Advisory Opinions - You Reap What You Sow

Episode Date: December 3, 2020

With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach State and whether Republican Sens. David Perdue and Kelly Loeffler can hold onto their seats in their January runoffs. But could all of these election conspiracy theories that are being circulated by conservative pundits and politicians ironically end up depressing turnout among GOP voters in these races? “Over last night and this morning,” David explains on today’s podcast, “there was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they may be reaping the loss of the Senate.” Today’s jam-packed episode also features a breakdown of several religious liberty cases, the White House’s alleged pay-for-pardon scheme, the U.S. census case, Attorney General Bill Barr’s special counsel appointment, and HBO’s The Undoing. Show Notes: -Donald Trump v. New York oral arguments transcript -Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census -Franklin v. Massachusetts -General powers of special counsel CFR -October 19 memo from Attorney General Bill Barr -9th Circuit Harvest Rock Church case -Supreme Court order on Harvest Rock case Learn more about your ad choices. Visit megaphone.fm/adchoices

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We're talking yummy, creamy, hearty goodness. Choose from loads of delicious, Moorish flavors ready in only two and a half minutes. It's not cup food, it's good food in a cup. Visit Knorr.com to learn more. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got a lot to cover today. We're going to start in Georgia. We're going to move on

to pardons and bribery. We're going to talk a bit about churches and religious schools. We're going to talk about the special council appointment. We're going to talk about the census, and we're going to wind up with a can't miss, shouldnmiss conversation about HBO's The Undoing. It will also be spoiler-laden. So if you want to stop the podcast, if you haven't seen The Undoing, want to see The Undoing, don't want to know what happened,

stop the podcast. Oh, I don't know. We'll be clear. 75%? We'll tell you. Yeah, we'll tell you. We'll tell you. We're not going to do that.

No, no. We're not monsters. And remind me, Sarah, or if I don't give the spoiler warning again, give it also. I will, obviously, yes. Okay, excellent. I got your back. We take care of our audience. Yeah.

Okay. Let's start in Georgia. And I want to start, Sarah, with a paraphrase of what might be my favorite tweet ever. And it's from a person who goes by the name The Golden Sir. You've got to love some of these Twitter names. At Screamin' But Calm. And it's from March 12th, 2019. Me sowing.

Ha ha. Heck yes. Yeah. Me reaping. ha. Heck yes. Yeah. Me reaping. Well, this sucks. What the heck? Okay, but it's not as not much. It just lacks something without the actual words, doesn't it?

It does. It really does. There's some F-bombs in there, folks, if you want to go look it up. Copious F-bombs. Look it up from the Golden Sur. Just Google the Golden Sur sewingowing, reaping, top result. Anyway, what we have, Sarah, in the state of Georgia, all of a sudden, over last night and this morning, was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they might be reaping the loss of the Senate.

And so you saw people like Newt Gingrich, who had been sowing accusations of voter fraud, suddenly coming out and going, no, no, we got a vote in the Georgia runoff. You saw OANN personalities saying you got a vote in the Georgia runoff. And why is this? What happened? Well, you saw Breitbart.com turn on one of the attorneys filing suit in Georgia. What happened? Well, what happened was some of the folks who were involved in these wild Georgia lawsuits began to say, don't vote in the runoff election that will determine control of the Senate. And so all of a sudden what was began is sort of, hey, here's some fun and games designed to sowed out on the outcome for Donald Trump turns into, oh, oh my goodness, we could be giving undivided control of the government to the Democrats. It was actually kind of amusing

to watch in real time. Yeah, you know, what can I say? This isn't shocking. I will say that I don't think that those concerns are, they're valid, but they're not huge. Most Georgia voters do not fall into that category.

Now, the question is, do they have room to lose 10,000 voters who do fall into that category? Based on the November 3rd results, sure, Purdue beat Ossoff by 88,000 votes. So they've got some votes to kill, you know, around there. But in a special election, turnout's going to drop substantially. Unclear yet what substantially means in this case, because turnout was so high in this election. Do we assume that turnout will increase by an equal percentage in the special election or will it return back to normal special election amount? Anyway, in that case where instead of thinking of just subtracting

people off the top of the ballot, you're actually thinking about just turnout and getting each person to the polls, then it does become hard because those 10,000 people are really low-hanging fruit, easy to identify, and now they're saying that they don't want to go vote. So that's really the problem, if that makes sense, David, it's less that there's some huge percentage of Georgia voters now who aren't going to vote. It's that those were 10,000 people who were like gimmies. Yeah, those were 10,000 people who not only would,

you're talking about in a way, although I think your sort of core base longstanding Republican is going to come to the polls. But maybe what they're worried about is that sort of that slice of newer Republican who is very, very Trumpy, that they're trying to make them be Republican for life or sort of win them over to become a base voter for the party. Maybe those are the folks that wouldn't come out. But this is suddenly a really close state. It's a really close state. And you've got people who are hogging up airtime, using some of that airtime to say, don't vote, send a message. Well, of course, that's going to

be like an alarm bell in the night um but you know what did people expect if they're spinning out a conspiracy theory that the vote doesn't was rigged then isn't that a sort of a counter turnout message inherently like isn't that a dispiriting message inherently i mean it seems to me obvious from day one it's a dispiriting message inherently? I mean, it seems to me obvious from day one, it's a dispiriting message. Sure, it is. But you just have to question how many people are actually, like, as you've put it into buckets, my so beloved buckets,

you know, there's a bucket of people who are like, yeah, I mean, I hear you, but whatever. Like, they don't buy into it. And I think that bucket's really substantial. They are conservatives, they're Republicans, they're Trump voters, and they think the election's over. And they care about control of the Senate. And also note the amount of money that's pouring into this race. the amount of money that's pouring into this race. Purdue's entire 2014 race, I mean, on both sides, that Senate race in 2014 in Georgia cost $75 million. So that's approximately a year of campaigning, $75 million. This will be nine weeks of campaigning. And four or so weeks into it,

and four or so weeks into it, they have already spent $300 million. That sounds like a lot of money, Sarah. Oh, I mean, pocket change to you and I, David. But, you know, $100 million here, $100 million there, and it really, you know, soon you're talking about real money. Yeah, yeah. So anyway, it's just going to be interesting. I think there's a combination of things happening at once. One is this sort of sudden realization among some of the people who've been absolutely out front on pushing the narrative that the presidential election wasn't legitimate.

election wasn't legitimate, now saying vote, vote, vote, vote, vote in Georgia. And then the other thing is the clown show just continues on sort of what's remaining out there. There was yesterday some viral video of a woman who was quote-unquote testifying at one of these hearings that have been one of these sort of traveling roadshow type, that have been one of these sort of traveling roadshow type hearings that have been going on in Michigan. And I don't know, you know, we don't know that she was drunk, but she certainly sounded drunk and went so far in some of the things she was saying

that even Rudy Giuliani sort of reached over his hand to sort of try to get her to rein back in. And it's really amazing to me sort of how far some of these conspiracy theories are now reaching. Roger Stone, much beloved in some small segment of the GOP base has said North Korea is now involved. General Flynn has repeated calls for martial law. All of this, I'm going to put on my optimistic hat and then my pessimistic hat. Here's my optimistic hat of the buckets. And I kind of outlined these buckets on our dispatch pod yesterday.

