Advisory Opinions - Where’s the Beef?

Episode Date: October 20, 2022

In today’s packed episode, David and Sarah check in on the Durham investigation after recent failures to reach convictions. They then turn to updates on the special master and the Mar-a-Lago case, and on the growing list of challenges (of varying quality) to Biden’s loan forgiveness plan. Not enough? They conclude with an overview of the Texas Pete Hot Sauce lawsuit. -Texas Pete lawsuit Learn more about your ad choices. Visit megaphone.fm/adchoices

Introducing the first ever Mazda CX-70, our largest two-row SUV. Available as a mild hybrid in line 6 turbo or as a plug-in hybrid. Crafted to move every part of you. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got a few things to cover here. There was an acquittal in the Durham probe yesterday. This is the probe into the origins of the Trump-era Russia investigation. There was a hearing in the Special Master case involving, again, Donald Trump and the collection of classified and other documents from Mar-a-Lago that included a famous question from the 1980s. We've got a student loan update. And if we have

time, we will talk about something I don't know anything about at all, but Sarah does. And it's called the Texas Pete lawsuit. David, frankly, it's a travesty that we haven't covered it yet. I've gotten several complaints as a Texan. Oh, is that right? Yes. So hold on to your horses. Hold on. Okay. So should we start with it? Absolutely not, David. You got to leave the people wanting more. Okay. All right. Well, let's start with this. Okay. Yesterday afternoon, got a news alert that Igor Danchenko, who is an analyst who provided a lot of the, I'm going to use air quotes right now, research for the Steele dossier about Donald Trump's alleged ties with Russia was acquitted on Tuesday of four counts of lying to the FBI.

One of the counts, he was charged with five counts. A jury acquitted him of four, judged throughout the fifth. And here's how a piece by Charlie Savage and Linda Q in the New York Times described it. They said the verdict was a final blow to the politically charged criminal investigation by John Durham, the special counsel appointed

by Attorney General William Barr three years ago to scour the FBI's inquiry into the Trump campaign's ties for any wrongdoing. Mr. Trump and his supporters had long insisted the Durham inquiry would prove a deep state conspiracy against him. But despite pursuing various such claims, that's an interesting phrase, various such claims, Mr. Durham never charged any high-level government officials. He did secure a plea bargain involving an FBI lawyer, Michael Sussman, who had, in addition to the acquittal of Denchinko,

there was an acquittal of an attorney named Michael Sussman, who was charged with making false statements to the FBI. There was a conviction through plea bargain of Kevin Clinesmith, an FBI attorney who admitted to doctoring an email that was used as part of the process of obtaining a FISA warrant for Carter Page. So at the end, we don't have the Durham report yet, but at what seems to be the end of the Durham prosecutions, it's not a great record for Mr. Durham, and it hasn't added a lot to our understanding of the Russia investigation itself. added a lot to our understanding of the Russia investigation itself. So, Sarah, let's just first get your reaction to these acquittals and then sort of your reaction to the larger Durham project itself. So first, it's worth actually diving in just for a second

on the count that was dismissed by the judge. Because I'm sort of curious what you think, David. I think both of us believe that in our criminal justice system, the tie should go to the runner, meaning the defendant. Right. However, so here was the, what was that issue? Denchenko told an FBI agent that he, quote, never talked with a Democratic operative in question named Charles Dolan. As it turns out, he did talk to Dolan over email. And it was thrown out because the literal meaning of talk is verbal using your voice box and not email. And so they said he didn't lie to the FBI

because he didn't literally talk to Dolan. And while, again, I think the tie should go to the runner, I'm not sure that one was a tie. Yeah, that's interesting because I have taken a few depositions in my time, Sarah, back in the day. And I would never just ask, did you talk and presume that I had just asked about all forms of communication? And so that would be, I would, my question would be, did you communicate in any way? Talking, email, letter, carrier pigeon, Snapchat.

So you have a good point there. Maybe that is a tie in the sense that like you asked a bad question and you, meaning the side of the prosecution, should be held responsible for your bad question. Yeah. Okay. Uh, okay. Yeah.

Like it would never, ever occur to me in a deposition to just say, did you talk and assume? I know, but David, in this case, like remember, this is the count that gets thrown out.

Yes. He gets acquitted on the other four counts. So the account that gets thrown out. Yes. He gets acquitted on the other four counts. So the account that gets thrown out was about whether he talked, fill in your word there, with Charles Dolan about the information in the dossier. And there's not really any dispute over that. He was emailing with Charles Dolan

about the information in the dossier as in he did lie to the FBI in a way that like if your kids said that to you you would say that they lied to you um they were throwing my kid in prison that's absolutely true but like being intentionally misleading uh is usually considered lying but I guess you're starting to convince me that if, you know, ask bad questions, play stupid games, win stupid prizes. Right, exactly. I mean, like there's a, there's sort of a requirement of thoroughness on the part of the questioner and less of a requirement of, especially if you're talking about someone's liberty, whether someone's going to go in jail, go to jail. I agree.

But the judge said that accepting the prosecution's argument that obviously talking means communicating would, quote, divorce words from their common meaning. I don't know that I agree with that. I think the word talking absolutely has a common meaning to mean communicating. Because literally like David, how would you define talking in the literal sense? Like, do you have to have a voice box to talk? What if you are mute?

