Strict Scrutiny - Trump's Legal Defense is Dumb AF

Episode Date: October 30, 2023

Leah, Melissa, and Kate get up to date on the various cases against former President Trump and analyze the arguments being brought in his defense. Plus, they preview the First Amendment cases the Supreme Court will hear this week-- including one about the legality of trademarking the phrase "Trump Too Small." Read about the guilty pleas from Kenneth Chesebro, Sidney Powell, and Jenna EllisRead the NYT on Amy Coney Barrett's remarks at the University of Minnesota and Clarence Thomas's RV loanRead The Washington Post on Judge James Ho's speech to The Heritage FoundationFind us on the internet!Bluesky: leahlitman.bsky.social, profmmurray.bsky.social, Kateshaw.bsky.social, [e-mail], [e-mail]: @profleahlitman, @profmmurray, @kateashaw, @strictscrutinypodcast Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. 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 legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Alyssa Murray. And I'm Kate Shaw. And just in time for Halloween, it is First Amendment Week at SCOTUS. So we will preview the First Amendment cases the court will hear this week. But before we do that, we're going

to actually bring you an update on what has been happening with all of the various Trump cases, or at least as many updates as we can fit in, because there have been a lot of important developments just in the past week. First, a content warning. We are recording this episode after the release of 1989, Taylor's version, and so there will be a lot of Easter eggs in this episode. Melissa, don't roll your eyes. I can see that. First, what is going on with the Trump cases? The ones where some people are saying it's a big mistake, it might blow up in your pretty face. Yes, that's Easter egg number one. There are a lot of Trump cases. It can be hard to keep up, but we've got you. And we are very lucky to have the author of a forthcoming book about the Trump indictments as a co-host. Of course, I'm talking about Melissa's forthcoming book with Andrew Weissman, The Trump Indictments.

So just as a reminder, there are four cases involving potential criminal liability for Trump personally, two federal cases and two state cases. And I should say right now, after this last week, I don't necessarily feel so much like an author as I do like an editor, because I have been frantically editing this manuscript to keep addition to the four criminal trials, which we're going to get to, there's actually a civil case, a civil trial against the Trump organization that's going on in New York City right now. But we won't talk about this one as much. But I do want to highlight some big things here in this New York City case. The Welcome to New York Tish James version. Yes, Tish's version. Exactly. So here's the update on this New York case. So one, it's a civil trial.

So it's not a criminal trial. It's a civil trial. And it's actually the second part of this longer litigation. The court first entered summary judgment for the state of New York. And that means basically the court said that the evidence that thus far had been presented could only support one conclusion that the state of New York would win on its claim that the Trump organization and those who own and operate it, among others, but mostly Donald Trump and his adult sons, Don Jr. and Eric, had engaged in fraud. Specifically, they had inflated the value of their real estate holdings in order to get more favorable tax

treatments and bank loans. The judge found that the Mar-a-Lago estate, for example, had been overvalued by, wait for it, 2,300 percent in one financial statement. So not really a Scrivener's error, like big time fraud, bigly fraud. OK, I have a question, though. Do you think it's possible that Trump was including the financial value of some of the classified information at Mar-a-Lago, like when he was estimating the value of the estate? Just question. This is dangerous, Leah, because I am afraid that the attorneys surrounding former President Trump are going to adopt that and offer it as an argument in defense of their inflated

numbers. And honestly, in all seriousness, I wouldn't be surprised to see them make arguments in that vein in light of some of the other arguments that they have already made. Because in the earlier ruling that Melissa just mentioned, finding that there had been fraud, the judge described the Trump legal team's arguments as glaringly misrepresenting the requirements, as legally preposterous, as misstating black letter law, and the assertions he described as nonsense. So that's the kind of caliber of legal argumentation we have seen. So I guess it's not a huge surprise that summary judgment was entered against the Trump organization. But even with that

finding, again, that there had been fraud, there are still some remaining issues to be sorted out. And those remaining issues are the subject of the ongoing trial before the judge. And that's the trial that's going to determine whether Trump pays a significant penalty or is subject to any other civil sanctions. In terms of what could be on the table as potential penalties, New York Attorney General Tish James is seeking $250 million in damages, dissolution of the Trump Organization, an order barring Trump as well as Trump Jr. and Eric Trump from serving as officers of any New York state business. The judge also ruled that in the course of this civil fraud trial, Ivanka Trump has to testify against her father, brothers, and family business, which, you know, we're like a few weeks out from Thanksgiving. I think Thanksgiving at

Mar-a-Lago could be really weird. The adult sons will be testifying this week after Thanksgiving, and the Donald is currently scheduled to testify on November 6th. So the judge in the case has issued a limited gag order that bars Trump from speaking publicly about court staff. Specifically, Trump had identified, you know, the judge's clerk in previous posts and now has fined Trump for violating the order with the latest episode resulting in the court imposing a $10,000 fine and ordering Trump to take the stand to explain himself. So I'm sure Trump has learned his lesson. And that's the last we'll hear from him. Clearly. Did you see the check that was cut by Trump's lawyers law firm? No. They actually did pay the $15,000 now aggregate fine. Was it like a big cardboard check like the publisher's sharing house? Like that they delivered to 60 Center Street? That would be the best.

No, it was a normal size, whatever the dimensions of a normal check are. But it was striking because it came from the law firm, which felt like ill-advised as a lawyer. I wouldn't recommend paying those fines. Wow. I mean, I think we're learning a lot about what is ill-advised for lawyers. And on that note, let's continue to the four criminal cases. records. According to that indictment, Trump and the Trump Organization reimbursed Michael Cohen, Trump's former lawyer and fixer, for payments that Cohen had made to Stormy Daniels in exchange for Daniels staying quiet

about her alleged affair with Donald Trump. You search in every model's bed for something greater. Please stop. Okay, but also what song is this? I didn't come here to make friends. I was born to be a suburban legend, Melissa. What is the model's bed? It's me. Hi, I'm the problem. It's me. It's a vault track, Kate. Oh, so that's why I don't know it yet.

Okay, so I have not yet listened to the vault tracks. I'm sorry, Leah. I've made it halfway through. It's been like a few hours. We were recording this on Friday. The album dropped at midnight. Leah somehow stretches time. Leah's been up on Friday. The album dropped at midnight. Leah somehow stretches time. Leah's been up all night. She has a different relationship with like space and time than the rest of us. Like she has listened front and back like an infinite number of times in like

six hours. It's incredible. Let me get back to Stormy Daniels and these payments. So the payments that Michael Cohen made to Stormy Daniels in exchange for Stormy staying mom about her alleged affair with Donald Trump were allegedly made in the lead up to the 2016 election and ostensibly for the purpose of ensuring that the voting public would not learn about these indiscretions. And so that's really important because what's going on here is that the falsification of business records charge, which ordinarily in New York is a misdemeanor, is now being tagged onto this election fraud, whether state, federal, more amorphous kind of charge. And that is what is making it a felony in New York. So it's a very sort of controversial, novel kind of treatment.

