The Dan Le Batard Show with Stugotz - #BecauseMiami: #BecauseAmerica

Episode Date: July 19, 2024

A lot has happened since the previous episode of Because Miami. Roy's birthday. The Florida Panthers victory parade. Other things. We're going to talk about the other things today. John Morgan of Morgan & Morgan joins Billy Corben to explain why he's sticking with Joe Biden this November. Plus, Elie Mystal of The Nation and David O. Markus of the For The Defense podcast discuss the dismissal of the Donald Trump classified documents case. Learn more about your ad choices. Visit podcastchoices.com/adchoices

You're listening to Giraffe King's Network. Reserve your Uber ride up to 90 days in advance. Uber Reserve. See Uber app for details. Make your nights unforgettable with American Express. Unmissable show coming up? Good news. We've got access to pre-sale tickets so you don't miss it. Meeting with friends before the show? We can book your reservation. And when you get to the main event,

skip to the good bit using the card member entrance. Let's go seize the night. That's the powerful backing of American Express. Visit amex.ca slash ymx. Benefits vary by card, other conditions apply. Chaos erupted at the Copa America final match. Fans pushing and shoving and climbing over security barriers to get in. Scores of people arrested for trespassing.

I don't have to get there but I'm gonna get in. It appears we shake the bed, hosting Copa America. Luckily nobody's dead after Copa America. Oh my God! We put the con in Gordon Mee Bowl Because we're in Miami, bruh In two years for the World Cup They're coming to South Florida What is going on here?

Just like Copa America We're probably gonna f*** it up Chaos and mass hysteria Just like Opa America Miami Dade police Hard Rock Security And DLC Security and DLC. And DLC!

So, always a Miami connection and once again we are an international laughing stock. Hashtag because Miami. Hi, the Como Mierda Bowl at Miami Dolphins Hard Rock Stadium was a fiasco and you have Conme Bowl is blaming the Hard Rock Stadium. They are blaming Konebool. The people running for sheriff against James Reyes, the Miami-Dade County Public Service Chief are blaming him, James Reyes. The people running for mayor against Janelle Levine Cava

are blaming DLC for this because she is in charge, theoretically, of the police and oversees the police director. There are hundreds of Miami-Dade police officers there who were like brawling with unticketed patrons, who, thousands of which, stormed the gates. I guess they don't call it a soccer riot for nothing, right? But like, this was a mess.

They were crawling through the air vents like Shawshank or Die Hard style, and it was just, it was a hell of a scene. I mean, I'm sorry, they were not only seemingly beating up unticketed soccer fans, they were like beating up credentialed media who were coming in through the press entrance as they were trying to force everybody back out again. Of course you had like a major fire hazard because people were unticketed, people were standing in the aisles, they had to remove people.

You had security fighting with the Colombian football president who was trying to get out on the field after the game. They arrested him and his son. I mean, this was just some classic Miami shit, dude. Wow. Were you there? No, I was not there. There's no Zamboni? No, there's no Zambon. I was safe at home. What a week. And we have a big show because like we're talking about like all the Florida connections to extraordinary national news. And speaking of national fiascos, there was an assassination attempt, of course, on the former President Donald Trump at a rally in Pennsylvania that claimed the life of at least one of the attendees and

then put another in the hospital in critical condition. Political violence is inexcusable. In addition to being horrific and tragic, it is embarrassing when it occurs in what is supposed to be a first world democracy, a model for the free world. It is further demented that in a first world country we allow weapons of war, AR-15 like rifles to fall into the hands of disturbed, homicidal, and suicidal civilians. Those weapons have no place at a political rally, no place in a school, no place in a movie theater, no place at a church, at a synagogue, at a sporting event, at a country music concert, at any of the places where we have seen these weapons of war in the hands of civilians result in some cases, mass casualties, which fortunately didn't happen

thanks to the fast action of the Secret Service. Don't forget about the hunters. The Mayford hunters. How many holes do you have to put into a deer? The people at that rally, agree or disagree with them, were exercising one of the most fundamental God-given rights that we not only have as people, but are enshrined by our founding fathers in the Constitution. For some people. Supposed to be for everyone, supposedly, as we say in Miami, for everyone. And that is the right

to peacefully assemble and engage in political speech. And their rights should not be usurped by the Second Amendment rights of some unhinged murderer. And speaking of international fiascos. 17 House Democrats and one Senate Democrat have called for the president to step aside. Academy Award winning filmmaker Michael Moore is calling on President Biden to step down. A big Democratic donor, George Clooney, the actor has just called for President Biden to step aside.