Bucket number one are Republicans who are like, yeah, there might have been some fraud here and there, but nothing to turn the election. Trump lost. Let's move on. Try to win back the house in 2022. This is how these things go. Bucket number two is a pretty big bucket, I think, which is, yeah, there was something fishy about this election. I'm not sure it was right. What's the score of the Alabama-Auburn game? And that's the folks who, they might have background doubts, but it's not front of mind in their lives. They're, you know, we'll live to fight again. And bucket three is a group of people who's swallowing all of this, all of it, and are utterly convinced that this election was flat out stolen through some of the most brazen means possible. And my view on this is that bucket is A, disproportionately

represented on Twitter, B, shrinking but intensifying. In other words, the people who are part of this coalition are decreasing in number but intensifying their commitment. And in my view, that could lead to some dangerous places. If you actually believe, if you actually believe that the United States of America,

the fate of the country is at stake, an election stolen and joe biden is going to end the republic that leads a person down some really dark paths and my hope is that that bucket of people is shrinking fast enough into irrelevance but it remains to be seen all right i say we hit the law we've got a lot of law yeah we got a lot of law. Yeah, we got a lot of law. Do you want to start us off with some Supreme Court news regarding religious liberty? Absolutely. So this morning, the Supreme Court did a little dabbling in some other church cases. So if you remember, we spent a long time talking about this New York archdiocese case where the Supreme Court said, basically struck down the restrictions in New York that they had already

kind of already repealed, but whatever. And it was unclear to me at the time that because those New York restrictions were so severe, remember the synagogue could only have 10 people in it. And of course, quorum in an Orthodox synagogue is 10 men. So that would also mean that no women could attend synagogue in those areas in New York. And they had specifically drawn the Orthodox area, of course, into that. But that was so restrictive that I wondered

whether they had the votes for some of these less restrictive ones. Wonder no more, David. So Harvest Rock Church in California, this has been the case going up and down and up and down. Um, they, if you remember, California has a few levels right now. So tier one in certain counties, there's no in-person worship. Tier two, 25% of building capacity or a hundred people, whichever is fewer. Tier three is 50% or 200 people, whichever is fewer. And tier four counties, 50% with no cap. So that's a lot of counties, by the way, in California that aren't having any in-person

service. Right. In fact, it is 18 counties home to more than 15 million residents, including its most populous county, Los Angeles, that are not allowing any indoor service. So they had gone up to the Ninth Circuit looking for injunctive relief. They lost to one with O'Scanlan, of course, with a pretty great dissent. They went up to the Supreme Court

on just that injunctive relief. It was treated like a request, a petition for cert before judgment, which is unusual, very unusual to grant that request. This is where you go to the Supreme Court before you have final judgment from the lower courts, unusual.

And then they GVR'd it, which means granted, vacated, remanded. And what that means, David, is they're sending it back to the lower court, vacating the district court's opinion. And that's, I mean, they're not telling the lower court how they need to decide it, but they are. Yeah. They're not telling them, but they're telling them. It's a strong suggestion. So that's interesting because Harvest Rock had lost before.

They went up this time actually using Newsom's French laundry dinner in their petition, which was pretty interesting, saying that people can go in the same county, in L.A. County, where you are banned from going to indoor church at all, not just a restriction. You can go to the mall. You can get your hair done.

You can get a mani-pedi. You can produce a movie. All sorts of things. You just can't go to indoor church. And then Governor Newsom is going to the French Laundry and violating his own rules. So clearly,

whatever scientific expertise that they're trying to tell you supreme court they don't believe it because they're not following it themselves um you know we've talked about this before david pandemic law right at the beginning they were gonna defer to experts but it actually is relevant in this case that the California government is saying, no, you need to rely on our experts. They're telling us that this is important. And then they are not themselves following it. That undermines that these experts are actually experts if the government officials themselves are not following it, which is different than it was six months ago. And so even though these restrictions are less onerous than New York,

clearly the Supreme Court is saying, yep, nope, we're going to start steamrolling this stuff. Well, you know, again, when you're talking about the actual legal standards, so if you're past pandemic law, which is sort of like whatever the state says goes, that's what I would call pandemic law. We're in the immediate emergency. We don't know enough about this virus. We're in danger of uncontrolled spread. Well, we're actually basically in uncontrolled spread right now, but that's another topic. But there's a lot we don't know. There's a danger of uncontrolled spread. The court does not have particular expertise.

We're going to defer. Okay, that's what you call pandemic law. That's sort of the one reading of the Jacobson case that we've talked about. Well, here we are eight months into it, and let's just take the sort of the most lenient standard as far as religious liberty, which is lenient regarding our most deferential to government regulation, which is Smith. And that is neutral law of general applicability is going to be up. A neutral law of general applicability is going to be upheld. And I mean, these pandemic restrictions are not neutral.

They're not generally applicable. I mean, these pandemic restrictions are not neutral. They're not generally applicable. And then when you add to them all kinds of state official action that either seems to contradict their own regulations or actually favor certain kinds of expression over other kinds of expression, you know, look, there's cost to this stuff legally. There's cost to this. I mean, everything from, you know from the Cuomo gerrymandering, seeming to gerrymander some of these red and orange districts

to encompass more Jewish congregations, to, and I've talked about this in a Sunday newsletter, the mayor of Washington, D.C. facilitating in and participating in Black Lives Matter protests. Did you see the mayor of Washington, D.C., facilitating in and participating in Black Lives Matter protests. Now... Did you see the mayor of Austin one? Oh, was this the one where he told people to not travel while Zooming from Mexico? Cabo. Cabo San Lucas, David.

Okay, Cabo. Which he had flown to on a private plane. Oh, well. With eight other people, I believe? Yeah, well. With eight other people, I believe? Yeah. Okay. I mean, we could literally do a whole podcast about,

look, guys, we got a problem in our public officials. You can remove Donald Trump from the presidency, and it is not like the whole rest of this gang that is across the United States are shining examples of integrity and rectitude. I mean, good night. It's very, very frustrating. Now, legally speaking, California's argument was we're

treating churches the same as movie theaters. Interestingly, that was New York's argument as well, right? These are similar. They're people sitting around and watching a thing in a large stadium seating type capacity. And so as long as we've also shut movie theaters and we're treating them the same as the church, that should be sufficient. And that's just not how the law works. Now, it doesn't mean that they can't shut down churches, as we've said many, many times. They absolutely can.

But you don't look at just as long as you're treating some other thing the same as churches, then you can do that it's all right what is getting better treatment than churches and is that um favored unfavored making sense not making sense and you know in this case the mani-pedi thing is pretty bad yeah yeah but their argument is that you know know, those are businesses and, um, you know, you're in and out faster, I guess, but I don't know, ladies, my mani pedis that I used to get, I haven't had one in a year. Um, they're not in and out. And in fact, I've been to church services that are significantly shorter than my mani pedis. Well, I never had

a mani pedi, but that must be an intensive mani pedi if it's shorter. No, by the time you have the same person doing your nails and your toes, it just takes a while. And if you do the gel, you have to do it like four or five layers and it can just take a while. And the gel lasts for a month. So you want to do that instead of the normal one which may only last a week um that's all to say now that you know a lot about manicures and pedicures um you know i am a little surprised that they did the california one so quickly and gvr'd this but this should be a sign to every other state about where this is headed now, which was actually, to me, not clear after New York. They have the votes. They are done

with these church restrictions, and every state should take note. Your church restrictions are done now. Yeah. I mean, I think what's not done, just to be clear so that people don't think oh yay super spreaders all around me no what's not done are social distancing requirements yes what's not done are masking requirements like all of that's still going to be in place and i think that that's one thing that keeps getting glossed over in a lot of these conversations is you know there's there are exceptions. For example, there's a church in California pastored by a rather famous guy named John MacArthur, who has several thousand congregants, I believe, I think it's several thousand,

who they've not masked in social distance frequently. And that kind of case is not going to fare as well if they're trying to, you know, get out of a close call because that is treating everyone the same. There is no other than restaurants where people are allowed to take off their mask to eat, which obviously is different because I don't know how you'd get food through the mask. Everyone else is treated the same through all of these laws.