More about that in the book, The Trump Indictments, if you'd like to take a look. But basically, the point of all of this is that these payments were made. They were entered into the Trump Organization's business ledgers. But notably, they weren't listed as payments to Stormy Daniels for keeping quiet about the alleged affair with Donald Trump. Instead, it just said legal services to Michael Cohen. And allegedly, they were not for legal services, unless legal services means a wide range of things that we did not learn about in law school. On the other cases, there are lots of updates. So first, a reminder of what those cases are, and then the updates. So the first of the two federal cases is the one pending in Florida. This case brought by special counsel Jack Smith concerns Trump's

unlawful retention of classified documents at Mar-a-Lago and his alleged obstruction of the federal government's efforts to get those documents back. This is the case that Judge Eileen Cannon is overseeing. Then there is the D.C. federal criminal case also brought by special counsel Jack Smith concerning January 6th and the efforts to allegedly overturn the results of the election by unlawfully attempting to falsify records and throw out lawfully cast votes. So Judge Tanya Chutkin is presiding over that case. And then finally, there is the second state case. In addition to the New York case, Melissa was just talking about, we have the Georgia state criminal case. That's the one brought by Fulton County DA Fannie Willis. That case is also concerning

efforts to overturn the results of the 2020 election, but in this instance focused specifically on efforts related to Georgia. So there's a state court judge, Fulton County Judge Scott McAfee, who's presiding over those cases, and it's cases rather than case because here there are a lot of defendants, although as we will get to, there are not as many as there were a week ago. Okay, so where to start with the last three? Maybe we will start with the documents case, since in some ways there are the fewest updates there. Why? Why are there so few updates? I hate to be uncharitable here, you know that. And yet, I cannot but conclude,

it seems like there's a chance Judge Cannon is kind of slow walking the proceedings in this case. So we'll see if that continues, but it is one very plausible explanation. This is probably the most straightforward of the cases just because there are already a lot of cases out there about obstruction of justice, about illegal retention of documents and classified documents. So it is not an area in which there are a lot of unsettled legal questions.

So that's the law. Then we have the facts. I think there's one unsettled legal questions. So that's the law. Then we have the facts. I think there's one unsettled legal question. Like, can you be president of the United States, lose, and then keep all of the documents related to you being president of the United States? I'm sure his lawyers are making incredibly convincing arguments that, yeah, that's all fine and kosher. And yet, unless essentially we're making some kind of presidential exceptionalism

argument about every statute and its application, which, again, I'm sure they will but can't possibly be right, the settled law seems to be that if the facts are as alleged, there were clearly multiple violations of law. And so on the facts, there is, from the charging document, there is very incriminating evidence, among other things, a recorded conversation where Trump really does appear to admit to a lot of the elements of the crimes that he is accused of. Should we do a dramatic reading here? Do you want to be Trump or do you want to be Staffer? I want to be Staffer. Okay, I'll be Trump. I'll be Trump. Okay.

This was done by the military and given to me. I think we can probably, right? I don't know. We'll have to see. Yeah, yeah't know. We'll have to see. Yeah, yeah, yeah. We'll have to try to- Declassify it. Figure it out.

Yeah, yeah, yeah. See, as president, I could have declassified it. Yeah. Now I can't, but this is still a secret. Yeah, now we definitely have a problem. Isn't that interesting? Wait, I will have notes on that on Melissa's delivery Melissa was genuinely mirthful

in the laughter that is the stage notes I think it was more of a nervous laughter I think it's nervous laughter I think we may need to do another take on that one but maybe we spend this first I thought he was just like yeah that's you're out of your mind

okay that's hilarious, dude. Okay, that's plausible. Maybe I misread his motivation. You're right. I got to go back and think about where is the staffer coming from here? Yeah, you're right. You're right. I did that badly.

But this case, as Kate suggested, is slowly chugging along in a Fort Pierce courthouse. Shout out to Fort Pierce. I grew up in Fort Pierce. Nothing surprises me about this case being brought and tried in Fort Pierce. Anyway, it's slowly chugging along as the court has very slowly resolved the procedures governing discovery. And so the whole process of discovery is about the government turning over evidence to the defense. The key here, though, is that some of the evidence, i.e. the documents, which are going to be the principal forms of evidence in this case, are actually classified. So there are a lot of questions about the kinds of restrictions, limitations that the government wants to impose on who gets to see these documents, largely because the government doesn't want to see any of this evidence again in bathrooms at Mar-a-Lago or to have this evidence turned over to the defense and then later have Donald Trump bragging about them and what they say to some unknown dignitary in some foreign country or businessman staying at one of his resorts. So it's a really kind of tricky thing, you know, what kind of evidence you charge on, because now this evidence has to be

disclosed, but it's also obviously very sensitive information. Another thing that's going on in this case that apparently is taking Judge Cannon a lot of time to resolve is what's known as a Garcia hearing. And so a Garcia hearing is one that seeks to sort of deal with potential conflicts in the representation of the various defendants. And here, the alleged conflict arose because one of the co-defendants' lawyers also represented and may still actually represent some of the witnesses who are likely to be called at trial. That seems to be a problem. More troublingly, some of the lawyers here are actually being paid for by Trump's PAC. So again, lots of tangled webs here, but these issues have not been resolved yet. Judge

Cannon actually stopped the recent Garcia hearing because in her view, the government was making new arguments that hadn't previously been brief. So unresolved, but lots of big questions. And just to take a minute on kind of some larger lessons of the way Judge Cannon is stewarding the proceedings in this case, I think it's just an indication or reminder maybe of the power that district courts wield. It is often unreviewable power. Although, you know, in the Fifth Circuit, like the judges, the Court of Appeals judges seem willing to issue mandamus left and right. So I guess that's an exception. But in the ordinary course, these regular rulings pretrial by judges

are often unreviewable. So they're, you know, kind of the final word. And so that's a tremendous power to possess and to wield. And it is worth noting specifically that in the Southern District of Florida, where all of this is proceeding, there are a number of currently unfilled judgeships because Florida's GOP senators will not sign off on any of Biden's prospective judges, which means that when a really important trial comes up, there are only a handful of judges to whom the case could even conceivably be assigned. And so a reminder of the power of district court judges, a reminder of the indefensibility of this so-called blue slip practice where home state senators can block the president's prerogative to even fill vacancies, and a reminder that it is just unforgivable to leave district court vacancies sitting open. And if changing Senate practices and dispensing with blue slips

is what's required to fill them, that has to happen now. Okay, off so bucks. Okay, so that's the Florida case. How about the January 6th case in DC before Judge Chuck Kim? Two important developments that we wanted to highlight. One is that Judge Chuck Kim, like Judge Engeron in New York, that civil case issued a gag order limiting the things Trump could say out of concerns for witness intimidation, among other things. But Judge Chutkin stayed her gag order until the party submitted briefs to her and she will decide whether the order should be more permanently stayed until the appellate court, the Court of Appeals could review it. Staying the gag order just means the gag order is not in effect right now. And the question is whether it should go into effect

before an appeals court reviews the arguments about it. So after the judge stayed the gag order, Trump had some absolutely unhinged posts on True Social, some about Mark Meadows, some about the New York Times, Mickey Haberman's reporting on the case, and so on. Do you think that those post-initial gag order and stay messages by Trump mean that she's more likely to put it into effect? It seems pretty clearly to be the case to me. I would think so, yeah. You've got to wonder about Maggie Haberman. All that time spent cultivating Donald Trump, and in the end, he's calling you maggot on Truth Social. Was it worth it? Was it worth it? I don't know. Social. Like, was it worth it?