I think he should step aside. We need a change. We need a change so that we can win. Since his, to be diplomatic, uncharacteristically rather anemic debate performance three weeks ago, there has been this slow and steady drumbeat from Democrats to have the President of the United States drop out of the race for reelection. So I like to say the Democrats never miss an opportunity to miss an opportunity. This party is a perpetual circular firing squad. And despite the fact that the drumbeat has somewhat died down, seeing the inevitability of the situation,

the president has already been nominated by the party in state primaries. Well, in the states that did have primaries, Florida canceled its democratic primary, the party did. But one of the president's strongest supporters since the debate is John Morgan, founder of the personal injury law firm Morgan & Morgan. Roy, in case you slip and fall and wanna catch a case here at Meadowlark, we got your man here on the line. John Retainer.

Politico also described Morgan as, quote, the godfather of Florida's medical marijuana amendment, famous amendment too from years ago. For that alone, he is a florida legend peter short the publisher florida politics dot com called him florida's most important arguably non-elected democrat and he is sticking with joe biden john thanks so much for coming back on the show these are major i mean

consequential historic matters here and were you not concerned by the president's performance at the debate? I was concerned about it because we all saw what we saw. It's like James Carville said, you can't unsee seeing your grandmother naked. And so we all saw it, but I blame it on a lot of other things because I saw him the second day in North Carolina.

He looked tan, he was vibrant. You know, I mean, look, he brought a knife to a gunfight. Suzy Wiles is the smartest political operative. And when Anita Dunn said, hey, let's debate early. Okay, let's turn off the mics. Okay, let's not have an audience. Okay, why did she agree to all that? Because it was tailor-made for Donald Trump. And he walked out looking like he didn't know where

he was because I don't think he I don't think there had been a run through or, you know, even to see. I mean, look, if you don't have makeup in the right lighting, you're going to look like a corpse. So it was disastrous. But I talked to him from time to time. I'm with him from time to time. And by the way, I am no longer a registered Democrat. You know, Joe Biden is my last hurrah. I've been with Wilton Simpson and Jimmy Patronus, so I go both ways. But enough about Andrew Gillum. But enough about Andrew Gillum. God damn it Billy. But boom, that's why you're Billy. But here's what the Democrats are doing.

They're just f***ing themselves because Joe Biden is not leaving, while Woody, he's not going to leave, and they're telling him to leave. So what you have, if you remember, Billy, when we were little boys, you'd get those bicycles and you'd play chicken. And the people would keep coming at each other, coming at each other, coming at each other. And one at the very end had to swerve off or there was a crash.

This is what's happening right now in the Democratic party. There are those who are playing chicken with Joe Biden. And the end result is most likely gonna be an electoral college landslide if they don't stop. I mean, I don't know what George Clooney wants. And the second problem is what's the solution? Kamala Harris? They don't even think about that can of worms.

Let's say Joe Biden steps out. Who's next? You know, George Clooney and Oprah? Michelle Obama? Ain't gonna happen. So that's the problem. And what they've done is they've given Donald Trump probably the presidency.

When you say they, you mean the Democrats. Yes, yes, they are shooting themselves. They are destroying themselves. They're saying he is not able to be president. I just had a $28 million fundraiser for him three weeks ago and now I'm telling him to drop out. Well, listen, the election is what, three months away? How far away are we?

And in politics time, it's like dog years, right? That's a long, long time. You have the Republicans rallying around a convicted felon, a man who nearly every person to a woman, to a man from his cabinet in his first term says he's unfit for office. His former vice president won't endorse him. He needed a new vice president because he sent a mob to quote unquote hang Mike Pence, hang Mike Pence, they chanted as they stormed the Capitol to stop a peaceful transition

of power in this country. And the Democrats are running away from a man who, by every objective metric by which we measure a president, he is overperforming. I mean, again, I don't know that all of these metrics are the most fair. They're more about, I get it, Wall Street than Main Street, but these are the metrics by which everybody talks about.

Inflation is coming down. The stock market is booming. Your 401Ks, your retirement is more secure than ever. Gas prices are- Infrastructure's all over America. But here's the thing. I've referred to Joe Biden as the lemon sorbet course of American history.

Like we had been eating shit for four years. It was a chaotic disaster. And now we needed to cleanse the palate with the safest, moderate, old white man that we could find to kind of reset, right, reboot the country. I think in that regards, he is an American hero. He has saved the country one time in 2020. I guess the question is, can he save it again by stepping down?

