Strict Scrutiny - Normal Scrutiny

Episode Date: December 14, 2020

Leah and Melissa are joined by the first repeat guest on Strict Scrutiny, Elie Mystal, to discuss his recent column about Democratic leadership on the Senate Judiciary Committee. They also provide some dramatic readings and reenactments of some of the hearings and filings from the (poorly run) coup attempt. Follow us on Instagram, Twitter, Threads, and Bluesky

And I, someone who watched Clash of the Titans religiously in my childhood, could not help but be intrigued by the prospect of the Kraken actually being unleashed. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back. This is a very special episode of Strict Scrutiny. I'm one of your hosts, Melissa Murray. I'm Leah Littman. And we are joined today by a returning guest, perhaps our first returning guest, if memory serves. And that, of course, is the indomitable

Ellie Mestal from The Nation. Hello, Ellie. Oh, thank you. That's such a nice introduction. I feel pretty dominated, quite frankly, as we were just talking about between COVID restrictions and homeschooling. Yeah, I think I've been overtopped by 2020. Well, 2020 will do that to you. She is uncompromising in what she has required of us, But she is slowly on her way out, I guess. Question is, what's she going to do before she leaves? Because she's not going to go quietly. My five-year-old yesterday kind of had a meltdown because he saw snow in some other part of the country. And he was like, it's never going to snow here again.

And I wanted to be like, of course it's going to snow here again. But, you know, global warming, who knows? Like Like I don't want to make promises I can't keep. But like having thought about it, I think the last thing that we need is like a real, just like straight up nor'easter blizzard type situation on the Northeast to just shut everything down. Like that's, that's how 2020 goes out, I think. Like Shiva. So, Ellie, I don't know if you listened to the show. If you heard our last episode, we did a deep dive with Rhode Island Senator Sheldon Whitehouse, who— Sheldon Whiteboard Whitehouse. I'm sorry.

Let me get his street name right. Sheldon Whiteboard Whitehouse. And he, as he did in the Barrett confirmation hearings, really tried to link the network of different interests that have really been aligned in creating a conservative legal movement that is not just one that is theoretical or abstract, but has definitely moved into the court. So he laid all of those pieces out. And you recently wrote a story for The Nation that talked about the judiciary and name-checked Senator Sheldon Whiteboard Whitehouse. And you talked about it in terms of what the Democrats have to do if they're going to counteract the transformation of the court. So can you tell us a little bit about your article? Yeah, so the impetus for that article is that right now, as far as we know, there's a bit of a leadership internecine squabble among the Democrats about who is going to lead the Judiciary Committee, regardless of whether the Democrats are in the majority or the minority. position in that committee. The next person up by seniority, which is how Democrats do it, is Senator Dick Durbin. He is the Senate minority whip at this point. He's already part of the Democratic leadership team. He's been on the committee for 22 years. He's never been a committee chair, I found out in the course of writing this article. So he kind of feels like it's his turn to have sit in the big boy chair. That's not how the Republicans do it. No. Republicans pick the person that they think is best situated to be the attack dog on the

particular committee that they're up for. The person on the Democratic side behind Durbin in terms of seniority and who also, you know, apocryphally speaking, wants the job is Senator Whitehouse. And so that's the kind of backstory. The reason, what's the job is Senator Whitehouse. And so that's the kind of backstory. The reason why I wrote the article is because the difference between a Senator Whitehouse Judiciary Committee and a Senator Durbin Judiciary Committee could not be more stark in my mind. Now, I say this with no shade intended at Senator Dick Durbin, who's a great senator and a really high quality questioner.

I watch most of the Judiciary Committee hearings, not most of the hearings. I watch most of the judicial nomination hearings that they have. He's a great questioner. But Dick Durbin is an entirely traditional Democrat, which means that he questions the nominees about their legal philosophy and their credentials for the job. And then the nominees say, yo, I'm a Republican. And the Democrats say, wow, you seem to be very Republican. And they're like, yeah. And then they get confirmed.

That's how the Democrats are. Sheldon Whitehouse, as you explained on your last episode, as he explained for his damn self on your last episode, has a completely different approach to how to do this. And that's because he understands that there is an entire conservative infrastructure and ecosystem that is designed to produce not just conservative judges, but conservative outcomes for conservative interests. He understands the whole, he sees the whole board. So he doesn't get distracted by like, oh, your queen seems to be moving all around the board. He understands where your rooks are, where your knights are, and how you're using the pawns. And so his way of attacking the system is just completely different than what we have traditionally seen from Democrats. That's and that was that's what my article was about. So he's actually playing three dimensional

chess, unlike, say, some other people who the media hypothesizes as playing three dimensional chess. He at least he at least understands that there's a chess game going on, right? Like most, you know, most of the rest of the Democrats, it's not even it's not just this chess versus checkers thing. Like they don't think it's of the rest of the Democrats, it's not even it's not just this chess versus checkers thing. Like they don't think it's a game. I actually did not take your article to necessarily be advocating in favor of a particular person, but rather to be advocating in favor of a particular strategy. And the strategy that you outline is whoever it is, whether it's Durbin or White House or someone else, the strategy has to be be an attack dog. Well, it's not just being an attack dog. It's being an attack dog against the system.

Right. Being an attack dog against the person holding the leash, not the dog. Right. Like that. Like at some at some point, you know, I go into my Caesar dog whisper mode, right? Like you don't worry about – there are no bad dogs. They're just bad owners. And at some point, like we need Leonard Leo, the former head of the Federal Society. He needs to be the star in one of these confirmation hearings, not the dumb nominee that's doing his bidding. Leo is the person who is orchestrating all of this from behind the scenes, right? The Federalist Society needs to be put on trial in one of these hearings.