Was it worth it? I don't know. Anyway, speaking of was it worth it, notably, the ACLU, which brought a shit ton of challenges against the Trump administration for the four years of that presidency, much of it memorialized in the truly great documentary, The Fight. The ACLU has actually filed a friend of the court brief in this case that argues, wait for it, against gagging Donald Trump. According to the ACLU, the circumstances here are ones of the highest public interest and the scope and substance of Judge Chutkin's limits are too amorphous and vague to withstand a First Amendment challenge.

So just going to highlight this for the strange bedfellows watch like the ACLU stays true to its mission, protecting civil liberties all the time. To be very clear, though, even as they issued this brief supporting Donald Trump's right to speak about this case, the ACLU did note that it was against election denial and the events of January 6. So just to be very clear, this is not about support of Donald Trump and everything that he's done, but more broadly, his First Amendment rights. Still, you know, why do you have to twist the knife, walk away and leave me bleeding? She's not done, Melissa. she's not even close to done and i for one you can insert easter eggs if you want nothing stopping you don't stop and don't change leah all right we got a lot of substance to get through though so the other development in the january 6th

case that we wanted to mention is that trump filed a motion to dismiss the indictment on a number of distinct grounds and this joins an effort earlier earlier in October to get the case dismissed on the basis of absolute presidential immunity, which is literally the if the president does it, it isn't illegal defense. So that's already been made. Now we have a slew of new arguments, which we will briefly highlight. Insert laughter. Wait, is it nervous laughter or mirthful laughter? It's both. It's like a combination of nervous laughter given some of the judges on the DC Circuit, given some of the justices on the Supreme Court, but it is also laughter at just how ridiculous these arguments are. Yeah. Yeah. It's both. That's like the Trump years in a nutshell and the Supreme Court in a nutshell. I'm going to wager that Judge Tanya Chutkin, a Jamaican-American, is literally laughing her ass off because this is so dumb. Like,

I'm with you, Judge Chutkin. They're bad. These arguments are real bad. Let us briefly bring you into the fold, listeners, about what they are and why they are so bad. Okay, the first is that the prosecution is barred by double jeopardy, a provision in the Constitution that prevents you. Okay, you guys are already non-nervously laughingvous laughing. No, it's right. But wait, let me quickly just describe the argument, which is, okay, so there is double jeopardy. There's a provision in the Constitution that prevents you from being tried twice for the same offense. And Trump says, the Senate acquitted me for the January 6th offenses. And the argument is beyond frivolous. Okay, so Senate trials- I believe the legal term is dumb as fuck.

Okay. Right? Do we want to go dumb AF for our family listeners? Maybe. Melody, this is up to you. Sorry. Kids, this is only for mommies and daddies. We need to learn sometime just how bad these arguments are.

Yeah, this is education is what we're doing. Yes. Okay, so first kids, why is education is what we're doing. Yes. Okay, but so first kids, why is this a dumb AF argument? One, Senate trials are not criminal trials is why. So all impeachment can do is to remove you from office

and maybe disqualify you from future office holding. Being tried by the Senate does not put you in the kind of jeopardy the Constitution protects you from being subject to twice. And no one in their right mind

would think that this prosecution offends double jeopardy. Just no one. Your right mind in their right mind. Important, important qualification. I also couldn't help but think of the excerpts from the, you know, McKay Coppin's book about Mitt Romney, you know, during which Romney is describing his perceptions about how the Senate trial actually worked. And he basically said, I think we should be acting as jurors, and none of my Republican colleagues are acting that way. So another kind of interesting anecdote surrounding this. Are you suggesting that it wasn't a trial at all, let alone a criminal trial to which double jeopardy would attach? For multiple independent you know the motion also says the prosecution

violates the first amendment because of course um you know the motion says this criminalizes core political speech in a real banger um trump's lawyers say quote this is especially true because claims that the 2020 presidential election was rigged or tainted by fraud and irregularity do not involve easily verifiable facts. It's like they are still on their bullshit, right? Like contesting the 2020 election in these papers. I'm going to do it again. Was it over then? And is it over now?

Serious question. If he is actually convicted in this trial and there's like a pre-sentencing report and all of that, like, I mean, is this evidence of like refusal to accept responsibility that factors into your sentencing? I think it has to be. I mean, I think there's a decent argument. Yes, that it could be. Absolutely. I mean, alongside every other post he's put together on true social yeah i mean i just like as a lawyer why would you say something like this in a filing they're just not legal filings in your right mind in your right mind okay team trump has also filed motions to dismiss the charges because they say trump's actions did not violate the statute. And to be

very clear, this is all styled as a motion to dismiss for failure to state a criminal offense. There's also another motion to dismiss. This one argues that the prosecution is unconstitutional because it is selective and vindictive, specifically that Donald Trump is only being prosecuted because of political bias against him. Because as we all know, none of the Democrats who tried to overturn the 2020 election are actually being prosecuted. And that shows how selective this is. Yep. QED. Finally, ABC has reported that Jack Smith gave Mark Meadows immunity for his testimony. And that is meaningful because, as you likely understand, Mark Meadows was literally in the room where it happened.