Some of the latest polling shows that almost every other alternative candidate is polling about five points or so ahead of where Biden is polling right now. For any of us who have had to do this, John, we know how hard it is to go to Century Village to take the car keys away from Mom, Mom, and Pop Pop, but we just know it's time and for their safety and the safety of everybody else, we have to do it.

Where are we? How do we sort of, I mean, we're in a death spiral or a tailspin here, how do we right the ship? Well, I don't know if you ever tried to take the keys out of grandpa's hands, but it's not easy. You know, we had a mother-in-law, we basically put a private eye to follow her to see if she was running up on curbs. And she wasn't. So we're like, well, maybe, you know. But look, the way he walks, I'm friends with his brother,

Frank. When Frank came out to, I live in Hawaii in the winter time, when his brother came out to visit me this winter, I said, look, he's walking. He goes, John, that's a neuropathy that my father had. His foot's burning. I said, then just tell America. You got to quit pretending it's not happening. Sit down and say, look, this is what happened. Franklin Roosevelt was in a wheelchair for three terms and a half. The pope is in a wheelchair. My foot's gone, but my wisdom is still here. Quit pretending and acting like it's not happening. It's like Tim Conway in the old Carol Burnett show when he walks on. But you got to have an explanation. You got to embrace the truth. And the truth is, his legs are shot. Right.

So? Tell the truth. But so are the Pope's. But guess what? I don't want a new Pope. Yeah, you're and your argument is this is a question of character. You've tweeted about that repeatedly and obviously, and it's a question of the team. Who do you want to be your team? You want Navarro, and that group? Or do you want, you know, Jake Sullivan and, you know, some really

very smart people? Trump did not, now there were some Trump people that were smart, but they were basically just vigilantes who want to burn the government down. And everybody wants to burn the government down until their trash is not picked up. And then we want to recall the mayor. Let me ask you, because I know you're you're Biden ride or die, but you see what's happening in the party and you'd mentioned alternatives at the top. As I mentioned, latest polling is nearly every tested Democrat performs better than the president. This includes Vice President Kamala Harris,

who runs better than Biden, but behind the average alternative, including Mark Kelly, the Arizona Senator, Maryland Governor Wes Moore, Pennsylvania Governor Josh Shapiro, Michigan Governor Gretchen Whitmer. And listen, don't forget the guy that I'm closest to, who made one of my lawyers, Commissioner of Horse Racing in Kentucky is Andy Beshear. Andy Beshear has won in Kentucky twice. That's a red state. That's my home state. And he beat a guy twice like a drum. In a state that Trump won by 14 or maybe 20, 30 points. I don't even know. It's like, so don't forget Andy Beshear. But here's what I was saying is that Kamala Harris is ahead of Biden, but still behind

most of the other alternative candidates. What these people don't understand is if you try to take Biden out, Kamala Harris is going to say it's me. She controls the money. It controls the name. And if they try to push her out, she's going to say they're disenfranchising a black woman and black women and black people may run from the party. So she's not going to go gently. She's not going to say, you're going to go get the Gavin Newsom instead of me. She's just not going to do it.

And I don't blame her necessarily. Look, these politicians are ambitious. They've worked their whole life for this day. Do you think she's going to get this close to the brass ring and just say, oh, for the good of the party, I'm going to step aside? No. The dream ticket would be if you took the governor of Pennsylvania and the governor of Michigan, the two states you got to win and say, go win the Rust Belt and then it's over.

But that's not going to happen. Do you think America is ready to vote for a black woman? I think Michelle Obama would win with 90% of the vote. I think this they are. I think that Oprah Winfrey would win. I think no question they would win, you know, but they're not really politicians. You know, she's in the scrub with other politicians. And Bill Clinton said to me one time that the number one cause of Alzheimer's in America

is ambition. When people start fighting to get to the top, they forget everything. They forget who they are. They're just clawing. Look, if she was the nominee, I'm voting for her. I'm just talking about the scrum to get there. The fight to get there could be so divisive if she didn't get it. In our last 30 seconds here, you kept saying, it's not going to happen. It's not going to happen. All these things that make sense, all these things that create a path to victory. It's not gonna happen.

