Advisory Opinions - You Must Have Misunderstood Law

Episode Date: October 4, 2022

Trump’s legal drama — Judge Cannon returns! Ken Paxton opines! Fraud alleged! — will be discussed at last... But first, Sarah and David preview what promises to be a spicy term for the Supreme Court (with not one, but two Section 230 cases!). They then pass through a culture war cul-de-sac via Judge James Ho’s clerkship boycott of Yale law students, and conclude with a tribute to Judge Laurence Silberman.  Plus: the committed listener will learn the truth about how Sarah ended up in The Federalist Society. Show Notes: -David’s amicus brief -Twitter at the Supreme Court -Ken Paxton’s amici for Fulton County v. Lindsey Graham -David Lat on Ho v. Yale reactions -Josh Blackman supporting on Yale Law sellouts -Laurence Silberman’s WSJ obit Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to an extraordinarily action-packed advisory opinions podcast today. I mean, Sarah, this might have more action than Sunday Night Football did last night. A relatively low bar. Last night was pretty tame. It was pretty tame. It was pretty tame. Although I am absolutely going to be on pins and needles for Monday Night Football because I'm trailing Declan, owner of the Morning Mismatch fantasy football team, by a total of 6.9 points. And my kicker is going tonight, so I need seven points from my kicker.

That's it. David, do you know how many points my fantasy team got this week? Wasn't it in the 50s? It was in the 50s. Yes. It was tragic. And look, yes, Kamara's on my team. He didn't play.

I made the bet that he would play, you know, okay. But just to be clear, even if I had gotten someone in for Kamara, it would have been in the 60s, low 60s. So this was just an underperforming week. But David, we're wasting time. I know, sorry, sorry. Okay, here's what we're going to do today. We're going to give you a SCOTUS preview,

a brief SCOTUS preview. We're going to talk about some really interesting cert grants. We're going to talk a tiny bit about cases argued today. We're going to give you tiny bit about cases argued today. We're going to give you an update on student debt. We're going to talk about the Trump legal cases, and then we're going to talk about, it's not actually a court case, but it is just referred to in court case terms, Ho v. Yale, Judge Ho versus Yale Law School. And my goodness, has that triggered a lot of conversation. So yeah, Sarah, let's get started. The term started

today. Two cases argued. Let's not go there first. What are you looking for and what are you looking forward to in this term? So yeah, arguments started today. We got a lot of the cert petitions handed down from that long conference, nine cases granted. We'll talk a little bit more about a couple of those. Arguments were open to the public today as well, though the court itself is not going to be open to the public for tours and non-argument tours, and non-argument wanderings. And let's just run through some of those big cases. So we have Harvard and North Carolina affirmative action cases.

Yep. We have the Voting Rights Act redistricting in Alabama, where basically one of the districts is majority-minority. And the argument is whether you have to do race conscious redistricting in order to meet with the requirements of the Voting Rights Act or whether in fact you can't do race conscious redistricting. A lot of people previewing that as the quote end of the Voting Rights Act. We will definitely be talking about that a lot when we get to oral argument. I disagree with that headline. A case that hasn't gotten a lot of attention at to oral argument. I disagree with that headline. A case that hasn't gotten a lot of attention at all, but I think this term is so interesting because of sort of the racial overtones, is this Indian adoption case and whether states can have

racial preferences for adoption. Now, in this case, it's not a racial preference exactly. It's a tribal membership preference. But still still i'll be watching that case seems like nobody else is there's the independent state legislature case more and everybody's watching that everybody's watching that one i think it could actually end up being pretty narrow and that that one could be actually the most overwatched case in a lot of ways but we'll see and then 303 creative masterpiece cakepiece Cake Shop Revisited, is another way to think of that. That's the woman who designs websites. She says she's happy to serve gay customers, but simply doesn't want to design a website for a gay wedding. It really is

Masterpiece Cake Shop Revisited. Masterpiece Cake Shop, remember, gets sent down because the state board of blah, blah, blah showed hostility to the Masterpiece Cake Shop owner. In this case, we've gotten rid of the hostility and now we can simply look at the First Amendment factors. And then in terms of cert grants and waiting cert grants, we've talked obviously about those social media bill cases. We're still waiting to hear on those, Florida and Texas. Again, husband of the pod represents in the Texas case.

He represents Google and Facebook. Well, the- Net choice. Net choice, yes. Yes. This is how much we talk about it. Let me tell you who your husband's client is, Sarah. I don't remember the client's name.

It's possible husband of the pod, and I talk about other things. But today, David, of those nine cert grants, two are kind of along those lines. And I know coins only have two sides, so it's a little silly to say these are all other sides of the same coin. But it's a three-sided coin, David, in this analogy. So on the one side of our three-sided coin, you've got these social media bill cases that say a social media company above a certain size cannot moderate for viewpoint. But one involves Section 230 and one involves the Anti-Terrorism Act. The Section 230 case is Google, YouTube, etc. And the Anti-Terrorism Act is Twitter. David, is, so essentially the case, the question here is, did YouTube, by essentially, as the case argues, sort of feeding content through algorithms and

recommended videos, etc. So did YouTube essentially promote terrorist content to such an extent that it had an influence on the attacks themselves or had an influence on the attackers, not necessarily on the tactics of the attack, but had an influence on the attackers. And here's what's different about this case. Now, we'll talk a lot more about it. Just granted, I haven't had a whole lot of time to dive in, but I did want to highlight one thing about this. If you followed these fights over Facebook, Twitter, social media, you've probably heard the phrase publisher versus platform a bunch. a bunch. And it's always kind of made me a little bit crazy because all of these social media companies are both publisher. In other words, they publish and create their own content and platform in that they platform other people's content. And so just like I say, the New York Times or the comment section is both publisher, it publishes its own New York Times content, and platform, it platforms commenters who publish their own content.

The dispatch is a publisher and a platform. But that's always been sort of the lingo that's used. And then the question is, does moderation make you always a publisher if you're moderating content on the platform? Okay, that's a little bit complicated way of talking through this. In section 230, it says, no, you're not a publisher if you moderate other people's content. a publisher if you moderate other people's content. Okay, short preview. But the YouTube case is a little bit different. The YouTube case is saying, but what if your algorithm or whatever technical means or human choice says, we're going to promote. So here's the other P word, publisher, Keyword, publisher, platform, promoter. What if you promote certain content and that content by algorithm or whatever means keeps popping into people's feeds?