The Heritage Foundation needs to be put on trial. The Judicial Crisis Network needs to be put on trial in one of these hearings, because that's how we get these nominees. Like, they don't thaw the sky. And I think this is, White House does a good job of this. There are others, I think you're right to point out, Professor Murray, that do this as well. These people are not, what's the word I'm looking for? They're not naturally occurring phenomena, all right? It's not like you go to law school and just like, wow, I happen to think that original jurisdiction means that. That's not how it works.

These people are trained, are built to think a certain way and to produce a certain kind of judicial outcome. And it's that training, that entire infrastructure and ecosystem that needs to be at first just acknowledged by the liberals, then exposed by the liberals, and then finally kind of fought and attacked by the liberals. Because if we don't attack that, if we don't attack that training, if we don't attack that ecosystem, all we're going to do is get this endless flood of originalist judges making originalist decisions so that Republican interests can continue to benefit. I'm also a big Cesar Millan fan, and I hope we can get one of his dogs on the show at one point.

But I think, you know, the differences between Senator Whitehouse or, you know, the approach exemplified by Senator Whitehouse and Senator Durbin are even there are more besides just, you know, wanting to identify and challenge the system. You know, it's also the attitude that they bring to how to deal with Republicans on judges. And Senator Durbin is very much of this like old school, you know, civility model, which is he assumes we are still living in a world in which both parties are just evaluating each other's nominees based on their credentials. And so he's still voting for, you know, a lot of the nominees offered up by the Trump

administration, even when they're challenged by, you know, pro-choice organizations and others, simply on the ground that will, you know, kind of like Senator Collins maintains, like he's just evaluating them based on their qualifications, which, again, like that's not the model that Republicans are operating under. And so to just unilaterally adopt that model when the party, other party is doing something different is, you know, another one of my concerns with making someone with that vision, you know, leader for the Democrats on this committee. The civility that you speak of, Professor Whitman, is is exactly like is inherent in the problem with that we've seen from Democrats on that committee up to this point, by Senator Dianne Feinstein hugging Lindy Graham after the Amy Coney Barrett hearing, where he was responsible for shoving down a justice over the objection of a woman who had just died

after an election to pick Donald Trump's replacement had already started. That was the hearing that Dianne Feinstein said, I just think these are some of the best hearings that we've had ever conducted. And hug the man. That has to stop. That just has to stop. We have to stop treating these people like they are the other sides of our coin and start kind of understanding and attacking these people as the true kind of, you know, kryptonite to democracy that the originalist judges and the conservative legal infrastructure represents. There's another thing, though,

professors, that I think people like White House do extremely well and traditional Democrats do not, and that is A, understanding what the word ethics is supposed to mean and B, applying what that word is supposed to mean to not only the confirmation process, but the federal judiciary in general. that I was so angry didn't get more traction was that during the arguments for Bostock, which was the case about gay rights and whether or not LGBTQ people would be included in the understanding of Title VII of the Civil Rights Act, Justice Alito and Brett Kavanaugh took a meeting with a person who had filed an amicus brief in that case, some kind of pro-man-and-woman marriage person, took a meeting with a person who had filed an amicus brief in that case,

some kind of pro-man-and-woman marriage person, took a meeting with that person, posed for pictures with that person and his organization and a priest, I think it was, while the court was still deliberating the Bostock case. Again, these people were not random. They had filed amici in the Bostock case. Again, these people were not random. They had filed Amakai in the Bostock case. They took this meeting while they were still deliberating that case. That is ethically wrong. That's just wrong. And I shouldn't have to jump up and down and scream and set my hand on fire to get normal people to understand that this is unethical behavior, like point and click

unethical behavior. And conservatives engage in it all the time. Why the hell is Samuel? We can talk about the actual speech, but why the hell is Samuel Alito even giving a speech at a fundraising event for the Federalist Society while he is a sitting Supreme Court judge? Why did Brett Kavanaugh do the same thing a year earlier? Why does Clarence Thomas do it every freaking Tuesday? How is that okay? So let me paraphrase a little bit of what Ellie is saying.

When you have, so I think one response to the idea that Democrats need to sort of give up the guise of civility and really start mixing it up is, you know, this is the Senate. It's supposed to be more courtly. Again, civility is the kind of coin of the realm. And I think what you're saying is we abandoned civility a long time ago. And what we really need is for someone to shine a light on all of the ways in which civility has gone out the window. And the kind of ethics slash civility that we have expected to guide our deliberations have also gone out the window as you see these relationships that appear quite cozy coming to the fore. And we need to understand how those work.

And we need the senators to actually surface those in the way they do their job. Is that a fair assessment? That is, you know, in the research in that particular piece, I noticed that White House had made a big stink about the financial disclosure forms from the Supreme Court justices pointing out how even their financial disclosures are less robust and complete than what we expect from, you know, random congressmen? How is it that, you know, somebody from the third district on Long Island in New York has to make a more full financial disclosure than a lifetime appointed Supreme Court justice about the gifts that they've received, the travel, the trips that they've

been paid for? How is that a thing? How is that okay? And it goes to this deeper point that, again, I don't think Democrats are ready to fight this game. The Supreme Court is the only court in the land that sets its own ethics rules. Every other court has some kind of statutory, that means congressionally passed kind of requirement that they're technically supposed, whether they follow it or not, they're they're supposed to right um but the supreme court claims authority to set its own rules about what is and is not ethical for its own justices the supreme court sets its own rules about when a justice has to or doesn't have to recuse and that rule is whenever the justice feels or doesn't feel like it that that that's

not okay roberts and elena kagan will occasionally get on the television and talk some bullcrap about how oh they're totally thinking of issuing formal ethics rules for the court but they never do it never happens right so like the the the thought that we are sitting here in this year, 2020, and we are coming out of the back end of the most corrupt executive office in the history of the United States. And I do not think that is close. I mean, you can tell me all you want about Grant. I do not think the corruption that we've seen from Donald Trump is on a scale of anything we've ever seen before. How is it that we have a Congress that is willing to try, at least the Democratic side, is willing to try to produce ethics rules to constrain both itself and the executive branch, but the Supreme Court still gets off scot-free? That's not okay. And again, there are senators who understand that.

