. Mother of the year. Okay, so first up, just some fun stuff, David. So three Supreme Court justices ran in the ACLI Capitol Challenge, it's either three miles or three kilometers.

I think it's three miles looking at the times. I think it's three miles, yeah. Coming in third place of the justices was Justice Contagi Brown Jackson, who wore a t-shirt bearing her team name Junior Justice League. Get it? Because she's the junior justice. Congrats to Justice Jackson. I can't run three miles. She did it in 33 minutes. Woohoo! Next up coming in second of the Justices, Justice Amy Coney Barrett of SUAint Day team coming in at 26 minutes.

You may have come in second, Justice Barrett, but you win the team name for sure. Coming in first is Justice Kavanaugh, but we didn't get his team name. So I don't know if he should be disqualified for us not having his team name. But you know who beat them all? The Solicitor General. Yes. Like, she was legit fast. Three miles in 22 minutes, 23 seconds. That's less than an eight-minute mile pace. That's legitimately fast. But who beat them all is friend of the pod, Sixth Circuit Judge Jeff Sutton's son. Oh.

He is a current clerk at the court, and he finished third of all of the runners with a time of 15 minutes and 44 seconds. Yeah, that's impressive. Three miles in 15 minutes and 44 seconds. I just want to be clear. If someone is chasing me with a knife, I could not run three miles in 15 minutes and 44 seconds. Facts. Same. Same for me. So congrats to all the runners.

Very impressed. Raising money for charity. The pictures are bleak though, guys. Nobody looks good running. Let's just be real about that. Okay. Next up, David, in less fun news, the New York Times published a story that several years ago now, for between two and five days, the American flag in front of Justice Alito's home was upside down. And those are the facts because we have a picture of them. From there,

things sort of spin out. So, Justice Alito confirmed that this had in fact happened. He said that his wife had gotten into a dispute with one of their neighbors who had an F Trump sign in his yard. That was right next to a bus drop off where like elementary school children were getting on and off the bus. And Mrs. Alito asked him to take down the sign because of, you know, the four letter word that was on the sign. In refusing to do so, I guess the neighbor accused her of being at fault for January 6th

and the insurrection and in front of her husband called her the C word. At that point, she, I guess, went home and raised the American flag upside down, which in the etiquette of flag stuff that's on like the US Code or whatever on respecting the flag, raising the flag upside down is only to be used in signs of extreme distress. It is also the case that people who were at the January 6th insurrection, whatever we're calling it, some, and by some I actually don't mean that many, to be honest. I think I've seen like one or two pictures, but were carrying the American flag upside

down. The point being like that is a sign of distress because the election was stolen. And from there, it seemed like some again, some people were then putting the American flag upside down as sort of solidarity with the J6ers as part of the Stop the Steal movement, etc. There is no evidence that Mrs. Alito knew any of that, but the timing is pretty close. Now, from here, we have all sorts of, is this okay? Is this not okay? Is she a J6er? Is she not a J6er? And is he responsible for that?

Is that an appearance of impropriety? Should he recuse? All of these questions being the hot topic. David, I'll let you go first. It's weird and bad, I think is a, like as a baseline minimum to me, it's weird and bad. You know, look, the whole idea that somebody would have that sign up. I saw a lot of signs like that around over the last several years. I've seen

a lot of the other, lots of the F-bomb signs floating around in these days and don't like that. I think it's horrible if this neighbor did what, you know, they say that he did. I think that's terrible. I don't think that going home and flying an upside down flag at that point in American history is a good decision in any way, shape or form. I don't have any indication that, you know, there's a legal obligation for Justice Alito to recuse from anything, but this should not have happened. This should not have happened. And a lot of the conservatives floating around, well, Justice Ginsburg did this where she

sort of what sold a signature for charity. Oh, I have a full list that we'll run through in a second. So there's a lot of past instances where Supreme Court justices have either spouses have done partisan things or they have themselves done things where they're supporting a cause. And I think all of that is not good. I also think that there is a large difference between say, supporting a mainstream candidate and what this symbol meant at the time. Now we don't know that she knew that,

but it was around man, it was around right at that time. And- So you said, by the way, you told, like we talked about this, you said you had neighbors and stuff, like you were well aware that this was a stop the steal symbol in January of 2021. I had no idea until this week.

And none of the lawyer friends I've talked to around here in the greater DMV, the DC Maryland, Virginia metro area, nobody I've talked to had any clue that this was a stop the steal symbol. So I do think that like maybe there's some regional differences or some being very online differences and there's no evidence that Martha Annalito is is a very online person. Unlike for instance Jenny Thomas who is online a lot for instance. This isn't an age thing. This is

just there's when I say there's no evidence that she knew this like I didn't know it and I think that's worth knowing. Yeah. Yeah. I'm skeptical of the innocent explanation of the upside down sign to be really frank. I think it's conceivable that she was like, oh, in grade school, I learned it upside down flag is a sign of distress and I don't like the F Biden sign. So I'm going to sign a flag, you know, show that fly the flag upside down is a sign of distress and I don't like the F Biden sign so I'm going to fly the flag upside down as a sign of distress because of a political sign across the street from me. What? To be clear, it was an F Trump sign.

It was F Trump, but these were all over the place. What I would see the signs, it would be a Trump sign and an upside down flag usually on a truck truck. And you know, so that the truck trucks and so. But those weren't here. Yeah, it's, it's, I find it not credible in my mind that it was just a random distress sign that is a very common thing to do outside of this time period, upside down flags, January 6th. Except it was. So six months earlier, the Associated Press has a picture related to the

George Floyd protests of someone flying an upside down American flag. And the caption says, protesters around George Floyd flying upside down flags as sign of distress. So like, and that's six months earlier. And in solidarity with George Floyd flying upside down flags as sign of distress. So like, and that's six months earlier. And in solidarity with George Floyd. Yeah, but my point is like, it was well known that the upside down flag was a sign of protest slash distress, et cetera,

regardless of Stop the Steal. It's not like it just popped up around Stop the Steal. I know, but January of 2021, just like if I see the upside down flag at a George Floyd rally, if I'm seeing an upside down flag in January of 2021 at a very conservative home, I mean, I get it, Sarah, that there is a chance that this was just generic sign of distress. Well, it's not a chance. There's no actual evidence on your sign that she even was aware of this.