Can you still talk to someone? I guess, no. I had a talk with him. If you ask me, did you talk to Jonah about his bad rings of power takes? I would say, no, I texted. No, you would say, yeah, I texted him. You would say, yeah, I texted him. You wouldn't say, no, I texted him. Really? I would say, no, I just texted him. In fact, I would say just texted. It depends on the context, because if it's clear from what I'm asking that I'm literally asking, did you pick up the phone?

Then you'd say, no, I texted him. But if I say like, oh, hey, did you ever talk to Jonah about the Lord of the Rings bad take? You'd say, yeah, I texted him. Interesting. I would probably not. I would think that if you're saying, did you talk to Jonah about the Lord of the Rings bad take? Oh no, we have a generational divide on the literal meaning of talk. It is, it's a generational divide because I would view texting as a much less comprehensive form of communication.

We just text it. I so badly want to go back to our text conversation that we had yesterday where I was asking if you talked to someone about a thing and you texted the person, I think. I don't know, but I'm not going to be able to find it fast enough. All right. So David, you asked about my broader take about Durham. So he's one for three. We haven't seen the Durham report, like you said. So he's one for three. We haven't seen the Durham report, like you said.

Here's the problem. The Clinesmith case, the one he gets the plea bargain in, that didn't need to be put off into Durham. DOJ had that case before Durham existed. And I think that's relevant because I don't, like Durham doesn't get a lot of credit. He didn't uncover the email. He didn't find Clinesmith. That was all known, um, ahead of this and had Clinesmith dead to rates. To be clear, this is a lawyer who, I mean, there was just like an extensive paper trail

where he put in the FISA application, a thing that wasn't a thing. And it was this very ends justify the means moment of like, well, yeah, but like, I knew this guy was bad and we wanted the FISA. And so it was okay to fabricate evidence. I mean, pretty run of the mill, you should get disbarred stuff, frankly. Prosecutors, I can't think of any case that i'm aware of where a prosecutor fabricated evidence withheld brady evidence against someone they believed was innocent as in you always think that the ends justify the means this person is guilty so i'm fabricating the evidence and i'm gonna you don't frame innocent people despite what the movies have. They think they're framing guilty people. And unfortunately, sometimes they are wrong.

And actually, like, even when they're right, that's not okay. Because that's not actually what the system is built for. But I'm getting off topic. So, David, I think I've told you about this debate. This, like, a man for all seasons style debate that went on for basically the whole 18 months. a man for all seasons style debate that went on for basically the whole 18 months. Well, I guess I was there almost two years that I had with the deputy attorney general slash acting attorney general, Rod Rosenstein, who I will say it hasn't even been that long, but all of these running debates he's turned out to be right about. So let me tell you about this

one. I felt very on my high horse about the philosophical position of the Department of Justice that we should fight the fights worth fighting and not just fight the fights we can win. And Rod was like, nope. At the Department of Justice, we only fight the fights that we believe we can win at trial. And I was like, yeah, but if this person did something wrong, it shouldn't really matter whether for all sorts of other reasons, we're not sure that we can succeed at trial. If you believe that person is guilty and that you have evidence of their guilt, we should bring that case. And around and around we went on various specific issues that would come up at various times. I think the Durham probe proves why Rod's take is right.

First of all, it proves that Durham ignored that. That actually, Rod is correct as to the position of the Department of Justice. So A, Durham ignored that, I think, to his detriment. But B, I think this kind of proves why it's a good policy for the Department of Justice to take. And again, it doesn't mean you never lose cases. It doesn't. But it means you don't lose many. And A, I think it makes the Department of Justice very effective when you know that they only bring the cases that they are convinced they can win. It just provides, I think, a level of intimidation, potentially, that might be good or bad for some criminal defendants.

But two, here you have like, well, we want to bring the case because these are bad people and they should be put on trial whether we can convict them or not. And I think you see some of the fallout from that, particularly on the Sussman side, where he didn't actually have it. He wasn't going to win that case. He brought it anyway. Basically, it could look like the department brought the case for the purpose of destroying this guy's reputation, knowing that you wouldn't get a conviction. And yeah, that's not the role of the Department of Justice and it's a dangerous position to take.

On the flip side of that, David, I think there's an argument to be made that what Durham did here was big picture, very helpful. He brought cases and lost them. He clearly was aggressive in trying to prove the sort of Trump MAGA side that the Russia probe was criminally bad and he failed to do it. And so like, it's sort of like the voter fraud stuff. You brought your best evidence,

you brought your cases in front of Trump appointed judges, every single judge threw you out. And here you brought your fastball. You actually brought the cases, not even just the ones that you were sure you could get a conviction on. And you failed to have the evidence to convince 12 people. So, you know, shut up about the Russia probe. Well, you know, what I, there's sort of two Russia hoaxes

that have sort of long, if we're going to use the term hoax, but there's sort of two Russia hoaxes that have long circulated in the body politic. Russia hoax, but there's sort of two Russia hoaxes that have long circulated in the body politic. Russia hoax number one, the most famous of the Russia hoaxes is personified by the Steele dossier, that the Russian government had compromised, compromising information on Donald Trump, that Donald Trump was essentially and functionally acting as a Russian agent. And there was active, direct cooperation between the Trump campaign and the Russian government and Russian intelligence services.