And there are senators who are willing. And this is the rug that ties the room together. Sheldon Whitehouse and a few other Democrats understand that the Supreme Court is a political body. They should be treated like a political body. They should be talked to like a political body. They should be understood as a political body. They should be treated like a political body. They should be talked to like a political body. They should be understood as a political body. Most of the Democrats still hold tight to a legal fiction because it's not true in practice, a complete legal fiction that the court is somehow apolitical, above politics, and removed from the political fray. That is the heart of the fight.

Are we going to treat the court like the political institution that it has become? Or are we going to continue to pretend that it's not and let Republicans stuff our heads down the toilet and flush continually? I do not want to go back

to the days of flushies. But, you know, Senator Whitehouse, you know, gets it on several different levels. And, you know, Senator Whitehouse, you know, gets it on several different levels. And, you know, repeatedly on our episode, he mentioned that grievance was the tone of the movement.

And it's as if the president wanted to prove him correct because, of course, at a recent speech, the president literally told the entire crowd. So it's not a, it wasn't a speech.

It was a full-on rally in the middle of a surging pandemic in Georgia. So it's not an ordinary speech. Right. It's an a speech. It was a full on rally in the middle of a surging pandemic in Georgia. So it's not an ordinary speech. It's an actual rally. OK. At a rally in the midst of a pandemic surge, the president told the entire crowd. Because we're all we're all victims. Everybody here, all these thousands of people here tonight, they're all victims. Every one of you. I mean, there it is. And again, like Senator Whitehouse gets this. And it was exciting for me to talk to someone

who I could learn things from the courts about and who gave me some ideas for things to do. And again, like nothing against Senator Durbin or other senators on the committee. Like I know Senator Durbin co-sponsored the DREAM Act before that was cool. But the Democrats have been losing on courts for decades. And it feels like they should abandon this kind of seniority model for giving out power, which has hurt them so often, including on the courts where they elevate nominees, you know, who are way older and not as, you know, into the kind of progressive mix as Republicans do with their conservative nominees. So Democrats need to abandon that, need to recognize the game. And Senator Whiteboard, White House, he's the game. Look, Democrats have been losing for so long that I think they've forgotten why. I mean,

they think that losing is the natural state of things. They don't even know why they fail. So I'm going to step in and defend some of the Democratic senators because I feel like I'm closer to their demographic in terms of age. So I feel like as a nod to those of us in the older generation, I think they have, and I'm not sure it's wrong, a sense of the court that, as you say, Ellie, is perhaps aspirational right now. And I think it's very hard to give that up and to sort of succumb to the knowledge, whether it is reality, and it feels like it is reality right now, that the courts have become more political. I think these are a group of people who, whether rightly or not, have been trained to think of the court as above the fray and admitting that it's not, I think, worries them and worries that we will never recover

the opportunity for the judiciary to be above the fray if we go down this path. And I think that's hard. Yeah. I mean, I think there's also, if I may be a little bit more cynical than that, I think there's also, I think, just a tactical failure. The Democrats are fundamentally running the same strategy that worked against Robert Bork. And I hate to bring up Bork because I know that makes concern. Well, see, he'll start it with Bork.

Shut up. That's actually really interesting. That was a moment where they played hardball and were successful at it. But the thing was, the Republicans took the Bork strategy and made it even better. Right? And so the Republicans, having lost Bork,

the Republicans updated their playbook. I mean, I could do a thing that basically explains the federal society through the example of, well, we got screwed with Bork. What are we doing now? Like there is 30 or 40 years of Republican effort to make sure that Robert Bork never happens again to them. And then you could add in addition to make sure basically that David Souter never

happens to them again either. right? And those two factors, you could basically, you put that into a pot and you bake it for 40 years. And what you end up with is federal society soup, to be reductive about the whole thing. But the Democrats never updated their strategy from 87 because it worked in 87. And some of these older Democrats that you're talking about remember 87 and remember it working for Bork. And just like the Democrats are always sitting there kind of waiting for white working class people in the upper Midwest to like come back to them. So I realize that actually they're, you know, they're always waiting for the white person, you know, the downtrodden white person in Georgia to come back to the Democratic Party. They're also always waiting for Republicans to come back to the world where the fact that a potential nominee is racist,

like Bork was, an extreme racist, is enough to make at least half of them say, maybe we shouldn't have that person on the Supreme Court. They're waiting for that to happen. And it ain't never going to happen again. That ship has sailed. That is gone. And so that's a big reason why I advocate for an aggressive rethink, reimagination of our judicial nominee strategy, because the Republicans have been doing that since they lost Bork and the Democrats have just never caught up to the Republican update. Now, in order to get the Democrats back or maybe just teach them a lesson about how they treated Robert Bork, Republicans are now trying to overturn the results of the 2020 election.

So we wanted to find some levity in the insanity that is the suits to overturn the election by doing a selection of dramatic readings slash commentary slash clips slash reenactments from some of our favorite moments of these Trump legal filings. But before we do that, we should talk a little bit about some of the memes. So if you've been following the election-related litigation at home, you'll know that there has been no shortage of memeable moments going on here. So the memes really got started when Sidney Powell,

who is, who was, but is no longer an official lawyer for the Trump campaign. But when she was, she vowed on air on the Lou Dobbs show. I'm going to release the Kraken. To overturn the election. And I, someone who watched Clash of the Titans religiously in my childhood, could not help but be intrigued by the prospect of the Kraken actually being unleashed. So the Kraken is a mythical Scandinavian sea monster that springs up out of the ocean and devours its enemies, signaling that perhaps we are not the only ones who know how to make analogies to classical characters. I appreciated this mythological detour. I was here for it. that perhaps we are not the only ones who know how to make analogies to classical characters. I appreciated this mythological detour. I was here for it. You know what the Trump team is doing to her, though, right? I mean, they're basically trying to hold up a mirror so they can figure out where she is so they can cut off her head. That's how they're trying to get rid of her.