Race ipsa loquitur is a legal canon. So now there's the what do you do about it? So I want to read Mark Paoletta put together all these examples. And we've gone through them actually before because we were talking about it in other contexts because whenever someone does something, there's like, therefore, they must be impeached. And I also want to be clear, like, while I think, I think this is really bad. I would never put an upside down flag in front of my yard. And if I tried, I assure you, my husband would stop me

and like shake me a little bit and be like, what are you thinking? So I'm not, I don't think it was good. I think it's outrageous actually, because I think if you're not actually in distress, and I mean physical distress, that it's disrespectful to the flag. I don't think it's like burning the flag,

but it's in the disrespect category. So I am not okay with it. I just don't think there's the evidence to connect it to this other thing. I think it's just, I think it's not okay all by itself. You don't have to make it a bigger deal. It's just not okay. Okay. So given that, here's though, some of the other examples of judges doing things. Ninth Circuit Judge, Judge Reinhart did not recuse from appeal of a case on a ban on same sex marriage in California. Even though his wife was at the ACLU and joined

two briefs in court urging the ban be struck down, Judge's wife was outspoken that the ban should be struck down in media. Justice Ruth Bader Ginsburg in 2016 said, you know, all sorts of bad things about Donald Trump. He said he was a faker, criticized him for not releasing his taxes. She, of course, then went on to rule on a case about whether Trump had to release his taxes. Though it's worth noting she apologized for saying those things after Donald Trump was elected. But that's the justice herself saying incredibly partisan things in a presidential election. So that to me is actually much worse than what we're talking about here in terms of the recusal standards, for instance, Justice Ruth Bader Ginsburg also provided a signed copy of one of her opinions that the pro-abortion group now auctioned off for money.

money she never recused from cases where now or Neryl filed briefs. So again, fundraising for groups that then do stuff before the court. Not awesome. Her husband, of course, his law firm appeared before the Supreme Court. She voted in favor of the law firm's clients. She never recused from any of those cases. That being said, David, so to me, this case is like a three out of ten, but it's being treated like a nine out of ten. And I have some theories as to why. One, everyone can have an opinion about it because we know so little and there's nothing you need to know to have an opinion about it. That's common across all sorts of these sort of culture war fights. Two, there's this sense that if Justice Jackson did this, the right would treat it as a nine and therefore the left needs to treat this as a nine and sort

of a preemptive Niners. And I agree that that would happen, but it doesn't make it a nine just because each partisan side wants it to be a nine. And David, I have a really important question to ask you. Yeah. And I need you to be honest, this is a man question. If someone called your wife the C word with you standing there, what would you actually do? Not what would you wanna do? What would you think about doing? You're David French, you work at the New York Times.

What would you actually do in that moment? We would have a confrontation. The question is, are you gonna hit somebody? That's right, know, the question is, do you like, are you going to hit somebody? That's right. That's the question. No, the answer to that is going to be no. Their answer is, am I going to get in a confrontation with him? Yeah. Am I going to get in his face? Yes. Now, also at the back of my mind is that I'm not a Supreme Court justice, but is that I'm not a Supreme Court justice, but I'm a columnist for the New York Times, and the whole thing would be treated very differently,

very differently than if I'm just some guy. Like if you're just some guy and you take a swing at somebody who calls your wife the C-word, nine times out of 10, the cops show up and be like, they're like, you called her the C word right in front of him. What did you expect that he was gonna do? And that, but when it's sort of more of a public figure,

it's I just got assaulted by this public figure. And why did you, why did you swing at him? Well, he called my wife the C word. Well, we all know that's terrible, but that's not an excuse to swing at him. Here we go. And everything unravels from there. And in many ways, what ends up happening is the person who called you the c-word not only calls your wife that, but then it participates as indispensable in what he actually loves, the annihilation of your life and career. So,

you have to think these things through even when you're really, really angry. But yeah, somebody called my wife the C word right in front of me, there's going to be a confrontation. There's no question. Okay, what would Nancy do if someone called her the C word? You're standing there, she knows you can't throw a punch. Nancy has the ability to, you're standing there, she knows you can't throw a punch. NANCY LAUGHS

Nancy has the ability to retort with words, not actions, that would leave the person in the fetal position. So, she has a way with words, Sarah, and an ability to use them in the moment that can be pretty scathing. But- See, I think as a woman against a man, I feel a lot of license to be more physically involved.

So at two in the morning in DuPont Circle, this was many years ago, I went out to get a cab and I hailed a cab and the cab pulled over for me. These two guys who had been half a block up, and the cab drove by them to come get me because it's two in the morning and I'm a woman, like run over and shove me out of the way of the cab as I've opened the door. And I was like, oh, no, that's not going to happen. So I start shoving them like hard out of the way of my cab and yelling at them. My two male friends who were half the block the other way up the block who were trying to hail a camp up there,

immediately see what's going on. Will Concevoy was one of them for what that's worth. Always there. Always there. Starts hauling towards these two guys. And I'm realizing because of course I can shove men however much I want. I may be, they may shove back and I might get hurt. But like, no police officer is going to arrest me for shoving two men who are trying to take a cab from me. But my two male friends, they might end up in a bad spot if this turns into a brawl. Luckily, I actually, you know, sort of shoved hit hard enough. I was able to get in the cab, have the cab pull forward like 10, 15 feet,

get Konsevoy and our other friend in the car and drive off while screaming at those dudes in laughter. There are interesting, if people are playing by the quote rules of lawlessness. That's right. If they're playing by the quote rules of lawlessness, I totally agree that a woman has more freedom and flexibility to get physical without retaliation. And they shoved me first, but even if they hadn't, honestly, I would have felt just fine about it.

Okay, so the things we've agreed on are, she shouldn't have flown the flag. There's actually no evidence that Justice Alito particularly knew about it in the moment. He might have. He hasn't said he didn't. There's no evidence that she knew it was related to stop the steal, but you think the timing is too spot on. I don't. And that regardless, we're not even in the ballpark of recusal world.

The recusals, the stuff is twofold, right? It's on the one hand, appearance of impropriety. I'm just not sure why three years ago, if, let's even assume the worst, the stop the steal stuff. And now the question of presidential immunity, I don't really quite see the appearance of impropriety there in terms of the case. And again, spouses are allowed to have their own political opinions.

There's nothing tying him to this at all. And two, there's the duty to sit. And those are intentions. And I just think here where he hasn't said anything compared to Ruth Bader Ginsburg saying how Donald Trump needs to release his taxes and then ruling on the question of whether Donald Trump needs to release his taxes and then ruling on the question of whether Donald Trump needs to release his taxes, that is a much closer, I mean, that's a one-to-one fit compared to this where we don't know it's him and the topic isn't quite the same. So duty to sit to me massively overcomes appearance of impropriety here.

