Advisory Opinions - Will President Biden Pardon His Son?

Episode Date: June 4, 2024

Sarah and David detail Hunter Biden’s legal predicament and discuss the impact it will have on the political landscape. Is this coercive bargaining in action? The Agenda: —Food poisoning etiquette —Hunter Biden's federal case —Prosecuting Donald Trump —Abortion opinion out of Texas Supreme Court —Insights into the Supreme Court’s decision-making process —SCOTUS watch Show Notes: —Steve Calabresi for the Volokh Conspiracy —Sarah's piece for the New York Times Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgur. That's David French. And David, have you ever had someone over to your house and then for dinner and then overnight, you have food poisoning?

Oh, so someone comes over, you serve them, and then you get food poisoning from presumably your own food. That's correct. But husband of the pod does not have food poisoning. So what's the etiquette here? Should I reach out and ask them how they're doing just like really vaguely or be more specific?

I'm in pretty bad shape to be honest. Oh man, Sarah. I would reach out and I would say, just checking in to make sure you're okay because I'm not really. And Scott's fine, so I'm not saying it was definitely the food that, or you know. Yeah, literally we ate all the same things.

There's just no way. I don't understand. But what level of friend are we dealing with here? Are we dealing with, ha ha ha, I gave you food poisoning level friend? Or we're getting to know you or somewhere in between? I guess we're gonna find out. Ha ha ha ha ha.

Well, David, I'm gonna actually like give you some breaking news here. Okay. This is a relatively new-ish relationship, about six months at this point. Okay. And if you may remember about six months ago, I talked about how an AO listener had asked

to be set up on a date. Oh. Oh. So wait, so this is not just, this is a listener who also probably owes you their whole relationship? Yeah, for sure. Oh, well then, I mean... Then I can poison them?

Well, no, you have such a bond with them that it can overcome poisoning. Okay. Yeah, yeah, so you totally, you can warn them and they should have no negative feeling towards you at all because, you know, even if they're doubled up in the fetal position right now, they are together because of you.

That's right, and I feel like, I don't know if you agreed, in terms of marriage advice from this podcast, getting food poisoning together they are together because of you. That's right. And I feel like, I don't know if you agreed in terms of marriage advice from this podcast, getting food poisoning together actually is probably one of those things that would be good to do before you get married because you're really gonna see each other, not just in adversity when one person's in adversity

and the other one can be the super nice helpful one, no, both people are in the stuff, literally. You're in the stuff, literally. Well, you see what somebody's made of, literally. Yeah. Yeah. Maybe I shouldn't have grown that fresh basil in my, for the first time I was like,

I'm gonna grow basil this year. And I kind of think that's what did it. I have no reason to believe that. Can basil? Like really? Well, any raw thing, right? Oh, I guess, yeah, yeah. I don't, I don't know.

Anyway, last time we did this, you had a coughing fit and could barely make it through the podcast. I probably will not have that happen now. That will probably not happen. I probably will not throw up on the podcast. And it's probably gonna be a pretty good podcast. We shouldn't make promises to each other that we can't keep, David.

We've got plenty to get through today. First up, the Hunter Biden trial starts today. And I thought we would discuss some of the details of that case, because we haven't done it much to date. We talked about the plea deal way back when. So the plea deal, if you remember, was for gun charges and tax charges. It was going to wrap it all together in a nice little bow. He was going to plead

guilty to misdemeanor tax charges, do deferred prosecution on the gun charges. And the judge asked a very simple question. So does this mean that Hunter Biden has immunity from all other past crimes that he has committed? And the defense said, yes, that's our understanding. And the prosecution said, no, we're still investigating him for financial crimes. And the judge said, then we don't have a deal, right? There's no meeting of the minds. There's no contract that can be formed. There was then some back and forth over whether the defense could still hold the prosecution to the mines, there's no contract that can be formed. There was then some back and forth over whether the defense could still hold the prosecution to the deal, regardless of the fact that it fell apart.

But nope, basically, we're all done with that. The jury is being selected right now on the gun charge. So three felonies here. The first one is 922G3 for those who have their US criminal code in front of them. That's 18 USC, of course. This is where you are in possession of a gun while using a controlled substance. In this case, it's going to be cocaine. The other two felonies are lying on a federal form to get the gun where you say you are not addicted to any controlled substances, you are not an addict. All right, here's the problem.

In his memoir, he writes that at this point in time, he was using smoking crack every 15 minutes, 24 hours a day, seven days a week. So kind of no matter what your definition of how much you needed to be using drugs at the time, that's gonna meet it. Also, even if you don't take his word for it, or even if he tries to say that, well, that was the month before, and then something like that, the prosecution has filed something in which they say

investigators, quote, literally found cocaine residue on the gun holder. Yeah. So that's kind of the ball game on the evidentiary side. So Hunter Biden does have this appellate argument. He lost this motion obviously at the district court, but the fifth circuit recently actually did find 922 G3 unconstitutional under the second amendment as applied to Patrick Darnell Daniels Jr.

So in that case case he was pulled over and he had two loaded firearms in his car and a joint. He had regularly smoked marijuana and he was therefore charged under 922 G3. He was found guilty. He then appealed and the Fifth Circuit said, our history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug use. So the problem in this case was twofold.

One, I think you could see the Supreme Court, sorry, the Fifth Circuit struggling with marijuana versus cocaine. That's gonna be a very different government interest in disarming someone who's using cocaine versus someone who's using marijuana. And two, when they pulled him over, they got the guns and they got the joint,

but they never tested him to see if he was currently using marijuana while driving, while in possession of the guns. So while he might have smoked the joint last week, if he was sober in that moment, it's interesting to me that seems more of an evidentiary issue, but they were saying that's a Second Amendment issue. But again, the problem for Hunter Biden is you've got the memoir, you've got the cocaine residue, and cocaine is very different than marijuana in terms of a government interest, even under strict scrutiny, I would think.