Does Section 230 grant immunity in that circumstance? Now, so again, I'm going to be diving a lot more into this case because I think it's a fascinating case. But it is interesting and different because the ultimate at the end of the day, the goal here isn't to have more content on the platforms. So that's, you know, if you're talking about the goal of, say, the Texas or Florida social media laws, they want more stuff up, of, say, the Texas or Florida social media laws, they want more stuff up, more stuff. What they're saying here is you put more stuff up, and then you promoted some of it, and some of it was really dangerous and led to an attack. So that's one of the distinctions here. And that's why this three-sided coin is fascinating to me, because it actually kind of um mirrors in some respects the political debate where both sides want the tech companies to do something different right the opposite but it ends up with the tech

companies losing a lot of cases so this brings me to the twitter lawsuit as I mentioned, also terrorism related, but this involves section 2333 of the Anti-Terrorism Act. And it says that if you are injured by an act of international terrorism that is committed, planned, or authorized by a designated foreign terrorist, an organization, sorry, foreign terrorist organization, you may sue any person who, quote, aids and abets by knowingly providing substantial assistance or who conspires with the person who committed such an act of international terrorism. And the question here is that, did Twitter take down enough content? So here was the QP that the court accepted, whether a defendant that provides

generic widely available services to all its numerous users and regularly works to detect and prevent terrorists from using those services knowingly provided substantial assistance under section 2333 merely because it allegedly could have taken more meaningful or aggressive action to prevent such use. So again, David, the social media bills coming out of Texas and Florida moderate less. This Twitter lawsuit coming out of the Ninth Circuit, where Twitter largely loses, moderate more. And the Texas and Florida, well, just Texas, I guess, social media bill case went up to the Supreme Court on an emergency posture once already. It was decided 5-4, but Kagan was in the dissenting four. And I don't think that was on the merits.

I think that was on the emergenciness of it. And so in some ways, you can think of that as a 6-3 sendback from the Supreme Court. Here, David, on the other side of that, the Ninth Circuit again finds against Twitter saying that they should have moderated more. And the Supreme Court just accepted cert, which as we know, means a high likelihood of overturning the lower court. And when it's the Ninth Circuit, it's sort of a bonus extra overturning of the lower court, which means I think they will again say here, nope, they don't need to moderate more.

And, you know, so here's the QP. I love how, you know, you bring in like actual Supreme Court lingo into the podcast. Question presented, does section, this is in the Google YouTube case, does section this is in the google youtube case does section 230 immunize interactive computer services when they make targeted recommendations of information provided by another information content provider or only limit the liability of interactive computer services when they engage in traditional editorial functions such as deciding

whether to display or withdraw with regard to such information. So yeah, what you're talking about, what we're talking about here is, should they have censored more? That is the question at issue in these cases, whereas Texas and Florida are demanding that social media companies censor and moderate less and so this is a interesting now the youtube case is not just um censor more but should they have suppressed i do think the promoting thing makes that unique and interesting and not exactly along that political moderation line. Yeah, yeah. Interesting. But from the line of Texas-Florida social media bill on the right to this Twitter case on the left, let's say, there's a really good chance that both lose. Now, the YouTube one, I think, has enough distinctives that you could have a, potentially, a ruling against YouTube, depending on the facts of the case, about how much does this algorithm

actually promote content in such a way that it's actually YouTube. This is YouTube's, this is a joint venture between YouTube and the content creator and pushing stuff out. And that actually opens a really interesting can of worms because, you know, this is one of the ways in which a social media company can potentially, it's not exactly, it's not the same as removing content, but if they remove it from the algorithmic operation that leads certain kinds of content to bubble up to the surface based on your preferences, and they remove it from that, it functionally from a lot of feeds just disappears. It's just not there. Or, I mean, the two things that I would like to see happen are age limits,

like we have on tobacco and alcohol, and an algorithmic limit. They make a lot of money on the like addiction side of this which the addiction side to me is the algorithm that promotes stuff that you know you they know you're interested in and so you're constantly continuing to scroll because the next thing might be even more interesting and if it reverted back to the timeline function where it is simply the that you know you follow certain people and you're going to see the next thing. Now, this gets weirder with YouTube where you do follow channels, but it would change the business model, but I actually don't think that it would violate

any legal restrictions if Congress, for instance, wanted to pass that. Again, age limit and then algorithmic addiction management. But that's where the Google case is far more interesting than the other two cases because we're going to see whether that already is required. Because David, even if they find against YouTube in this case, it's not really that YouTube can then say, great, we're removing all this content from the algorithm. They would have done that anyway if they had seen it. So that's not going to be an option. It's going to have to be like, okay, well then you can't use that algorithm anymore. You can't promote content unless you've seen all the content, which isn't

possible. In which case the whole YouTube model really changes dramatically. So yeah, all three of these cases, and remember the Texas and Florida cases have not been granted cert yet. There's still a lot of percolating going on, frothing, if you will. Interestingly, Texas did not oppose net choice in wanting to stay the mandate. We can talk strategy another time, David, but really interesting that Texas didn't want to stay the mandate. Now, a Fifth Circuit judge could still sua sponte move for an en banc vote. Let me break that down in English, not Latin. So any Fifth Circuit judge who's an active non-senior judge can simply say, I want to hear this case with all of the Fifth Circuit judges. And then it comes up for a vote

and a majority of the active Fifth Circuit judges would have to say that, yes, they want to hear this case. You could see that going from either side, by the way, that some of the judges who very much agree with Judge Oldham's lower court opinion want to come out the same way, but think there's a better way to write it, for instance, which you and I sort of talked about a little, David. Or, of course, the other side saying, wow, according to this now Fifth Circuit precedent, it says that we check original public meaning before Supreme Court precedent. I don't think that's a good idea.