That's what, if you read the Steele dossier back in the day, that was the case that was laid out. That was sort of the big Russia allegation. Now, it turns out that there was a lot of bad stuff, and there were a lot of bad connections between the Trump campaign and the Russian government. There was Paul Manafort having communications with what the Senate Intelligence Committee called a Russian agent. There was Trump Jr. and Manafort and Jared Kushner meeting with a Russian lawyer with the understanding, turns out inaccurate understanding, they were going to get information from the Russian government to help Donald Trump against Hillary Clinton. There was the attempted clown car back channel with Roger Stone to WikiLeaks. I mean, there were all of these things going on. There was the Trump Tower Moscow that

was concealed from the public, talks about Trump Tower Moscow concealed from the public. So there's a lot of bad stuff going on, but did they prove that Donald Trump was in an active collusion with the Russian government? No. Then there was what I would call the right-wing Russia hoax. And the right-wing Russia hoax was this entire thing. And I've heard it explained to me many times by hardcore MAGA folks that this entire thing was a concocted, fabricated, quote unquote, insurance policy against Donald Trump becoming president that was in one large entrapment operation launched by the CIA to try to get unwitting Trump officials to engage in conduct that would justify some sort of major government investigation that could be used to undermine and ultimately destroy the Trump administration.

And that, there's just no evidence of that. administration. And that, there's just no evidence of that. Instead, I'm not sure that we're any place that much different where we were after the December 2019 Michael Horowitz Inspector General report, which pretty much leaves us with the idea that, number one, the Crossfire Hurricane investigation itself, the investigation into the Trump campaign was proper, properly predicated, no scandal in the opening of that investigation. The Carter-Page-Fiza element of the investigation had a lot of problems. It relied on the Steele dossier. It continued to rely on the Steele dossier. This is where the Clinesmith email fabrication came in. And that piece of the investigation, the Carter Page FISA piece of the investigation, was pretty lousy. But the overall FBI investigation

itself was properly predicated, properly opened. It was a proper investigation based on a tremendous amount of suspicious activity and actual wrongdoing by the Russians, for example, hacking into the DNC servers. And I don't know if we're really any place different from where we were right now at the end of the Durham investigation than we were in December 2019. Oh, don't take me back to December 2019. Sorry, sorry. I do think it's worth, the insurance policy idea comes from the text messages

between two FBI agents. I'll just read that text message. I want to believe the path you threw out for consideration in Andy's office, this is referring to Andy McCabe's office, that there's no way he gets elected, Trump. But I'm afraid we can't take that risk. It's like an insurance policy and the unlikely event you die before 40.

It's a bad text message. It's a bad text message, David. It's like there's several parts here that violate all sorts of policy i want to believe the path you threw out meaning that donald trump can't get elected but i'm afraid we can't take that risk it's like an insurance policy the explanation by the way that um one of the two people in that chain gave was that it's a metaphor. Yeah, obviously.

It's like an insurance policy of the unlikely event you die before 40. I think technically that's a simile, not a metaphor. But if you're an FBI and you're questioning and you say, is that a metaphor? And you say no, because you think it's a simile. Then you didn't lie to the FBI. That's all to say, like, I don't think the people, they have some stuff to back them up.

The problem is that individual bad actors do not a conspiracy make, do not a poorly predicated, illegally predicated investigation make, and Durham had now

two and a half, three years, three years to prove otherwise. And he hasn't done it, but like, David, let's see what the Durham report says. We'll come back to it. Okay. Should we go on to a 1980s era question? Where's the beef?

That is fantastic. I love this. Okay. So this is, if the where's the beef comes from the special master appointed by Judge Cannon in the Trump Mar-a-Lago documents case. And there was a hearing yesterday and I'll just read the beginning of the Charlie Savage, Alan Fuhrer report. Charlie Savage has been busy these last couple of days, lots to report on. So he's always busy. He's a busy, busy guy. The special master reviewing materials seized by the FBI from former president Donald J. Trump's compound in Florida expressed skepticism on Tuesday about early claims by Mr. Trump's lawyers

that certain documents were privileged and thus could be withheld from a Justice Department investigation. In a phone conference, the special master judge, Raymond J. Deary of the Federal District Court, complained that the log of initial batch of documents over which Mr. Trump is seeking to claim privilege lacked sufficient information to determine whether the arguments were valid. Goes on to say that he asked Trump's lawyers to give him a better sense of why they believe the documents could be lawfully shielded. And here's the quote. It's a little perplexing as I go through the log, Judge Jerry said. What's the expression? Where's the beef? I need some beef. So good. And his point was, on the one hand, you're claiming these documents should be shielded by executive privilege, which means they're government

documents if they can be shielded by executive privilege. So like, what do you talk? How? What? So like, what do you talk, how, what? Exactly. The whole thing strikes me as this entire special master process has been the dog that caught the car. It has been, we need a special master to look at this just kind of in the sense of like throwing a legal argument against the wall. It's like the Durham investigation. On the one hand, this is not a

productive exercise. On the other hand, I do hope it shows people who are willing to have some open mind that, okay, we looked. There's no there there. There's no beef, David. There is no beef. There is no beef. We're waiting for beef. It's a lot of appetizer, no entree. And there is, the Department of Justice has asked the 11th Circuit to basically strip Judge Cannon of jurisdiction of this entire matter, that this has been improperly granted, was an improperly granted motion for special counsel. She had no business and no jurisdiction granting the motion. But I think actually, honestly, the special master process has served an important function for anyone who has an open mind.