Compelling interest, narrow, least restrictive means, all of that. A cocaine ban while holding your gun not being on cocaine and the cocaine residue on the gun holder, it's a problem. Yeah, that is a, you know, the marijuana, there's a joint and a gun when the statute says a user and there's no test indicating that you're a user. It does not say possessor. It says user or addicted to any controlled substance. And so, yeah, that's a case where the facts

were very, very, very, very weak. Here this would be a square challenge to 922G3 in its fullness and its most robust is challenging it here. And let me put it this way, Sarah, you had a piece in the Times this weekend over whether Hunter should have taken a plea. And I would think, unless you had about the best possible information that the Supreme Court was all about getting rid of 922G3, I don't get it here. I don't get what's happening here because, look, the bottom line, the reason this thing blew up was related to the other Hunter Biden stuff, all of the foreign stuff going on.

How much was entering into this plea going to grant him immunity from everything as you were just talking about? And yeah, I totally get it that Hunter Biden would want to get a slap on the wrist for these other things and then possibly relieve him from every other crime he's ever committed. But once you find out that that's not the meaning of the minds, I'm not figuring out this willingness to go to trial on these charges with these facts. Remember, this is before Rahimi, where the best indication is that the Supreme Court that we now know right now was not actually gonna be super eager to be getting rid of a bunch of these gun control statutes

going by the oral argument. I'm stumped by this. I've tried to sort of steel man it, but I really am stumped by this strategic decision. Unless that there's just no deal left anymore at all, period. But here's the problem, right? Fine, there's no deal left. Let's assume that. But let's walk through other ways in which this works.

One, plea deal, meaning they will accept your guilty plea in exchange for some sort of sentencing reduction or dropping it to one felony instead of three felonies. Those are all plea deals. But lots of people just plead guilty. No deal. It's just, yeah, this is not worth going through a trial because it's going to be really miserable. And it's gonna be miserable for two reasons for Hunter Biden. Politically, for his father, and embarrassingly

for his family. I'm putting that all into one bucket. Remember, his ex wife is going to testify he now owes her millions in alimony. Why does he owe her millions in alimony? Presumably because it went to cocaine. His, you know, deceased brother's widow is going to testify about their romantic involvement and all the texts she's sending saying, you know, I love you, but you're killing yourself. You've got to stop. And this is right at the time that, you time that he's possessing the gun. All of that is going to be horrible for the Biden family. And again, politically really unpleasant for his father. But here's the second bucket, David, the money. So in 2019, at a presidential fundraiser for his dad's presidential campaign, Hunter Biden

meets this Hollywood attorney named Kevin Morris. They hit it off. They have a lot in common, I guess. And like all people who you meet at a party sometime, this guy has now spent $7 million for Hunter Biden. Happens to me annually, but I don't know other people's experiences. Right, right. So I mean, he has paid his back child support, his back taxes, and a ton of his legal fees here. But even all of that money set aside. Kevin Morris has now said he's tapped out.

So Hunter Biden, and really let's be serious, the attorneys involved in this case are on the line for this. I talked to white collar attorneys who are at white shoe law firms, top of their game. And I said, you know, heading practices like Abby Lowell over at Winston-Strawn, who is the lead attorney on this case, who's a very famous attorney. And I said, okay, cheapest you can do this trial, not the pretrial stuff, not just the

trial, just a two week trial, cheapest you can make it happen. It's a friend of the firm. They can't lose money on it, but you know, lower your rates, bottom it out. And the fewest number of attorneys you can have on the case, $ can't lose money on it, but lower your rates. Bottom it out. And the fewest number of attorneys you can have on the case, $150,000 a day was the estimate. Wait, wait, wait. Did you say a day? I did say a day. You said a day.

A day. Oh my gosh. So that's a reason to plead guilty just by itself with no deal. Okay, but David, there's even a third option here. That's a conditional plea, in which case you plead guilty to all the facts, skip the trial, and go straight to the appeal. So basically DOJ accepts, like, let's all save the time and money of the trial. You stipulate all the facts. You are guilty based on the wording of the law. But you think the law is unconstitutional and you can go on to then challenge the law.

So that's the other option on the plea deal. But there is something that we haven't talked about when it comes to this case. And that is that his father is president of the United States of America. And he has a magic wand to make sure his son never spends a day in federal prison. Joe Biden has said he will not pardon his son, but that's exactly what you would say beforehand. Why would you say you're going to

pardon your son before it's necessary and before an election? Because either Joe Biden loses in November, in which case he can pardon him in that lame duck period, or he wins in November and he's not going to need to run for election ever again, so he pardons him then. And the likelihood, you know, Hunter Biden's convicted after this two-week trial, he will probably not have to serve any of his sentence before his appeals run out. And so, yeah, we're not looking at this really happening before November, but it could. And in that case, I think Joe Biden would pardon him even before the election. You think he'd pardon him even before the election? I think that at the end of the day, Joe Biden is a father before he is president,

like anyone would be. Interesting. Well, as you're starting to talk about the pardon, I was kicking myself for going, Well, as you're starting to talk about the pardon, I was kicking myself for going, why would he go to trial? Like, oh, oh. This is a zero loss game. Maybe he gets acquitted, maybe the jury hangs, and regardless, he doesn't go to prison no matter what.

Yeah, when dad can get me out at the flick of a wrist from signing a pen, you know, with this, here's the situation that a wrist from signing a pen. Here's the situation that is just so grim right now, Sarah, just so grim. I'm getting such a 2016 feel for things right now, like, oh, Donald Trump has a terrible news cycle with a felony conviction. This is terrible for Donald Trump. You know what would really help him a lot?