Yeah, you know, I agree with you duty to sit overcomes the appearance of impropriety, but I am completely – I'm on the view that this is much more than a three. But when it comes down to the appearance of impropriety with Justice Alito, when all of the evidence is his wife put this up, I think just taking that at face value that his wife put this up, it should never have happened and especially at that time for crying out loud, but at the same time. Oh, true. Okay, but what do you think Ruth Bader Ginsburg calling Donald Trump a faker was? It was terrible.

He shouldn't have done it. On the one to 10 scale. Same? Higher? Lower? Seven? What's this? I think this is like an eight. You think this is lower? Seven. Seven? What's this? I think this is like an eight.

You think this is worse? Yeah. Yeah. I think— Than a Supreme Court justice herself coming out and criticizing a presidential candidate? This, Sarah, was insurrectionary stuff. And the idea that— You have no evidence for that.

No, no, no, no. The idea that I'm upset, the way I look at it honestly is if someone is telling me that there is no, the odds are the best assessment of the moment is that there's no connection between that and January 6th when it comes up right after a conversation about January 6th, I feel gaslit by that, to be honest. Like I think there's a chance that's correct.

I think there's a chance that's right that a 70 something year old woman when these memes and these upside down flags were all over Facebook, et cetera, at that moment, after a conversation about the insurrection chose to fly an upside down flag, totally coincidentally that it's just a universal sign of distress and people would know what that would mean outside of this very moment.

To me, there's a chance that's correct. I feel like if someone is telling me the odds are that's correct, I'm being gaslit. So I think my position, I think your position is being colored by being surrounded by all that. Like you knew what it meant in the moment and I didn't. I think your position is being colored by being surrounded by all that. Like you knew what it meant in the moment and I didn't. I think your position is being colored by that totally fairly. I think my position is being colored by the Kavanaugh hearings when Zina Bash, who I went to law school with, who was a friend, was sitting there for hours on end and was resting her hand on her other arm and was making the OK symbol with her fingers.

And it went around every cable news station, every major newspaper writing about how she was using a white supremacist symbol to signal to people who were watching the confirmation hearing. And the stuff I heard, to be honest, was kind of what you're saying. Like, this is a hearing in the middle of Black Lives Matter, the Me Too movement, and this is a question about race, and you're telling me it's a coincidence that she didn't know that this was a symbol used by white supremacists right after the Unite the Right rally?

I feel like I'm being gaslit. How could she not know that? And like, it was the most absurd thing in the whole world to me. Zena, for what it's worth, is not white. And it was insane. But these people were like really heartfelt about it because they had been sort of immersed in this other thing in this other place and Zena hadn't and I didn't know it either. So that's what I'm being colored by. And I think that those

are both like, you know, as you've always said, David, where you stand depends on where you sit. And I think I think of Zena's completely insane treatment as this white supremacist. Well, she's a Trump appointee and she was sitting behind him for a reason and like all of these conspiracy theory stuff they were coming up with of like why she must have known. And I think people now are like, oh yeah,

I guess that was kind of bonkers, but they didn't feel that way at the time. Yeah, I know. I think there bonkers, but they didn't feel that way at the time. Yeah, I know. I think there's a giant difference between an okay sign, which until super online people and Gropers began to argue about, Gropers began to flash it and super online people recognized that Gropers were flashing.

The okay sign was extremely, I don't know how many times I've, and it was also the sign for that dumb game where if somebody looks at your hand in that position, you can hit them. Like that's, so a lot of frat boys started to get in trouble for the quote unquote OK sign back in that day when what they were doing was the same game we played in college. Like you look at that. And so, but the upside down flag is there's no way that's, there's obviously an intentional, there's an intention there. You don't accidentally fly the upside down flag.

And you accidentally flash the okay sign all the time. But yeah. Okay. Next up, I have had a very interesting weekend thinking about executive privilege, David. So here's how this comes up. If you remember, the special counsel Rob Herr did an interview with President Biden. There was audio and a transcript of that interview. After the special counsel's report comes out, everyone wants the transcript.

And the executive branch releases the transcript. Okay, well now the House Judiciary Committee wants the audio. And the Department of Justice has said no. The president has asserted executive privilege over the audio recording. And the House Judiciary Committee know the president has asserted executive privilege over the audio recording and the House Judiciary Committee has moved to hold Attorney General Garland in contempt,

they say they need the audio as part of their impeachment inquiry into President Biden. I find this really fascinating because when it comes to an inter-branch dispute of two equal branches, and I kind of put a question mark there because I think I've said before, I think article one is primus inter paris. I think it's first among equals, but equal-ish branches. How do you resolve this? How does the third branch resolve a fight between the other two branches?

And I have heard very good lawyers from all different sides making arguments that are all really plausible on their face, but you have to figure out how to start at the beginning of this sort of Rubik's Cube of an executive privilege puzzle. So I tried to do this for our listeners. And let me just start by saying, we all know why the House Judiciary Committee wants the audio

because they think it will be more politically damaging than the transcript. And we all know why the White House doesn't want to release the audio, because they believe it will be more politically damaging than the transcript. And we all know why the White House doesn't wanna release the audio, because they believe it will be more politically damaging than the transcript. Yep. That's not a reason to get the audio,

it's not a reason to withhold the audio that has no legal significance for either side, but that all doesn't matter because they're giving legal reasons for it. So we're gonna just do the legal reasons, even though we all know the real reasons. Okay, executive privilege comes first, right? You need to make a sort of prima facie showing that you have some sort of privilege. So their argument, the executive branch's argument,

is that this is a law enforcement privilege. Unlike sort of the executive privilege that we're used to, which is deliberative privilege, the idea that the president wouldn't be able to talk to his advisors if every conversation were open to the public. This is law enforcement privilege that if you turn over everything to Congress in the middle of an investigation, or even at the end, people won't voluntarily participate in such investigations, and especially related

to executive branch employees participating in investigations. So that's their executive privilege claim. It is real in that sense. There is a law enforcement executive privilege claim. Okay, so they've made their sort of prime of face for showing. Now we move the burden over to the congressional side. And this becomes important.