Because now that's a, how big a sliver of the population is that, Sarah? I don't know. But the bottom line is that the Trump campaign, or the Trump campaign, the Trump team could be a campaign soon, but the Trump team asked for something extra special for him. Very extra special.

And he was granted that very extra special thing. And then in the middle of this extra special process, it has been laid bare sort of the speciousness of the underlying arguments. And I think that's quite useful. Now, of course, the MAGA world is not following this. Of course, the MAGA world is not paying attention. But there are cohorts of Americans who don't know what to think about this.

And being able to now say, look, he was granted a special process. A special master looked closely at his claims, and the conclusion was, where's the beef? Which actually matches with the generation of many Trump supporters. Two things, David. One, the first campaign I was on was John Cornyn's 2002 Senate campaign. And I'm not saying this won the campaign for us, but it's one of my favorite go-to Texas phrases. That boy's all hat and no cattle. Yep. Two, there has also been on the left, a conspiracy theory that I think is worth a brief discussion, which is that somehow there was nefarious doings that got Judge Cannon on this case in the first place.

Ah, yes, that's useful to talk about. the Daily Beast wrote up this long explanation of their own belief in this conspiracy theory involving district locations and that the Trump team filed it in person rather than electronically and that somehow they don't know why that would make a difference but it's their reason for believing that somehow by filing it in person, they were able to game the system, even though they don't know why that would make any difference in gaming the system. And then at the very end of this very long piece,

they acknowledge that everyone agrees that this was done randomly, that there was a one in nine chance that it went, regardless of filing it in person, it still went into the random assignment system. And then they walk through like the random assignment system gave her two in a row. Of course, the day before it gave a different judge three in a row. Right. Like random is going to mean sometimes there's consecutive. Yeah. That's right. So three parts to this. One, that they filed it in basically a district that was further away from a branch that was

further away from the district that was closest to Mar-a-Lago. Problem. They also acknowledge in the story that the lawyer who filed it in person lives next to that courthouse, not next to the one that's next to Mar-a-Lago. She just doesn't live at Mar-a-Lago. So yep, the lawyer filed it at the convenient one for her. Two, the in-person thing that the Trump team said they were having problems with the electronic filing system. And so they had to file it in person. And they have all the smoking evidence that the electronic filing system. And so they had to file it in person. And they have all the smoking evidence

that the electronic filing system was not down and that 407, a lawsuit was filed, 409. And then theirs was filed at like 420 or something. And then at 433, and this proves- Wait, there was a pause at 420? I think that's when they filed theirs or something. I don't know. Okay. Okay. I was just wondering if people were taking a break at 420. Everyone, it's Miami. And they're like, so this is proof that the system wasn't down. Yes, having trouble with the electronic filing system could mean that the electronic filing system is down

or that they can't get their pacer to work. Right. Which one do you think is more likely? The internet could be down at your house. You can't figure out your login. I don't know. I'm not thinking this is the most highly sophisticated white shoe law firm filing

where the paralegal does this all day long. It sounds like this was basically a solo lawyer trying to figure it out. Couldn't do it. So she just printed it and walked it over to the courthouse. Three, the random assignment thing. Like, yep, we all agree it was randomly assigned. Boy, one in nine aren't great odds, but sometimes you win a one in nine game and they won it.

I don't know, man. Like, I think it's crazy, but also this whole thing. Honestly, since 2015, there's been a lot of improbable things happening. Yes. Oh, gosh. I think I've told you my user error filing story. But if not, it's been long enough to where I get to tell it again. Okay. So when I first started practicing, this was before ECF electronic filing and all of this, we had a temp attorney come in, or I'm sorry, a temp assistant come in to our litigation department of our firm who claimed extensive litigation

experience. And so attorneys, litigators would hand her for several days, a couple of weeks, documents and saying, this needs to be filed. Complaints, responses to motions for summary judgment, and she said, no problem, I'll file it. Everything seems fine until a motion for default judgment comes in, indicating that a response to a complaint, an answer to a complaint had never been filed. At which point the question is presented to the assistant. I thought I asked for this to be filed. And the answer was, I definitely filed it in the filing cabinet. And so there they were.

No! And so there they were. 10 days, two weeks worth of court filings in the file cabinet, which I was just but a one-year, a first-year lawyer. And that taught me to always see a file stamped copy, to never trust that anything is filed. My heart breaks for that person. Oh no, horrible. It turns out she'd never worked in a law firm before, needed the job and said, oh yeah, totally. I have totally have litigation experience. But who hasn't puffed up their resume for a job, David? I mean, who hasn't? Who hasn't? So yeah, that's my filing score. I would rather that person puff up for a law firm than for a doctor's office.

That is true. That if you're going to puff up, that's, there's low, it's high stakes in a law firm, but not as high as like an ER. But so David, I think like you can combine the Durham report and the special counsel and this judge cannon conspiracy theory altogether, because it's wishful thinking it's wish casting where if something, if you are presented with a statement of something that you want to be true, you should be that much more skeptical and that much more hard on the evidence that supports that assertion. You know, the investigation into Donald Trump was illegal and unlawfully predicated.