Oh wait, the president's family is now going to be under the crosshairs for in its own criminal trial. It reminds you of Access Hollywood. No, Comey letter. You know, just this back and forth. And I'm not drawing moral equivalencies between the former president and the president's son. Nobody's voting for Hunter Biden for president. And I'm not drawing moral equivalencies between the former president and the president's son.

Nobody's voting for Hunter Biden for president. So just, but undeniably, this is a terrible news event for team Biden. This is not what you want. It puts the absolute worst, a huge spotlight on the absolute worst part of their family's history right in the middle of a presidential campaign. That is not good at all. And Hunter seems determined to not take one for the team, shall we say.

Well, it also is a little bit of an odd choice by Joe Biden, I think, to run for reelection. He knew this trial would be pending and he knew there was some chance that he was going to have to pardon his son before the election. That's a, you know, that's a heck of a thing to do to the Democratic Party to play roulette with that nomination. But it does explain I think a little of what we're seeing from Hunter Biden, except again, you're still going to have the embarrassment. You still don't have the money to do this. I think, a little of what we're seeing from Hunter Biden, except again, you're still going to have the embarrassment. You still don't have the money to do this.

I think it's a weird choice. I agree with you. I mean, I, all things considered, I think taking that plea was a no-brainer. I mean, it was the classic case of, uh, we would, I, we would say this to our clients who are trying to overreach when a very good settlement was right in front of them. We would say pigs get fat and hogs get slaughtered. If you try for too much, it will blow back in your face. And you

know, I agree with you, Sarah, that a part, I don't know if it's a certainty, but it's a certainly alive possibility. And I would guess it would get to be nearly a certainty, say, if he lost and he's in between and he's that lame in that lame duck period, I could easily see that happening. But I honestly think this is linked. You know, I don't know, Sarah, this is gross speculation, but we've all seen it when people get older, substantially older, there's this combination that occurs that as they get less capable, they get

more stubborn. I just, I worry about that. All right, a few more numbers to throw at you. One, the sentencing guideline range on 922 G3 for a first-time offender with no criminal history record like Hunter Biden is 10 to 16 months now. For those who remember the federal sentencing guidelines are not mandatory. A judge doesn't have to follow them. But if they're not going to follow them, they do have to explain why. I would find it very unusual in this case where everyone's sort of watching to see if you're going to treat this like a normal case for a judge to explain why they're departing significantly from that 10 to 16 month range. And that's just for the possession felony. That's not the lying on the forms felony.

So that's a year in federal prison. Next set of numbers to throw at you. I just found this like in and of itself a useful stat that we should just keep around David. Every 12 month period, 22 to 2023, 72,000 federal criminal defendants were charged by the Department of Justice. Out of those 72,000 David, how many do you think were acquitted at trial? Out of the 72,000, 200.

290, that's right. Less than one half of 1% were acquitted at trial? Out of the 72,000, 200. 290. That's right. Less than one half of one percent were acquitted at trial. Now, it is worth mentioning, only just under 1,400 were convicted at trial, about 2%, because everyone else took a plea deal. And I think there's people who think the system's pretty broken when only 2% of people go to trial and frankly the system couldn't handle much more than that if all 72,000 demanded Their jury trial the system would fall apart and you wouldn't be able to charge all those cases I do think there's a problem with that But on the flip side, there's a reason those people are pleading guilty and that's because of those statistics in a way

right, and it's that justice manual that we talked about during the, her report when that came out about Joe Biden. Remember Robert Herr's walking through, you've got to believe the defendant is guilty. You've got to have the evidence to prove the defendant is guilty beyond a reasonable doubt. And you have to believe that a reasonable jury would convict the defendant most of the time.

Like you've got to believe you're going to win. So by the time the prosecutor has gone through those steps and they charge you, you know, you're already kind of dead in the water. That's why all those folks are pleading out. It's not that they're afraid of going to trial. The vast majority just believe they're going to lose a trial and think they can get a better deal through the plea bargaining system. But it's a bit of a collective action problem because if they all said, nope, I'm ready to go to trial,

then they would not all be able to go to trial and roughly 70,000 of more criminals would be out. You just raised something, Sarah, that's a larger meta point about the law that I've been wanting to make for a while, which is, so A, I think when you're looking at plea bargaining, some of it, some of it, and I've got listeners, there's some listeners I'm thinking of right now who are talking, who are yelling, I know

they're yelling at their iPhones right now saying, coercive plea bargaining is really bad. Some of this is what you would call coercive plea bargaining, where you have overcharging with defendants with limited resources. You're hanging giant prison terms over their heads, and they enter into a deal to avoid a nightmare. And it's a fundamentally coercive process. Right. You face 20 years in prison on a charge that you might beat. Or you could spend one year in prison. Right. What do you pick?