Hat tip to Lin-Manuel Miranda. So he knows some stuff, and that immunity might go a long way. I think this is an enormous deal that Meadows is apparently now cooperating. And yeah, I mean, I think if I'm on Team Trump and I'm acting rationally, which of course I'm not, but I think they would be talking about guilty plea conversations with prosecutors. I'm sure they're not, but this is the kind of development that in any ordinary criminal proceeding,

I think would precipitate such conversations. Okay, so a lot of developments in the January 6th proceedings. Right now, again, that's the case pending before Judge Chutkin in D.C. The trial date is set for March 4th, which as Melissa's co-author Andrew Weissman has pointed out, maybe others have too, but I've just heard Andrew make this point. That is kind of an interesting and maybe not random date. Maybe it was, but that's the date on which the presidential term started under the original constitution. January 20th is the inauguration day as a result of the 20th amendment. But for the first century plus, March 4th was a really important day for the presidency. Anyway, so whether or not that's meaningful, that is the trial date. I think the big question is whether Trump's efforts to get one or more of these issues

up on appeal, potentially before the Supreme Court. We've mentioned there's already an appeal pending of the gag order. But as to these substantive motions, a long appellate process could certainly result in dislodging that March 4th trial date. And I think that is just a huge question. If it did get pushed, could it still all happen in advance of the, you know, November election? Could it happen in April or May? I think maybe, but I don't know if all of these developments are really about one thing. Like all of these flurry of filings are about,

you know, primarily seeking some delay. I would love to keep in my mind this idea of Judge Chutkin as kind of a symbolic queen making symbolic decisions with like sort of a grand sweep of history in mind. But it also turns out that March 4th is a Monday. And it might just be because of that. It's just started in the beginning of the week. I was between you and your co-author. You guys can have different opinions about this. All right. That brings us to, drumroll please, the Georgia case. And Georgia, not surprisingly, has perhaps been the most eventful case. And I think it was always set up to be the most eventful case, in large which are by three of the lawyers who were allegedly involved in the efforts to overturn the results of the election in Georgia, Sidney Powell, Kenneth Chesbrough, and Jenna Ellis. And these three pleas are significant for a number of

reasons. So first, these are really good plea deals for these defendants. I mean, these are people who are accused of scheming to advance slates of fake electors and unlawfully accessing voting machines to access information about voters. So just let that sink in. They're literally accused of walking in and commandeering a state's voting machines and then trying to sub in a slate of fake electors all in an alleged effort to overturn the results of an election. And yet, in these plea deals, not one of them is being sentenced to any jail time at all.

Ellis and Chesbrough both pled guilty to felonies. Powell pled guilty to a misdemeanor. And their sentences involve probation, fines, which are pretty minimal, all things considered. And they have to write letters of apology. So, I mean, that's stuff I make my kids do, but whatever. The fines? Do you fine them? The letters of apology. The letters of apology.

I am going to start instituting fines, though. That will happen. And probation. Just symbolic ones. But here's the rub, right? So that's pretty tender treatment. Probation finds a letter of apology. They now have to, in exchange for this light treatment, they have to testify truthfully in future cases against their former co-defendants force team is now the prosecution's legal elite cooperation team. I'm trying to see the cards that you won't show. And I mean, they could have some good stuff. You know, as we've mentioned, you know, Powell was part of the White House meeting, you know, where Donald Trump was present involving initial plans about whether to go through with these efforts. You know, Chesbrough was, I think, in meetings with Rudy Giuliani, Jenna Ellis as well. And so again, they could potentially

have lots of interesting things to say. These deals also undercut any argument that Trump was merely relying on the advice of counsel and therefore wasn't in violation of the law. Because now you have these lawyers admitting that any representation itself became criminal. And Jack Smith noted this in a recent filing in the January 6th case, noting that Trump's advice of counsel of defense just got a lot more complicated because of this. The plea deals could also further speed up the proceeding, since now the Georgia prosecutors and Georgia courts don't have those trials to actually do so they could move up the cases against other defendants. There's kind of an open question

as to whether Jack Smith will charge any of these fools with crimes in the January 6th case or bring a later case against any of them now that they've copped to the conduct. So there it is, your monster update on the spooky Trump cases. Happy Halloween, y'all. And if that wasn't spooky enough, while Trump is arguing that the First Amendment gives him a right to throw out lawfully cast votes, it also happens to be First Amendment week at the Supreme Court. So we are going to briefly preview the cases the court is hearing this week before we shift back to more court culture, because this court is very cultured, kind of like bacteria. Or yogurt. More like bacteria. Probiotics, definitely. So first up, let's talk about a pair of cases the court is going to hear about whether public officials can block individuals from their social media feeds like Twitter, Facebook, or whatnot. The two cases are called Linkey v. Freed and O'Connor-Ratatliff v. Garnier. And to understand

these cases, I think we need a little primer on the First Amendment and something that's known as the state action requirement. So Kate, help us out. I'll start us off at least. So people may be familiar with the idea that the First Amendment means that the government can't ban speech or speakers just because it doesn't like their content or the viewpoint of their speech. So the mayor of your city can't say you can only make speeches in the town square if those speeches praise the mayor's administration, right? That's the basic idea. But the First Amendment only applies to the government. So private entities like private businesses actually can ban speech or speakers they disagree with without running afoul of the First Amendment. A private employer can fire someone or choose not to hire them because of the person's speech without violating the First Amendment,

although I hasten to add that in both of those cases, there could well be other provisions of law the employer might be violating under some circumstances if they do act in such a fashion. But we're just talking here about the First Amendment. So all of this is what is known as the state action requirement. In order for the First Amendment to apply, there must be state action. That is, it's got to be the government doing the thing. And the question in these cases is basically whether there is state action and what is the state action when a government official blocks someone on a private social media platform. And the thinking is, you know, on one hand, the social media platform is private and not

the government in the sense that the platforms are run by companies that aren't the government. On the other hand, government officials might create these accounts on those platforms when they perform government functions, whether that's to engage with constituents, inform the public, message with the public, announce policies, or more. So the question here is when does a government official's social media account become state action that is subject to the First Amendment such that an official can't block someone because the official disagrees with that person's speech. And to be really clear, this case isn't about accounts that are created as official government accounts like at White House on Twitter or at POTUS, all of those accounts that you see on social media. Those aren't included here. Government entities, for the most part, concede that if they are the ones creating official government accounts that purport to

represent the government, then it is state action. The question here instead is what happens when an individual who holds a government office has an account that they might have created while they were a private citizen or has an account that's under their name, but that they might use to express personal stuff as well. And you know, when does that kind of account become public, because it's sort of commingled with the person's activities as a public official. And again, many people are likely aware of how this issue materialized when it came to Donald Trump. Donald Trump used that at real Donald Trump handle on Twitter to do all sorts of things that were associated with his administration, including announcing a ban on transgender individuals in the military. And when he blocked critics from that account, lower courts

decided that that was a violation of the First Amendment, but the Supreme Court never actually decided the case. So it's still an open question, but it leads to some of the questions that are being ventilated here. Right, exactly. So the key issue here is just how to determine when an individual account of a government officeholder is state action. So what should the legal test look like? One of the parties, who is an individual who was blocked by a local government official, basically says a social media account is subject to the First Amendment if the person using that account invokes the pretense of authority or does or says stuff that the law either authorizes government officials to do or where an official is displaying some idea that they are representing the government or acting with governmental authority, and

that it's kind of the appearance and function of an account that can help determine all of this. The blocked party in the other case frames it in terms of whether the government official is doing their job via social media. If they're doing their government job, the person says it's state action. If they're interacting with their constituents about things that do fall within the official duties of the position, then that's state action. And these respondents who are represented by Pam Carlin argue that in this case, these local officials, who were school board trustees, did use their account to inform and engage with the public about various official duties and then blocked the respondents, who were parents in the school