But, but closing churches and movie theaters only, that is clearly a violation of the first amendment now. And, uh, they will be treated as such. So congratulations, harvest, harvest rock church in California on your big cert before judgment and GVR. You're not out of the woods yet.

You've still got to go back to the district court and fight some more, but it's looking good. It's looking good. All right. Should we talk bribery and pardons just briefly? Do it. Okay. I told y'all we had a lot to cover a couple of days ago, and we got a blizzard of emails about this. Please explain what's going on. a blizzard of emails about this. Please explain what's going on. There was a news item, I believe CNN broke it,

that there is an active criminal investigation of sort of a, I guess, pay for pardon scheme involving unknown individuals. And so that immediately raised the question, is somebody in the White House involved in a bribery scheme surrounding pardons? Here's the short answer. Don't know. Don't know. Here's the longer answer. So what happened, and part of this is just kind of makes me laugh, honestly, Sarah. Well, it makes me laugh and it reminds me of sort of every attorney's nightmare.

So what happened is that the court in the United States District Court for the District of Columbia issued a partial unsealing order. So this was on December 1, two days ago, a partial unsealing order that it partially unsealed an opinion that it issued regarding the ability of the government to review alleged attorney-client communications in a case involving a secret lobbying scheme and a pardon involving a potentialclosure Act to secure a pardon or a reprieve of sentence for blank. a reprieve of sentence for blank and a re and to a related bribery conspiracy or a relate a related bribery conspiracy scheme into which blank would offer substantial political contributions in exchange for a presidential pardon or reprieve of sentence for blank okay so let's stop using the blank. So Sarah and David lobby the White House without registering, and they lobby Jonah to get a pardon for Steve. Yes, and in exchange for that, producer Caleb would offer a substantial political contribution. Perfect. Yeah. So we don't know who those people are,

who are the stand-ins for Sarah, David, Jonah, Steve, and producer Caleb. But that's the general parameters. Now, anything beyond that is pure speculation as to who these people are. I mean, there was all kinds of Twitter speculation, but the Dispatch is not a speculation-based news organization. No, and what's interesting about this to me is not who it is. We'll find that out in due time. And frankly, this looks like just pretty sloppy lawbreaking.

Yeah. But the part that's fascinating is Ginger Gibson, one of my favorite reporters on Twitter. She's a Washington editor at NBC News for those who want to follow her. Hey, folks, if you're going to coordinate crimes

with your lawyer via email, don't copy someone on the email who isn't your lawyer. I guess someone needs to make modern mob movies where they explain how third-party communications work in the digital age. Yeah. Yeah. So true. So attorney-client privilege is vitiated by any third party who is not basically a spouse. Right. And so basically what was happening is some of these people who are being investigated

were trying to claim attorney-client privilege over communications that they had either forwarded to other people or included other people in the communication with your attorney.

If you're bringing other people... No, the forwarding is the best one. The forwarding. Oh, my God. Forwarding. Oh, the forwarding is... It's almost... I forget who tweeted this out, but essentially someone who's saying forward, forward, forward. Look at this confidential

advice my attorney gave me. On how to bribe. Yeah. Yeah. It's, yeah. So what we have here. That also counts as a third party, by the way. It's not just that the person's there in the room with you talking to your lawyer. If they are CC'd on the email, that's the same, of course, as being in the room. But if you forward that email, you have now included them in the conversation. Although I think that one's an interesting legal question, David, because it's the same thing.

Like in theory, CCing them is bringing that person into the room. But forwarding the email is more like, I talk to you, my attorney, about crimes. And then I go have drinks with my bestie and tell her about the crimes I'm going to commit. That doesn't violate attorney-client privilege then. My conversation with my attorney is still confidential. So I do have questions on the forwarding thing, but also it's just so stupid to forward. You know, it's funny because I'm so old, Sarah. Do you want to know how old I am?

How old are you? I'm so old that I started practicing law at the dawn of email. Literally, the dawn. So it was like 1991 when only the richest kids at Harvard had access to AOL, CompuServe, and Prodigy. And I remember when I graduated from law school in 94, I had never had email before I graduated. I took part of my law firm signing bonus, bought a computer with a 14.4 speed modem that clogged my phone line, as some people might remember. And I had to call one of my rich friends from law school to ask how email worked.

I had no idea. It was like magic. And I remember for years after email started being a thing, I would have the talk with my clients. And the talk was, our communications are privileged. If you copy anybody on our email communications, they are not privileged. If you forward our emails, they're not going to be privileged anymore. Anything that is in writing between us for it to remain privileged needs to remain between us.

Like this is something you just, it was just basically part of the talk. Like this is something you just, it was just basically part of the talk. But I think that what's happened is we've just become so accustomed to screenshotting, you know, text conversations, forwarding messages, you name it, that, I mean, just think about the talk you have to have regarding Snapchat, Instagram, Facebook, Twitter, text. I mean, it's crazy. It's a similar version of the talk that I have had to have with my principals and their children on those communications. Sometimes they have adult children, so it's a little easier. But when they have children, children, you know, everything you put on Instagram now people can see, even if you keep it private, blah, blah, blah. But what I'm stunned by is when you're trying to commit bribery and you're asking for your lawyer for advice on how to commit bribery that you wouldn't be using like an encrypted app. Like they're not, it's not like it's,

you have to go on the dark web to get them these days. You know? I know. I know. I mean, what's that signal? Signal WhatsApp. I mean, there's so many options and,

um, and yet they either weren't using that or, you know, just handed over their phones without deleting them. I don't know. But, um, okay. Anyway,. I don't know. But okay. Anyway, don't commit bribery. But also, if you are going to commit bribery,

don't vitiate privilege by CCing folks on your bribery conversations with your attorney. Good lesson. All right. Now, quickly, special counsel, Sarah. Right. So Bill Barr, on October 19th, signed a little memo that we just found out about. So he sent a letter to Congress this week that said, oh, hey, by the way, forgot to tell you. I appointed John Durham, a special counsel, to continue investigating, and I'm just going to

read this because we don't talk about the details a lot, whether any federal official employee or any other person or entity violated the law in connection with the intelligence, counterintelligence, or law enforcement activities directed at the 2016 presidential campaigns, individuals associated with those campaigns, and individuals associated with the administration of President Donald J. Trump, including, but not limited to, Crossfire Hurricane, which, of course, was the codename for the FBI investigation into the campaign, and the investigation of Special Counsel Robert S. Mueller III, also known as the Russia investigation. Okay, so here's what's interesting about that. We knew that. That was the investigation that was already going on. Appointing him as special counsel,

he said that he was appointing him pursuant to his authority under 28 U.S.C. 509, 510, and 515. But Durham was 28 CFR 600.4 to 600.10 are applicable to Durham. So there's been some confusion about some of this, David. Translate that, Sarah. Yeah, yeah. So here's the confusion. A lot of people thought that he had simply been appointed under 28 CFR 600, which is the special counsel Clinton-era regulations that we're sort of all normally familiar with.