Exactly. Like this is like math. Like what's the expected value of going to trial versus the expected value of taking the plea deal? And normally a rational person is actually doing the correct math calculation, whether they're really doing math or not, that the low likelihood of winning at trial, but there's a likelihood,

isn't worth it. Because 20-year outcome, even if it's 50%, you might get acquitted. That's still 10 years expected value of prison time compared to the one year they're offering you. That's the coercive part. Exactly. Now, and so you can acknowledge that there is coercive plea bargaining, but it is also true at the same time, and this is the meta point I want to make. An enormous amount of the everyday practice of both criminal law and civil law is very straightforward, uncomplicated stuff. In other words, I fear that if you kind of enter into the legal profession by listening

to AO or by reading all of the contentious cases, you get this feeling that law is much more amorphous than it really is. The reality is the application of law in the United States is pretty straightforward, the vast majority of the time. Then when you're reading about these court of appeals cases that we talk about, much less the Supreme Court cases that we talk about, those less the Supreme Court cases that we talk about. Those are the edge cases. These are the cases at the margins. But just an enormous amount of the practice of law is the rote application of undisputed

doctrine to plain facts. This is something that is the general norm as opposed to what the fun that we get to have on this podcast of, oh, that's an interesting subtle nuance of the argument that no one has thought of before. Meanwhile, we ignore 2,373 completely uncomplicated cases that were decided before we raise this. And I think it's sometimes surprising to lawyers,

especially if you go to law schools that really hone in on things like the politicized nature of the law or the malleability of the law, that when you come out of law school and you start to practice the law, it's a lot less malleable than you thought until you get to, like I said,

one of these edge or marginal cases, but the general application is pretty straightforward. Okay, and so our bridge conversation to our next conversation, the segue, if you will, David, is a lot of people have complained, including me, by the way, that Donald Trump was prosecuted because of who he was, not because of the crimes. And can I read my Robert Jackson quote?

I love my Robert Jackson quote. I've moved on from a man for all seasons, and instead we're doing Robert Jackson for 2024. A man for all seasons was very 2023 for me. So buckle in for a lot of Robert Jackson this year. Here's the quote, if the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.

Therein is the most dangerous power of the prosecutor that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for a man who

has committed it. It is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him. It is in this realm in which the prosecutor picks some person whom he dislikes or desires to embarrass or select some group of unpopular persons and then looks for an offense that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal and the real crime becomes that of being unpopular with the predominant or governing group or being attached to the wrong political views or being personally obnoxious to or in the way of the prosecutor himself. That's Robert Jackson in 1940 as attorney general. And for those who aren't, you know, don't have their Robert

Jackson tattoo, like his like profile on their ankles. That would be a pick one. It would be amazing. So Robert Jackson, he's attorney general, he's a Supreme Court justice, he's the Nuremberg prosecutor after World War II. Robert Jackson is, you Jackson is the end all and be all of a lot of different discussions. He's going to have the steel seizure case about executive power in light of congressional agreement or disagreement. So good. So much Robert Jackson. Okay. So this is the complaint, right, David? It wasn't that they were looking for everyone who'd falsified business records because they thought that should be a real priority of the prosecutor's office.

It's that they went investigating Donald Trump and then eventually found the falsification of business records. And I wonder if you think, A, that that's accurate and concerning, and B, if Hunter Biden is the same thing. They started investigating Hunter Biden, again, for if Hunter Biden is the same thing. They started investigating Hunter Biden again for financial crimes, actually the same thing that they started investigating Donald Trump for and then they found that he possessed a gun while he was addicted to cocaine. And look, there's not some bright line rule here because yeah, sometimes you're

investigating one crime and then find the dead body in the freezer. You're still gonna prosecute the person for murder. But it is a problem when that person is being investigated, not because you thought they committed something else, but because, again, as Robert Jackson said, I think these are like three pretty good groups, unpopular with the predominant or governing group, attached to the wrong political views, or personally obnoxious,

or in the way of the prosecutor himself. I happen to think that both Hunter Biden and Donald Trump have fallen victim to this, and I don't like it. So, it's a general matter. I don't have any problem at all if I have received, say, a search warrant or open an investigation for valid, completely valid reasons with probable cause, and while I'm doing it, I unearth other financial crimes. And I have zero problem with that. I guess the analogy would be, I have a search warrant to look for meth,

and then you step over a body in the living room and you're like, wait, what's this? You got to look at it. I don't know. I feel like both of these, I'm more worried about the Trump one than the Biden one on those grounds. In the Trump one, I think what happened here was you had this really weird situation where you have this federal crime for which John Edwards was prosecuted for, for which Michael Cohen was prosecuted for, for which Donald Trump and Michael Cohen was his Donald Trump subordinate. So I raised John Edwards because it shows that the Trump organization was not the first people to, they were not the first and they were certainly, and Edwards was a Democrat. So the idea that you would prosecute this federal violation

doesn't seem unusual to me at all. Here's what seems unusual to me was it feels like, and listeners can chime in on this because there's a lot of fighting right now about the origins of this investigation and the movement from Cyrus Vance to Alvin Bragg and there's a lot of who's telling the truth about this. But here's where the Trump version of this would really trouble me is if they said, well, why didn't the feds prosecute that election crime?

Can we do it? Can we do it? And it's obviously not a federal crime. So if they're looking at, hey, the thing that is really perking our interests is this federal crime that wasn't prosecuted. And then this is our way of prosecuting this federal crime, that troubles me. That troubles me. But as a general matter, the idea that,

hey, I've started a valid investigation, and during the course of that investigation, I've uncovered other wrongdoing, that doesn't bother me at all. So long as that initial investigation is valid, proper, etc. And that's, that's where, you know, it's sometimes it feels as if like. Trump in New York is one giant blob of let's just open the books on this guy on everything and see what we find.