district, when they raised concerns about things like financial mismanagement and racism in the school district. And the officials, for their part, are saying that there's only state action when there is state authority, which they say encompasses only circumstances where there is a state duty, like something that's only possible by virtue of having some state power or an official is carrying out some duty or responsibility that is theirs under the law. The United States is participating in this case as an amicus, and it's arguing that there is state action only when there's an official exercising government authority or performing a traditional government function. And it's perhaps not surprising that that would be the federal government's view. It likely wants to protect

its own officials' ability to block users, and a rule that applies to these local officials would presumably apply to federal officials as well. A few random assorted thoughts about the case. You know, one is I think it's just interesting, because for me, it depends a little bit on whether you start with a premise, like you start by focusing on the social media accounts and the fact that it is a private company, or instead, you start with the account holders who are government officials. And I feel like that might affect, you know, how you perceive the relevant state action doctrine. But I think also gesturing at what you just said, like, it's helpful to think about both local officials and national ones. You know, it's harder to imagine a national official getting drowned out or overwhelmed by trolls when

they have like millions of followers. But, you know, a local official's Facebook page where some extremely online troll just comments repeatedly from different accounts, so the comments are worthless, or there's a bunch of misinformation on a page, or even threats. I mean, these cases involve local officials, whereas the previous one involved a national figure, Donald Trump. So that's one aspect of the case. The other is just the changing fluid nature of social media. You know, it might be one thing to think about an official blocking someone under the old Twitter where there was more content moderation and tamping down on hate speech, though certainly not adequately. But think about some of the blue checks whose replies get boosted on the new X. It's not crazy to imagine some official getting drowned out in the replies,

again, by hateful speech, right threats, anti-Semitic comments, and so on. And the replies essentially becoming unusable because of that. So the changing nature of content moderation and how a platform's content moderation might subject them to more or less legal requirements was actually something that came up last Supreme Court term during the oral argument in Google versus Gonzalez when Justice Kagan imagined a platform that promoted defamatory content. So let's just play that clip here. Or how about an algorithm that looks for defamatory speech and puts it up top, right? And you're still saying 230 protection.

One additional year into X, it's interesting to think about how this might affect some justices' perspectives on the case. Yeah, I mean, I'm definitely sympathetic to the concerns about local officials. I mean, I also think that enough online vitriol might not just kind of drown out the ability of local officials to get their messages to their constituents. It could even be a deterrent to serving in public office or like local office at least, particularly for women, people of color who get the vast majority of online harassment. And so I definitely do worry about this.

But I also think that giving officials, in particular national officials, another tool to manipulate debate and discourse, which blocking really is, in a moment of rising anti-democratic threat. Like all that makes me really nervous, which is why I do think that this, you know, a distinction between local officials and national officials might be something that might be worth trying to explore, or at least like a narrow decision that really is on its face, kind of limited to the context of local officials, might be well advised here, because I'm just not sure the dynamics are exactly the same as you just mentioned, Leah, when we're talking about a figure like the president or, you know, a senior member of Congress versus a local school board official. The kind of tools and power sort of distribution between official and

constituent are just so different in those two scenarios. How confident are you, Kate, that the justices are online enough and savvy enough about social media to be able to grasp those distinctions between a national figure with a million followers and a local official with a Facebook page that could be drowned out by online trolls? I mean, I think this is the same question that was raised in Google versus Gonzalez. Like, you know, do they even have a firm grasp of what these technologies look like? I mean, maybe some of them do, but I don't know. I think there's, yeah, for sure.

I don't think it's the same answer as to all of them. Some of them definitely don't. But I mean, I think there was like the very rare display of a degree of humility, I think, in those cases last term, Google and Tomna. So I think that maybe they lack the sort of relevant knowledge and experience, but maybe they know that. And so they'll be cautious here where they so rarely are. So I guess that's the hope. I'm not shading the justices for not being extremely online. Like, I literally don't know how Instagram works. So I mean, I get it. And just like, I think that's a

real like the kind of granularity and the sort of fine grained nuances that you're drawing, Kate, I just wonder if you're not someone who participates in these platforms on a regular basis, if you're going to be able to draw out those distinctions. These are not, in Justice Kagan's words, the nine greatest experts on the internet. I'm sure Kagan is extremely online. Oh, wait, wait, that's not a Taylor Swift from the vault lyric? No, that's why I wanted to properly attribute it. Amazing. Amazing. from the vault lyric no that's why i wanted to properly attribute it amazing amazing i hope justice kagan has gotten control of her catalog from scooter braun and is going to re-release them all in midnight tracks good for her all right um all of these dynamics that kate and leah have highlighted make clear that this is going to be a case where you're going to get some strange bedfellows, odd lineups. So you can imagine a justice thinking, gosh,

in an era of less moderation, it would be difficult to effectively use social media to communicate with constituents without that getting messed up with some newsmats, brainwashed, extremely online trolls who you might need to block it's definitely something justice alito would think um but you can also imagine some of the justices being like well of course social media shadow bans republicans and elevates criticism of republicans and conservatives so these officials need to be able to block them. Like, definitely something Justice Jackson would say. So all of this, I think, will be exacerbated by the fact that, at the very least, I think the justices recognize that many of the most high-profile progressives

on the national political scene are really adept and savvy users of social media. So I'm thinking of people like AOC and Katie Porter and Maxwell Frost, and maybe that colors how they view a lot of this. But the strange bedfellows theme, I think, really comes up in the amicus briefs that have been filed here. So there's a bipartisan state amicus brief that was filed by Tennessee, Alabama, Michigan, and Pennsylvania, that argues for a narrow conception of when accounts constitute state action. Can I just say, Melissa, what you were just saying about, yes, you're right.