I think for folks on the left, it was very easy for them to dismiss that and say, like, there's no evidence of that. And on the right, it was much harder. Same thing. Judge Cannon should never have been on this case. And there's proof that Donald Trump, you know, screwed with the system to get his preferred judge. On the right, it was very easy for people to say, like, or it was randomly assigned. And on the left, people want that to be true. And so they're in it and they're like, oh, we don't need that much evidence to prove that. I mean, the fact that she's the judge proves that. The more you want something to be true, the more skeptical you should be, the more you should delve into and require additional evidence because you want it

to be true. All conspiracy theories aren't false, but most of them are. Yeah. I have a Twitter follower who sent a note once when I was sort of making this point more broadly, and she said, I have a rule that I now automatically disbelieve everything that I like to hear. Same, man. and what is it i'm fascinated it's so embarrassing the moon landing what no oh my gosh i go back and read the explanations for like the flag waving and the shadows being wrong and the camera angle and all of that. And every time I'm satisfied. Yeah. And then five years later, I'll be like, what was the explanation? Now is the moon landing conspiracy theory that every moon landing?

I guess. I don't know. Because the only stuff that I've seen is regarding the initial moon landing. Totally. We've been a bunch of times. Yeah, I know. There's never been a woman on the moon, David. Never has. You know, Elon Musk, if he just can stop being distracted by Twitter and trying to, you know, spout Russian talking points for ending the war, I bet he could land a woman on the moon. Hopefully it won't take until Lila's time, but if we haven't gotten there, I volunteer Lila. She'd happily go. And we'll take a quick break to hear from our sponsor today, Aura.

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That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Speaking of Lila's future, should we talk student loans? Yes, let's talk student loans. There's been a lot of developments. So I've put together a little cheat sheet for us, David. Oh, good. We'll walk through all of these lawsuits filed against the Biden administration against the Biden administration about the student loan forgiveness program. So in no particular order, we have the first one that we talked about, and then we haven't come back to this topic at all. So this is the Pacific Legal Foundation's lawsuit that they brought on behalf of or with a lawyer in Indiana who said that he was in that automatic program.

Yep. And therefore his loans were going to get forgiven automatically. And he was going to be subject to this tax in Indiana. That was his standing. That was his injury. Then like two days later, the Biden administration updates the website and is like, there's an opt out.

Ha ha. No standing. You could just opt out. A lot of the headlines, by the way, David said that that lawsuit was dismissed. That is not true. Right. Including some emails we got from listeners. So I just want to clarify, they had asked for a preliminary injunction against the program. The judge denied that against the program. The judge denied that injunctive motion and gave them leave to refile or to amend their filing rather to address this new opt-out issue. They have done that and now we're sort of back where we started on that one. Number two, the states. So Arkansas, Iowa, Kansas, Missouri, Nebraska, and South Carolina filed a lawsuit. Their standing argument is that, feel, David, these are the FFEL, hold on, yeah, here it is,

Federal Family Education Loan Program. So Missouri, in this case, for instance, says that Missouri's student loan servicer, which is part of the state government, could see a drop in revenue because borrowers are likely to consolidate their loans under the Federal Family Education Loan Program, which basically puts them into the federal government program. And this would cause all sorts of problems for their budget. But the same day that they filed that lawsuit, boop, boop, boop, boop, boop, boop, boop,

the Biden administration changes the program. They exclude all the FFELs from the Loan Forgiveness Program and say that you can't consolidate anymore. This is actually interesting and might give rise to a different lawsuit because they had verbally said on more than one occasion that there was no rush to consolidate your loans, that you would be able to do that, no problem. And so for anyone who consolidated their loans before that lawsuit was filed, no problem, you're still eligible. But if you took their advice and didn't consolidate your

loans, which would have resulted in a higher interest rate for some people, so there was a reason to not consolidate your loan until the program had actually, you know, the application was out, for instance, especially when they're telling you, no rush, don't worry about it. application was out, for instance, especially when they're telling you, no rush, don't worry about it. They now can't consolidate their loans, aren't eligible for the loan forgiveness program at all. This affects about 770,000 people. Of course, the reason they did this is to nix the standing in that state lawsuit. Same problem as with the lawsuit that I just talked about with the Indiana opt-out thing. Right.

Can the Biden administration tweak something that they could untweak after this lawsuit is dismissed, for instance, and does their voluntary cessation moot the case? Let's circle back to that. Number three lawsuit, Job Creators Network. They have one person who does not qualify for the debt forgiveness because the plan now excludes these commercially held loans that are not default, and one who did not receive a Pell

grant and is therefore entitled to less debt relief under the plan. Interestingly, because that's their standing, they're arguing arbitrariness, right? That this falls under an arbitrary and capricious standard. Number four lawsuit. This is the Wisconsin, it's called WILL, David. That's the acronym. Yes. Wisconsin Institute for Law and Liberty. I've actually spoken at one of their, at two of their events. Two of their events. Yes. Very, very sharp folks. Okay.