Here's my problem. So on the Trump one, I agree. I think it's also a problem that the prosecutor's campaign mentioned Donald Trump a lot and his record on suing Donald Trump and that he was the best position to hold Donald Trump accountable. I think that was a lot of not even really dog whistles, just like human whistles on what his plans were when he got into office. I also think the judge donating money to an anti-Trump resistance cause, yeah, it's only $35. Can you imagine if Justice Alito donated $35 to buy

a Go Brandon bumper sticker or something? Yeah, that's improper. You'd be freaking out. Do not tell me that it's some de minimis amount. I think all that sucks. But I'll tell you on the Hunter Biden thing what sucks. Because I agree with you that it's a clearer charge, they've got it more dead to rights, but there are too many gun crimes in the country right now for federal prosecutors to prosecute. And so they've got to prioritize. And generally how they do that is they prioritize

sort of the more serious ones. Felon in possession, guns that were used in crimes that are then found in the possession of a felon or a drug user, like under 922 G3, like this one, or the person's got like an arsenal and they're a drug user. But Dan Abrams, ABC chief legal correspondent, told me that he in fact could find no case

for a single gun prosecuted under 922 G3 like this with zero criminal history background. And the reason that bothers me is because now put it in like the speeding context, you can't catch everyone who's speeding. And this is the Robert Jackson point. So you should be prosecuting, you know, pulling over the people who are speeding the fastest. That makes sense. But you shouldn't wait for the car that has your wife's ex-boyfriend in it.

Because he was speeding. Yeah, true. And this, when you're talking about you can't prosecute all the gun crimes. And by the way, this is my whole separate rant about how all these people who think that we're going to solve gun crimes in this country by having more gun laws. I don't object to your more gun laws actually, but they will be pointless because we're not prosecuting the gun laws we have now. Someone like Hunter Biden, who had an illegal gun, if his name was not Hunter Biden, wouldn't

have even been charged even though he's facing 10 to 16 months in prison because that would fall so far down the priority list for federal prosecutors because they have so many more at the top. They're not even prosecuting those because that's how many guns are already violating the law that we're not charging. So why don't we just pour a lot of money into prosecutions, into jail time, into just the resources for investigating illegal guns on the street. Let's get all the illegal guns off the street

and all the felons in possession of guns and all of that. Then once we're doing that, I'm great with having more gun laws. I'm fine with having them now for what it's worth. It's just not gonna solve the problem. You know, you said something in there that was really important, and that is, I would say 99 times out of 100,

being in the United States of America and being wealthy or having access to wealth and being a celebrity is a distinct advantage. No question about it, it's just an advantage on front after front after front. There's very isolated circumstance in which it is not an advantage. And one circumstance that's not an advantage is when you're caught red-handed committing

a crime, but it's a crime that ordinary folks are typically not prosecuted for. But nobody in the public knows that. So nobody in the public is knowing, well, you know, John Smith down the road was in unlawful possession of a gun, but he has no prior record other than what, you know, he has no prior criminal record. He was just found with marijuana and a gun, whatever. There's no news report on it. It's a non-event. It's a non-event.

But then when a celebrity, when this with a celebrity, and there's news emerges of absolute proof that they have or strong evidence that they've committed a crime, prosecutors have trouble walking out into the public and saying, yeah, I know this really famous person. We've got really compelling evidence he committed a federal felony, and we're not going to prosecute it because we just don't prosecute this. That is not the message that the public wants to hear. So out will come the prosecutor and the prosecutor will say, law applies to everybody, rich or poor, powerful or not. And the political reality is in this one isolated instance,

the celebrity of the person in this one circumstance has really torpedoed them. And that's, it's very rare. It's very rare, but it does occur. And I think that that's one of the things that's happening here. This is not a prosecution that would typically happen. All right. A couple of other things on the Trump prosecution that have come up that I thought were worth mentioning. One, Vivek Ramaswamy said that Joe Biden could pardon Donald Trump for this conviction, even though it's a state conviction, he said, because the predicate crime is federal, that if Joe Biden pardoned him for the federal crime, or Donald Trump

when he gets into office, I guess, is the theory, that then the state crime would just like poof, disappear, melt into the ether? No. Just not even close. So first of all, they did not have to prove the federal crime. They didn't have to prove it beyond a reasonable doubt.

He wasn't convicted of a federal crime. There is no federal crime from which to pardon him from. Now, you can pardon people for things they did and not just crime. So you could just say, Donald Trump is pardoned for anything he's done previously. You can't pardon someone for future crimes, but you can just pardon them for past things that they haven't even been charged with. Okay. So even if you did that, it wouldn't matter because the New York statute is about falsifying business records for the

purpose of concealing from investigators those records because you think you're covering up some other crime. It is at its heart basically an obstruction charge that's really weird and I think bad, but it doesn't matter whether you convicted the did the underlying crime or not, which again is a problem with the law, but the pardon won't matter. So no, that's not how this works, Vivek, and Yale Law School should be ashamed. Yeah, that was, wow.

That was wild. I'm kind of surprised the Wall Street Journal printed it, to be honest. I'm stunned they printed it. Did they not have any lawyers on staff who could read that and be like, that's not how this, it doesn't make any sense? No, it's really bad. Really embarrassing for the Wall Street Journal

because every lawyer is like, nope, you can't, that's not how that works. That's nuts. Now, let me also, I wanna make a quick point because we got actually some pretty interesting cases to get to. I know, I know. One more point on this, in the hurricane of commentary about this case, one thing

that I want to get across is that it's really seemed to fix stand amongst a lot of people I know that Trump was convicted of facilitating or concealing something that's absolutely not a crime, which was this election interference, et cetera, as opposed to, which I think that that's the, I think the credible argument is he was convicted of concealing or facilitating something that we haven't really definitively determined to one way or the other whether it actually violates federal campaign finance law. That there is a argument that it does, obviously, or the feds wouldn't have brought the John Edwards case.