And that says that the special counsel has to be someone from outside of government. Obviously, John Durham is the U.S. attorney for Connecticut, so he is not outside of the government. So then there was like, well, wait a second, this is an invalid appointment. But let me repeat, David. He was appointed pursuant to USC 509-510-515.

Right. It's just that CFR 600.4 to 600.10 are applicable to him. Say what? All right. So basically, the attorney general has inherent authority to appoint someone,

name them a special counsel, and let them look into stuff. That's 515. No problem there uh in fact it says 515 authorizes the attorney general to authorize a quote special assistant to conduct quote any kind of legal proceeding civil or criminal including grand jury proceedings. Done, right? Right. But basically, Bill Barr didn't want to pick someone from outside of government. He wanted Durham. And he didn't want to be limited by the scope of the special counsel regulation, but he wants all the protections of the special counsel regulation. And that's 600.4 through 10, which says that if he is limited or that the attorney general has to inform Congress and he can only be fired for misconduct, yada, yada, bad things.

As in, you can only be discharged for cause. So some questions here, David. So, some questions here, David. Can you really Frankenstein these two things together and get all the benefits of the special counsel stuff without the outside the government part? And can you use your inherent attorney general authority to that. Who knows? It's never been litigated. By the way, Mueller was not actually appointed under the special counsel regs. Mueller was very similarly appointed, with the idea being that basically Rod Rosenstein sort of himself agreed that he wouldn't dismiss Mueller without cause under the special counsel regs and all of that. And he was picked from outside the government, of course, but that they weren't limited by the sort of inherent limitations of what special counsels can look into. So it wasn't litigated then under Mueller. So we don't know whether you can do this, but it doesn't matter. That's the big takeaway. Because in order for the attorney general

the next attorney general biden's attorney general to come in and dismiss durham without cause and just say um i as attorney general can now rescind your appointment under section 515 under my inherent authorities that you were appointed under and i therefore don't need to follow the 600 to 610 CFR because, frankly, those are inherently contradictory. Like, if I have inherent authority to appoint you, I obviously have inherent authority to unappoint you and don't need to follow those. That's all accurate as far as I think,

like, the legal analysis that I've seen online from others. It just isn't reality. Like, good luck saying that on a Sunday show and explaining why Mueller was allowed to finish his job unmolested, mostly, but Durham isn't. Also, I think that Attorney General is going to come in and find that Durham's doing a pretty good job. Yeah. That to the extent there was misconduct, you do want to know about it.

We haven't seen any indictments except the one guy who actually doctored an email. Right. Yeah, you do want that guy to get charged. This isn't a political question. Like, yeah, we don't want FBI agents doctoring emails. I think we all agree on that.

So, you know, is this a little fast and loose and weird and Frankenstein-y? Yes, it is. Does it matter in reality to whether the special counsel will be fired under the Biden attorney general? It absolutely does not. Do I think that the special counsel, like, did Barr need to do this? Did Barr need to do this? I don't know, but I think that Barr has successfully tied the hands of his successor. coming in, you're the new attorney general, you're going to sit down and you're going to figure out that John Durham is a professional. He's a professional. And there is a public interest here in this investigation. There is. Now, I mean, our, gosh, there's so, this entire area is so twisted up in conspiracy theory that I promise you that if John Durham doesn't come back with like indictments running up and down the whole former Obama administration, that there's going to be a segment of right-wing Twitter that's going to say,

who got to Durham? But, you know, you can't conduct investigations for the crazies. You conduct investigations to find out what actually happened. And I think that what you're, you know, there is a public interest in figuring out what actually happened. What were the, from point A to all the way to point Z, what was the chain of events that led to the investigation? What did the investigation uncover? What's the fallout from it? We just need all of

that stuff. We need it all. A lot of which I expect will be a little bit on the one hand, on the other hand. On the one hand, it will find that the investigation was properly predicated and that lots and lots of the steps that people criticized were entirely appropriate.

I think on the other hand, it will find some poor judgment that was not illegal. I don't know that we're going to see any more indictments. This is not based on inside knowledge, obviously, folks. This is just like,

we saw the one indictment. It's been a long time. And certainly during the Mueller investigation, I kept, you know, God, I'd watch cable news and they're like, any day now everyone's going to jail. And I would say like, hey, you know, like, have you seen any indictments? No. OK, well, maybe you should look for indictments. And like nobody could hear me crying in the wilderness trying to tell them that look to the indictments. And so following that same advice now, we might have all the indictments we're going to see.

And what could be happening is a lot of investigation to get every single I dotted T crossed because he does have to turn in a report to the attorney general. And that report presumably will also be made public, same as the Mueller report was, although that is not required. Mm-hmm. And so you want that report to be thorough and to explain to people why certain things happened, why seeking the

FISA application was okay, why perhaps in the future that footnote that says that the Steele dossier was originally purchased by a rival campaign, maybe that shouldn't be in a footnote. Maybe it should have been more of it, things like that. But yeah, I think we're done with indictments. And I think that the next attorney general may actually find this to be helpful. And John Durham, by the way, not a crazy, this is not his first rodeo. He has been tapped before for things like this and has handled them entirely professionally as far as I am

privy to that knowledge. Well, and you raise a really good point about the indictments, because if you were reading the indictments and you were reading some of the documents that were being put out by the Mueller investigation, the indictments themselves, guilty pleas, etc., etc., you kind of knew the contours of what had happened. kind of knew the contours of what had happened. Now, there were a few things in the actual Mueller report in the Senate Intelligence Report that sort of colored in. There were bright lines that you could see, and then there were dotted lines that you didn't really know the contours, and the Mueller report sort of filled those in. But by the time of, with the Michael Flynn indictments, with the Roger Stone case,

there was this draft indictment that leaked of Jerome Corsi. There was a lot of stuff with Michael Cohen, with the Southern District. I mean, there was all kinds of stuff that you really began to figure out what had happened before the Mueller report. There weren't huge surprises in the Mueller report.

I mean, I think the thing that was most, and I can't remember if this was something that was widely discussed before, but the notion that Manafort was passing on, we did get some information before the Mueller report that Manafort was passing along information to this Russian agent named Kilimnik. We didn't know that before,

but it was fleshed out a bit more and a lot more in the Senate Intelligence Report. But you're right, the indictments, if you read them all, you kind of knew what was going on. And so, yeah, I mean, I would be surprised at a big, like a Durham bomb that would surprise me.

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that works for you, on your schedule, anytime, anywhere. You deserve to feel happier, and Headspace is meditation made simple. Go to headspace.com slash opinions. That's headspace.com slash opinions for a free one-month trial with access to Headspace's full library of meditations for every situation. This is the best deal offered right now. Head to headspace.com slash opinions today. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds slash opinions today. other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. Should we move on to... Oh my God, I thought you'd never say it. Yes, census, census, census. I'm so excited. Census. All right. Steve Hayes, the census case.

Census. All right. Steve Hayes, the census case. Okay. On Monday, we mentioned that this argument was going on while we were podcasting and that we were going to wait until Thursday to be able to get through all of the argument, though my husband had listened to the first 30 or so minutes before we started and told me that nothing that exciting had happened. And he's just wrong. He was just wrong. It was so good, David. And I enjoyed it so, so much. So I want to tell you all about this case. Okay, please.