It's not gonna happen. Why not? Aren't we past petty party politics? Aren't we beyond quote unquote, who's next in line? Whose turn is it? This is about saving the Republic. This is about winning an election. Why does these egos and

this nonsense have to play a role? George Clooney's already put his money where his mouth is. Why doesn't he put his name where his mouth is? Why doesn't he step up? Why doesn't Oprah step up? Why doesn't Michelle Obama step up? This is about more than just their own personal peccadilloes and I can make more money over here and I don't want to, Michelle Obama doesn't want to put her family and her children back through this again, yada yada. Aren't we just past that at this point? Isn't this more existential for the party and the nation? You would hope, but the number one cause of Alzheimer's is ambition. Politics is a blood sport. Who wants it? I mean, look, when I, last time I was at the White House, some very powerful people took me upstairs. They showed me what my polling looked like.

They say you're the only guy that could win in Florida. I think it's because I'm batshit crazy. I think batshit crazy is what's in now in politics. I mean, that's what Trump, you know, did. But I don't want to do it. I live in Hawaii. My whales are in my backyard. I smoke dope at night. Look at the big dipper. I don't want to do it. You know what? I'm not a smoking man, but I need a roll me a big fat one. Come get one of my pot daddy gummies. Oh, man. I'll take two, please. For the love of God. John Morgan for the people dot com. Thanks so much for coming back on the show. I'll see you in Hawaii. I hope. Send the plane for me, dude.

The plane, the plane, the plane. The Dan LeBattard Show with Stu Gotz is sponsored by BetterHelp. The impact of social media on mental health is a topic of growing concern. What do you do when you get caught up wishing your life looked like someone else's? Comparison is the thief of joy and it's easy to envy other people's lives. It might look like they have it all together on their social media, but in reality they probably don't. Therapy can help you focus on what you want instead of what others have so you can start living your best life. It's helpful for learning positive coping skills and how

to set boundaries. It empowers you to be the best version of yourself. It isn't just for those who have experienced major trauma. If you're thinking of starting therapy, give BetterHelp a try. It's entirely online, designed to be convenient, flexible, and suited to your schedule. Just fill out a brief questionnaire to get matched with a licensed therapist and switch therapists at any time for no additional charge. Stop comparing and start focusing with BetterHelp. Visit betterhelp.com slash DLB today to get 10% off your first month. That's better help. H-E-L-P dot com slash D-L-B. Judge has just dismissed the classified documents case against former president

Donald Trump. Trump was accused of holding documents at his Mar-a-Lago resort that should have been returned to the National Archives. Eileen Cannon of Fort Pierce, Florida dismissing the indictment in this classified records case which was the first ever federal criminal case brought against a former U.S. president. She makes the argument throughout this order that she believes the special counsel Jack Smith was unlawfully appointed and unlawfully funded. ["The New York Times"] Judge Eileen Cannon is actually a Miami girl. She grew up down here.

When I was at Ransom Everglades, another proud Miamian and member of the Federalist Society. And she is also, most importantly, a Trump appointed federal judge in the Southern District of Florida, here to discuss more, it's just nonstop sort of Florida connection news. David O. Marcus was actually on the very short list to represent the former president in this very case.

You might remember, Roy, we talked with him about it on this very podcast last year, right around the time of Trump's historic arraignment here in downtown Miami. While some reporting claim that he actually went so far as to have at least one conversation with Trump about the possibility of taking him on as a client, being the excessively ethical person that he is, he refused to either confirm or deny. But I can tell you from personal experience, the president would have been very well served and well represented to have hired him. He is a prominent criminal defense attorney down here in the Southern District and host of

the hit podcast for the defense. In the interest of full disclosure, it is produced by my company, Rack and Tour, and it's now in its sixth season at for the defense podcast.com. Ellie Mistal, another friend of the show is justice correspondent for the nation.com and host of its legal podcast, another friend of the show, is justice correspondent for the nation.com and host of its legal podcast, Contempt of Court. His first book is the sensational New York Times bestseller, Allow Me to Retort, A Black Guy's Guide to the Constitution. You must read it. By the way, it is black guy G-U-Y apostrophe S. It's not G-U-Y S apostrophe. It is not for black

guys. It is by a black guy and everybody should read it. It is absolutely fantastic. Ellie's column this week at thenation.com has the grim headline, the dismissal of the Trump documents case is yet more proof the institutionalists have failed. In it he writes, quote, Judge Eileen Cannon's decision to toss the case should dispel any remaining hope that the courts will save us from Donald Trump." End quote, he concludes, the rule of law is not failing, it has failed.