But a district court permitting that case going to trial is not a definitive adjudication of the validity of the underlying legal theory, nor is the prosecution of Michael Cohen for that legal theory a vindication of the underlying legal theory. But the fact that the feds prosecuted that legal theory twice is an indication that Bragg isn't making it up. He's not making up the existence of this as a crime. What's the problem is he's pursuing it as if these DOJ prosecutions, previous DOJ prosecutions,

were absolutely definitely within the scope of the statute and constitutionally appropriate when that's a live issue. That is a very live issue. And look, at the end of the day, it may come back that Bragg, according to the courts of appeals, was correct. I would be, I'm sort of 50-50 on how this will all shake out, but that's what bothers me, that I'm 50-50 on how all this will shake out. Not that it is, there is, he was prosecuted for facilitating something that is definitely not a crime. That's not where I'm at. I'm at, he was convicted of facilitating something that might be a crime.

And that's its own problem, and that's the distinction, that's the difference. All right, I've got one more takedown, because, you know, we've criticized this case a lot, but some of the criticisms of the case are just incorrect. So in the spirit of this show, I want to criticize some of the criticism that's just false. So Steve Calabrese over the Volokh conspiracy and God knows we cite the Volokh conspiracy

all the time. Positively, yeah. For some of their great stuff. But this one's a miss for me. Headline, President Donald Trump's Manhattan convictions are unconstitutional. The First Amendment protects the alleged payment of hush money to a porn star to influence an election outcome as the US Supreme Court will eventually rule. And he talks about Buckley v. Vallejo.

That's the 1976 case basically upholding the idea of campaign finance donation limits. And he says, under Buckley v. Vallejo, an individual like Donald Trump can spend an unlimited amount of his own money promoting his own campaign. Okay. That's true, but you still have to disclose it. So never talks about the disclosure rules. You would still violate campaign finance rules if you spent all this money and didn't disclose it. Okay. Next, in 2010, in Citizens United v. FEC, the court held 5-4 that the Freedom of Speech clause of the First Amendment prohibits the government

from restricting independent expenditures for political campaigns by closely allied corporations and groups like the Trump Organization. Under Citizens United, it was perfectly legal for the Trump Organization to pay Daniels $130,000 in hush money to conceal her alleged affair with Donald Trump. It would have been if the Trump Organization had been acting independently of the candidate,

Donald Trump, and again, if they had disclosed it, you still have to file an FEC report, even if you're an independent expenditure unit. So no, that's not how any of that's going to work. There's plenty of evidence that Donald Trump was well aware of them paying the money. Now this is where I think the Michael Cohen prosecution, David, to your point on like what's a crime and what's not. To me, DOJ could indict Michael Cohen for paying the money because Michael Cohen has no reason to pay the money except to help a campaign. Right. That's clearly a campaign expenditure.

Mm-hmm. Whereas Donald Trump had this protecting his family reason, potentially, in which case you don't indict him because he's got a good defense. So, as in, the cases can be very different and, in fact, can even one can be a crime and one cannot be a crime. But regardless, Donald Trump being aware of instructing communicating about the expenditure of the money by the Trump Organization means we are not in Citizens United territory. There's no independent expenditure here. And the Trump Organization never filed an FEC report, never registered as a super PAC, never disclosed any of it. And the Supreme Court has never, in the context we're talking about here, thrown shade on

political disclosures. Right. So that's a nod dog for me. And then the very end of this is the last piece of the Trump stuff I want to talk about, which it says, the US Supreme Court needs to hear this case as soon as possible because of its impact on the 2024 presidential election between President Trump and President Biden. So I would just like to point out my own consistency on this. Four months ago, when we were talking about the immunity

case and everyone was like, the Supreme Court should take this from the DC Circuit. And why are we wasting time going to the DC Circuit first? There's an election coming up. And I said, that election is legally irrelevant to the case and therefore the Supreme Court should follow regular order. And everyone was mad at me. Well, here I am today saying, hey, guess what?

The election is totally legally irrelevant to Donald Trump's conviction in New York. So the Supreme Court is not going to take some mandamus of a state conviction tomorrow and overturn it, nor should they at all change the regular course of business. So here's how this is going to work. Donald Trump is going to appeal to the first, the mid-level New York appellate courts. And by the way, the New York court's names are all insane because the New York Supreme Court is their trial court. So I'm not gonna use any of the names.

So he's got one mid-level appeal. Think of that like the circuit. Then he's got the New York, think of it as the New York actual Supreme Court. The highest court. The highest court. Then he can appeal to the US Supreme Court with his federal claims.

That's a long way off. Yeah. That's a long way off. Yeah, that's a long way off. The actual legality of this, the ultimate legality of this case is not going to be known for a good while, which again gets to one of the issues that bothers me about it, which is he could be convicted.

And then what if he loses being run against as a felon? And then two years later, the conviction is reversed. I've said that a thousand times. That's a big problem. But at the same time, I've said a thousand times, that may not happen. It may all be upheld, because unlike the Banana Republic argument,

the underlying crime was a crime for which other people have been prosecuted. So it's an uncertain outcome to this case. It's an uncertain outcome. All right. We do still have plenty of law to talk about, David, so much so that in fact, we're going to save some for the next episode. So if you were coming to hear about Judge Newsom's most concurring with Judge Newsom

that has ever been or ever will be. Tune in for the next episode. We've also got a spicy boomatee descent out of the Ninth Circuit that you're gonna wanna hear about. And I have a piece with a listener that we co-authored on the 333 court in which math happens. And the math is really fun.

And so I am excited to talk to you about that, David. But for the rest of this episode, let's talk about a little opinion out of Texas about abortion. Yeah, so this is a case in which at issue were the health and life exemptions to Texas laws prohibiting abortion. And one of the questions was whether doctors were withholding life-saving or care that

would save somebody from substantial physical harm because they're worried about prosecution if somebody looking over their shoulder disagrees with their assessment regarding the health life or health of the woman. And so were people withholding care or withholding treatment because they were worried that their good faith medical judgment would be overridden by a prosecutor. And so in the lower, it's a complicated case.