Let's take it on long. So that would still happen. But and they could ignore, not ignore, they could disagree with the decision to stay the mandate, in which case this goes up on emergency to the Supreme Court regardless, even if both sides agree they want the mandate stayed. Lots that can still happen in that Texas case. still happen in that Texas case. So how did you, just let's take a short strategy diversion here. How did you interpret the decision not to oppose the state? Because I have my interpretation. Should I go first? Yeah. Okay. They've already lost at the Supreme Court. Okay. They lost,

we know it was 5-4, probably really truly on the merit 6-3. I think they're forecasting another loss potentially. And if you don't stay the mandate, you're asking for a very rapid turnaround, maybe 6-3 this time, slap on the wrist, and a pretty quick kind of defeat. Whereas I feel like if you do stay the mandate, you're going to allow more time. It's just going to give you more time to argue this time. It's different. It's just a delaying action. One of the principles of litigation tactics is if you feel like you're going to lose, you want to delay. If you feel like you're going to win, you want to press. That's fascinating, David, because I have been so convinced that Texas thinks they win at the Supreme Court. Interesting. So yours makes a lot of sense. You never know, right? Like delay as long as you can maybe you change someone's mind maybe some

of these other cases move the needle I like that except except the underlying premise for it doesn't sound right to me but that they already lost once yeah I know yes they already lost once here you and yeah so now that if you know you're going to lose, you're going to want to delay. I'm talking about the ultimate loss. If you're thinking, yeah, but yeah, if you think the Supreme Court is the death knell of your case, as currently constituted under the current conditions, you've got some incentives to delay here. So anyway, just absolute armchair quarterbacking. I like it. One last other thing before we move on

from the sort of SCOTUS preview. I filed an amicus brief in one of the cases, 303 Creative. And we'll put a link to it in the show notes. And we'll talk more about that when the argument rolls around because there's a lot to say about that case. But why would I file an amicus brief? Well, two reasons. One, I'm still a licensed lawyer. And every now and then I want to write a brief, you know, just to sort of keep a toe in the water. And number two, the underlying issue here,

the underlying free speech issue is one that was a subject of litigation throughout much of my career. And I kind of want to see the issue through to its resolution. And so, and again, the issue here is actually the other side of the coin of a lot of the conflicts that we're seeing in, say, Florida's Stop Woke Act. Whether you can, you know, to what extent can anti-discrimination law be used to compel or prohibit the otherwise constitutionally protected speech of private entities? And so this is a fascinating case, and we'll talk a lot more about it later. Okay, David, before we leave the Supreme Court, two cases were argued today. Actually, they're being argued as we tape this, to be clear for listeners. One is a WOTUS case though, and this is like a

once in future WOTUS case. WOTUS, Waters of the United States, like POTUS or VPOTUS or SCOTUS. We do a lot of OATUSs. But WOTUS has been bouncing up and down for 15 years now. So these are lovely people in Idaho who've bought a home or bought some land that they wanted to have a home on. And the water is not connected to the nearby lake, but the EPA says, you know, it's close enough and they can kind of share tributaries. The homeowners are arguing for a sort of WOTUS principle that like it needs to be contiguous water. The water needs to actually feed in like sort of a waterway, if you will, not just like

adjacent water that could run through the ground or something like that. They're saying there's no limiting principle if you just simply say it's water that doesn't need to touch a waterway of the United States. The other case, David, I just sort of get a tickle out of, I guess in some ways, and this is the MoneyGram case. So 8%, 8% of Delaware's state budget, hundreds of millions of dollars comes from people not claiming their money grams

what yeah what isn't that wild and that's amazing yeah so the question is uh whose money is this and about 49 other states would like to say it's not delaware's when their citizens don't claim the money, it belongs to them. But Delaware's like, oh, MoneyGram's incorporated here, so all your bases are belong to us. And so this will be a question over what are MoneyGrams? Are they like traveler's checks? Everyone kind of agrees it's not that. Are they like money orders?

Hard to say. And so that's what they are arguing about as we speak that is amazing i eight percent claim your money guys claim your money it's just kind of wild when you i mean and you have to kind of get into the details of the 1974 Disposition of Abandoned Money Orders and Travelers Checks Act. But yeah, money order travelers checks or other similar written instrument, other than a third party bank check, go to the state in which the financial instrument was purchased. And then around and around we go. Wow. That's fascinating. Okay.

And I was making fun of the MoneyGram cases in Slack. I hadn't read them yet. I thought you were serious. I didn't know you were joking. No, I was totally joking. As soon as I saw the word MoneyGram, I thought I'll look at that later. No, David was like, oh, we'll talk about the MoneyGram case.

I was like, yeah, we will. And he was joking and I was serious. David, normally we're on such mind meld. I know, I know. I'm so sorry. I just saw MoneyGram and I thought, well, I'll just pocket that for now. It's a gazillion dollars. When it turns out that Delaware had pocketed that for now.

That's right. Yes. But wait, one thing, David, do you know what it's called? This principle of claiming uh abandoned or unclaimed property within a state's borders no a sheetment e-s-c-h-e-a-t-m-e-n-t so it's like e-s-cheatment a sheetment now are we sure we're pronouncing that correctly? Because you know what will happen. Absolutely not sure. And it's clearly my like joking,

shaming of other people, mispronouncing things has been so lost on multiple podcast platforms that I will never do it again. But it is the legal principle. I mean, we have the greatest listeners in the world, unless and until we mispronounce words. Yeah. Then I'm still reeling from Belknap Gate.

That's been years, David. You need to get over it. It's two plus years when I mispronounced the name of, I called Belknap, Belknap, and hell was unleashed upon me. Shall we move on to Trump and the special master and the 11th circuit and Judge Eileen Cannon? And oh my gosh. Okay, so this is also like a Trump legal problems review episode. Yes. So I just want to run through the three cases that we're watching here. Well,

let me tell you about the case we're not watching. The January 6th DOJ slash January 6th committee investigation. So we know the January 6th committee sent over a criminal referral to DOJ. And as I think I've covered before, David, you can send over a criminal referral to DOJ. DOJ doesn't care whether you think a crime has been committed. Now, if you have new facts or evidence of a crime and you can send that over in your referral, that's great, but it's not the criminal referral that made that meaningful. It's the new facts and evidence that you have. We don't know really what the January 6th committee has sent over to DOJ. So I'd say like I'm aware of that, but I would not consider

that something we're following because as far as I know, there's not a whole lot to follow. Okay, here's what we are following. One, the Department of Justice investigation into the removal of classified material to Mar-a-Lago. Absolutely, right? And update on that is that, if you remember, the special master, Deary, said, hurry up and also tell me, Trump team, if you actually want to dispute any of the inventory here, i.e. you're claiming stuff was planted, let me know which things you think are planted and what evidence you may have for that. are planted and what evidence you may have for that. And remember, originally, the lower court, rather the district judge who sent this all to the special master said that she wasn't excluding classified material. The 11th Circuit then comes out and is like, oh, yes, you are. You must have misunderstood law. Absolutely, the classified documents are not included. Here's the great quote from the 11th Circuit. Yeah. For our part, which was two Trump appointees and one Obama appointee writing per curiam unanimously here, by the way, for our part,

we cannot discern why plaintiff would have an individual interest in or need for any of the 100 documents with classification markings. Just to clarify, David, it was per curiam with no dissents. You never know with per curiam whether it's technically unanimous. Oh, true. Okay, sorry. But you know at least there was one Trump-appointed judge who voted that way, because you have to have two out of three to have a PC. Yes. And no noted dissent, so I think it is fair to assume that it's unanimous, but technically we don't know that. Thank you. Thank you.