It turns out she's a hider, though, because she will not stop filing the lawsuits. You guys, I love this big Percy Jackson energy. This is amazing. The memes continued when still Trump campaign legal advisor Jenna Ellis said, This is an elite strike force team that is working on behalf of the president and the campaign to make sure that our Constitution is protected. Who is the strike force, Leah? Can you give us a rundown of the strike force members? It was Sidney Powell, who, of course, in addition to all of the insanity we'll cover in a second, is the lawyer to Michael Flynn. It is Jenna Ellis, who had previously said constitutional law was

one of her worst courses in law school. It also includes Lynn Wood, who is the attorney for Kyle Rittenhouse, the person who shot protesters at the racial justice protests this past summer. So that's the team, or at least a significant portion of it. Aren't you forgetting the team captain? Which one? I think he's most famous for his role in the Borat movie. My man, Rudy Giuliani.

And now that's a perfect transition to the start of these hearings because we will get to the filings themselves because they're already insane. But Rudy just gave us a lot of material to work with from the arguments where he actually appeared. So in the oral argument. As a $20,000 a day lawyer for hire.

$20,000 is the billing rate. So in the oral argument in the Pennsylvania District Court litigation in which Rudy Giuliani appeared, he failed to appreciate what strict scrutiny is. What standard of review should I apply in this case? On a motion to dismiss? Well, I mean, I think the normal one. Well, let me ask you, are you arguing then that strict scrutiny should apply here? No, the normal scrutiny should apply.

This was like a dagger to the heart. I mean, I took it as both a personal offense, but also I think a sign that maybe we're doing well if he's not listening to the podcast. Like he's maybe not our intended audience. There are two things going on with Rudy. One, and I say this as a Harvard grad, there's a bit of a there but for the grace of God go I. Like, you know, because when you go to certain elite law schools, one of the things that you're supposed to learn is that you ain't got no business in an actual courtroom. Right. Like you, you, you don't want that smoke. Like, you know, no. Maybe if you take a clinic and, you know, whatever. But most of us who end up going into, you know, a big law type situation, I went

to Debra Boyce and Blumton. Like, I shouldn't be within like 30 yards. Okay, that is a different thing. Because I'm just going to say Rudy Giuliani is a graduate of NYU Law School. I currently teach at NYU Law School. And I will literally bet $100 if you asked my con law students, they could tell you the difference between strict scrutiny, rational basis, and the elusive normal scrutiny category that does not exist. That's it. There's a part that's like there but four. Now, obviously, he's screwing up in ways that literally most 1Ls would not. I can't explain it to a non-lawyer because it's so basic, but it's like, imagine being a tort lawyer and not being able to define tort. It's a basic thing that you're supposed to know before you open your mouth as a lawyer of any description. His inability to

normal scrutiny is just... This is like you walk up to a stoplight and you expect the stoplight to be red or green. And all of a sudden it starts like spewing zebras and unicorns. Like that's kind of what or how Rudy flubbed this. And that, of course, wasn't the only moment from this argument. There was also when he shouted... So this is a real controversy. This is a case and it's a controversy. And I don't know, since I went to law school,

that's always been the simple test for whether you have standing or not. Jenna Ellis, campaign advisor, thought those of us mocking the hearings, as I will confess I was, were totally off. She tweeted out, you media morons are all laughing at Rudy Giuliani. But he appears to have already established a great rapport with the judge, who is currently offering recommendations on martini bars for Team Trump in open court, maybe giving them a place to drown their sorrows. But the grift is real. The grift is real. As many commentators noted, there were a string of legal defeats in the courts for the Trump campaign. And then things escalated because

the campaign took their show on the road, holding hearings before Republican-controlled state legislatures. And in one very memeable hearing in Michigan, there was this exchange with Rudy's key witness, Melissa Caron, who was purportedly an IT contractor for Dominion Contracting System. And that's the system that operates the voting machines that were used in the Michigan election. So here's a little clip of Melissa. The poll book is completely off, completely off. Off by 30,000? I'd say that poll book is off by over 100,000. That poll book, why don't you look at the registered voters on there? So my question then is if the... Guess how many, wait, what about the turnout rate? 120%. Let's let Representative Johnson ask his question.

My question is, we're not seeing the poll book off by 30,000 votes. That's not the case. What did you guys do? Take it and do something crazy to it? I should note, Kristen Johnson from Third Rock from the Sun has already claimed playing her in a movie when that happens. She will have to fight Cecily Strong, who had a very, very, no pun intended, strong presentation on Saturday Night Live last weekend. Yeah. I mean, everybody was saying Kate McKinnon was going to do it,

but if you had been watching SNL, like, Cecily Strong already had that character before. Of course, there were other hearings as well. And so for this particular excerpt from the Michigan hearing, I think we're actually going to provide you with a reenactment. Now, Elia's our guest. You actually claimed playing the Trump lawyer, right? Yes. I want to play Mark Hearn because Mark Hearn is nicknamed Thor.

And when I say his nickname Thor, I mean this dude writes Thor in his – like signs his name Thor Hearn. All right? Like on his Martindale Hubbard, Google it, kids. Like it says Mark, quote, Thor Hearn. So like all right. Let's just know that. I'll be Steven. You want to be judged?

Okay. I'll be Steven. Cool. So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct? The affiant hath direct first-hand knowledge of the communication with the elections inspector and the document they provided them. Okay, which is generally known as hearsay, right? I wouldeth not thinketh thou is hearsay, your honor.

That's first-hand personal knowledge by the affiant of what she physically observed. We included an exhibit for her, which is a physical copy of what she was provided by some random... I mean, what she was provided for. So, I'm just trying to understand why this isn't hearsay. Well, it's, uh, I, uh... Okay, I absolutely understand what the affiant says she heard someone say to her, but the truth of the matter that you're going for was that there was an illegal act occurring, because other than that, I don't know what the relevancy is.