So the president in 2019 issued an executive order that said, it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status under the INA to the maximum extent feasible and consistent with the discretion delegated to the executive branch. What does that mean? So when we think of the census and what it's used for, we think of

redistricting. You know, like the lines have to be redrawn because you want a roughly equal number of people in each congressional district. And that leads to gerrymandering and we're off to the races. And yes, I know it's actually pronounced gerrymandering, but you know what? Like 200 years, whatever. We now pronounce it gerrymandering. But there's another piece to it. The census is also used for apportionment, of course. And that's how many congressional seats each state gets in the first place to get to redraw. That's what this is about. This isn't about using, whether to use illegal aliens to redraw the individual congressional lines. This is to decide how many congressional seats California gets versus how many congressional seats Iowa gets.

And it's a zero-sum game. There's 435 available chits. And so if California loses a seat, Iowa gains a seat. This is not the first litigation about this, by the way, David, and we'll get to this, but there's a case called Franklin v. Massachusetts from 1992 that was on apportionment. So we're not flying totally blind here, but we're flying pretty blind. Yeah. So the government had two different arguments here. And there was so much about this case that's interesting beyond the merits. So even if you're not interested in the merits, that sure, they've been counted this whole time, but it's not required. As in, just because something has been the historical practice that

people have wanted to do doesn't mean that it's constitutionally mandated to do it, so that the president has discretion over whether to include illegal aliens in the census. Okay. Number two, and boy, does it get messy real quick on number two. Number two is that the government says they can't count every illegal alien. So because we don't then know who won't be counted, which illegal aliens they can count, that you can't bring a facial challenge to this, basically. And so the injunction that's currently on the government preventing them from not counting any illegal aliens has to be removed. Okay, that one's messy, so let me dive into it a little. The census, for those who have watched the West Wing, does not use sampling.

It's not based on polling. You don't go and find 30,000 people and then extrapolate that across the country. That is not allowed. They have decided that's unconstitutional. You actually have to go count every person. So because of that, they do the census and then they are asking the Commerce Department to match up the census answers with the records that they have from,

for instance, ICE detention facilities, DACA recipients, people who are under removal orders to see how many of those people filled out a census right they have to match each one and then that pile will be the people who then can be excluded from the census for the purposes of this executive order that's why if you remember that executive order said to the maximum extent feasible, that's the feasible part and consistent with the discretion delegated to the executive branch, which is basically like, and by the way, if the Supreme Court says there's some piece of this I can't do, I'm still going to do the rest of the pieces that they said I could do. Okay. So their argument is, we don't know what those matching numbers are. And it could be that we only find,

let's say 30,000 people out of roughly 350 million people who are, you know, for instance, in an ICE detention facility and filled out a census. And 30,000 people won't affect the apportionment. Or maybe it'll be 2 million people. We don't really know.

And so because of that, we have a big problem, David. And this is my first interesting point that I would like to make. I found all of that interesting. So. Okay. that I would like to make. I found all of that interesting. Okay, so the first question, as David, I'm sure you have issue spotted, is there are some standing problems here and there's some ripeness problems here. And standing and ripeness,

while they have really similar standards, are different. Standing is a jurisdictional problem. If you don't have standing, the court doesn't have jurisdiction to even think about it, and you just send the whole thing back down. The standing problem argument is that if this doesn't affect apportionment, they don't have an injury or a likelihood of injury, and therefore they don't have standing. The ripeness argument is simply that since we don't know how many people there are maybe it's

prudentially too early to decide this case that is not an article 3 problem therefore they could waive the ripeness argument if they wanted to and hear it anyway because it's just sort of yeah it's prudential it's what do you feel like? Maybe you shouldn't, but you can. Kavanaugh seemed particularly interested in the distinction between ripeness and standing. And nobody else, sorry, none of the advocates were particularly interested in that. Yeah, yeah.

You know, they have their arguments that they're trying to make and they weren't into the like law school exam that Kavanaugh was, was looking to have, but we'll take a little break from the rest of the interesting points here to say that, um, I definitely found five votes for what, uh, I would call a ripeness problem. The chief, Alito, Gorsuch, Kavanaugh, and Barrett all seem to want to vacate the injunction, but wait on the merits until we actually do know how many people this is going to be affecting and talking about. And so the result of that would be that the

commerce department would give to the president two sets of numbers, basically the census and then the number of people that match up who are illegal aliens. And then at that point, there's a whole bunch of statutory stuff of the president transmits to Congress and Congress transmits it to the, you know, this other person, that person sends it to the States, blah, blah, blah. And at that point you would sue again on the merits because then we would know how many people there were. Yes. They understand that that would be unscrambling, trying to unscramble the egg at that point as the chief justice said, but overall it, it looked like a pretty solid five votes on that. Definitely three votes, Breyer, Sotomayor, and Kagan, that they should lose at this stage.

And this is a clever argument, by the way. it is not legal for the president to exclude illegal aliens, so getting to the merits, then it's not legal for the commerce secretary to give the president the number of illegal aliens he can exclude in the same report that is the apportionment report to the president. Does that make any sense to you, David? I mean, it makes sense to me, but as I'm saying it out loud. It does. It does make sense. Okay. Yeah. So like basically the report is what is constitutionally required for the commerce secretary or statutorily required for the commerce secretary to give the president. That is the quote unquote apportionment report. If it's not legal to exclude illegal aliens from apportionment, then you can't include in that report illegal information, basically. And so there's three votes for them, for the injunction to stand with that reasoning from the liberals. No surprise.

You'll note that I've left out Thomas. Because I don't know. My guess is that Thomas will write a concurrence, basically saying on the merits. I don't know who will join that. And we'll get to the merits in a second because that gets even messier. Okay. So that's sort of where this actual case is before we get into some of the other weird, fun, interesting things on the rest of it. Reaction, David. I mean, I agree with you on the five justices for a rightness on the very simple grounds that what I found most fascinating about the oral argument

was it was pretty clear. So here we, it was argued, what, on December 1st, and it was pretty clear in that argument, or was it November 30th, whatever, it was a few days ago, they didn't know, even though the deadline for the report was absolutely right up on them, they didn't know how many illegal immigrants were going to be backed out of the numbers or how many illegal immigrants were going to be detailed in the report. The deadline for the report is the 31st of this month. Yeah. They didn't have that number. And Sarah, the number range of possibilities was immense. You know, if you had 10.5 million people at the upper outer orbit, which would have, which would probably have some real implications for apportionment. For sure, although, as Wal made clear, if you, for instance, cross the border illegally

and then weren't caught then and live somewhere and haven't ever run into the law since then, you can't possibly be excluded from the census because they don't have a government record of you being illegal. So we know it can't be the upper bounds that they can't exclude all illegal aliens. you being illegal. Right. So we know it can't be the upper bounds, that they can't exclude all illegal aliens. So really, while this is a facial challenge on whether the president can exclude all illegal aliens,

it's also a practical impossibility, which is an interesting legal problem for the Supreme Court. Yeah. So they just don't have the number. And so that's... Now, I can see some very strong arguments if you're in ICE detention, for example, that you are not an inhabitant because you're in the process potentially of being removed. If you're under removal order, you're not an inhabitant. But we're talking

about numbers there that aren't significant enough to affect apportionment. It's only when you start to dive into like DACA recipients. But then at that point, you have what, 700,000 DACA recipients. What's the argument that DACA recipients are not inhabitants at that point? Well, I mean, there's an argument. It's it gets that's when you're it's starting to get a little bit tougher and dives into the merits. But these are people who, you know, was it Breyer who said, are they not people? Yes, but he was talking about this legal fiction, right? So we have lots of legal fictions in the law. But when it comes to illegal aliens, one of the legal fictions is that if you are in the country illegally,

it doesn't matter where you are in the country, the legal fiction is that you are always deemed to be standing at the border. And so that's what Breyer was saying. He's like, this legal fiction is inhuman. Are they not people? Which I found to be a little overwrought because like, okay, I understand that like,

you're the worst possible case where a Supreme court justice isn't willing to sort of talk about why legal fictions exist. It doesn't mean that they're not considered human beings. Obviously this is just so under the law, we have a way of thinking about these things that makes sense. Um, And in that case, the argument is once the sovereign decides that someone is here unlawfully, they by definition aren't inhabitants. And that's the legal fiction, right? They are standing at the border if they came here illegally. It doesn't matter where they actually are in the country because the sovereign has already decided that they're not here lawfully. Now, the DACA thing gets interesting because the sovereign decided that they weren't here lawfully, but then decided to sort of decide that they were here lawfully.