The lower courts were, the plaintiffs were trying to get these specific carve outs and a sort of a broader, well, a more narrow interpretation of Texas law that would be more protective of doctors and women who were seeking these, seeking an abortion in the face of adverse health circumstances. So Sarah, I have two paragraphs to read to you. Here's paragraph one. Texas law permits a life-saving abortion. A

physician cannot be fined or disciplined for performing an abortion when the physician exercising reasonable medical judgment concludes, one, a pregnant woman has a life-threatening physical condition and two, that condition poses a risk of death or serious physical impairment unless an abortion is performed. After the United States Supreme Court overturned Roe v. Wade, current Texas law otherwise generally prohibits performing an abortion. That's a paragraph number one. And then it continues. Okay, just real quick. Can I just say that's weird? Because how could a pregnant woman has a life-threatening condition, okay?

That condition poses a risk of death or serious physical impairment? Wait, it's life-threatening. I'm confused. Yes. Okay, go ahead. Okay, under the Human Life Protection Act, a woman with a life-threatening physical condition

and her physician have the legal authority to proceed with an abortion to save the woman's life or major bodily function in the exercise of reasonable medical judgment and with the woman's informed consent. As our court recently held, the law does not require that a woman's death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk.

A physician who tells a patient, your life is threatened by a complication that is arisen during the pregnancy, and you may die, or there is a risk, serious risk, that you will suffer substantial physical impairment unless an abortion is performed, and in the same breath states, but the law won't allow me to provide an abortion

in these circumstances is simply wrong in that legal assessment. The reason why I read that out loud is, Sarah, I think that paragraph highlights the confusion even more clearly. Yeah. Your life is threatened and you may die, or there's a serious risk you will suffer substantial physical impairment. Which is it? Is your life threatened?

That's enough. We don't need to even look at substantial physical impairment, which is it? Is your life threatened? That's enough. We don't need to even look at substantial physical impairment. Or is it also enough that you have a serious risk that you will suffer substantial physical impairment, which sort of by definition means you won't die. Yes, but then you rotate it back where it says, but the substantial physical impairment

doesn't have to be related to a life threatening condition. Like this is- Yeah, I'm pretty confused about all that. But here's the part that I thought was important, legally. Reasonable medical judgment, we held, does not mean that every doctor would reach the same conclusion, rather in an enforcement action under the Human Life Protection Act. The burden is the state's to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or

Of substantial impairment of a major bodily function unless the abortion was performed So on the one hand, I actually think that really clears up reasonable medical condition in a way that for instance Idaho Supreme Court conversation flim-flammed around a lot I think this is what they were trying to get at but this is much more clearly stated that it's the state's burden to prove that no Reasonable physician would come to this conclusion not that a different physician might come to a different conclusion But this is much more clearly stated that it's the state's burden to prove that no reasonable physician would come to this conclusion, not that a different physician might come to a different conclusion. The Texas Supreme Court says different doctors will come to different decisions on their reasonable medical judgment over whether that condition is life-threatening or not. The state

would have proved that no reasonable physician would ever have thought that was, you know, covered under this exception. But here's the problem, David. I don't understand what the exception includes. Therefore, how can your reasonable medical judgment come to any conclusion when that sentence makes no sense? So your reasonable medical judgment that unless an abortion is performed, sorry, that she has a life-threatening physical condition, and unless an abortion is performed, she, that she has a life threatening physical condition, and unless an abortion is performed, she is at risk of death, which is the definition of a life threatening physical condition or of substantial impairment of a major bodily function, which is totally, totally different. Can you only read the substantial bodily impairment?

Because I get it. Here's what Texas, this is the bottom line, right? The Supreme Court is trying, the Texas Supreme Court, is trying to say, look, if you're going to get hurt by this pregnancy, you can have an abortion. That's what they seem to be saying. It has to be serious. Right. But if there's going to be some major problem, you get an abortion.

What they want to distinguish that from is Texas law does not permit abortion based solely on a diagnosis that an unborn child has an abnormal condition, even a life-limiting one. That's the distinction they're trying to make, but the law itself makes no sense. Yeah, yeah. What they're plainly trying to do is create a rule that does not have a hole, a loophole in it so big that you can just, that essentially swallows the rule that if a doctor says I think there's a risk of a serious physical impairment period, that's it, done over. And so they have this life threatening physical

condition. But the second clause negates as you're talking about the first clause. And so it... But you don't need to have, like, you didn't need to write life-threatening condition or risk of death because substantial impairment of a major bodily function would include risk of death. Death would be a substantial impairment of all major bodily functions and minor ones as well, I might add.

Yeah. Yeah. And this is indicative of some of these problems that have arisen post-Dobbs is, you know what they're trying to do. So you sort of see directionally where they're trying to go with the statute, and, but they don't get there. They don't get there and then not getting there,

they actually increase confusion. And this opinion, which was apparently written with the goal of clarifying, does clarify the medical judgment issue, definitely. But the underlying standard to which the medical judgment is applied, wow. It's fascinating because does it mean that anything that creates a serious risk of substantial impairment is by definition also a life-threatening physical condition? Or do you have to first diagnose a life-threatening physical condition that is only manifesting itself by risk of substantial impairment?

It's weird. It's very difficult, Sarah. And I would love for a Texas lawyer to please get in the comments and steelman this and help us understand this. Because to me, when I was reading that, I was thinking, oh, that's clear as mud. Well, David, I'll tell you, I still have impairment of a major bodily function

here nine months postpartum. I guess it's not, I mean it's a major bodily function, but I would argue that all major, all bodily functions are pretty major. Is it a substantial impairment? Probably not. But I will tell you that pregnancy hemorrhoids do not go away very quickly. At least here we are right now. Well you know, I love, we're now pledging the limits of transparency in this podcast. We started with the food poisoning,

we're moving to the hemorrhoids. That's where I am right now in life. I like it. But I bring this up for a quasi real reason, which is, then we talked about this before, basically all pregnancy is riskier than not being pregnant. And all pregnancies carry a risk of some impairment of some bodily function moving forward.