I think that the most successful users of social media are definitely young, progressive Democrats in Congress. And I throw Fetterman in the Senate as well. He and his team are very good. And that just made me think about what Andrea Bernstein said in our conversation last week from ProPublica, when she talked about Leonard Leo building a FedSoc for everything, like for sure they're cultivating like young conservative social media talents. And I'm really scared. We saw how that went so well for the DeSantis

campaign. Social media talents. Well, I mean, I'm just gonna say like one of the most adept users of social media on the conservative side, if you can call him a conservative, has been Donald Trump. So I mean, like this idea that it's only for progressives, I think, is like hogwash. Completely. Okay, so Melissa, you just mentioned a bipartisan amicus brief. Let's also flag an amicus brief from NetChoice supporting neither party that we wanted to highlight. So NetChoice is a party to another case the court is hearing this term about the Texas social media law. We mentioned that case or actually pair of cases briefly on our last episode. This Texas case involves a law that would essentially require platforms to post certain content from users, even if the platforms wanted to take that content down. And Netchoice's

brief in this case kind of urges the court to be careful not to suggest that the presence of government officials on a platform transforms the entire platform into state action and thus allows everything on the platform to suddenly be government speech, which would diminish platforms' speech and association rights, including their rights to moderate content. And I should say, in the lower court opinions, we said that the Supreme Court never took up the Trump question, but the lower court cases that did find that Trump violated the First Amendment rights of the users he blocked were pretty careful not to say that that meant all of Twitter was a public forum or that it was really about the kind of the comments in response to

particular posts, as opposed to the entire platform. And so it's certainly a distinction that can be drawn. And so I thought that was a useful reminder in that brief. Definitely. One other amicus brief I wanted to highlight, which is from the Electronic Frontier Foundation and Knight Institute, which represented people who were blocked by Trump. So they had an amicus brief that points out a bunch of examples of officials using social media in furtherance of government functions. The brief also quotes a study that as of 2020, of the 715 members that have served in Congress since 2015, 711 have had one or more active accounts on Twitter and 712 have had one or more active accounts on Facebook. And it also notes that in addition to like public policy issues and debates, you know,

the brief notes that government officials employ social media to disseminate public safety information for natural disasters and manmade crisis, among other things. And there are a bunch of amicus briefs in this case, not surprisingly, and a lot of them are just asking the court to provide some clarity so that officials can know ex ante what will and won't make an account state action and therefore susceptible to First Amendment analysis. All right. Second up in First Amendment week at the court is a challenge called Vidal versus Esther, which is a challenge involving a statute limiting trademarks. The statute is Section 1052C. That provision says that trademarks won't issue for marks that have, quote, a name, portrait, or signature identifying a particular living individual except by his written consent or the name, signature, or

portrait of a deceased president of the United States during the life of his widow, if any, except by the written consent of the widow, end quote. And again, I think it's really funny to think about Melania Trump having anything to do with this because here the respondent applied for a trademark for the phrase Trump too small and hijinks have ensued. The Supreme Court has had a lot to say about the First Amendment and its application to trademarks. So in Mattal versus Tam and Iancu versus Brunetti,

the court struck down two statutes that prohibited the issuance of trademarks based on their viewpoints. So for disparaging marks or scandalous or immoral marks? In those cases, the court said that these sort of vague prohibitions on issuing trademarks and the denial to these parties pursuant to those vague prohibitions were unconstitutional under the First Amendment. And the question here is a related one, just whether this particular statute, which also contains a prohibition on the issuance of marks under some circumstances, is also constitutionally invalid. And the answer to that kind of depends on whether you think this law is viewpoint-based, that is, you know,. And the answer to that kind of depends on whether you think this law is viewpoint-based, that is, you know, based on the viewpoint expressed in the

speech, or is instead content-based. That is, like, it would prohibit any trademark involving a government official, whether it is celebrating a president or criticizing a president. So viewpoint discrimination really can't survive under the First Amendment, unless maybe the government is talking itself. That's different. But content discrimination at least conceivably could, although that too would get reviewed really skeptically. And there are also questions in this case about whether the court should apply a more relaxed form of scrutiny to this law, since trademarks aren't exactly the same as other kinds of restrictions on speech, but rather limitations on certain forms of benefits, right? Like specifically just whether other people have to pay you for using the mark.

Although at least in Mattal and maybe also in Yonku, that argument was rejected. So I'm not sure I see it succeeding here. Like a majority of justices, I think, just said like, even if that's true, this is viewpoint discrimination. So it doesn't matter without necessarily deciding. Oh, did they not even reach it? Okay. Yeah.

Well, at least some of the justices did, but I don't think like a majority embraced it. Got it. Okay. Okay. I had forgotten that. In any event, respondent is represented here by Gupta-Wessler. We think this might be the first SCOTUS argument for John Taylor, who's a partner at the firm.

So excited to hear that. And now we are going to go back to court culture because there is even more of it. So we got the Supreme Court's order in the Louisiana redistricting case. So this is another vote dilution case, this one out of Louisiana, where a court found Louisiana diluted the votes of racial minorities in violation of the Voting Rights Act in drawing districts and ordered Louisiana to create another map that would actually ensure voters of color were represented. Can I just note that it seems it's almost like a trend that these states are trying to dilute the votes of minority voters? That can't be the case, Melissa, because the

Supreme Court in Shelby County told me that things have changed dramatically since the 1960s and that we were living in a post-racial society and no longer needed preclearance under the Voting Rights Act. So, you know, I'm just going to go with that. So the district court, after finding Louisiana was in violation of the Voting Rights Act, you know, ordered Louisiana to create another map. The Fifth Circuit, however, in particular, Judges Ho and Jones were like, you know what? No. So they issued an extraordinary writ of mandamus blocking the district court's hearing about ordering Louisiana to put together new maps or

potentially the court drawing one. That raised the very real risk that any new maps would be delayed until they were announced too close to the 2024 election, and therefore that courts wouldn't allow those new legal maps to be used. Therefore, the voters asked the U.S. Supreme Court to intervene and allow the district court proceedings to continue. However, the Supreme Court declined to do so. Again, I thought this was the court that protected voting rights. See Allen v. Milligan, a major victory for the Voting Rights Act. Anyway, Justice Jackson issued a statement explaining her vote in this case, and she said, look, we are not endorsing what the Fifth Circuit did, because how could you? We told the courts that this litigation should be resolved in advance of the 2024 elections.

And she said you can read the Fifth Circuit's order to delay the hearing only until the legislature has sufficient time to consider alternative maps that would be consistent with the VRA. But the legislature in its papers to the Supreme Court said it wasn't going to come up with those new maps. So the district court can go ahead and proceed now. And the district court did set a date for a new hearing, but that's not until, wait for it, February 2024. So the big question is, is that going to be enough time to allow new maps to be drawn before the 2024 election? And if it is, will the Supreme Court agree that it's enough time and say so? We certainly hope so. But again, all bets are off. To be determined. Another development, a Georgia court found that Georgia's maps violated the Voting Rights Act because they also illegally diluted the voting power of racial minorities. That was after holding a trial. And this, at least so far, seems to be the rare instance of Allen versus Milligan and a system of precedent just working the way it should.

And Georgia isn't the Fifth Circuit, so it's possible that this will be allowed to continue. You know what? I wouldn't put it past the Fifth Circuit to mandamus a Georgia court. Okay, yeah, fair, fair. I mean, didn't Georgia used to be in the Fifth Circuit? It did, it did. History and tradition supports the Fifth Circuit to mandamus this. Stop giving them ideas.