They are not claiming a legislative purpose. They are claiming an impeachment inquiry purpose, which is in the Constitution and is sort of like the highest legislative purpose that there is. Okay. So, in a general sense, I think that would win. But let's move on to some other arguments. There's the waiver argument that by releasing the transcript, they waived executive privilege. So they get the audio. Now, the executive branch's argument to that is, this is the accommodation process. And

we're supposed to try to work this stuff out amongst ourselves, we thought the transcript was okay, we didn't waive executive privilege, we just accommodated their request. And you don't want to punish us for that by saying we waived it or else we're never going to accommodate again in the future. You're disincentivizing an accommodation process. I think that's a real question. Or is the question actually supposed to now be the gap of executive privilege between the transcript and the audio, right? So like it may not be waiver, but whatever it is, you thought that it was okay to release the transcript.

So now we look at the executive privilege difference between the transcript and the audio, and then the legislative difference between the transcript and the audio, which I gotta say gets pretty dumb for both sides, frankly, because it gets to the real point, of course, which neither side wants to acknowledge. And there is actually some case law that audio is different than transcripts on the executive

branch's side. Not a lot of case law on the legislative side or why this would help them impeach him. They're not claiming that the transcript isn't correct, for instance. And this is where we get to the really, really fun example, because this exact thing happened during the Nixon administration. And I don't want to go through all the history of it, but you kind of need to go through some of the legal history. So Butterfield accidentally or purposely reveals the existence of the tapes, right?

So now everyone wants the tapes. The special counsel wants the tapes, the Senate wants the tapes, and the House wants the tapes. Well, the special counsel gets a subpoena, grand jury subpoena, and Nixon says no, and the courts all the way up are like, yeah, grand jury trumps executive privilege, hand over the tapes. Okay, fine. That, by the way, is what causes the Saturday Night Massacre. Just for those who are following off in the little tangents. We won't get into all of that here. So, the House Judiciary Committee wants the tapes because they're doing an impeachment inquiry.

They get the tapes. But the Senate Select Committee says that they're doing a legislative like we need to maybe have laws about presidents and stuff. And their case is the most interesting because in the course of their case, the Nixon administration turns over the transcripts. Now, they acknowledge that they're partial transcripts and that they redacted a bunch of stuff. And they claim it's just the stuff not related to Watergate. Of course, we're going to find out that that is not what was redacted. bunch of stuff. And they claim it's just the stuff not related to Watergate. Of course, we're going to find out that that is not what was redacted. Trust us, guys. Yeah. Trust us.

By the way, at some point when they then ask for, you know, in-camera to check whether the transcripts match the tapes, that's when President Nixon suggests that Senator, was it Senator, not Senator Cox, that's the special counsel, Archibald Cox's special counsel, Senator Dennis maybe. Anyway, that he be the one to determine whether the transcripts match the audio because everyone knows he can't hear a damn thing. They rejected that compromise.

Okay, so we have this DC Circuit decision where the Senate Select Committee has the transcripts but wants the audio. And the DC Circuit says, no, the transcripts are enough. Even these partial transcripts that we know are kind of crappy and that we haven't even verified match the audio. You can't overcome that. The executive privilege beats your legislative privilege. But in finding that, there's this great little paragraph that I thought I'd read. In the circumstances of this case, we need neither deny that the Congress may have quite apart from its legislative responsibilities, a general

oversight power, nor explore what the lawful reach of that power might be under the committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source.

Moreover, so far as these subpoenaed tapes are concerned, the investigative objectives of the two committees, the Senate select committee that's the party to this case, substantially overlap. Both are apparently seeking to determine, among other things, the party to this case, substantially overlap. Both are apparently seeking to determine, among other things, the extent, if any, of presidential involvement in the Watergate, quote, break-in, and alleged, quote, cover-up.

I just think it's really funny those are in quotes. And in fact, the Judiciary Committee has now, now has in its possession copies of each of the tapes subpoenaed by the select committee. Thus, the select committee's immediate oversight need for the subpoenaed tapes is, from a congressional perspective, merely cumulative. Against the claim of privilege, the only oversight interest

that the select committee can currently assert is that of having these particular conversations scrutinized simultaneously by two committees. We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate

and inform cannot justify enforcement of the committee's subpoena. I don't think the case would come out the same way today, but I also don't think it helps the Biden team because a different committee already had the tapes and they were the ones looking into impeachment and that's what's happening here. So I think they lose this. I also think the contempt stuff is pretty silly. I think this is what the accommodation process is and you go to court and you work it out. Right, right. Yeah, I find that everybody knows what's happening here

and that's what makes this feel so ridiculous in some ways. So we're actually gonna have some law made here over executive privilege when we know the reason for the request is political and we know the reason for the refusal is political. And we're gonna pretend in this court proceeding as if it's something else. And it's going to create some law, which

will have presidential value. And everybody knows what's actually happening. I know. This is going to be a bad facts make bad law. Because again, that delta between the transcript and the audio for impeachment purposes and for executive privilege purposes, I think is so minimal.

But given the sort of equality of the two sides impeachment purposes and for executive privilege purposes, I think is so minimal. But given the sort of equality of the two sides in all of those respects, then I think the tie goes to the legislative branch, not executive privilege. And I think this Nixon case actually backs that up substantially, even though this is the case where they deny giving the audio tapes over when they already have the transcript. We'll see what happens there. Okay, David, next up, interesting little thing going on down in Texas.

So if you remember the Biden administration passed an executive rule about background checks. Doesn't even matter the details. Background checks, it's guns. You always knew how this was gonna go. It's background checks. It's guns. You know, I always knew how this was going to go. It's executive action. Like, it's everything we talk about. It's all the things. Yes. Okay, so Texas and several gun right groups sue in Amarillo because they always sue in Amarillo because remember that's a one judge

division. If you sue in Amarillo,, remember that's a one judge division. If you sue an Amarillo, you get Judge Kazmeric. Guess what, David, they got Judge Kazmeric. Shocker, amazing. Shocker. But Judge Kazmeric, if you remember, is also the guy who in the last time they did this tried to transfer the case up to DC and the Fifth Circuit was like, no, that's not gonna work.

So this time Judge Kazmarek did enter a temporary restraining order, preventing the Biden administration from enforcing this new rule. But here's what's interesting, David. It's not a nationwide injunction. It only applies to Texas, who is party, and these gun right groups and their members.

That's it. It is the opposite. It is a party injunction. Fascinating, Sarah. This is fascinating. And you know what we said recently after we were reading, oh gosh, was it Justice Gorsuch? I'm completely blanking.

The concurring- The Labrador V. Poe rundown from everyone. Where all of the justices were like, we're about to take away your toy if you don't stop throwing it at your classmates. your VPO like run down from everyone. Where all of the justices were like, we're about to take away your toy if you don't stop throwing it at your classmates. Yes, and you and I both said while we were talking about that,

that a message was being broadcast. And here we have evidence of message received. And what's interesting, Sarah, I wonder how much the plaintiffs view this as a win. Because a lot of these groups, it's not like the gun owners of America was really looking to go buy a bunch of firearms without a background check. The organization itself and this one individual don't know how much he was actually wanting to do this.