Well, bad news, David. This is the worst lawsuit. Oh no. Okay. Unfortunately, they won worst lawsuit to challenge the Biden administration. So they're claiming that there is a clear racial motivation in the student loan forgiveness program because the administration stated at one point that the purpose, one purpose that there is a clear racial motivation in the student loan forgiveness program because the administration stated at one point

that the purpose, one purpose of the loan forgiveness program was to decrease the racial wealth gap, for instance. Okay, I'm not sure there's a lot of there there, but that's a thing. But their standing is that they represent a taxpayer group, like a club basically in Wisconsin. And I went and read the lawsuit and it's as if you asked a law student on their final exam

to write a lawsuit aimed at describing generalized taxpayer standing that is not recognized by the courts very clearly, like textbook taxpayer standing. Bummer, guys. They don't even try. Honestly, they are taxpayers. They will have to pay more in tax dollars because of this loan forgiveness program. And they belong to this club that really cares about tax dollars and the government's debt i can't imagine something that better describes what is not standing right right okay last one david cato filed a lawsuit actually cato is the plaintiff in the lawsuit. The organization that filed the lawsuit

is the New Civil Liberties Alliance. Cato's lawsuit is interesting to me. It just got filed like yesterday. Oh, I forgot to tell you. Sorry on that Wisconsin lawsuit. It's been dismissed. They're appealing it to the Seventh Circuit. So that's where that one is.

Gotcha. Cato won. So they are claiming that as a nonprofit, they benefit from the congressionally authorized public service loan forgiveness program to attract talent and pay them lower wages. Because if they work for 10 years in a nonprofit, they have their loans forgiven.

And that this program basically guts the public service loan forgiveness program. And those students aren't going to want to work at a nonprofit or they're going to demand higher wages. And either way, that's an injury for a nonprofit like Cato. Okay, David, let's back up for a second and talk about standing so uh we've talked about the the main factors this is luhan versus defenders of wildlife from 1992 as the case that you cite for the three standing factors one the plaintiff must have suffered an injury in fact, meaning that the injury is of a legally protected interest, which is A, concrete and particularized, and B, actual or eminent. Two, there must be a causal connection between the injury and the conduct brought before the court. And three, it must be likely rather than speculative that a favorable decision by the court will

address the injury. What I really like about all of these lawsuits, David, is that if I were a law professor, I could teach standing on those three factors using only these lawsuits because each one fails a different part of this, potentially. I'm not saying one of them might not sneak through. It might, but they all have problems. And I want to read a couple things. Do you remember the Texas v. California case? This was the challenge to the Affordable Care Act that Texas brought the Supreme Court in a 7-2. I know there were two dissenters. I'm just not sure if it was 6-2 or 7-2.

I think it was 7-2. 7-2 held that Texas did not have standing. And I want to read a little bit of why. We have said, this is Breyer writing in the majority. We have said that where a causal relationship between injury and challenged action depends upon the decisions of an independent third party, here an individual's decision to enroll in, say, Medicaid. Standing is not precluded,

but it is ordinarily substantially more difficult to establish. To satisfy that burden, the plaintiff must show at least that third parties will likely react in predictable ways. The district court did not clearly err in finding that plaintiffs had standing where plaintiffs rely not only on the predictable effect of government action on the decisions of third parties, but also a comprehensive study rather than mere speculation. Let me break some of this down for you, David. That Cato lawsuit very much depends on the actions of third parties, i.e. potential employees. Right, right. And so on the one hand, it says that doesn't preclude standing just because this all depends

on the actions of third parties, but it's a much higher burden and they're going to have to bring actual evidence that this will prevent people from coming to work for them. The problem with that, David, is of course, the student loan program is retroactive. Meaning as college students graduate now, they're still going to want to go work at a nonprofit because the forgiveness program, the 10-year nonprofit one will still be in effect. So they're going to need to show that of the current employees that they have are leaving or that these employees that they thought they would get were going to come but now aren't. Otherwise, it could very well be tossed out on that mere speculation problem. We already talked about the taxpayer standing. Womp womp. That's a no. The guy who does not qualify for debt forgiveness because the plan excludes commercially held loans

that are not in default. Yeah, that is not particularized in my view because Congress makes all sorts of laws that have cutoffs, income cutoffs for various tax brackets. That's going to be tough because Congress has to be able to pass laws that include some people and exclude others. It's not very particular to you, for instance. That's obviously

a problem. And the state lawsuit, this is what gets sort of interesting about the state lawsuit because let's go back to that Texas, California case that I mentioned. go back to that Texas, California case that I mentioned. The two dissenters are Alito and Thomas. And let me just, let me walk through a little of Justice Alito's feelings about state standing. And remember, he's saying Texas should have standing in that Affordable Care Act case. In prior cases, this court has been selectively generous in allowing states to sue. Just recently, New York and certain other states were permitted to challenge the inclusion of a citizenship question in the 2020 census, even though any effect on them depended on speculative chain of events. The state's theory was that the citizenship question might cause some residents

to violate their obligation to complete a census questionnaire and that this, in turn, might decrease the state's allocation of house seats and therefore their share of federal funds. Last term, Pennsylvania and New Jersey were permitted to contest a rule exempting the Little Sisters of the Poor from the ACA's contraceptive mandate.