Rightest. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Miss Cranon that she made the statement based on her own firsthand physical evidence and knowledge that was given to her. She said, I heard somebody else say something. That's what she said. Tell me why that's not hearsay. Come on now.

It is a first-hand statement of her, I would say, physical... It's an out-of-court statement offered for the truth of the matter asserted, right? Look, that's a rabbit who's flying a spaceship. Okay, that was... That was creative license um from thor um but but it was also from stevens a definition an actual factual definition of hearsay which of course thor was offering an out-of-court statement offered for the truth of the matter asserted the hearsay thing always gets me because like, I just, I have

these bad flashbacks from the bar exam where for whatever reason, I could not make my brain remember the exceptions to hearsay. Like I kept, and so I kept getting, you know, the hearsay question wrong because I kept forgetting that, you know, a statement against interest or, you know, all I could remember was dying declaration, right? So, like, unless the bar exam's like, but he said this while dying, I was, like, going to get the question wrong. And it really, like, it bugged me. So, like, I still don't know all the, what, there's 13? Still don't know all of them.

But, like, this is an important part of evidence. It's seared into my brain. Those are some of the hearings. but maybe now we can get to some of the filings themselves. So we're going to alternate kind of dramatic readings slash interspersed commentary. So bear with us. But before we do that, I just briefly wanted to note some interesting citations that the elite legal strike team. Strike force. Strike force.

Elite strike force team was deploying in their briefs to back up the idea that candidates have standing to challenge election laws. And that is they cite Drake versus Obama for the proposition that competitive standing exists based on the you know, the potential loss of an election. There are literally a million cases you could cite for that proposition. They chose the birther one because, of course. All right. So now we have this bit from one of the Trump campaign's briefs. This is in the Pennsylvania case seeking a temporary restraining order preventing certification of the state's

election results. So this was in the reply brief. So Ellie, do you want to read this little snippet? A short stay does not risk the December 8th safe harbor, Dave. Come on, guys. Alternatively, if the court were not to grant relief now, the case is not moot because it could revoke certification of the order, of the Brockerville order to certify Trump as the winner as required as and require the allocation of Pennsylvania's electors to Trump before December 8th. Leah, why is that not going to happen? So one is this is essentially them conceding that their temporary restraining order isn't necessary, given that the court could award relief later. And of course, you need to demonstrate why a TRO is necessary in order to get one. So this is them losing their case in the brief, even before the argument.

Another goodie from that brief is as follows. Serious lawyer voice. Finally, the public interest is served by a short stay, which harms no one that's hyphenated, no dash one. While this court determines whether plaintiffs have made cognizable claims. This is them literally saying that blocking certifying the will of millions of Pennsylvanians harms no one, which is just insane in its own right. OK, well, but it's mainly black Pennsylvanians, though. So are they people? Our listeners can't see this.

Ellie is raising his hands as if to suggest the answer to this is somehow unknown i mean again i'm if i just go from an originalist understanding of the constant sorry i'm not going to do that okay as as as professor murray said this is the season this is the holidays so the next holiday season of giving of giving you get personhood You get personhood. You get personhood. You get personhood. The next holiday gift for our listeners is from the amended motion for expedited review in the Third Circuit, the fifth paragraph of which reads, However, appellants, and this would be the Trump campaign, do not believe this is a, quote, case or controversy. This is an interesting concession to make after Rudy was loudly proclaiming in the district court that this is, in fact, a case or controversy. And also because if it's not a case or controversy, you lose and you don't have standing. There are people, and by people I mean Republicans, who don't seem to understand that the courts are not there to give advisory opinions. They're not there to help

you out. They can only deal with live issues. And so as you pointed out, there have been a couple of times where the trump legal team has argued that its issue is not a live one which is just the level of insanity the level of it's it goes beyond bad lawyering um it just it's their propositions are insane and that's why they keep getting smacked down so so hard in some cases, by judges Trump has appointed, you know, by judges that I could easily spend the rest of my life criticizing and pointing out their bad faith legal reasoning and legal arguments. Even these Trump judges are having to smack down some of these filings because they're just, they're not law. So these are obviously not playing well in legal courts. And maybe that's the point. Like, maybe they're not pitched at a judicial audience or not pitched at a court, but rather,

they're being pitched at the court of public opinion. And that I think is a different question. Are they successful in convincing the Trump base that there is a reason to be aggrieved here? Going back to the grievance theme. Yes, but I don't think they needed it. Like, I think the Trump base was going to feel aggrieved and like Trump really wanted, they were going to feel that way regardless, right? That part, as I said, there was no need to wreck your professional reputation to do like you could you were already going to be able to convince them that the election is rigged, that Trump is still the real president, that Obama's from Kenya, that you were already going to be able to do all the things. You didn't need to drag this out through 50 odd lawsuits and embarrass yourselves

in front of the court. And really what they have accomplished more, I think, than winning their base, which they were going to win anyway, is to force the courts to kind of, in the most strenuous terms, say that Biden won fairly. Have you guys seen A Few Good Men? Oh, yeah. So there's that bit where Denny Morris says, I strenuously object. And the judge says,

the man's an expert, right? And it's like, by strenuously objecting, all they're doing is making the courts kind of have to pound the table and be like, Biden won the damn election.

Shut up. Like, that didn't actually have to happen. So I think it's I think in history, this is backfiring in in real time and getting mad at people willing to shoot other people and kidnap people. Sure. It's working. Great. Good job. They were going to do that anyway. So speaking of not really knowing what they are doing, like admitting this isn't a case or controversy, they attempted to file one of their lawsuits challenging Michigan's rules, actually, in the Court of Federal Claims in D.C. The Court of Federal Claims in D.C., as Ellie's reaction indicates, is not the appropriate place to file these lawsuits because that court only has jurisdiction over suits against the United States.