It's fascinating the extent to which when you don't get the nationwide injunction and you are really an advocacy group trying to make national law, yeah, this is a win. This is a win, but it's not kind of really in an important way. You did not accomplish the fundamental objective, which is to block a rule for months at a time and perhaps more than a year, at least through a presidential election, until you maybe have a new president. All of a sudden, that just didn't happen. And it's it's a small W win for them because, you know, you've got the Fifth Circuit, then you've got potentially SCOTUS.

Really interesting to see the dynamic if this starts to be the norm. But because this is not what they're after. Yeah, I'm curious on so many fronts. So we already ran through the numbers of the first three years of the Trump administration and how many nationwide injunctions, I believe it was 58, versus the Biden administration has been 16. And of course, there's so many different ways to read that. Well, Trump did more stuff that was enjoinable, that was unlawful.

Or that in fact, the Supreme Court has been threatening to take away this toy. And so people are being more careful in not asking for nationwide injunctions, and or courts have been more careful in not granting for nationwide injunctions and or courts have been more careful in not granting them except where necessary. And I actually kind of think this is proof of the latter that, yep, what the Supreme Court says has a fact regardless of the rule that goes out. And that maybe this is like the switch in time that saves nine and Judge Kazmarek himself has saved the nationwide injunction because there are times where a nationwide injunction makes a lot more sense versus having

every single person affected have to go in and get their own injunction. That's dumb. And as Justice Kavanaugh pointed out, it also won't work because the second that a circuit court decides one of those, then it becomes the rule of the circuit anyway. So it's at least a circuit-wide injunction with just one case. So there's not a great or easy way around all of this, except judges like Judge Kazmeric sort of taking it on themselves to, you know, it's like the opposite of this is why we can't have nice things. Maybe Judge Kazmeric is why we can have nice things. But it will be very interesting if Trump wins re-election, will this restraint continue? And if it doesn't, will people say it's just because

Trump breaks the law more or, you know, like... Is it unilateral disarmament, all of these things? So the war is not over until we see a president from the Republican Party and whether this continues. Yeah. No, I think that's a great analysis of it. I mean, it's obvious to everyone that the Supreme Court is weary of this whole thing. So to see an actual fruit of an actual judicial opinion that's reflecting the Supreme Court's weariness all the way down to the district court level.

I think this is really interesting. And I'm very interested in this case in a general matter, just because it's going to be another one of these Second Amendment cases, but it's more also going to be more of an ad law case at the same time. It's going to have elements of two of our passions here at Advisory Opinions. So I am interested in this case. I was much less interested at the district court level, but this perked my interest to see this. And like you said, Sarah, the test is going to be if more judges do this. And I also think that there are some judges who may get to a point where they're like, this sort of

feels insulting that you're coming into my district because you presume to know how I'm going to rule. I do wonder about that sometimes, Sarah, if somebody's going to say at some point, I am an independent human being here. I'm not just your sort of like judicial ATM where you're gonna insert the complaint and I'm gonna give you the results that you want. It's interesting, we saw a situation like this happen in Oregon. There was a legal challenge and it's a case we talked about some time ago. It was a legal challenge brought to Title IX, which allows religious institutions

to opt out. And it was aimed at that opt out provision. And it was brought in Oregon, and I believe a single judge district sort of hoping to get this nationwide injunction against Title IX. And nope, did not happen. The judge, apparently hand-picked, ruled against the plaintiffs. And I have wondered that in the back of my head. Do they feel like, oh, I'm in it with you, we're in this together, or do they think, come on now? You're making me a national figure against my will here.

So I do wonder about that sometimes. All right, David, I wanted to share with you my theory on how, maybe it's Roe and Heller are the same case. Maybe it's Dobbs and Heller, depending on how you want to think about it. I was reading Justice Breyer's book, and in it, he talks about his views on Heller. This is the 2008 case, which held that the Second Amendment provides an individual right to keep arms

in the home for self-defense. And part of Justice Breyer's point is that, no, it's about the militia and that whole prefatory clause means that the individual right is for the purpose of being part of and being ready for a militia. So it doesn't have to do with self-defense. If you want to keep a gun at home because you're drilling on the weekends for the militia, maybe that individual right is protected.

But self-defense has nothing to do with that individual right. That would be an unenumerated right overall, perhaps. And I started thinking thinking like, huh, I don't know that that's wrong. Like I think that's a reasonable read of the second amendment. And more nuanced than just like, unless you're a member of the militia and all of that.

Like, no, no, like the purpose would have to be militia, not self-defense. I get that. But then it's like, okay, well, if that's an unenumerated right, and it's now been precedent for, I mean, we're going on 20 years, would you vote to overturn that? Ha! Yeah.

You see where I'm going here. Right, right, right. So Roe finds this unenumerated right to an abortion, and then it gets overturned by Dobbs. And the left understandably is upset about that because yeah, maybe it was unenumerated, but like we had this right established for 50 years and it was sort of in there, you know, it was like floating around. And I sort of think the same thing I guess about Heller, like, okay, even if I go with you that it's this unenumerated right to self-defense floating around there, so does that mean we don't overturn Heller

because of stare decisis? Because it was a right that was found for all the reasons that it was bad to overturn Roe, why is it okay to overturn Heller? Yeah, I see what you're doing there. I see what you're doing there. And isn't this, and maybe some of either if Professor Amar listens or one of his students listen, isn't this, and maybe someone either, if Professor Amar listens or one of his students listen, isn't this similar to the Akhil Reed Amar argument about the Second Amendment? In essence, that it's the combination of the long...it's really the unenumerated right. It's much more the unenumerated right. How you give full force and meaning to both clauses of the Second Amendment is to say,

okay, the right to keep and bear arms for militia service shall not be infringed would be sort of the way you would give effect to that. But at the same time, there would have to be acknowledgement that from going from the founding, there was a fundamental idea that you had a right to self-defense in much the same way that you have a right to raise your children and you have the right to, the other sort of basic implicit- Unenumerated rights. Unenumerated rights.