There, the theory was that some affected employees might not be able to afford contraceptives and might therefore turn to state-funded sources to pay for their contraceptives or the expenses of an unwanted pregnancy. Some years ago, Massachusetts was allowed to sue on the theory that failure to do so would cause the ocean to rise and reduce the size of the Commonwealth. His point being like, sometimes speculative theories are great and sometimes they're not um you know it was Alito with Justice Gorsuch joining him and Justice Thomas concurred in the majority but like you know Justice Thomas agrees with those paragraphs so David I don't know on that state one

I think they could get denied standing and that could go up on cert as another standing case, because frankly, the Supreme Court's standing jurisprudence when it comes to state standing and how concrete it has to be is a mess. Yeah. And there's a really good post by Ilya Soman, a friend of the pod, Ilya Soman, in the Volokh conspiracy, and we'll put it in his show notes. And he says this, because he's looking at the six states, the lawsuit filed by the six states, and I'll just read a couple of paragraphs. Administrations to exempt the FFELP loans, which omits some 770,000 potential beneficiaries. So in other words, you are really restricting the scope of your loan forgiveness to avoid litigation here. Strikes me as a sign of weakness. If they're confident of prevailing on the merits, they would not be so eager to sacrifice hundreds of thousands of program beneficiaries merely to reduce the odds of facing a lawsuit by a plaintiff withstanding. That's, I think, self-evidently correct.

loans, the Higher Education Loan Authority of the state of Missouri also, according to the state's complaints, services conventional direct loan program student debts. He believes these DLP loans are enough to give Missouri standing even if the FFELP loans are exempt. So all of these acronyms basically, acronyms can be tough to follow, but the DLP loans are still unquestionably covered by at least the current version of the Biden Student Loan Forgiveness Program. And if Missouri is servicing these DLP loans, then they don't have to show much concrete injury at all. It doesn't have to be a lot. It could be just a few dollars. But if it is actual and concrete, that so far the Biden administration's response to these loans is, we need to do what we need to do to keep from this getting examined on the merits.

We're going to be adjusting this plan on the fly. And remember, there's no final plan actually yet. We're going to be adjusting this plan on the fly to stay from, to keep from any sort of review on the merits, even if it means restricting its application away from 770,000 people. I mean, that's a pretty dramatic change, Sarah, to stay out of court. I do wonder on the state lawsuit, that number three factor, it must be likely rather than speculative that a favorable decision by the court will redress the injury. So they're going to have to show specifically how much money they think they will lose because of the loan program. But they're also going to have to show that if the loan program goes away, that that will redress their injury. Maybe they can show that easily. We'll see. So yeah, there's this, for those who are like, their eyes are rolling out of their head and they don't understand standing. I thought this was a great explanation from Judge Autry, who just heard, had a hearing on the state lawsuit last week and we're waiting for a decision. It should come down any day now. He literally heard it last Wednesday. He said, I mean, you got to love this guy. He's a

pretty famous district judge, so I'm not surprised he's got a good quip here. You can have all the ingredients for a cake, but it's hard to make a cake if you don't have a pan to put the cake in. The pan is the standing. I love that. Thank you, Judge Autry. That's a good explanation. Yep. You got to be actually injured to challenge. I think that's just a good way of thinking of it. You have to have suffered an actual injury caused by the challenge program. And it's fascinating to me to see. It's a really interesting, as you're saying, Sarah, it's like an interesting law school exercise. How do you get into court? And there's an absolute tit for tat here because you've got the Biden administration, on the other

hand, that right now they have the advantage of the program doesn't actually exist yet. Every time you file a lawsuit you're giving them the opportunity to fix their program. Once they announce the program it actually does get legally much more difficult for them to then change the program in response to litigation CEG like the DACA letters and stuff from the Trump administration. But as long as they haven't announced the program, they can just say like, well, that was always going to be our plan. Yeah. What?

Are you kidding? Automatic? No, if you don't want loan forgiveness, if you want to pay, you know. Yeah, absolutely. It's dotting a lot of their eyes for them. Yeah. David, you ready to hear about some Texas Pete lawsuit? I'm intrigued.

Texas Pete. Never heard of it. You've never heard of Texas Pete's? Oh my goodness. Why would I? Well, last month, Philip White, who lives in Los Angeles, filed a class action lawsuit against a Winston-Salem company called TW Garner Foods, accusing them of false advertising because they are the makers and sellers of Texas Pete's hot sauce, which features a cowboy, a lasso

on the front and is not, David, not made in Texas. In fact, it is a traditional Louisiana-style hot sauce, not a Texas-style hot sauce at all. And Mr. White believes that he was misled into purchasing the product. He also notes that the ingredients are sourced from outside Texas and that there's a white star

that is reminiscent of the Texas star on its flag. I mean, we are the lone star state and there is a lone star on the Texas Pete's label, but I'm not sure that putting a single star is going to win you this court case. A lot's been made about this court case, David, as sort of the new, you know, McDonald's coffee class action lawsuit. Lots of problems with this, though. You think? It literally says all over this bottle that it's made in Winston-Salem. The company's website is very clear. The company's listed on it. I think this is a loser of a case. It's also worth noting that this same person has filed a lawsuit against Kroger

for selling reef-friendly sunscreen that he believes not to be reef-friendly. He also sued Whole Foods over selling mac and cheese when he believes that it is misleading that the box is whatever size it is, but there's only noodles up like halfway in the box. All filed, by the way, by the single law firm in Los Angeles. I don't think this is going to go very far, David.