We like technical accuracy. Yes, thank you. That was like the most actually of this podcast, hopefully. Okay. So now District Judge Cannon, the one who has this case, just decided that the special master that she appointed is wrong on several fronts. Says, no need to hurry up.

Take all the time you want. She doesn't actually say all the time, but much longer than the special master had given them. And you absolutely do not need to look at any inventory or dispute any property at this point. Really making one wonder what the purpose of a special master is. If the special master says something, then immediately the district judge simply disputes it. This will all provide nice fodder for that appeal that is going up to the 11th circuit. So DOJ goes up in an emergency posture

on those classified documents. They are currently up on the appointment of the special master at all and the fact that the special master is serving zero purpose as far as i can tell because the district judge is ruling herself on every one of these ministerial questions about the plan and this is the special master's plan and it's not that she doesn't have the authority to do it she absolutely does the special master is a creation of hers but But why do you need a special master if you're doing that? So that's where that case is. Well, can I say one word about the old special master here? Of course. So I feel like that what's happened with a special master is that you're seeing what happens when Newsmax talking points meet a judge who doesn't give a rip about sort of like politics, the magnitude of the case.

And it's just sort of like, all right, this is a case in front of me with a person. And you're making what arguments now? Wait a minute. here's the problem i think judge deary um i've told you i think it's weird that he is acting as a judge in this case and refers to himself as the court but set that aside he seems to be incredibly smart and fair-minded about all of this and taking his role seriously but at the point that you put out a plan to review these documents, and then the district judge goes line by line, changing your plan. I do think that at some point, maybe not this point exactly, that the special master probably resigns. Yeah. Yeah. Like what, what is it? You know, it's the, who am I? Why am I here? Admiral Stockdale

moment. Indeed. Yes. Okay. Next. Next we have the New York attorney general lawsuit against the Trump organization. This is a civil lawsuit, not criminal in some ways. Then the jeopardy, not criminal in some ways then the jeopardy if you will is far less and it will get um such attention on this podcast as that may warrant it being far less jeopardy and only about money right for the trump organization on the other hand as others have pointed out this is sort of the life flood of the trump family is the trump organization so maybe we should take it more seriously i'm kind of torn but i do think it's relevant that attorney general barr who again has said like those documents those classified documents shouldn't have been at mar-a-lago and like absolutely this is all very illegal um so on

the one hand it's not he's held back no punches on donald trump he has in fact written a whole book about it he said that he thinks that this New York lawsuit is kind of BS, that it clearly is politicized. And what he points to for that, that I think I tend to agree with, is that it was not a lawsuit against Donald Trump and the Trump Organization. It was a lawsuit against Donald Trump, the Trump Organization, and Trump's adult children about Trump's personal financial disclosure. And you read the lawsuit, and there's just nothing that I saw tying Trump's children to the sort of knowledge and willfulness required over Trump's personal financial disclosure.

And so why would you include the children except to make a splash more headlines and what i would say to uh leticia james and the new york attorney general's office is if if your point was to hurt donald trump versus help your own political career you've made a huge mistake the last thing you want is to muddy these waters with a case that has some strengths, but a lot of weaknesses, and allow them to pick which case they're going to argue in the public and make it this case and make it look like, oh, now there's so many cases, we can't keep track of them. They're all just after Trump. Huge political mistake on that side. So this is the classic anti-Trump mistake, I think.

And I largely agree with you. And the classic anti-Trump mistake goes like this. Trump commits wrongful acts that on a scale of one to 10 are maybe an eight or maybe a nine. Now, January 6th, it's more than a nine. But let's just, anyway, Trump commits wrongful acts that are maybe an eight more than a 9. But let's just, anyway, Trump commits wrongful acts that are maybe an 8, maybe a 9. Then somebody says they're an 11 and acts accordingly. And so all of Trump's defenders

say, this is persecution. It's not an 11. And never deal with the 8 or 9 misconduct. But by going for saying it's an 11, you're fighting over the overreach. Then you end up battling over, defending, fighting over what is an overreach. And then you never actually get to the underlying troubling facts that are there to begin with. And if you look at the lawsuit, there's a lot of squirrely behavior that is outlined there. There's a lot of behavior over inflation of real estate values, et cetera, et cetera. And so I think that the classic mistake here, and it's one that sort of the Trump defenders have seized on constantly, is the overreach. It is, oh, it's much worse than you think it is, or this thing that is actually bad is actually worse, has led to a lot of miscalculations,

has led to a lot of misdirections. And ironically and sadly enough, and this is sort of a problem with our discourse, often then leaves the underlying actually troubling conduct unaddressed. Yes, and rinse, repeat, right? Okay, last case that we're going to sort of just touch on. Again, it feels like it's just the start of a new year, David. We've got to like run through all the previews of SCOTUS, of Trump World. So the last case is this Georgia state case. This is a criminal case about whether Trump violated Georgia state election law in pressuring officials to change the vote in the 2020 election. This, you know, very much turns on that Raffsenberger call where he says, just find me the votes. But there's plenty of other stuff. They've done subpoenas of lots of people, like all the people have been subpoenaed. And two things, David. One, Lindsey Graham has been fighting a subpoena in that case for a long

time now. And we talked about how Texas filed an amicus brief that I thought was strange in the special master case, because what is Texas's interest in the special master case? And they sort of wrote it up as like, our interest is to let you know that these people are bad people and they're not forthcoming litigators. I thought that was strange that like, you could just weigh in and say like, I don't like to litigate against these parties in a totally unrelated case from the one that I'm in. Yeah. But David, they also filed an amicus in this Lindsey Graham subpoena fight. Same thing, right?

Joined by a bunch of other states. And that amicus brief, I thought, was actually very well done. Now, I don't know that they made arguments different from the ones that Lindsey Graham himself made, but Texas actually does have an interest in the outcome of a case that turns on the speech and debate privilege and the speech and debate clause in the Constitution. There's cases on speech and debate clause, but it's a little like executive privilege. There's Wild West territory on the speech and debate clause that but it's a little like executive privilege. There's wild west territory on the speech and debate clause that can feel a little like it's whatever's in your heart. And so speech and debate clause in the most traditional sense, for instance, is that the

executive can't, through their police powers, arrest a member of Congress on their way to a vote because they're on their way to a vote. That's a, that's a core legislative action. And otherwise that could be abused by the King slash president in this case. But then it's like, okay, where else is that? So there was a famous case about, um, I think his name's William Jefferson, the Louisiana guy who was keeping bribes in his freezer. Do you remember that one, David? Yes. Uh, so they, the FBI raided his congressional office and he was like, blah, speech and debate clause. And courts absolutely sided with him in that.