So DACA gets messy. Yeah, it gets very messy. Yeah, it gets very messy. So I think it's, I think the messiness of this all is what argues for the right that you, that, that's what full idea of what they're dealing with. And so entering some sort of decisive injunctive relief or deciding the case on the merits unnecessarily, certainly that cuts against the kind of the Roberts idea of judicial restraint. But yeah, it's really fascinating, But it was actually more fascinating to me to see that the administration 30 days from the deadline didn't have a number for the court. Well, there was that.

Yeah. Okay, more things from the argument. Can I dive in? Yes. All right. So getting to the merits a little bit, there was this really interesting exchange between Alito and the advocate for the state of New York.

This caused some kerfuffle on the interwebs because the chief cut Alito off and people were very angry about that. And Alito kind of kept barreling through. There's some discussion over whether Alito didn't hear the chief try to cut him off the first time or whether he just decided to pretend like he didn't hear the chief trying to cut him off. But actually, the merits itself are interesting of what he was saying. So set aside the kerfuffle. Okay, Alito. First category, a foreign diplomat who is posted

here for three years. Can this person be excluded? Advocate. No, because he's here for several reasons, because he's, Alito interrupts. So foreign diplomat who has posted here for three years, not included in the census, New York agrees. Second one. Okay, here's another one. A tourist who is here on a valid visa, New York. No, can't be counted in the census. Justice Alito, a tourist who overstays her visa and is now here illegally, New York. Well, that person is now outside the realm of, we expect them to leave.

So that person is a resident like any other undocumented person. That was a nonsensical answer. Yeah. We expect them to leave. They're a resident. So if you're here legally with a visa, we don't count you. If you stay a day past that visa, you now get counted for apportionment purposes in the census. That's just not a particularly tenable position, but it's kind of the only one that they could take. I wish that Alito had been able to go on.

He clearly had more that he wanted to give of those examples. And it reminded me very much of Kagan going through the ministerial exception examples. Remember, David? Where she was like, can a janitor be fired? How about a cook in the kitchen? And those were really, I thought, helpful. But Alito gets cut off.

So here's the interesting thing on the merits to me. First of all, you have Kavanaugh maybe sounding like he's not game on the merits. He says, I think you have advocated forceful constitutional and statutory arguments on the merits of a categorical exclusion of all unlawful non-citizens. But I'm not sure that's going to be the dispute. And so I want to explore that. And so he goes on to talk about, you know, how they don't have the numbers, but that didn't sound like a vote on the merits for me. Um, and if that's the case, they've got some problems on the merits, but there's been a lot of criticism of the government on the strategy that they took. And Supreme Court strategy is fascinating. So this is worth, I think, some time. So, right, the government is arguing that just because it's been historically done doesn't mean it must be done. Right. They're arguing this is in the president's discretion of whether to include illegal aliens. But why are they arguing that?

Because what that means is that the court can punt this, for instance, for later. It is basically saying that the facial challenge is not sort of the valid way to challenge this because we don't know which aliens will be excluded and which ones won't. And certainly not all illegal aliens are going to get excluded. And so that's a way of attacking sort of in the chess move, the very concept of their lawsuit that they need to bring an

as-applied challenge. But by doing so, you are giving the Supreme Court not just an out, you're asking the Supreme Court not to reach the merits. But why are they arguing that this is under the president's discretion? Because either someone here unlawfully is an inhabitant and therefore must be counted in apportionment, or they're not an inhabitant, in which case they must not be counted in apportionment. Where is their presidential discretion over, well, we can count some non-inhabitants despite what the Constitution and the statute says, huh? It's kind of nonsensical.

It's extremely, yeah, it is nonsensical. And this idea that, let's say 10 years from now, there's a Democratic administration and its discretion says you are an inhabitant. Right. And then all of a sudden, California gets three more congressional seats. So it's legally nonsensical, but then strategically, it's interesting. So by doing this, they've certainly maximized their chances of getting the injunction lifted because they now have a lot more ways to win. They can win on ripeness. They can win on standing. They could win on the merits. So they've opened up more doors to walk through. Okay, but surely winning

the case is actually not the only goal here of the administration. This is probably the only chance that anyone will get, certainly in the next 10 years, to go to the Supreme Court on the merits with the Department of Justice defending it, that you can exclude illegal aliens from the census. And if that is the goal of Donald Trump and the goal of this administration, they're at the Supreme Court, they're getting their shot on the stage with the big lights, and then they're like, no, no, just kick the case on the injunction? And then, okay, so let's assume they get what they want.

The injunction's lifted, so now the Commerce Secretary can give both numbers to the president. Let's say they somehow magically get this done in time, although there's no evidence right now that that's going to happen because there's then seven days from when they get the report to the president and then 15 days from Congress to apportionment. You run into the inauguration immediately.

Yeah. But somehow, let's say they magically do that. the folks will come back up on a declaratory judgment action against the Commerce Secretary to redo the apportionment report. And we can get into injunctions against the president, because that's a whole other thing. You can't enjoin the president. So they keep having to find someone else to sue. And so that's their argument for, by the way, why the Supreme Court needs to do this now, is because they can't then try to enjoin the president. They'll have to do this weird legal maneuver against the Commerce Secretary trying to, quote unquote, unscramble the egg. So they can't sue in between when the president gets the report

and when the president sends the apportionment to Congress. They can only sue after the apportionment then has been done. So their way to come back up on this, on the merits, then when we have, let's call it a million people, let's split the baby, David, they find a million people they matched up with the census that they can exclude. It does affect apportionment. They come back up. Now a Biden administration, that Department of Justice is not going to defend this. So then you've got a weird thing. Remember Elena Kagan appointed Paul Clement to represent the CFPB back in the day, but this is pretty unusual stuff now.

Maybe like if Iowa really gets two more and California loses two, Iowa could defend it and they could intervene. But that's all to say it gets really, really messy. And certainly Jeff Wall, the acting solicitor general, will not be there to defend it. If you want this, if this is your goal, if that's what the executive order says, why would you not tell the Supreme Court that the president has no discretion,

that illegal aliens are not inhabitants under your reading of the law, and therefore they must reach the merits right now. This case, to me, screamed for the classic or the, well, I wouldn't say classic, recent pre-Amy Coney Barrett court Justice Roberts stepping in and saying, the Trump administration has fouled this up. I shall therefore rule against the Trump administration. Yeah, it was, it was really, you know,

we don't know how many people were talking about. We are departing from past practice regarding, uh, you know, the interpretation of the statute. We're making a discretion argument when a discretion argument doesn't really make a lot of sense. I don't know.