That being said, I own Texas Pete's hot sauce. I agree that it's a Louisiana style hot sauce. But I love Louisianastyle hot sauce, but I love Louisiana-style hot sauce. And I'll just tell you, Mr. White and anyone else, lots of Texans enjoy a Louisiana-style hot sauce with their Texas food. We're their neighbors. We enjoy their Cajun cuisine very much. So I don't know, man, you're trying to gin up beef here where

there's no beef. So would this guy sue if like a really big guy was known as tiny? So, you know, can't you be from North Carolina and be called Texas Pete? Yeah, it's named after the founder of the company's son, now this is the part that I think is misleading. The founder of the company's son is named Harold. Not Texas Pete? Well, his nickname actually is Pete. Okay. Now you tell me like that's a lawsuit.

How is Pete a nickname for Harold? Yeah. Yeah. That's outrageous. That's outrageous. That's outrageous. There's just no... Now, here's the... So people asked us to dive into this lawsuit. I'm going to give it a nod dog.

So here's a question. Maybe you know, this is a question that I've been asking forever. How is John... How is Jack a nickname for John? Yeah, I don't know. It's not shorter. Nope. No?

But I mean, Sally is a nickname for Sarah, and that's not shorter. Sally's a nickname for Sarah? You didn't know that every Sally? I think every Sally is actually just named Sarah. Really? I had no idea. I'm glad I taught you that. Yeah, that's, wow.

I mean, it's like to the point now where you can name your son Jack. And so like people are, I'm sure, naming their kids Sally. But like the origination of Sally is as a nickname for Sarah. Really? Oh, that's fascinating. Okay. Well, we're almost out of time. Sarah, point of privilege, one quick thing. We talked a little bit about maybe talking

about this, but we don't have time to address it fully. But one thing I did want to, I wrote a French press newsletter that went out Tuesday afternoon about Stacey Abrams and Stacey Abrams' record in history of election denial. And I don't know, this might come as some surprise to you, Sarah, but there were some people who are mad online about it. And one thing that we've never really had a chance to talk about it, and one of the reasons why it's kind of tough to talk about it is Stacey Abrams' legal claims against the Georgia election, filed by a group she created called Fair Fight Action, were eventually dismissed by Obama appointee at the very beginning of October in a 288-page opinion. It is very difficult to summarize a 288-page opinion. But one thing that I think is very interesting about

this opinion, and this is something that I think is very important when you're evaluating claims of voter suppression. So Stacey Abrams lost by about 54,000 votes. To put that in perspective, that's about almost five times the margin of the 11,000 vote margin that Trump lost Georgia. So she lost by a margin of about five times greater than the margin Trump lost Georgia. And in this lawsuit, they had extreme difficulty finding people who were not able to vote who wanted to vote. And in fact, in challenging one aspect of this, there were this what are called exact match requirements where your voter registration information

has to match other information about you in state databases. They brought forward seven people who had difficulty voting. Six of them voted. And the one who didn't vote, it wasn't because of the state, it was because her nursing facility actually only gave her about a 15-minute window to work out the problems. So again, this is a 54,000 vote margin. And the difficulty of producing anyone who, because of the state, couldn't vote is extremely telling. And it goes to one of the issues that you and I have talked about, is that if you're going to talk to Democrats who are going to distrust election outcomes, they're going to distrust on the basis of voter suppression. In other words, people who wanted to vote and were not able to. If you're going to talk to

Republicans who distrust election results, they're going to say voter fraud, people voted who shouldn't have voted. And both sides tend to way overinflate both the amount of suppression way over-inflate both the amount of suppression and the amount of fraud. And when you actually dive into cases where fraud has to be proven or suppression has to be proven, what you find is it's very difficult to prove any sort of material amounts of fraud or suppression. Another part was a missing active identification requirement, which was one of the challenged elements of Georgia law. There was no direct evidence of a voter who was unable to vote, experienced longer wait times, was confused by voter registration status by being in this active missing identification requirement, or experienced heightened scrutiny of the polls. No direct

evidence of a voter. And so, I think these cases are very useful. The occasional election fraud cases are useful both for prosecuting the election fraud that actually exists, and they're also quite useful in demonstrating how rare it is and how uncommon it is to have material amounts of election fraud. Ron DeSantis announced a much publicized voter fraud effort targeting 20 felons who voted who shouldn't have voted. 20, That's it, 20. And it turns out that a bunch of them were actually told by state officials that they could vote. So where was the mistake here? Was it in the state officials or was it in the felons? So it's, I think, a very useful antidote or counter to the claim that the American election system is somehow fundamentally broken.

So just- of privilege. You remember how you said we weren't going to talk about this case? I know. Anyway. Before we go, David, a few people basically sent their emails before hearing me say,

don't send emails. But one was very nice and worth sharing from a listener named Steve. It was just a quote from the book Franny and Zooey. Quote, there are nice things in the world. And I mean, nice things. We're all such morons to get so sidetracked. I think that's a good thing to leave people with.

That is good. That's beautiful. That's beautiful. Well, thank you for that email. Thank you for defying Sarah's edict. So, thank you all for listening. We'll be back next week. In the meantime, please rate us, please subscribe, and please check out thedispatch.com. Bye.