America is right now functionally a failed state. Jesus Christ, Ellie, I feel like I only have you on the show and there's bad news. We're like old friends who only see each other at funerals. Now, I mean, and my Because Miami glass is very much half empty. I'm just that guy. And you are just that.

Between you, me, and Roy, we have a full cup because all of our cups are half empty. So now they run over by a third. Oh, Roy's is totally empty. So between you and I, Ellie, we have a full cup then. Ellie, let's talk about this. How bad was this decision? A full cup of sadness, right?

Look, the argument against the special counsel, as David Marcus certainly knows, is an argument raised by every criminal defendant who was ever prosecuted by a special counsel. It was raised during the Reagan administration. It was raised during the Clinton administration. It's been raised during the George W. Bush administration. It is now being raised here That argument always fails, right? It is the equivalent of Wesley Snipes saying,

I don't have to pay my taxes because the IRS is an illegitimate institution. Yeah, you can say that and people do that all the time and they always fail. The most recent failure was Hunter Biden, who again said the appointment of his special counsel, David Weiss, was unconstitutional. And you know what? It failed. So why didn't it fail this time? Because they were able to do it in front of Eileen Cannon. They were able to do it in front of the Maga Cannon, who has a history of making pro-Trump decisions that are then overturned by the 11th Circuit, her superiors, right? So we have a history of a judge who's in the tank for Donald Trump,

taking an argument that is always made and rejected, but this time magically giving it purchase. Now what Cannon says in her opinion is that the special counsel needs to be essentially appointed by the president, according to the constitution and confirmed by the senate. This ignores the history of special councils not being directly appointed by the president and not being directly confirmed by the senate. But in this case, Cannon says, oh no, no, no, Jack Smith needed to be confirmed by the senate and she distinguishes it from Hunter Biden's

special counsel David Weiss saying that, well, he was conformed by the Senate for some other job. So it still kind of counts that he's special counsel now. And that's the same argument she'd make for Robert Mueller, who was not confirmed by the Senate to be special counsel during the Trump administration, but you know, had been confirmed by the Senate for, you know, FBI director. So I guess that counts.

Apparently, if you're confirmed by the Senate to be the fisheries chairman in the Department of the Interior, that can count as being a special counsel, but you can't be a special counsel if the attorney general chooses you, brings you over from the Hague, by the way, where you prosecute war criminals and puts you in this situation. It is an unprecedented ruling and by unprecedented, I don't just mean it is new. It is something that flies in the face of established law. And of course, that is why they brought it in front of Canon. The last thing I'll say about this that I think makes the point obvious,

if the Trump lawyers were so confident that this was a good argument, then why did they only bring it up in Florida? Why did they only use it in Florida? Why didn't they bring it up in DC over the January six charges, which were arguably more dangerous to Donald Trump. But they didn't, right? Because in front of judge Chuckin, they knew their stupid argument wouldn't work. So they didn't even bring it up in DC.

They only brought it up in Florida. Right? So it's like, if I'm the mayor and I say everybody go into the water, no sharks everywhere, anywhere. And I tell my kids, hey, shh, don't go in the water. The sharks. Right. You can tell I'm lying to somebody. And that's what I look at with the Trump lawyers here.

They didn't bring the argument in D.C. because they knew it was a bad and losing argument. But they brought it up in Florida because they knew they had the judge in the pocket. Always been on the black. I did not have that cart on my board, but Roy had it at the ready for Wesley Snipes, passenger 57. Now let's bring in our institutionalist

on the panel here, David O. Marcus. I remiss to use the term technicality. The law is the law, the Constitution is the Constitution. So if it's a legal loop the term technicality. The law is the law, the Constitution is the Constitution. So if it's a legal loophole or technicality, that means it's the law. But this does fly in the face of what,

50-ish some odd years of precedent. Yet another Trump-appointed judge overturning decades and decades of precedent. I'm sure you as the former president's attorney would have filed this motion because it is your job for the defense But was this a fundamentally just? Ruling and will it be overturned by the 11th circuit look is it unprecedented as Ellie says no

Justice Thomas just wrote about it in a concurrence in the Supreme Court and invited a district court to rule this way So it's not without some precedent and in fact, she's got an ally in the Supreme Court and invited a district court to rule this way. So it's not without some precedent. And in fact, she's got an ally in the Supreme Court. I know what Ellie will say about Justice Thomas, of course, but there is some support for her there. And I'm not ready to say that the system's going to burn down and crash down. I wish, you know, the Biden judge had granted this motion instead of the Trump judge, because I think then, you know, we would be hearing different

arguments. I'm not ready to say the institution is failing. There's a loud voices from the right saying that our justice system was failing when Merchan was ruling against Trump. And I just think when you have a particular judge ruling a certain way, that doesn't mean that the whole system is going to crumble. I think you have to wait and see how it plays out. Will she get reversed?