It's all stinky. I'm ruling against you is, is lot of sense. I don't know. It's all stinky. I'm ruling against you is the way. But I don't know. He's no longer the decider, as George W. Bush would say, the decider. And that may be our answer, that they had briefed all of this before Amy Coney Barrett was confirmed to the court.

Yeah. But they were asking for emergency review. I don't know. It's messy. It's messy. So, last thing on this, well, last thing on my list. For those wondering, remember I mentioned that there was a case that's kind of on point?

Franklin v. Massachusetts, 1992. This is also on apportionment. And here's from the syllabus. For only the second time since 1900, the Census Bureau allocated the Department of Defense's overseas employees to particular states for reapportionment purposes in the 1990 census, using an allocation method that it determined most closely resembled usual residence, its standard measure of state affiliation. Appalachian, Massachusetts

filed against the Secretary of Commerce under this declaratory action post-apportionment, by the way, so not in the position that the case is in now, post-apportionment, to get back their representatives because they lost two representatives to Washington state, basically. So these are overseas military personnel. And I think it's really fascinating because I didn't know that we weren't counting overseas military personnel for the census. That's crazy to me that we wouldn't count them. Oh my goodness. There's something like so morally wrong about that. But not only had they just not counted them once or twice, they had never counted them

except once. And so you get a unanimous opinion, kind of. So it's one of those cases where there's three opinions and then like two justices join point 3a to 4b but not point c four justices join point five blah blah blah but anyway the long story is yes despite historical practice they said that the president did, in fact, have the discretion to add in these military personnel. Interestingly, though, A, it was discretionary. So that's interesting. But then Scalia writes this fascinating concurrence about why you shouldn't be able to enjoin the president and file for an injunction against the president. And so that's just sort of like a fun, a fun thing. If you're curious about separation of powers and common law and how we have imported things that

definitely should only apply to the King, but now apply to the president and talk about illegal fiction. So you can't enjoin the president, David. You can just enjoin every single person who works for him. To keep them from carrying out his instructions. That's right. That legal fiction, of course, to me makes no sense because the president doesn't need any employees. The president could be the executive branch all by himself. And then he could go choose to arrest someone or do something unconstitutional,

and then you couldn't enjoin him from it, according to this legal fiction. Man, could you imagine a president that busy? Indeed, it would be quite busy. But Scalia dismantles my argument and talks about the consequences of if we allowed anyone to sue the president for injunctions, that it would just be a big, giant mess, but somehow it's totally okay if they do it against

secretaries in the cabinet. Whatever. I think it's probably one of those opinions that I disagree with Scalia on, but I just don't feel too strongly about it. Like Employment Division v. Smith. He got some wrong, David. He got some wrong. Yeah, he got some wrong, except I feel strongly about that one. Yeah, that's fair. So Franklin is the government's best case by far. The other side has, you know, 240 years of history on their side.

Yeah. Well, we are beginning to run past an hour. Do we need to... We still need to talk about the undoing. Do you have more census thoughts or do we want to roll into the undoing? We can go into the undoing. If I have more census thoughts,

I'll save people. And we'll just do it Monday again. We'll just do a whole other hour on the census. There you go. All right. So I've been really interested. Okay, wait, spoiler. Yes. Major spoiler. All the spoilers. Okay. Stop listening now if you haven't watched The Undoing to the end and plan to watch it. Okay. So from here on, we're assuming that you have watched

The Undoing on HBO, or if you plan to watch it, you have no concern that we're going to spoil it. Okay, here's my bottom line. I enjoyed the heck out of the show until the last 20 minutes, and I'm pretending they never happened. Okay, so you're talking about after we now know that Jonathan has done it, and he takes his son on a dangerous ride and now it's a thriller and we're concerned that he's going to kill himself in the sun.

Yes. So in my happy fun world, which by the way, in my happy fun world, Star Wars Episode 1 does not exist. Star Wars Episode 2 does not exist. Matrix 2 and 3 do not exist. Okay. They never happened. New Coke never happened. I have this whole alternative reality that's very pleasant. So in my alternative reality that's very pleasant, it ends with the somewhat unrealistic, and by somewhat unrealistic, I mean unrealistic testimony of Grace, who tosses her husband under the bus totally completely.

And then as she leaves the courtroom, she kind of reaches out her hand and her friend, what was her name? Her friend's name, Sylvia? Sylvia, yeah. Sophia? No, it's Sylvia.

Sibley, Sylvia, something like that. Yeah. Anyway, Sylvia, Sophia, whatever. They kind of clasp hands, demonstrating that they worked together to demolish her husband in the key moment in the trial when he might have gotten off.

And that fade to black end of story. I'm happy. But this whole thing of then he kidnaps the son and they somehow a helicopter appears. A helicopter appears. And all of a sudden we have like a, not a B movie, like a B minus movie thriller where Grace gets to her son before the police while she's running to her son who's standing there

next to at the top of a bridge about to be hurled off. You think the police aren't doing anything. This was Scott's big objection. Yeah, Scott was like, what? They're allowing this mom-wife psychologist to sprint to the rescue while they're sitting there armed to the teeth, hanging way back,

and still don't come for a while after she hugs the sun. I would go on, but of course, I just said this. None of this ever happened. I'm pretending it never happened. So I'm sure you have a deeper objection than that. I do. Yeah. It's not an objection.

So actually, no, mine's not an objection. I'm going to defend the whole thing. Okay. That it hangs together as a coherent whole even though as just a viewer yeah i didn't like that part and i thought it you know uh from a storytelling perspective maybe wasn't additive um a though one more thing of like scott's objection so scott objected to that for exactly the reasons you said. He also objected to the, um, that her taking the stand somehow there was no objection on marital privilege and that her hearsay objection was overruled. He was like, what? That's just straight hearsay. You what? Like not even close. And then he sits there and like to refresh his memory goes and like looks

up all of his hearsay notes from law school. And he's like, yes, yes, it is hearsay. But here's my pushback on that. One, the judge does explain that, which I thought was really weird for a show like this, but explained it to my satisfaction, which was the judge said, look, if this were a prosecution witness, prosecution witness, I would not grant such leniency, but the defense put her up there. And so basically, they undid marital privilege by putting her up there. I think that's fair and correct. And two, on the hearsay front, I'm giving the defense some leeway. you know, I'm giving the defense some leeway. Look, district courts make wrong decisions from the bench all the time. Now, maybe the lawyer, the defense attorney could have asked for briefing on this or, you know, something to prevent the judge from ruling right away. But judges make wrong hearsay rulings all the time. That just didn't seem unrealistic to me, even if the ruling was incorrect in the moment.

Okay, here's my defense of the whole thing. Too often, we see shows like this where it's not the person who you think did it, right? That it turns out that it was the son and somehow he bludgeoned this woman to death even though he's 12 and blah blah blah and like there's a twist and I loved the fact

that there wasn't a twist and let me explain why in too many cases of domestic violence and this was not a pure case of domestic violence right kind of was but you know it was it was intimate partner violence for sure yeah yeah um you know these rich defendants in particular as long as they

can come up with some insane but plausible theory and they're charming and they're wealthy these juries i think buy into it because of shows that show them that there's always a twist at the end that you never know that unless you have the CSI, you know, hair analysis from the sand that matches the shoes and his sandbox that he couldn't have possibly done it. And in fact, I think it is helpful for potential jurors to see that like, nope,

there are sociopaths and they're narcissists and people with narcissistic personality disorder and they're incredibly convincing. They're charming. They're all of these things and they did it. And the ending scene for me was a bit of a spin on the family annihilator because men with narcissistic personality disorder are not always family annihilators,

but family annihilators are almost always suffering from narcissistic personality disorder. not always family annihilators, but family annihilators are almost always suffering from narcissistic personality disorder. And so I'm glad, I guess, that it turned out well for that family, but to have us as the viewer experience that it might not have turned out well and that someone who is that lacking in empathy and charming and really would have convinced the jury that he didn't do it, not only had the capacity to kill this woman who he maybe didn't care about, you know, he's clearly lying when he says that he loves her and all this stuff. He has the capacity to kill his own son. And I think that's important for people to see. And I think it's important for women who are in these relationships to see that they're not, and especially, you know, time and again, women think that like, well, I'm not an abusive marriage because I have a JD.