Can I just say, I didn't know this until I saw your notes here. I didn't know they did this. And while, like, metaphorically speaking, this suit is in a lot of ways against the United States democracy, that still doesn't make it proper to file in the court of federal claims. Later, they, you know, attempted to say this was the fault of PACER, the electronic filing system for the federal courts that PACER made them do it. But, you know, identifying the incorrect court is not the only thing that they get wrong on geography. They also make a litany of geographical errors in these lawsuits. They identified one county in Michigan that allegedly voted for Biden overwhelmingly.

That is not, in fact, a county in Michigan. They included a bunch of appendices of, again, counties or townships that they thought, you know, went too far for Biden to be real. All of those counties were not in Michigan. They were in Minnesota in their suit in Wisconsin. They demanded that the judge order immediate production of the voting processes at the TCF Center. The TCF Center is in Detroit from their Arizona filing. They argued that the election law rules were not in compliance with the manner prescribed by the Georgia legislature. Like, they're not so great at maps, copy paste, Pacer or other kind of... I loved when they blamed this on Pacer because it reminded me of Harry Potter when the Malfoys try to blame everything on Dobby the house elf.

Now, Pacer is a free service. Someone gave Pacer clothes, and now Pacer is free. That just happened. So I felt it was, like, all full circle. No, these people are... This is the equivalent of, like, showing up to the county water commissioner and being like, I'd like to report a fire. Like, the...

Well, you're the water commissioner, aren't you? And they're like, well, you really don't understand what's happening. I did the pacer thing. That's just. So to Ellie's point, they recognized after many people noted that this was inappropriately filed in the court of federal claims and they made a motion to withdraw the complaint. And in that motion to withdraw the complaint, it was noted that plaintiffs represented by Thor Hearn and True North Law LLC filed a complaint, blah, blah, blah. As a result of an electronic error in the PACER electronic filing system, this matter was also

filed in this court. So. Whoopsies. Thor, too many strike forces going on just pew pew pew pew all over the place and again respectively submitted sign mark f parentheses thor hern the second you you were i didn't realize he signed it that way um ellie you are exactly right i'm wow you don't have to parody these people. They just do it themselves. I want a Norse mythology nickname. What would, like Loki. You don't want to be Loki. That's the only other one I know. Are there others?

Listeners, feel free to submit a recommendation for Melissa's Norse mythology nickname. Right. Like, I don't want to be Loki, but it is the only other one I know offhand. I used to call my first, I called my first car Woden for a time. Oh, that's a, Woden. It was a powder blue Cadillac. Of course it was. From like the 80s. It was, I found it at Gas Station. A DeVille. A DeVac. Of course it was. From like the 80s.

It was, I found it at Gas Station. A DeVille. A DeVille. I like it. Okay. Awesome. So a few other places they tried to file lawsuits, as indicated in the papers that they filed, were the District Court, that's District with two C's of Georgia and the distroict, or that's distroict, I don't know, D-I-S-T-R-C-O-I-C-T court. So to be fair, people can make mistakes. understand as part of professionalism as a legal professional is spell checking your work and

making sure that these obviously avoidable errors are not present in your legal filings, particularly when you are representing the President of the United States. Yeah, it was like just the frequency of these errors, which was really quite striking. Like, of course, filings will inevitably contain errors. But when the filing has at least 10 errors on each page i think is notable i think there's also just the the lack of humility right like the people make errors all the time and they are mortified right they feel bad about it they apologize for you know for for errors and mistakes and these these people they don't have the there's there's a temperamental

thing going on here as well right like it doesn't like that the words i mean i don't want to get philosophical about it but it it's like they honestly think that the words do not matter the words don't matter the law doesn't matter um the the the the proper procedures don't matter. The only thing that matters is that their hero must see them on the field of battle. It's really reductive. It's really sickening is the word that I was going for. That's really just trivia, administrivia in some degree. So those were technical errors. There were actually some real substantive claims that were made here that I think kind of verge into the territory of conspiracy theory.

So Leah, let's highlight some of those. Okay. So again, in my serious lawyer voice, the fraud was executed by many means but the most fundamentally troubling insidious and egregious in the systemic adaptation of old-fashioned quote ballot stuffing it has now been amplified and rendered virtually invisible by computer software created and run by domestic and foreign actors for that very purpose this is is like the Hugo Chavez conspiracy that Sidney Powell had spun out where she was alleging that Hugo Chavez from the dead

had somehow become reincarnated as Brian Kemp in Georgia and had used that in order to turn the election to Joe Biden. And these allegations, of course, were repeated in complaints in Michigan and elsewhere. And the especially egregious conduct that was called out in these sections of the points typically were associated with counties where there were large representation of minority voters. Yes, that was also a staple in all of these complaints. The right Phil Hartman character for this is unfrozen caveman lawyer, right? I mean, this is that part of their shtick, right?

I'm just a caveman. I was unfrozen by your scientists. I understand your voting machines and your Dominion software. I just know that Donald Trump won this election. Like, that's where we are in this section, right? Yes, except they tried to give that caveman like slightly more international spy vibes. So they would include these shagalicious babies.

So they would include these affidavits from, quote, a former electronic intelligence analyst under 305th military intelligence, and insists that these exhibits had to be sealed because if we disclose their identities, these individuals would be subject to harm because they have worked as spies across the globe. So these were the individuals that they were claiming knew that all of this voting software was rigged for Joe Biden. You know what you haven't read, Professor Lippman, because there's nothing to read from this bucket? Evidence. You haven't read one, not just one pleading of evidence. You haven't read one theory of where the evidence might be through discovery, right? You haven't, they haven't even outlined a plan. It's not just that they don't have evidence. They have not outlined a plan to get the evidence that they

allege exists. Well, I'm so glad you brought that up because actually in their filings, they also included some declarations and affidavits. And those were pretty good, too. So in one, the declaration of redacted. The next sentence of which reads, I, Seth Kessel, make the following declaration. Like they literally redact the name of the person in the title of the declaration, and then the next sentence has his name. But here's Seth Kessel's super secret evidence that proves Democrats didn't actually win Georgia.