Now he was still convicted because the money in his freezer was elsewhere and there was plenty of other evidence. But all of the stuff that they took from his congressional office had to be returned and could not be used in the investigation because that was core legislative work. And the question around Lindsey Graham

in this Georgia case is, yep, he was making phone calls that day to Georgia officials. Maybe he talked to the president. Was he acting in a core legislative manner? And his argument, which I gotta say, David, I find it pretty compelling. Is that-

What do you do? I do, I do. I do. I'm sorry. He was voting on whether to certify the election. And therefore, those calls, you don't get to inquire into because he was collecting legislative information on how he should vote on that certification.

I'm not saying I like it, David, but I'm saying that on speech and debate clause stuff, that pretty closely follows for me. David is pondering. He has his finger on his cheek and he's stroking his beard. Yeah, I think when I read it, I was thinking, really? You're classifying Lindsey Graham's activities in Georgia as an investigation? What? Because I think the entire claim is this was not, in fact, an investigation at all. And what this was, in fact, was a pressure campaign. It was a pressure

campaign as part of a larger criminal scheme to induce election fraud in violation of Georgia criminal statutes. Now, I can imagine a scenario, Sarah, where you're right. You're right. Lindsey Graham's on the phone with his in-house, you know, with his, with the count, maybe committee council, you know, they're talking about, we're wanting to investigate certain specified alleged irregularities. Can we schedule a time for a hearing? That's a very different thing than what seems to have transpired. So it seems like we're recasting a pressure campaign as just asking questions. So here's the problem, because this all turns around deposing, you know, interviewing Lindsey Graham. The only way you can know the answers to some of those questions is by knowing the answers to some of those questions.

And the speech and debate clause may prevent you from asking the questions in the first place, unless you have evidence that he violated the law himself, which nobody is claiming. It's different than if you charged Lindsey Graham and had evidence and a grand jury had indicted him for this, we'd be having a different conversation. But can you subpoena a senator to ask him whether he was acting as a senator that day? How else are

you going to do that other than asking questions that would elicit answers that clearly fall under the speech and debate clause? And then the question is, are we actually going to sit there and parse which questions you can ask? Or is the speech and debate clause broad enough that so much of this goes to the heart of a legislative question that you don't get to do it in the first place. So I would agree with you if you're beginning the investigation by saying, let's talk to Lindsey Graham first. I know. This is going to be a pretty fact-heavy case. Yeah, exactly.

But I do like this line from the Texas amicus brief. Regardless of what one thinks of the underlying merits of the accusation that the grand jury seeks to investigate, about which amici take no position. Really? None? Interesting. in the history of conflict between the commons and the Tudor and Stuart monarchs, during which successive monarchs utilize the criminal and civil law to suppress and intimidate critical legislators. I just, I mean, anything that goes back to the Tudors, I'm all in. Well, you know, I know, listeners, tell me if I'm wrong here. Tell me if I'm wrong. This is the Battle of Bosworth Field all over again, David. I know, I know. I'm just thinking out loud, have we had a period in American judicial history

where the period of British history running from the 1200s, which the Bruin, the gun rights case, went all the way back to the 1200s, from the 1200s through the 17th century has been more relevant in American public debate. Fun times. Yeah.

Okay, last thing on this case, David, still on the Georgia case. You have said, and I agree, that when it comes to the actual legal jeopardy in a criminal case for Donald Trump, this case has a lot more legs than any other case. Now, I'm curious if you've changed your mind as the Mar-a-Lago classified documents have moved forward. I will say that I have not because I think actually where that case has moved forward is on the obstruction side,

and you still have the underlying prudential question of, should you charge a former president when the national security threat is over? You've got the classified documents back. And we're talking about obstruction at that point. Even as they get more evidence on the obstruction side, I think the prudential question leans heavily the other way when it's an obstruction charge. All right. heavily the other way when it's an obstruction charge all right so in georgia i have agreed with you that i think that criminal case is on the merits not on sort of these like external

obstruction things on the merits very strong but david dan abrams the abc uh legal correspondent made a compelling argument to me in the green room the other day that I just think is, I've thought about it now. I have debated it with friends and I just, I can't figure out any other way around it, which is. Okay. Let's hear it. So he's not made this argument publicly. This is not a public argument. He mentioned it on ABC this week. We were on a legal panel together and sort of did a back and forth on it briefly, and he mentioned this. But we had a much longer conversation in the green room that at the point that there's an indictment brought, I think that will get challenged in federal court. And it will raise this question for the first time, really, of whether district attorneys, the 900 plus that are running around the country, can indict former presidents for actions that they took while in office. Because our constitution's pretty clear that you can

impeach a president for actions they took in office and then we sort of leave open the question of whether you can charge them with a crime after they've been impeached but you end up in a really weird situation where you know a whole bunch of district attorneys can now each charge former presidents they don't like of a different political party for official acts and that maybe that is held only by a the power of congress to impeach the president and then post impeachment the power of the federal government to charge a former executive for presidential actions and if so the georgia case has problems i respect the heck out of dan but he's got to show me his work on that one like it seems to be entirely a prudential argument right well it's kind of a

core separation of powers we think of separation of powers most often in terms of the three federal branches but there's still separation of powers of course between states and the federal government and sort of the supremacy of the feds over states. But I agree there's a large prudential aspect, which is when Joe Biden leaves office, we don't want him indicted in a whole bunch of different jurisdictions. He has to defend himself in all those jurisdictions. That's silly for official acts. Now, you can say what Trump did was not an official act while he was president. Happy to get into that debate. I actually don't think we want to draw that line too finely.

You know, okay, he murdered someone in Fulton County in broad daylight while he was president. Is that an official act? Like, I get it. There's extremes you can take of this. Yeah. But in this case, I don't think... Traitor, I sentence you to death. Right.

Is that a... Yeah. Right. And you to death. Right. Is that hate? Yeah. Right. And pulls the trigger. Right. Is that an official act? But in this case, I think that, and I've said this all along, right? I think that this gets very messy when you say that a president, for instance,

calling and putting pressure on other officials while he's president. So is LBJ guilty of this? I mean, every president puts pressure on other legislators, federal, state, et cetera, to do what they want. Again, I think you know how I feel about the underlying merits of this, obviously. Yeah, this is totally different from the Rick Perry indictment in Travis County. Is it?