It's a fascinating argument, by the way. It's a fascinating argument. And let me tell you what Justice Breyer's answer to this, not to my point, but to the overall unenumerated right thing when it comes to self-defense and gun rights. Because he acknowledges that it's probably an unenumerated right of sorts. And he says, well in that case though, then we have sort of a balance, if you will, between states' ability to regulate that right. We're both smiling because we knew the word balance was coming. Well yeah, the word balance is definitely coming. But also like that we

should basically privilege state restrictions on that unenumerated right, to which I'm like, okay, I'm with you, I'm with you, now do abortion, huh? Mm-hmm. So David, I think I'm being radicalized by my desire to be consistent. Yeah.

And probably that I don't care so much about the Second Amendment as others. Right. Well, you know, I do think an enormous amount depends on is Scalia right when he breaks down the difference between the prefatory clause and the operative clause that- Yep, and I've always thought that's tough.

I think he has a great argument, but I think Breyer has a great argument too. Yeah, it has not been something that I have thought, you know, when somebody confronts me and says, but then if we're going to give meaning to all of these words, it seems to me that you've now completely disconnected part of the amendment from another part when you say that the right to keep and bear arms is completely independent of this militia status.

And then it is interesting that Heller talks so much and Bruin as well talks so much about this right of self-defense. And they really do rooted in this right of self-defense. Which is unenumerated. Which is unenumerated. I mean, that at minimum is unenumerated. That is never written for the purpose of self-defense. So David, here's my deal. I would like commenters from both sides of this,

if you are the pro-abortion side or the pro-gun side, can't even get it straight, which would you rather? A world in which states can regulate abortion rights and gun rights, or a world in which both are constitutional rights that cannot be infringed on by the states? Because I'm now thinking they're a bundle and you take both. It is interesting. I think it is the most, let me put it this way, is the most persuasive argument I have heard against Heller is that formulation that you've

walked through. And I will say this about unenumerated rights. What is fascinating, so I had so much fun teaching this lifelong learners class about the American Foundings plural because it was so fun to get a whole group, a room full of people who were there, happy to learn, really interested in civics education, and then also had not had a lot of the context surrounding the Constitution, the Bill of Rights, that they hadn't learned that. And what was really interesting was walking through this concept of unenumerated rights, because what was fascinating was just sort of watching

a group of ordinary folks wrestling through this, and they came to two consensus positions. Consensus one, unenumerated rights do exist, they have to exist. And consensus two, we can't agree on what they are. And- Which is how we ended up with a bill of rights in the first place.

Right, exactly. Because the anti-federalists didn't wanna trust that we would all agree on what those unenumerated rights were. So Madison was like, no problem, I'll write some out for you. And that's where we are. And that's, but I'm gonna write some out for you,

but not all of them out for you. Yeah. Good luck. Yeah. And I don't wanna see that anyone who thinks that Roe needs to be overturned, but I'm gonna write some out for you, but not all of them out for you. Good luck. Yeah. And I don't wanna say that anyone who thinks that Ro needs to be overturned, but that Heller should not be overturned is somehow being inconsistent.

Not my point really, but it does go to my overall like big umbrella point that the two parties are a hodgepodge. They're not some overarching philosophical union of interests because those two things fall so squarely into different political parties when they're potentially both unenumerated rights. All right, David, we have a very important topic next. Many of our listeners have noted this really just earth shattering opinion coming out of Fort Wayne,

Indiana. So in the mall, there is a zoning policy prohibiting fast food. I say the mall in this area. Sorry, it's a shopping center. Mall, outdoor shopping center. I don't know. Strip mall. It's Indiana.

Let's assume it's a strip mall. In this strip mall, it bans fast food but allows exceptions for restaurants whose primary business is to sell, quote, made-to-order or Subway-style sandwiches. A taco place tried to open there called Famous Taco, and the city commission denied them the permit to open up in this shopping center? Well, Allen County Superior Court Judge Craig Bobay said that tacos and burritos are Mexican style sandwiches. Correct decision. Famous taco could open in the shopping center that prohibits fast food, but allows exceptions

for businesses that sell made to order sandwiches. David, did you just come down in favor of tacos and burritos being sandwiches? As Mexican sandwiches, against the cultural imperialism of Lord Earl sandwich, who cannot be permitted to define a sandwich as two separate pieces of bread with something in between for all people across all times.

Sometimes, Sarah, it is just one piece of flour created, something that contains stuff that can also be a sandwich. Well, that's very interesting, David, because this puts you on the opposite side of a 2006 Massachusetts ruling. In that, Panera was in a shopping center and as part of its lease, it banned other sandwich-esque restaurants

from opening in the shopping center. And here comes Qdoba trying to get to the shopping center. And in that case, Judge Jeffrey Locke wrote that tacos and burritos are not sandwiches, thus allowing Qdoba into the shopping center with Panera. Now, of course, the overarching theme here is that zoning laws are dumb, and judges are going to find whatever exception they can to sort of allow the free market to work. But zoning and lease restrictions, I should say.

But I mean, this is a real split, David. I know, it's an important matter, but I do want to already make an instant correction because I know there were listeners who just said, did he say Earl Sandwich? The Earl of Sandwich. The Earl of Sandwich named John Montague, who in 1762 invented the Western version of the sandwich.

No, my understanding is he didn't invent it. He had his guy invent it, because he was playing cards. It was invented at his direction. Remember the little people, David, the actual inventor of the sandwich, who was like, this guy is the worst boss ever. Okay, so I don't know that we're gonna solve that. And I think overall, the actual

point will be that judges are going to read pretty loosey goosey those restrictions on businesses. I, for one, you know, I think the hot dogs as sandwiches is actually a much closer call. I think that there are tacos in every ethnicity of cuisine, but I don't know that sandwiches are tacos. Like I think hot dogs are tacos. Just like Mooshu is tacos. Now you want to melt down Twitter. Just like gyros are tacos.

Like everything is taco, but not everything is sandwich because tortas are Mexican sandwiches and they're incredible. Don't do tacos predate 1762? So then wouldn't it be that the Earl of Sandwich created the British taco? First of all, I actually just watched a documentary

on tacos, and I'm not sure that tacos do predate that. It's hard to say, actually. Interesting. Independent discovery discovery certainly. Okay. What's the archaeological record? I think sandwiches and tacos are distinct. And so yeah, I think hot dogs are a taco and sandwiches are a torta and bowel buns I think are really hard because I think bowel buns are probably a taco and they're like a hot dog. But then, and maybe someone can hop in here,

what is the sort of Szechuan sandwich? Because Muxu is definitely a taco. Yeah, so is there a Cantonese or Szechuan sandwich out there that I'm not thinking of? Because maybe sandwiches aren't as universal as tacos. Yeah, fascinating. Versus like enchiladas, then you have cannelloni. Like, I think, again, like lots of things

span different ethnicities, but I think you've got to be pretty specific about it. Okay, next up, I got a question for a listener, David, that I just thought was worth us clarifying. Okay. So David, here's the question that we got related to steelmanning the charge against Donald Trump in New York.