Oh, right. Not only can it happen to the wealthy, it's just as likely to happen to the wealthy. And you're not just putting your life in danger by staying in that relationship. Someone with narcissistic personality disorder does not feel the empathy that you and I feel. And your kids are in danger. And I hope that there's some takeaways from that. I agree that I liked that there was no twist. And the funny thing is, when you go back and you think about the show from start to finish,

it was basically broadcasting there would not be a twist from the beginning. And that's the best part, is you keep trying to make it work. Yeah. And they kept telling you, nope, it's Jonathan. And you're like,

ah, it could have been the father-in-law. Nope, it's Jonathan. What if it was the wife? No, it's Jonathan. I know. Maybe it been the father-in-law. Nope, it's Jonathan. What if it was the wife? No, it's Jonathan. Maybe it's the 12-year-old son. No, it's Jonathan. Yeah, like, so from the moment, so he's on the run and he shows up at the house

and he puts his hands around Grace's neck. Okay, hmm. Well, that's aggressive behavior. Then he's booked and he goes into the prison yard. And the first thing he does is he gets in a fight and almost bites a guy's finger off. Well, that's aggressive behavior. Then you find out he didn't kill his family dog.

He killed the sister and seemed to feel no remorse about it. Well, that shows the man has no conscience so here we have he's well and and we learned by what the end of episode one or beginning of episode two that he's been cheating so he's dishonest he's lost his job he's violent he's has no remorse his d DNA is all over the crime scene. He fled. And you're like, who else could have done it? But I just love how they show her under this spell. She is this brilliantly smart, assertive, self-confident woman.

And she still believes him. And that's not a moral failing of hers that's how this works that's how narcissistic personality they will keep finding your weakness until um you know until you pull away finally or until something bad happens but uh but they're so good at that because they lack that empathy they don't lack intuition and they don't lack, they're not like sociopaths in that they somehow can't read people or something. Very good at reading people. Well, you know, in the part where they find the hammer,

the sculpting hammer that was used as the murder weapon, and then his first impulse is to inquire as to whether they could frame his own son. Because that's how it works, right? He's testing Grace to see what she'll nibble on. Well, she doesn't nibble on that. So he drops it immediately. And then he tries the other line.

So first, remember, he says, Alejandro must have planted it. She doesn't nibble on that. And then he takes her son. He's like, I don't even want to suggest this, but what if it's our son? She doesn't nibble on that. So he drops it.

He keeps trying to find the thing that she'll bite on to keep pulling her along, pulling her in. I couldn't have done this. And you love me. Don't forget. You love me. This is our family.

That is just classic. And so I don't know a lot about the background of this and why they decided to make this, but I will be shocked if, um, somewhere along the way there was not a woman who was in a domestic situation with someone who suffered from narcissistic personality disorder because so many pieces along the way fit it and fit the MO so exactly. So in hindsight, this show is not a whodunit, it's a he-done-it. And it's explaining to you painstakingly all the ways that he done it.

And you're sitting there still watching because you've seen so many whodunits going, nah. Nah. No. Yeah. So, you know, so I would say my advice i i still stand by my advice you've made the best defense that um you've made the very best defense that i can hear i've heard of the last 20 minutes but and let me say one thing on that ending scene you forgot how she gets the sun away from him he's holding the sun's hand.

He's about to jump off the bridge. We assume he's going to pull the sun with him or has at least the ability to pull the sun with him or just hurl the sun over himself to punish her. And what does she say? She says, I love you. And that's when he thinks that he's got her back on the hook. And that's when he lets go of the sun

because he thinks I've got this now. But she's lying. She now has figured out the hook. And that's when he lets go of the son because he thinks, I've got this now. But she's lying. She now has figured out the game. So she says, I love you to get the son, to get him to release the son. And it's her recognition that she understands

the narcissistic personality disorder. And now because she's a psychologist, she can use what she knows to get him on the hook. It still doesn't make up for the helicopter appearing. Okay. The helicopter is a bit much. Like I was with them, you know, even with him taking his son, I was like, oh my gosh. And then they're running to a helicopter. And I was like, wait, when did the undoing become succession? Like, are they that rich?

Do they have the chopper just on call, you know? Which by the way, succession. That's back in the old school pre-Ted Lasso days where we still had TV shows where everyone is loathsome. I don't know that I'm going to have the appetite for it post-Ted Lasso days where we still had TV shows where everyone is loathsome. I don't know that I'm going to have the appetite for it post-Ted Lasso. Now that I know the wonderfulness that is rooting for everyone, I don't know that

I want to go back to hating everyone. See, I have diverse viewing habits, Sarah. I contain multitudes. I can swing from loving everybody to hating everybody at the drop of a hat or the 10-second transition from one stream to another. But I, for one, am looking forward to going back to hating every member of the Succession family. By the way, Big Mouth,

the next season of Big Mouth comes out on Friday night. That's a show that I can't imagine that the French family watches. The French family does not watch it. Yeah. For listeners who are watching Big Mouth, you're laughing right now

and everyone else is like, hmm, what's Sarah talking about? It's hilarious. David French and his family, I really doubt will watch this show. So we'll just leave it at that, David. And we'll let you go maybe read some stuff about Big Mouth and get back to me on whether you think that'll be a show you'll be watching with your adult-ish children and your

wife. Certainly not my 13-year-old. Not the 13-year-old. No. Okay. All right. I'll read up on it. I'm already suspicious. But all right. Wow. It's John Mulaney. You love John Mulaney. Love John Mulaney.

We have covered acres and acres of ground in this podcast. It might be one of our most diverse podcasts we've ever done. Maybe. And all with legal hooks. All with legal. A little tiny bit of just plain old political lamentation at the beginning. But yeah.

Good stuff. I'm proud of this podcast. Me too. I'm looking forward to listening to it. And yeah, I listen to our own podcast. Quality control, Sarah. Me too. Yeah. I'm looking forward to listening to it. And yeah, I, I listened to our own podcast quality control, Sarah quality control. Um, I mean, I don't listen to every one of them, but sometimes I think, I think that was a good podcast. I want to confirm it. That's some, that's some very specific personality trait that I can't quite put into words, um, that I, that I find endearing about you.

Well, thank you. I guess I could go a couple of ways. Well, anyway, thanks for hanging in for a longer than usual podcast. But as I said, we have a lot to cover. And I'm sure we're going to have a lot to cover on Monday. But again, please go to Apple Podcasts, rate us, please subscribe. And also go to thedispatch.com where you can comment about the podcast. An awful lot of people do. And when I have time, I sometimes try to dive into the comments and answer questions there. But please rate us, subscribe, and check out thedispatch.com. And we will see you on Monday. And we'll take a quick break to hear from our sponsor today, Aura.

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