Yes, indeed it is. It is completely different because if you're looking at the Georgia solicitation to commit electoral fraud statute, what you're talking about is not putting pressure on someone to do a legal act that you would want them to do. You're putting pressure on them to do an legal act that you would want them to do. You're putting pressure on them to do an illegal act. And in the course of that, threatening an illegal prosecution of the person if they fail to commit an illegal act. So there is this really interesting, I think, meta question that sort of goes to this. How much does the president or members of Congress, when it comes to the speech and debate clause, how much does their office, while they hold it, and then the fact that they held it, sort of remove them from the operations of the rule of law

that apply to every other citizen in every other circumstance in American law? How much is that? citizen in every other circumstance in American law? How much is that? And I am on the very low side of that. I am on the basic view that says, you are only removed from the operation of the rule of law to the extent that you are explicitly removed from the operation of the rule of law. There is no implicit removal from the operation of the rule of law. Right now, you are Donald J. Trump. You are not President Trump. You are Donald J. Trump. You're not President Trump. You're Donald J. Trump. And you did some things that are right in violation of unquestionably

constitutional state criminal statute. And if the answer is don't indict him because, well, that could open a can of worms if other prosecutors are maybe corrupt or politically motivated, et cetera. That's a prudential question. That's not a legal question. So David, let me change your hypothetical here. The president calls a senator to pressure them to vote a certain way on a piece of legislation that the president knows is unconstitutional and that a court later finds is unconstitutional.

Is that not similar in many respects to your thing about a president doing something they know to be unlawful? He took an oath to uphold the constitution. And there are numerous examples of this. And I can start with, for instance, the Bipartisan Campaign Reform Act, where President Bush's signing statement said that he thought it was an unconstitutional act, and he signed it anyway the hypo the non-hypo the the real oh yeah of the the truth though of the matter in the in the georgia situation is applicable criminal statute violate so in other words that he's seeking to induce a criminal act and that he is seeking to, um,

and threatening another criminal act. Yeah. But you're saying that you're, you're assuming the conclusion, right? Like you're saying it's criminal because you think it's criminal. And in my situation, I'm saying it is unlawful.

And so, yeah, pressuring someone to break the law by signing something, you know, to be unlawful. How is that again? Like don't assume the premise. Donald Trump didn't think he was pressuring them to to be unlawful how is that again like don't assume the premise donald trump didn't think he was pressuring them to do something unlawful

no no so but under your hypo there's no criminal law in in play so you have civil remedies for that and you also have an impeachment remedy for that um so the question here is a if you're implicating criminal law. If he called and he said, I know this campaign finance reform is unlawful and unconstitutional, but if you don't vote for it, FBI is going to be at your door. Okay? Put the man in jail. Put the man in jail. You don't think LBJ did that? That LBJ said, I'm going to have you arrested unless you vote for...

I'm not sure that he did. But if he did, he would be criminally liable after he got out of office. And maybe in it, because I'm not entirely convinced by that OLC memo that says you're being for prosecution while you're in office. So...

Oh, I am very convinced by that. Okay. We'll continue this conversation. Let's put a pin in it. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame, preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving.

And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame.

That's a-u-r--A frames.com. Use code advisory at checkout to save. Terms and conditions apply. I don't want to give short shrift to Ho V Yale. Do you want to do the setup? Yes. So the setup here is really, really simple. To the chagrin of some of our listeners, we have covered in depth the drama at Yale Law School. Not to dive too deep into it, let's just say that Yale Law School has been a quite intolerant place, has imposed a number of double standards on the Federalist Society, has created an environment that has been extraordinarily miserable for many conservative students there, has permitted a degree of misconduct that would be utterly unacceptable, that they would no doubt find utterly unacceptable

if engaged in by the right. Let's just assume for the sake of argument that we're not going to get into how bad is Yale. For the purposes of this argument, presume that Yale is bad. And what Judge Ho has said is because Yale is bad, because it mistreats its conservative students, because it has double standards, I am no longer going to hire any law clerks from Yale. And the logic for this is that Yale derives a great deal of its prestige, as all law schools do, from the fact that they're able to place a disproportionate number of their students in very prestigious clerkships, which is the fast track to being a Supreme Court clerk, which is the fast track to being a law professor, which enables a fast track to being a judge. This is sort of launching pad number two after law school,

sort of the second stage booster, if you're going to use like SpaceX terms. This is the second stage booster is a clerkship. And what Ho is saying, I don't want to enhance or facilitate Yale's prestige by being part of their second stage booster for their students, for any of their students. And this has generated a firestorm, Sarah, a firestorm. I know where I'm on this. I'm super curious as to where you are. I want to read, David Latt put together a nice rundown of the people on both sides of this and some of their thoughts and David L latt with his traditional david latt flair don't forget and nobody covers drama better than david latt and yale drama where he went yeah yeah

this is the this is a david latt at his best his newsletter is called original jurisdiction you should definitely subscribe to it i do so in the you go ho camp uh camp, Senator Ted Cruz, Judge Ho, has taken a courageous and important stand. Worth noting that Judge Ho replaced Ted Cruz as Texas Solicitor General. That's a fun fact. They've been friends forever and like friend friends, longtime friends. Okay, Professor Josh Blackman, who we've talked to before, David. How then should a judge assess a conservative applicant who chooses to go to Yale? This person knowingly walked into the trap house for the sake of an elite degree. I think it is reasonable for a judge to conclude that the applicant exercised poor professional judgment. That's insane. Okay, keep going. Okay, in the, oh no, he didn't.

Sorry, it's too funny. Oren Ker or incur who we've also had on this podcast this boycott crosses an important line it's the line between judges expressing their personal views in an effort to persuade which is fine and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas which is not fine in my view um national reviews isaac shore it's worth considering the abstract whether a federal judge using the blameless as pawns in an effort to change the behavior of an institution to which they are connected but whose malfeasance they are not responsible for is a practice that

conservatives should endorse. And then this is where this was like sort of the easy shot from Professor Rory Little. It's absurd to retaliate against cancel culture by canceling somebody. David, I do think it's important to note that Judge Ho did say that his new policy would only apply to clerks, to clerk applicants who are attending, accepting their Yale acceptance, whatever, for the, after this speech. Right. As in, if you're at Yale right now, even as a 1L, you can still apply to Judge Ho. you can still apply to judge ho and david i think it's worth noting that judge ho is simply saying out loud what plenty of judges have been doing quietly for years if not decades go look at how many yale students have been hired by some judges that i could point to at some other point you'll see there are many years that go on in between without