This is the falsification of business records that we talked about a couple episodes ago. This listener says, I understand your steelmanning in response to David's concerns to be that all that is required is Trump mens rea. But how does the false entry further the crime? First, by the time the false entry was made, Trump was already president-elect. If his only goal is to get elected, and that's Cohen's testimony fully credited, he had already achieved that end and honest recording would have not done anything to reverse that result. Second, I'm still baffled by the notion that the entry is actually false unless legal services is somehow criminally

different than legal services and associated expenses. Okay, I actually think this is a worthwhile question to answer. It is a good one. So first, let's start with the bottom because remember, the first element of this crime is that the business entry had to be false. I actually think that they have probably proven that one at this point, because all the testimony is that Cohen was not acting as an attorney for Trump or the Trump Corporation. He was only acting to do this go between contract. So it wasn't legal services if he was not engaged. And that is within law circles very,

you have an engagement letter. It needs to be signed. Whether you are representing someone in a legal capacity is actually a pretty, I don't know, buy the book thing. Yeah, David? You know, I think you're right on the actual underlying falsity of the entries. I think you're right that the testimony has been universal that he was not acting as a lawyer.

This was not legal services in any fair reading of what legal services is. But here's what, so I wrote a piece about this over the weekend and I wrote it, how about, you know, when this originally happened, I said the best part of the case for the prosecution are the facts, the worst part of the case for the prosecution is the law. And you can prove and prove and prove and prove

that he paid hush money to cover up an affair and provide evidence of the affair and evidence of the hush money and evidence that it was mischaracterized and all you've got is the misdemeanor. And my problem, so then you move over to what's the felony, okay? So to get it to a felony, you have to prove that the falsified business records, which again, let's just presume for the sake of argument, that's proven, was falsified with the intent to defraud that included an intent to commit another crime

or to aid or conceal the commission thereof. So what you have to show is intent to commit another crime or aid or conceal the commission thereof. The only other crime that truly, in my view, makes sense in that category is the election crime, but the election crime was not charged by the feds. And it's a very open question as to whether the New York state statute, which could arguably apply as preempted New York state statute, which could arguably apply, is preempted

by the federal statute. A number of people wrote me and said, I gave short shrift to the other crimes that the prosecution has raised, some New York financial crimes, New York state crimes. I would say the difference between that and the election crime, and tell me if this makes sense Sarah, is I see evidence that there was an intent to conceal this whole thing for the purpose of influencing an election, which brings in the election, you know, the federal election law. I don't see evidence that there was an intent to cover up a state tax crime or an intent to cover up another state financial crime, what I see is

potentially evidence that the state, the falsification of business records had the effect of committing another crime that was not charged, but not that it had the intent of committing the other crime. Does that make sense? It does. I don't think they need to prove that Trump like looked up the statute and was like, aha, there's this tax thing I don't want to do, so I need to put these false business records in to cover up that crime. But they do have to show that his purpose in putting legal services was so that investigators would not be able to know what that entry was for because that entry would be evidence used against him in some sort of crime.

Right. So you have to show he had knowledge of some criminal stuff that he was doing. He could because that entry would be evidence used against him in some sort of crime. So you have to show he had knowledge of some criminal stuff that he was doing. He could have been right about it, he could have been wrong about it, but that he thought he was committing a crime, some crime. Right, the intent word is there. And I just don't see the intent evidence

on the tax or property side. I see intent evidence to conceal information for purposes of an election. And then that gets back to the 2018 back and forth that I had with Chairman Smith, former chairman of the FEC, on whether the underlying charge against Michael Cohen was legally valid, the one he pled guilty to. But regardless of where you come down on that dispute between Smith and me, the bottom line is A, Trump was not charged for that federal crime, and B, that federal crime itself

is actually really untested in these circumstances. All we have is the Edwards prosecution from years before that ended in a hung jury and that when you're talking about preliminary proceedings at a U.S. district court, they are presidential to some small degree, but they have not established, this has not been established that this federal crime, this federal law applies in this circumstance. And so it's also very possible for Cohen to commit the crime when Trump didn't in theory,

that Cohen paid her the hush money to help Donald Trump get elected. That's an election crime. But that Trump paid her the hush money and reimbursed Cohen because he didn't want Melania finding out, not an election crime. So it's even possible within the same thing, like it goes to what the purpose of paying her the hush money it

was for. Back to our listeners question. So on again, on the legal services, if you hire a law firm to, you know, represent you in trial, that law firm hires expert witnesses, the bills that you get may well say legal services, and then the itemized one will include the cost for the expert witnesses, for instance, but it'll all say legal services in your bills, perhaps, in your business records, and that's fine. The problem here is that was Cohen ever representing him

as an attorney in this matter? They've at least presented evidence that I believe one could credit beyond a reasonable doubt that no, he was not acting as an attorney. Right. Right. Okay. But to our guy's first question, how does the false entry further the crime? By the time it was made, Trump had already been president-elect.

If his only goal is to get elected, he had already achieved that end and honest recording would not have done anything to reverse the result. Okay. So the goal in paying the hush money is to get elected. That's what would make it an election crime. Right. The goal in falsifying the business records is to cover up a crime. So it doesn't matter whether the falsification of the business records

happened before or after the election. That has nothing to do. He didn't falsify the business records to get elected. That's why there's these layers to it that I think the jury could very easily be confused by. Yeah, I agree. So then he said, okay, but getting elected is not a crime. Covering up uncomfortable facts to get elected is not a crime.

Even paying money to cover up uncomfortable facts is not a crime. And it's impossible to think anybody thinks either of those is a crime. What crime did Trump think in his mind he might be violating and how do we know it was a felony? not a crime. And it's impossible to think anybody thinks either of those is a crime. What crime did Trump think in his mind he might be violating and how do we know it was a felony? So he doesn't, it doesn't have to be a felony. Just it becomes this falsification of business records becomes a felony if he did it for the purpose of covering up another

crime. Right. Though it doesn't have to be a felony that he's trying to cover up. It's just the cover up side of it. Okay. but here's the problem with what he just said, if anyone caught it. Paying money to cover up uncomfortable facts to get elected without using hard dollars, meaning dollars raised under federal fundraising limits, and not disclosing it on your FEC report is a crime. Yes.