Oh, my God. In other news, the New York Times reported that Justice Amy Coney Barrett spoke at the University of Minnesota's law school. And at that speech, she endorsed an ethics code. Specifically, she said, I think it would be a good idea for us to do it, particularly so that we can communicate to the public exactly what it is that we're doing in a clearer way. So Justice Kagan, who has also expressed support for the justices having an ethics code, had previously alluded to the fact that there are some, how shall we say, holdouts among the justices for considering an ethics code. But it seems here that Justice Barrett is firmly on the side of an ethics code. So that means who are the holdouts?

Oh, I have an idea. Can I go? Trip, trip, trip, trip. Look, I don't know for sure, but I will just mention, apropos of nothing, that the New York Times did report that a Senate inquiry led by Democratic Senator Ron Wyden has determined that Justice Thomas did not repay all or potentially any, it's not totally clear, of the loan he was given to purchase his luxury RV. Yes, the vehicle that has been exhibit one in the public story Thomas loves to tell about how he is regular stock. He explains

he prefers to hang out in the RV in Walmart parking lots to gallivanting around the world on private jets and yachts. It reminded me that I have heard Thomas refer to his RV as a land yacht. And I think the spirit everybody always took that in was he's, you know, it's a send-up of people on real yachts. For him, an RV is as good as a yacht. But actually what he was saying was like this really is basically a yacht on wheels and the joke's on everyone else. So the laughter in brackets is just a different kind of laughter than I had appreciated. He prefers the RV to yachts where, quote, I don't have to pretend I like acid rock or that I'd like to be on a mega yacht with important men who think important thoughts.

Oh, he likes all that. He likes to be on that yacht. Absolutely. Oh, he likes all that. He likes me on that. Yeah, absolutely. And in other news, the Trump judge speech circuit beat. Bob Barnes and Ann Marimo at The Washington Post report that Judge James Ho, not Judge Dale Ho, is a very different Judge Ho, Judge James Ho, gave quite the speech to the Heritage Foundation when he was honored with that organization's Defender of the Constitution Award. We think the Heritage Foundation might want to rethink that name because it seems very clear that whoever gets it is not a defender of the Constitution to sweet, but rather just selective parts of the Constitution. Yeah, yeah, that checks out. Like the women and people of color parts.

Right, not the lady parts. Those don't get defended, for sure. The Second Amendment parts, 100%. So yes, in this speech, as Barnes and Mero describe it, Judge Ho railed against those who criticize originalists as having a backwards view of the Constitution. And specifically, he argued that members of the cultural elite have basically been browbeating originalists

and criticizing their approach to the Constitution. So let's go into some of what he said. So Barnes and Maramau quote the speech as follows, quote, We're not just disagreeing in good faith about the proper meaning of legal terms. We're fundamentally bad people who are too extreme for polite society, you know, is what Ho said in characterizing, you know, public criticism. He continued, quote, we're mean spirited, racist, sexist, homophobic. We're just trolling

or auditioning. We're unethical, if not corrupt. It's like, next time, just at me, bro. It does seem pointed. It does seem pointed. Judge Ho maintained that this campaign of condemnation is intentional. As he says, there have been plenty of threats about packing the courts, but there's no need to pack the courts when you can just pressure the courts and get the same result, end quote. And I just have to wonder, what are these results that we critical liberals have been getting after pressuring the court by calling originalists out on their methodological bullshit? Like, what have we gotten for that?

I mean, they still, they're on it still. Yeah, I'm thinking. Still thinking. Still thinking. Yeah. So again, I come back to the meth lab of conservative grievance. Like, dudes, you're winning. Like, why are you on this grievance tour? Just take the W.

I feel like Leah's book might have something to say about all of that. It is discussed. So we couldn't resist saying something about how the search for the Republican Speaker of the House relates to the Supreme Court. There are a couple of connections we could highlight. And just as a reminder, in case you've been, you know, under a rock, for the last week, Republicans ultimately selected Representative Mike Johnson as Speaker of the House. After two months. It felt like two months. It was not, in fact, two months. It was a long time. I've aged more than two months, for sure. But Johnson is someone whose connections to SCOTUS we want to highlight.

So first, he signed an amicus brief and on the website formerly known as Twitter claimed to have led this amicus brief. That is an amicus brief in a case urging the Supreme Court to hear a case in which the state of Texas asked the Supreme Court to basically throw out the results of the 2020 election by, in particular, throwing out votes in Pennsylvania, among other states. This was this nutty brief in which Texas basically said, we get to ask you, Supreme Court, to throw out the elections in Pennsylvania and Michigan and Georgia and Wisconsin to declare them all unconstitutional and thus clear the way for appointing electors to basically throw the election to Trump. This was even by 2020 election standards a preposterous argument, and yet Johnson proudly proclaimed himself the lead author of an amicus brief in support of the effort. All right. So basically, it seems like we have an election denier as Speaker of the House, which seems not super great for 2024 if Republicans plan on attempting to throw out votes and refusing to certify the results of an election if it goes Joe Biden's way. Although the recently passed Electoral Count Reform Act might make that harder. But generally, an election denier on the podium is probably not great for democracy. One of the

Republicans who supported Johnson, but not Jordan, had this to say. The amicus brief is fundamentally different than trying to overturn something on the floor. What he did was he went to the courts. That's what the courts are set up for. It is absolutely appropriate. I don't have a problem with writing an amicus brief if it's the way we should do things in this country is to trust the rule of law and trust our judicial system. What? Like, this is a Wendy's, sir. Like using the courts as a vehicle to launch your loony theories that doesn't make them less authoritarian or any less undemocratic. I just want to note my own personal experience with now speaker, then just representative Mike

Johnson. So I think it was like back in 2018, I testified before a House subcommittee about reproductive rights, and he was on the panel. I think at some point, Jim Jordan left to burn a jacket or something, and Mike Johnson took over for him. And when the hearing was done, he came down to the well to like shake everybody's hand. And he applauded me and congratulated me for being so articulate and well spoken. Was there a white lady witness next to you? And did he say the same thing to her? This is all to say this is not the most outrageous thing Mike Johnson has said. So at a press conference, a reporter asked Representative Johnson about leading efforts

to overturn the results of the 2020 election. And that reporter was actually booed by surrounding segments of the GOP caucus. You can hear it here. The fact that they don't want to answer that question, is there like a glimmer of hope in they're not sort of saying, yeah, we do it again? No, okay, there's no, there's nothing positive. No, because they'll do it and then deny they did it. Okay, so it's just gaslighting. Okay, I was just like, there's at least some shame on display as I was hoping. That is not shame. What had happened. No, they're beyond shame. Beyond shame. And we know that Representative Johnson voted against certifying the results of the 2020 election. So that's not even the craziest clip involving him, but there's more. So it shouldn't be surprising to all of you

that not only did he vote to overturn the election, in a 2016 interview, he suggested that we don't live in a democracy, but instead in a quote unquote, biblical republic. Here's the clip. You know, we don't live in a democracy, because a democracy is two wolves and a lamb deciding what's for dinner. OK, it's not just majority rule. It's a constitutional republic. And the founders set that up because they followed the biblical admonition on what a civil society is supposed to look like. And strict scrutiny super guest Alexandra Petrai had a great column about how Johnson has really betrayed his principles when he accepted the results of his election as speaker. So maybe all of this suggests that he has turned over a new leaf with regard to election denial. So Melissa, you mentioned Representative Johnson's comments

in the hearing you testified at about reproductive freedom. He apparently has had several of these hearings because in one, Representative Johnson seemed to make clear he supported overturning Roe v. Wade so that women could give birth to more able-bodied workers to support the economy. Roe v. Wade gave constitutional cover to the elective killing of unborn children in America, period. You think about the implications of that on the economy. We're all struggling here to cover the bases of Social Security and Medicare and Medicaid and all the rest. If we had all those able-bodied workers in the economy, we wouldn't be going upside down and toppling over like this. Listen.