such hirings including at the supreme court maybe um certainly in some of these appellate courts and david if you're picking students clerks based on any number of other factors like their ideological bent plenty of judges on both sides will only hire students who agree align with them ideologically um it's in that sense it undermines kerr's point a little like yes if you sort of phrase this as a boycott and using your power as a government official and all of that i am very sympathetic to kerr's point but if you look at it from the much softer angle of they're only taking four people, they have any number of soft reasons why they are taking or

not taking certain people. And that, yes, for some judges, you must have Federalist Society on your resume. For other judges, you must not have Federalist Society on your resume. For some judges, they won't take students who went to top 10 law schools. They think that those students already have too much going for them. They're really looking for top of class at lower tier law schools to help those law schools and to help those students and all of these things. How is Judge Ho saying some of this part out loud? Such a wild change. I think the big change is the slamming of the door. So that to me is the, no matter your individual merits, no matter your individual story, you, the door is being slammed of these chambers and then other people. And then a lot of the thought is we need more doors slammed

shut. You know, that's the Josh Blackman argument that really bothers me, which what really bothers me is it's sort of a piece of these arguments that you often see now when someone makes different choices from you, that it is- How dare they? How dare they?

And somehow, well, you've sold out. You've sold out. You know, and look, there are students, and there are individuals who hear about a difficult environment and view it as a challenge they say i want to see how i endure and hold up under adversity or they see it as a situation where they can maybe make a difference and offer a different voice. There are a lot of reasons aside from just cold prestige calculus that you would go to Yale Law School even knowing it's somewhat toxic. And toxic environments change. I mean, we have talked about

this a million times on our podcast, but the Harvard Law School of 91 to 94 that I went to was not the Harvard Law School that you went to because it had fundamentally different leadership and it had a really different culture between those two periods of time. And so sometimes what you're doing is you're saying, I'm not just investing in what this institution looks like in a snapshot of its 350-year history that is right now, but I'm investing in the institution as to what it has meant and will continue to mean for another 350 years. And so the squabbles of any given day or age of era tend to wax and wane as time goes on. day or age of era tend to wax and wane as time goes on. So to presume, just to presume, regardless of other facts, that there's something wrong with a conservative Yale law student, I think, is deeply unfair. Now, does it mean that a university that has a very intolerant far-left

culture is necessarily going to then produce a lot of highly qualified conservative law clerks? Probably not. Probably not. Because just be the operation of choice, a whole lot of people who have a choice between, if you have a, if you're in Yale, if you've gotten into Yale, you're going to have, it's very rare to get into Yale and none of the other top fivers, top six, you're going to have a choice of none of the other top fivers top six you're gonna have a choice of one of the other top five or top six and a lot of people are going to be repulsed by that environment and they don't want any part of it and they're going to choose something else so you kind of have a chicken and egg problem you might have fewer clerks being hired out of Yale

conservative clerks being hired out of Yale because Yale's done a really good job of telling conservatives, it's going to be a hellish three years here. This is going to be really hard for you. We're letting you in, but we're not going to like you for one second that you're here. A lot of people don't want any part of that. My objection is to the slamming of the door, regardless of the personal, the facts of any given individual. And then some people, honestly, Sarah, don't presume the sophistication, uh, the, the sophistication of your law school admittee. I would have had no clue that any of this was going on before I went to law school.

Eggs. Same, same. any of this was going on before I went to law school. Exactly. Same. Same. I was so naive about even what the legal profession meant was, I'd never even heard of a clerkship. Like, what? I didn't know what the word appellate meant. I was so... I didn't know how to pronounce that. Clueless.

What I knew is I'd gotten into a dream law school. I went and visited. It was super cool. David, do you know how I heard about the Federalist Society? How? A guy who I went on a date with found out that I'd gotten into Harvard Law and was like, you should check out the Federalist Society while you're there. And I was like, what's that? And he's like, don't worry about it. Just email when you get there and try to figure out where they are on campus. I think Harvard will have one.

And I was like, well, this guy to be clear is like the best looking guy I've ever been on a date with. He had like 17 inch biceps and like a neck that was larger than my head. And I was absolutely in love. He listened to country music and wore, you know,

tight white t-shirts and I was just totally sold. So if he told me to check out the Federalist Society I was I did it so that I could text or there wasn't text then like email him so that I had an excuse to email him and be like hey I got in touch with the Federalist Society thanks for the great advice yeah so anyway what are you doing later like that's how I ended up in the Federalist Society yeah I here I ended up in the Federalist Society. Yeah, I ended up in the Federalist Society in my first couple of years of law school, my first year of law school, because after I'd gotten in and after I'd said yes, I got a document from the law school that said,

here are all our student organizations. And I read it and I picked the two, the Law School Christian Fellowship and the Federalist Society that seemed to match my interests. And I read it and I picked the two, the Law School Christian Fellowship and the Federalist Society that seemed to match my interests. And I went in the Law School Christian Fellowship at the time. There's like 1,400. It's a big law school, 1,400, 1,500 students. And there was like 20 of us in the room. And then went to a FedSoc meeting and it was smaller. So, yeah, different environment back then. But the idea that you're going to presume the

sophistication of these admittees, that they're all up on all of the Twitter drama, when the reality is a lot of really smart parents and a lot of really smart folks are saying to bright, young students these days, don't be all up on the Twitter drama, that it's actually bad for you to be all up on all the twists and turns of every culture war fight that ever exists and keep your head down steady and learn about big things, not small things, to then turn around and say,

because you're not up on all the culture war drama, you're some sort of, you've sold out your values or there's something wrong with you. And going to that school, I think is fundamentally unfair. Two things. One, I do wish that Judge Ho had laid out criteria that Yale, for instance, could meet that would then change his boycott, right? He just said he was boycotting them until like Yale was different. Well, like, what does that look like? Because without sort of that laid out, well, like, what does that look like?