Because pregnancy is more risky than not being pregnant. It's not great on your body. And before some man floods the comments with how like women's bodies are made for this and whatever, like, uh-huh, and a lot of them used to die That's why because actually human heads are not made to go through human pelvic bones very well And so we just as a species accepted a lot of women dying in this process Just as we accepted a lot of men dying in combat, you know

like we killed off a lot of both sides of this coin. But that's where these laws are having so much trouble. Because they're trying to say, we don't want you to have to be on dialysis for the rest of your life, but also hemorrhoids don't count. And they want it to be really serious. And I think they kind of want it to be vague, because then it makes it harder to get an abortion because you don't quite know where that line is. And this is where I get frustrated because it would be actually quite easy to just come up with a list.

If there is a risk of kidney impairment, if there is a risk and just go down the list. And you can say including, it doesn't need to be an exclusive list by any means because you never know. But it would give people a much better idea. But if you say it has to be life-threatening and substantial impairment of bodily function, that makes no sense. And we're wondering which one is the operative one. Yeah, exactly. Exactly. No, I was dying to read that to you and to have this conversation because the contradiction or the inconsistency was just so obvious.

And again, I understand what people are trying to do. They want to say more like kidney impairment, less like hemorrhoids. Totally get that, totally get that. But without the specific conditions, which then raises the next question, which someone said that will be either under-inclusive or over-inclusive,

but at least with specific conditions, you're getting a lot more clarity overall. So yeah, it's just, but the overall standard, at the very least, I think if you did have a comprehensive list, then there would be the conversation about over-inclusive, under-inclusive, et cetera, but that's not a new issue. You can deal with that in the law.

But just reading the court, parsing through the life-threatening physical condition and physical impairment is, it makes for painful reading. It's just not straightforward at all. And so you can see why a doctor would feel quite confused and not necessarily be all of that comforted by the idea that, well at least I'm protected by the standard that says that no reasonable doctor would make the same call that I made, which is a much more protective standard.

But still, when the underlying standard is vague, that creates its own problem. All right, as I said, next episode, we're gonna have some good stuff per usual. We're gonna wait for the Supreme Court decisions to come down on Thursday morning. And we're really heading into that bingo era. You know, there was some discussion, David, over why Sotomayor

wrote that NRA case, the one that we talked about last time. You know, different theories. One is that the Chief Justice assigned it to her because he likes things like Thomas writing about the CFPB and Sotomayor writing about the NRA. He is the ultimate institutionalist. Another reason may be though, that each of the justices write roughly even numbers of opinions and we're kind of coming down to it

and maybe Sotomayor isn't in the majority for many of the ones that are left. And I mentioned that because we are really getting into Rahimi watch, I would say, David. Rahimi was argued in November. Where is it? The opinions really do come out when the justices are done with them.

Now the reason that the sort of hit parade cases seem like they all come out in that last week or two is because yeah, those are the ones the justices spend the most time writing, sending back and forth. Here's the majority, here's the dissent. Now the majority changes their opinion based on the dissent. And around and around you go with the concurrences and all of that. And so that takes a really long time.

You've had it since November. You'd think you'd just be bored at some point. So I don't know, David, I'll put my marker down. It's June. I think we get Rahimi this week or next. Yeah, that's a great, that's fascinating. I think you might be right. The other thing question is regarding a big case, Murphy,

this is the case involving alleged coercion of social media moderation. How is this decided in light of Vulo? You know, some smart people are saying they thought they might have digged it after Vulo or very maybe a very short opinion sort of remanding it in light of Vulo. Like very interesting because the Murthy oral argument went very different from the Vulo oral argument. But Vulo is obviously quite relevant to Murthy. Very fascinated to see how this goes. But David, we do have a problem, which is that Supreme Court bingo basically no longer works. As the justices have taken fewer cases in total for the term, our one opinion for one justice per month sitting isn't true anymore.

So for instance, take November. We have Rahimi and Vidal outstanding for the month of November, which should mean that we've got a pretty good chance of guessing based on Supreme Court bingo which justice is writing Rahimi. But if you look at which justices haven't written an opinion for November yet, Chief Justice Roberts, Justice Thomas, Justice Alito, Justice Sotomayor, Justice Kagan. Well that's not helpful. No. And because we only have two left, even if Vidal comes out on Thursday and let's say Kagan writes it, that would still mean that you could have Rahimi written by Sotomayor

or Alito, which would be two very different Rahimis potentially in terms of what we would think might happen. So I don't know that Supreme Court bingo is going very well this term already, except some of the months have more opinions. So January had more argued, February and March as well. So we get to those later months and we have more opinions that have already come out, we'll be able to play better bingo. But October, November, December bingo? Not very good. And that includes Rahimi, the gun case, Jarkisi, the SEC, do administrative law judges have to abide by jury trials? Is

this all unconstitutional? Purdue Pharma on the bankruptcy rules and feelings, and more, the tax case, that 16th Amendment case. I even forgot that was this term, it's been so long. Yeah, no, there's so much, and it's all gonna happen in the next 27 days. Buckle in. Buckle in. We'll talk to you next time. Hey, look at me. I didn't vomit. That's great. It sounded great.

Zero trace of hemorrhoids or gastrointestinal distress. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen. I'm going to go ahead and put this on the screen.

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