He has also blamed mass shootings on feminism, no-fault divorce laws, and Roe versus Wade. Yes, there is tape for that as well. You remember in the late 60s, we invented things like no-fault divorce laws. We invented the sexual revolution. We invented radical feminism. We invented legalized abortion in 1973, where the state, the government, sanctions the killing of the unborn. I mean, we know that we're living in a completely amoral society.

And so people say, how can a young person go into their schoolhouse and open fire on their classmates? Because we've taught a whole generation, a couple of generations now of Americans that there is no right and wrong. He previously worked as a lawyer for the Alliance Defending Freedom. You may have also guessed this, but he's got some views on LGBT equality. So CNN reported that he has supported criminalizing gay sex and has called homosexuality quote inherently unnatural and a quote dangerous lifestyle and said that marriage equality will lead people to marry their pets. We know that Mike Johnson is not married to his pet. Instead, he is married to an actual woman and he credited his wife when he accepted the speaker's gavel.

Let's roll that clip. She spent the last couple of weeks on her knees in prayer to the Lord, and she's a little worn out. What to say? I think let's just, I think let's just- No comment. What to say? No comment. I think that's best.

10 out of 10, no notes. Our last episode highlighted the importance of state solicitor general offices to the conservative legal movement, and in particular for credentialing conservatives and giving them opportunities to make a name for themselves in addition to pushing the law in ever more conservative directions. And there's news on the state SG front. So Ohio has a new SG. It is a former lawyer at Jones Day and former law clerk to Justice Alito, Edith Jones, and Judge Rao of the D.C. Circuit. That's Elliot Geiser, I believe that's the pronunciation. And if his name sounds familiar, that may be because he came up several times in the January

6th committee's interview with former White House press secretary Kayleigh McEnany, who met them at the campaign and consulted with them about whether VP Pence could throw out a state's electoral votes and allow state legislatures to appoint electors to throw the election to Trump. And the questioning seems to convey the questioner's impression that Geiser had advised McEnany that VP Pence might have the power to throw out electoral votes. So there's an election deniers or overthrowers really ascending to heights of power theme to our last segment today. So as McEnany said again about Geiser, he was an election law attorney, and from what I gathered, really loves studying the Constitution and election law.

That's great. That's just so uplifting and inspiring. He might have gotten the wrong lessons out of them. But you know, we'll put that to the side. As we've said a few times on this show, democracy, you endanger a girl, which is a transition to the fact that North Carolina has adopted a new set of districting maps. Now that both the North Carolina Supreme Court and the U.S. Supreme Court have said partisan gerrymandering cannot be challenged in either state or federal court, the North Carolina legislature's maps lock in an 11 to 3 or 10 to 4 Republican majority. That is, even if votes split 50-50, maybe even if a majority of voters vote for the Democrats, Republicans will dominate congressional

representation for North Carolina. This map replaces the court-drawn map that produced seven Democratic and seven Republican representatives in 2022. Thank you, U.S. Supreme Court in Rucho v. Common Cause, which said federal courts cannot fix partisan gerrymandering. Truly the gift that keeps on giving in making our democracy less democratic. So speaking of democracy, once again, there is a high stakes November coming up, and it might not be the November you are thinking of. The media hype has turned to 2024, but that won't stop 2023 elections from having massive implications for abortion access, voting rights, and more. In Virginia and Ohio, early voting has already started. So if you live in those states, you can get ahead on casting your vote now.

Visit votesaveamerica.com backslash no off years and get ready to vote. Since we also covered kind of social media transformation at some points during this episode, we wanted to mention where you can find us on some of the other social media platforms. So I will just note that on Blue Sky, I am at Leah Littman. That's at bluesky.social. I'm also on threads, but under a different username that is at prof, P-R-O-F, Leah Littman. So you can find me at either of those places.

You can find me, Melissa Murray, at profmmurray at Blue Sky Social and profmmurray everywhere else. And Melissa, you are so wise to use the same handle everywhere. Mine, I couldn't do that. Mine was taken on Instagram. Yeah. Who's the other Leah Littman? Yeah. So I did get just, I do have just at kateshaw.bluesky.social on Blue Sky and then on Threads, I'm at Kate A. Shaw. So the podcast is also on both of those platforms. So on Threads, it is at Strict Scrutiny Podcast. And on on threads, it is at strict scrutiny podcast. And on blue sky, it is strict scrutiny at blue sky.social. Follow us so we can block you and it's not state action. Yes, whatever test the court devises, I am confident that we can block you.

And no one's ever gonna tell us. Oh, I am not so sure, Kate. You just wait until Justice Thomas and Justice Alito get a hold of Jim Ho and the egg account. Before we go, final note. Don't forget to pre-order a copy of Melissa's forthcoming book with Andrew Weissman, The Trump Indictments. You can order that on bookshop.org or wherever you buy your books. Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Ashley Mizzuo is our associate producer, audio engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez and Ari Schwartz. I want to tell you about a brand new podcast that I'm very excited about. Check out Pop Crime from Betches Media.

If your idea of a fun Friday night includes pouring over hashtag free Britney testimonies, reciting Alexis Nair's phone call to Nancy Jo from memory, and checking in on Carole Baskin's wiki page for the millionth time, then Pop Crime is a show for you. In this new podcast from Betches Media, host Kiki Monique is combining her two true loves, pop culture and true crime, into a cocktail of scandalous storytelling. Each week, she makes sense of the messiest celebrity legal drama, infamous crimes of the past, and dirty deeds of the rich and famous, so you have something to talk about at your next happy hour, or at least a new Wikipedia page to bookmark. Pop Crime is perfect

for true crime fans who are looking to get their pop culture fix, so if you are a true crime obsessive and you need a new show to download, be sure to give Kiki a listen. She's so famous for her online deep dives, and she always does a great job researching these stories, so you're not going to want to miss this show. Be sure to check out Pop Crime from Betches Media on Spotify, Apple Podcasts, or wherever you're listening. Again, that's Pop Crime with host Kiki Monique, out now.