Because without sort of that laid out, it's a little hard to judge. Second, I really, really, really hope that Yale does change. Yes. Living up to their own written rules about free speech on campus, because, and you and I have talked about this, David, it's not just hurting the conservative students in the

traditional way where they are minority-ified and put upon. It's hurting the liberal students because they never have to engage with ideas they don't understand. So they leave law school having no concept of how to argue the other side of a case and therefore are shocked at the arguments from the other side and shocked when their arguments are weak, frankly. But actually, it hurts the conservative students in a different way, David, because I think it's making those conservative students actually in a similar way so disengaged from the law school, from those debates, from those arguments, that unlike when I was at law school, where I felt like it was a really healthy minority position. And so I was constantly engaging with liberal students, getting the benefit of liberal professors

arguing with me that I learned their language better than they learned mine. That's no longer happening because there are so few students they're getting so hunkered down they have such a victim complex that they're getting more antagonistic less interested in hearing and engaging with these ideas they disagree with too so everyone is getting hurt at yale and uh and it's the law school's fault it's the administration's fault it's the law school's fault. It's the administration's fault. It's actually going to be really easy to fix because no other law school has this problem at the same rate, if you will, that Yale does. So we know it's a Yale-specific problem. when I tell the story of being shouted down at Harvard, of having people send me notes telling me I needed to go die and I was a fascist because I was pro-life, being shouted down multiple occasions, the intolerance that led to this article called Beirut on the Charles that we've, again, a lot of this is, it's like greatest hits for advisory opinions listeners.

But what I would say is that had a negative effect on me. As much as I tried for it not to have a negative effect on me, it still had a negative effect on me. I graduated from law school with a lot of progressive friends, folks who disagreed with me that are close to me to this day. I mean, my goodness, our fantasy baseball league, which is definitely split conservative liberal, had its 30th annual

draft recently. So yeah, I definitely made progressive friends who are dear to me to this day. But that level of hostility created an impression for me about the left writ large that it took a long time. And let me put it this way. It unbalanced for me, my anecdotal experience unbalanced for me, my perception of the virtues of the two sides of the political coin. And so I left law school having endured a lot of that thinking,

yeah, there are good folks who are progressives, but as a general rule, as a general rule, my side of the aisle has better ideas and in general, better folks, right? And that's a dangerous way of thinking. There's this interesting sociology study. I think you touch on some of these as well in your book, which is very good and people should get it, we fall yes um in which being around people who are different than you will make you more tolerant but hey you have to actually be around them and engaged with them in like sort of everyday activities and b it takes time uh and so it's it's fascinating to look at these quote-unquote counter examples like

apartheid in South Africa and things like that and think about why that didn't seem to follow the normal rule. For instance, when you look at racial attitudes in the United States, the border states actually tend to have much less racist attitudes than some of the other states, the border states actually tend to have much less racist attitudes than some of the other states, which is very funny to me about some of these immigration arguments, by the way, where the blue states are calling the red states racist and the red states are the ones along the border who actually have the most tolerant racial beliefs, but whatever. But it actually gets along to this whole idea that if a minority at the law school becomes so isolated that from the outside, it can look like they're interacting with

each other. But in fact, in the inside, um, it, it is not that way at all that they've become isolated, uh, from one another. So look, all that said, I think judge Ho, I think people are making a little too much out of this. A lot of judges do versions of this for all sorts of reasons. As I said, a lot do it on elite schools versus non-elite schools. Some preference elite schools, some de-preference elite schools. So yeah, I'm sure

people in the comments section will have lots to say. Yes, and I'm eager to hear what you think, but my issue is the slamming of the door. That's my issue. I'm fine with sort of the door is mostly shut because of experience and other kinds of hiring priorities, such as non-elite schools, etc., but you're still peeking around the edge there, and you're saying, you know, you can prove me wrong here. You can prove me wrong. But anyway, we are already long. Before we go, I do want to do, we haven't done like in memorial in this podcast, but I think we should this week because it is rare that we lose someone who is such a legal giant as Lawrence Silberman. There are very few people who clearly could have easily been on the Supreme Court, had the exact career needed, and the intellect, and the drive, and all

of those things like Judge Silberman. And at the same time, there's Supreme Court justices who don't have nearly the career that Judge Silberman had. I know many of his clerks, they are grieving this week, and just want to say that we're thinking about you. And in brief, I thought we would run through a little bit of his extraordinary career, David. He was the Solicitor of Labor, which is sort of like the Solicitor General, but they argued the labor cases, which there's a lot of, it's considered sort of that second solicitor general, if you will. He was the DAG, the Deputy Attorney General at the Department of Justice. And David, just so we can run through when he was the DAG, that would be January 20th, 1974 to April 6th, 1975. There was some stuff going on.

He took over from Ruckelshaus. So, blah. He was the ambassador to Yugoslavia in the 70s. Also a place with some things going on. And then, of course, he was a judge on the DC Circuit. He served on FISA. He was a judge on the D.C. Circuit. He served on FISA. He was the chair of the Iraq Intelligence Commission. And so many of his cases, David, I mean, he did the Independent Council Violates the Appointments Clause.

He did Patriot Act. He did the District of Columbia's ban on the carrying of firearms violated the Second Amendment. Oh, that's right. You might know that case as Heller. He did Affordable Care Act. But most interestingly to me, because so many of those cases the Supreme Court then sides with Judge Silberman, is the one that we don't know yet. And that's New York Times v. Sullivan. Judge Silberman, we talked about this case actually at length on the pod at one point, David, dissents saying New York Times v. You know, I get it.

We have to apply New York Times v. Sullivan's standard. But the Supreme Court should overturn it, and here's why. And he lays out what I found in the end to be a very, very compelling case that our current defamation law simply doesn't work in an era where everyone's a publisher, where everyone can say stuff. And I think in the end, it becomes that fix to Section 230 in some ways and cancel culture and all of this that people want.

If defamation were easier to achieve instead of that sort of proof that the person knew they were lying at the time and did it just to get you, get rid of that. If they defame you, they defame you. And it doesn't really matter whether they knew they were lying or just didn't bother to check if they were lying. And that then you might solve some of, I think, the underlying angst over cancel culture in Section 230 if something were easier to do. And so I think Judge Silberman will be vindicated on overturning New York Times v. Sullivan. I don't think it's going to happen this term or next term, but I think he will have a long legacy in the law. And I think that's one that we haven't even fully uncovered yet.

Well, that's worth a really good extended discussion on your time to be Sullivan. But that's a lovely tribute to Judge Silberman. And, you know, it's worth taking a moment to pause to pay tribute to people who've rendered such long and faithful service to this country through some really trying times and with some really contentious issues and having done so with the utmost integrity. So rest in peace, Judge Silberman. And by the way, do you know who was a clerk of Judge Silberman's? Who? Amy Coney Barrett.

Oh, is that right? Interesting. And so many others. He was so close to his clerks and his clerk family. I had one clerk tell me that when she originally saw those Dos Equis commercials, the most interesting man in the world, she thought they were about Judge Silberman. Oh, that's fantastic. Well, that's a perfect note to end on. Thank you guys for listening. Please go rate us. Please subscribe. Please check out thedispatch.com and we'll be back on Thursday with a lot more to talk about.