Are you ready? I am ready. And I quote, Georgia has not been won by a Democratic presidential candidate since 1992. This strong performance casts substantial doubt on improvement for Joe Biden. There you have it. Because Democrats lost the state before, they did not win it this time. The suspicious evidence is more people voted for Democrats. It defies explanation, right? Yeah. You know, they also

have affidavits that were submitted by not professional spies, but volunteer spies who in their declaration say, quote, I answered the call from Lin Wood, which he put out on Twitter, you know, in order to. As all good intelligence operators do. Which he put out on Twitter to surveil the Georgia ballot counting. And this individual's affidavit is like several pages long and includes the following very suspicious allegation. There's more than 50 dumpsters here and it, the trash truck, only picked one. This would indicate a special pickup. So this person was like, I guess just like watching the trash pickup around the ballot center. And they thought this was really suspicious. And then they detail how their friends and them were like following the trucks. Like it's truly nuts. But perhaps the

best part of this declaration is that it is dated November 11th, 2020. And of course, it concerns events that happened on November 30th. Very suspicious. Came back from the future to see the trash pickup. Can you imagine if this is what we had against the tobacco industry? This is literally like, I got in a DeLorean, a bolt of lightning hit a clock tower, and I was able to record this. My client has never been dead before. I rest my case, Your Honor.

I mean, the ending of this declaration reads like a bad spy novel. So it says, after all that, we settled in for a cold, snowy, uneventful night. I left at 540 a.m. and have not returned. It's like, why? That's their evidence. These are the declarations and they are truly next level. I mean, spies like us, right? Right. Rule 11, man. I mean, like I've written an article about this in The Nation about how like the only way to stop these people is to punish these people. And we have a rule to punish these people. It's called Rule 11. that are supposed to be imposed when lawyers make completely off the wall, you know, arguments that are not colorable, that couldn't possibly hold up. We have a mechanism to stop these people. Even though the courts have the authority to impose Rule 11 sanctions on their own,

they don't like to do that, especially, I imagine, in politically charged cases such as this. They wouldn't want to seem as piling on Trump lawyers. But like that, that's what needs to happen. That's the way to make them stop. It's important, I think, to say for the listeners here that, you know, we've been recounting this and we've been making fun of it because some of it actually is so ludicrous. It's kind of funny, but it's also deadly serious. I mean, this is about a set of court cases that were lodged in courts throughout the country. If judges are taking up these

emergency litigations, they're not taking up other things. There have already been serious access to courts issues because of the pandemic. this exacerbates the limitations on access to the courts that we've currently experienced. And then there's just the general casting doubt on the outcome of an election that by all accounts was appropriately conducted. And so just to be very clear here, we're not just reenacting this because we want to be funny and we want to poke fun at this. Like this was a real problem. The fact that this happened was a real problem. And no one is saying that, you know, if there were legitimate claims that needed to be litigated, that, you know, someone on the losing end of election should not pursue that. But no one could produce any evidence

that that kind of malfeasance had actually occurred. Part of the problem also, Professor Murray, is that there are two other things, right? One, now going forward, people with legitimate issues about elections will be laughed at, will be assumed to be part of this kind of conspiracy theory cabal, even if they have legitimate issues. Now, that's unlikely to happen in a presidential election in any legitimate way. But at a state level election, at a congressional level election, a state senate level election, where sometimes these votes, these races are decided by a matter of hundreds or even tens of votes, there could be legitimate issues about, you know, was, you know,

this ballot counted fairly or unfairly, whatever. And now all of those, all of those cases will be kind of painted with the brush of this one for 50 lunacy, which is bad. And then obviously your other, your first point is perhaps the most dangerous, that they are trying to cast doubt on this election in part so they can cast doubt on the next one. This one fundamentally, the reason why we're able to take this lightheartedly and make fun of them is that they've lost. It's, oh, Joe Biden's going to be the president. This is no longer a serious threat. They have lost this battle, I believe. But the next one, what their efforts have shown is that if we are ever in another kind of 2000 situation where it is legitimately close and it

does legitimately come down to one state. We will never get to know who the president is. We will never get to know who actually won. What you just said reminds me of one good take I've seen and one bad take. And the good take is Alexandra Petrae's Washington Post column, the title of which is, you know, don't worry, the people trying to steal the election are really bad at it. And the, you know, bad take is the Nate Silver one, which is, you know, he was saying, look, all of you liberals were freaking out that the Supreme Court was going to throw the election to Donald Trump, and you were totally wrong. But what he misses is that the margin of victory here was so large, there was nothing for the court to do. And those predictions came before the election

actually happened. And we saw any of the numbers. And there's nothing that we've seen that might suggest that wouldn't happen in an election that you were imagining, Ellie, where like the margin of victory is not coup proof. So we should talk a little bit about the Supreme Court because ultimately, President slash candidate Trump insinuated repeatedly during this election cycle that the Supreme Court was in the bag for him in some way. And we saw some activity at the Supreme Court just over the course of the last week. So, Leah, do you want to highlight some of the activity there? So not to be outdone with all of this insanity, Texas filed a truly next level insane suit in the Supreme Court

against Georgia, Pennsylvania, Michigan, and Wisconsin, because the states had changed their voting laws in response to the pandemic in ways that the Texas Attorney General did not like. And it was a reprise of that Bush v. Gore argument, that concurrence argument that we've highlighted in other episodes, this idea that unless a change is made through the state legislature, it is invalid and violates the Constitution. Right. Of course, in all of those other lawsuits, they were brought by, you know, candidates or people in the state. This is now another state, which is part of what makes it so insane. Some choice excerpts from that filing are the probability of former Vice