Yes. Exactly, it has been committed at that point report is a crime. Yes. Yes. Exactly. It has been committed at that point, if you believe sort of the Cohen prosecution theory or the Edwards prosecution theory. The crime is complete at that point. That's right. So jurors in this case have to believe,

beyond a reasonable doubt, that the business records were false, that Michael Cohen was not acting as an attorney, one. Two, that Donald Trump knew about it and either directed it or really, really approved it. There's sort of this accessory theory that I think is pretty flimsy, but like really, really approved it. And that he knew, like he wanted it to be false.

So that's element number two. And number three, that the reason he put in the false business records and that he wanted them there and that he knew that they'd be false was because he didn't want someone finding out he'd committed a crime. And the crime that they seemed to be trying to prove that he didn't want to get caught doing was breaking federal campaign finance laws by not reporting on his FEC report that he had made a campaign expenditure. So for the purpose of getting elected, a campaign expenditure to pay Stormy Daniels to keep quiet. Not to help his

family, not because it was like a nuisance thing or whatever, but that he didn't use campaign funds, he didn't report it on his FEC report, and it was like a nuisance thing or whatever, but that he didn't use campaign funds, he didn't report it on his FEC report and it was a campaign expenditure, he knew that, and he knew that if he put it into his business records, it could be evidence of a crime. So then he covered that up by putting in false business records of saying legal services

when in fact Michael Cohen was not his lawyer. Okay, so that's trying to go like down the elements and then back up the elements. Yeah. So much hinges. And I think David, that I gotta say, I thought that he would get convicted as we talked about many times.

I thought the problems with this was law. As the defense is now going to rest relatively soon, I now think they have a problem with facts as well. And I now think it is slightly more likely than not that Trump is not gonna get convicted. I don't know if you'll get acquitted or just a hung jury. But talking to reporters who have been in the room, these are not jurors who are zoning out.

They are paying very close attention to what witnesses are saying. They seem to really be trying to apply the facts to the elements. And if that's true, it's bad for the prosecution. Interesting. Interesting. I think a lot of people have assumed a conviction as a foregone conclusion, and I think that's completely inaccurate. Certainly not a foregone conclusion. There's very, very little evidence that Trump knew about the business records.

Cohen talks about it sort of briefly in his testimony, but even then, he doesn't really seem to have it dead to rights. And then you've got to really credit Michael Cohen, whose credibility sucks. So yeah. And all it takes is one. Yeah. I mean, there's a lot of evidence that, of course, Trump knew the payments were happening. Yeah, yeah.

But that's not what they need to prove. That's not what they need to prove. They need to prove that he knew that they were putting in legal services into the business records and that that was false. And that the reason he wanted it to be listed as legal services was because he didn't want it used as evidence of a crime against him later on. Ah! Yeah. Yeah. was because he didn't want it used as evidence of a crime against him later on. Ahhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhh uhhhhh yeah yeah it's you know the prosecution and has made an interesting choice to really although they have filed pleadings indicating that there's multiple criminal statutes implicated beyond the election interference it's very plain from the thrust of this prosecution. They really are doubling down on the election. I mean, that this is the focus. Sure. But even if it's like all the other things,

you've still got to prove that he brought legal services and you've got to prove that he did it because he didn't, we thought investigators might go through his books at some point and use that as evidence against him. And I got to say, if you're trying to cover up a crime, I just don't know that I'd write legal services either. I feel like that is gonna basically be like, oh, what kind of legal services, which is how we sort of all got here in the first place. Yeah, I think a conviction is more likely than not, but far from certain, like far from certain.

Yeah, I guess I'm torn, like whether it's 55%, 45%, like, but I'm in that ballpark. Again, all it takes is one person who's just like, I don't believe Michael Cohen for a second. He had a financial incentive to say what he's saying on the stand. Yeah. No, I think that, I think they did a good job of showing that Cohen is a liar, but any competent defense attorney can do that with these kinds of witnesses. The problem with the prosecution is, or what the prosecution's challenge is to say, okay, yeah, we've never put him forward as anything other than what he is, but his evidence corroborates all of this other evidence.

So you don't have to just have it stand or fall on him. And the defense will try to say, look, everything, let's get real, everything stands or falls on Michael Cohen. And I just showed you in detail, he is a liar with an axe to grind. Don't listen to the prosecution when they say they've got everything else. They don't have everything else. They ended with this guy because he's their star witness and look what I just did to him on cross-examination This is a kind of the way this goes and a lot of it

I think will depend on how much the jury thinks that Cohen was buttressed by other evidence Versus everything stands or falls on him. All right, David, last thing on bullying? Yeah, so I, you know, just going back, I was sitting there turning over the conversation in our mind about the confrontation with Justice Alito and the neighbor, and I thought it was really interesting that you asked me how would I respond to that.

And I have a lot of experience dealing with bullies, especially in the last several years. And I think one of the things is, it's very important to actually have, if you're in any position where you feel like you might be bullied or you have people who are going to try to intimidate you or provoke you, you know, what is sort of the way

in which you respond to bullies? And I think that what's very important is to, the best way to respond to them is deprive them of what they're trying to achieve. And what you have to understand is what they're trying to achieve often is not just you capitulating. In other words, I'm backing down in front of them. What they're often trying to achieve is the escalation. So that if they can't get the capitulation, then you can be harmed in another way by provoking you into

a reaction that would be completely out of character, that could be harmful to you, that could be mischaracterized by others. And so a huge amount of, I think a key of dealing with bullies is you don't let them set your agenda. And that's the core of what they're often trying to do, either in a way of making you back down or making you back down or making you escalate to such an extent that the escalation becomes harmful to you.

And at the end of the encounter, you're more harmed than the person who's attacking you. And I think an awful lot of people, the capitulation in front of bullying, we see a lot. But the other thing that we also see, and especially online, is how much people allow themselves to be provoked in a way that when somebody parachutes in, it sort of reminds me of in football,

the person who throws the second punch is always the one who gets the unsportsmanlike flag. It's very similar, that dynamic is often very similar in these kinds of aggressive confrontations, is the person who escalates in response, who often ends the entire encounter in a profoundly worse position. So just a thought.

All right, so we said that we're gonna try to move this podcast to come out on Friday so that we can talk about Supreme Court opinions that come out on Thursdays with you guys. And this week, that will be no exception. So expect your next episode on Friday morning. We'll see what they come down with. We don't know.

Could be anything. Could be nothing. And David, we've got plans if that's the case too. I've got some things in my pocket to pull out on lame Supreme Court days. It'll be a good pod either way.