President Biden winning the popular vote in the four defendant states independently given President Trump's early lead in those states is less than one in a quadrillion. And that was verbatim from the expert affidavit they included. And that expert affidavit used essentially the same method that we mocked from the Powell lawsuit, namely, they didn't think Biden could win more votes than Hillary Clinton did from 2016. And, you know, this is their lawsuit. You know, this is insane for any number of reasons. Like the theory itself is insane, as we've talked about their evidence for it is insane. But like they filed it. Exactly. Like, why do they think one state can sue another state because they're not complying with their state legislative rules for the election? Like this theory has no stopping point. Like could Texas sue the governor of Michigan for its mask mandate because, like, they think she's exceeding her statutorily delegated power? I mean, you know, the suits in

the Supreme Court's original jurisdiction are only supposed to be there when there is no other possible vehicle for these issues to arise. But all of the issues that Texas is raising have been risen in all these other insane lawsuits that we've been covering. You know, the president on Twitter said, we will be intervening in the Texas plus many other states case. This is the big one. Our country needs a victory. I don't know if he meant the Solicitor General or the campaign or some combination. Well, unfortunately, we don't yet have that filing, so we can't read from it.

Also, if they intervene, don't they automatically lose original jurisdiction? Yes. All of this is right. I mean, this suit is next level off the wall, but maybe it's on the wall in this way. So yesterday, one of the commentators that I was watching yesterday when this was filed noted that Ken Paxton, who is the Texas attorney general responsible for filing this suit, has been indicted on securities fraud and has been accused by many of his aides of bribery and abuse of office and other potentially criminal offenses. So my question is, and this commentator surfaced this issue, maybe this is just a bid for a

pardon as opposed to something that's actually supposed to have legal legs. I mean, part of the evidence for how insane this lawsuit is, is the Texas Solicitor General, who's a lawyer in charge of representing Texas in the Supreme Court, didn't actually sign his name to this lawsuit, but was willing to sign his name to the lawsuit seeking to invalidate the entire Affordable Care Act, also on an insane legal theory that was still orders of magnitude less insane than this one. I think the other thing that's going on here, this week, Trump tweeted out a meme of Amy Coney Barrett with like laser beams shooting out of her eyes somehow. Right.

Because she's, I think that was supposed to be suggesting that, and the theory that Republicans have, if you talk to them, is that there are Republicans who believe that the conservative judges on the Supreme Court, especially the ones handpicked by Trump, are actually waiting to save him. And just need the thinnest excuse to be able to parachute in and save Trump and reelect him to a second term in office. And they think that Amy Coney Barrett, with the laser beam shooting out of her head, like this is what she's been waiting for. As if, and I will say, anything horrible about Amy Coney Barrett, you want me to.

I will say anything horrible about Brett Kavanaugh that you want me to. But these people have 30 to 40 years of career ahead of them. The thought that they would scuttle it all to give Trump this temporary victory when they probably don't even got five votes because they probably don't got Gorsuch for any of this crap.

That they would scuttle every, all their entire reputation. Risk it all, risk it all. For Donald Trump, who they will outlive. I mean, in a biological sense, who they will outlive is just insane. It's insane making. It's an insane theory. It's not going to happen. Well, we saw at least a glimmer of what the court might be inclined to do on Tuesday when the court refused a request from Pennsylvania Republicans

to overturn Biden's victory in the state. And that was seen by many as a pretty clear rebuke to the Trump campaign in a major forum where he has very clearly pinned many of his hopes. It was a one-sentence denial. There were no dissents that were included in the... It's just John Roberts saying, get out of my face. And again, John Roberts hates black people voting. Let's be clear. John Roberts hates black people voting, right? It's not his preferred

method of democracy. And even he's just like, get out of my face with this. Sorry, that last bit might have been a bit of opinion. Sorry even he's just like, get out of my face with this. Sorry, that last bit might have been a bit of opinion. Sorry. I was about to say, maybe we end on that note. Can I do Judge Braun? Oh, yeah, yeah, yeah.

Of course. Bring us home with Judge Braun. So this is the introduction to the order in Pennsylvania throwing out the Brockver lawsuit. And it's just one – it's two paragraphs and it's one of the best explanations of how stupid this all is and how little legal validity any of this has. So I will do my dramatic reading of Judge Braun as if Louis Black was doing it. In this action, the Trump campaign and the individual plaintiffs, collectively the plaintiffs, seek to discard millions of votes legally cast by Pennsylvanians from all corners,

from Greene County to Pike County and everywhere in between. In other words, the plaintiffs ask this court to disenfranchise almost 7 million voters. This court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption such that this court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this court has been presented with strained legal arguments without merit and speculative accusations upheld unplanned in the operative complaint and unsupported by the evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populous state. Our people, our laws, and our institutions demand more. At bottom, the plaintiffs have failed to meet their burden to state a claim upon which relief may be granted.

Therefore, I grant defendants' motions and dismiss a plaintiff's action with prejudice. I love that song. I was just about to say, I feel like this has the makings of the next Hamilton musical, like Judge Braun to music. I think this could be good. Anyways, just my two cents. That says all the things about

all 50 of these lawsuits. That's probably all we have time for. Thank you so much to our wonderful guest, Ellie Mistal, who is our first repeat of these lawsuits. That's probably all we have time for. Thank you so much to our wonderful guest, Ellie Mestal, who is our first repeat guest, and we hope to have him back soon. If you would like to hear more, Ellie is going to be participating in a wonderful event that the American Constitution Society is running where he is going to be moderating a book talk with Andrew Weissman about his book, Where the Law Ends on the Mueller Investigation on

January 26th from 4 to 6 Eastern. So stay tuned for more details from the American Constitution Society for that event. Thank you all for listening. Thank you to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And if you'd like to support the show, please feel free to get your normal scrutiny merchandise at our website, strictscrutinypodcast.com, or become a Glow subscriber at glow.fm forward slash strict scrutiny. Thanks all. Thank you for having me and thank you for my coffee mugs. Of course. you