Maybe the problem is going to be timing, of course, you know, getting this heard before the election in the 11th circuit is going to be really, really tricky. I don't think anybody thinks that's going to happen. And certainly it's going to be on its way to the Supreme Court. And we may be years away from a ruling on that. Of course, if Trump is elected, there won't be any ruling from the 11th Circuit or the Supreme Court because the case will just die on the vine if he gets elected. David, if Justice Thomas, if he doesn't write that motion, does Judge Cannon make this decision?

Yeah, you know, I wonder about that. She wrote 93 pages. So she obviously had been working on this for a while and she invited a MECA support, which is friend of the court support, which is a pretty rare thing to do in the district level. So she was taking it very seriously, this argument, and she was listening to it for a while now. If Thomas doesn't come out that way, does she still do it?

Probably, I think she probably still does, but I bet she felt really good once that concurrence came out that she had some cover. Certainly empowering. Ellie isn't just talk as adults for a second, because like they all talk. All right. Like you don't need Thomas to actually write the opinion to understand what the federal society position is on this idea. This is a thing that the Federal Society has invented in their own cabals for a while.

Now they've been pushing this through every kind of white wing media, a white wing legal organization. If you've been paying attention to what the Fed Soc people say, they have been honing in on this point for a while. Clarence Thomas gave it voice first, but he didn't invent the issue. The place where I disagree with David is that the reason

why the Biden judge, Chutkin, didn't have, didn't make this ruling because it was never really brought up in her court. And that's why you got the Clarence Thomas concurrence when the immunity went up to the Supreme Court saying like, maybe we could have ruled on this, but I don't know. Nobody really argued it. Right. So like even Thomas is saying the reason why he couldn't get rid of the special counsel in the D.C. case is because it was never presented to them as an option through the process. Right. And again, I say the reason why they didn't is because they knew Chutkin wouldn't go for it. They knew the D.C. Circuit wouldn't go for it, but they knew Cannon would

because they all talk. So sorry, Ellie, I meant the Hunter Biden judge, because I think it's I think if the Hunter Biden judge grants that motion, I'm not sure you're as upset as you are now or other folks. Listen, I'm a liberal criminal defense lawyer, so I'm happy when cases get dismissed. And I think there should be more cases dismissed early on. The Hunter Biden prosecution was ridiculous. A joke.

It should have never happened. And I think that case should have been dismissed if it was brought. And that way you let the sort of system and the law develop. The only way you can get decisions saying these arguments are stupid or whatever is if district courts actually, you know, take the step and dismiss and then you get the appellate process and whatever. Otherwise, you're stuck. Here's the point, right? And I appreciate what you're saying. Like, oh, maybe if it had happened during Hunter Biden, people on my side of the aisle would be talking a different tune.

I can't speak for them. I wouldn't be. And I think that the projection here that while what liberals are really concerned about is cases that help their side and what conservatives are really concerned about are cases that help their side. Like, I think that is projection as opposed to reality.

What I want, right, is a stable, consistent rule of law. Put it like this, I should not be able to predict with the accuracy at which I am able to predict what's going to happen in any appellate court, right? I shouldn't be able to just look at the appointments made by the, you know, which president appointed the judges and predict with like 95 percent accuracy, not just how the case is going to come out, but the actual vote. The actual vote. Right.

But that shouldn't be a thing. But it is a thing because of how because of how the system works, because we have a group of Republican appointed judges, for the most part, who have gone so far afield from what kind of normal precedent is normal, uh, uh, judicial, uh, ethics are that you can always tell what they're going to do. You know what judge I can't always tell what she's going to do, honestly. And I think you'll back me up here, David, Kataji Brown Jackson. I don't know until I hear her oral argument which way she's gonna fly.

And if you look at her votes over this past Supreme Court term, you'll see that she was against the kicking Trump off the ballot in Colorado in a very kind of strong concurrence also at oral arguments. She went a little bit of a different way on a couple of criminal defense cases.

This term like Kataji Brown Jackson. I honestly don't know how she's going to vote until I hear her talk. The other eight of them, I barely have to listen to oral arguments, know how they're going to go out. And that's not how it should be. Give a little credit to Barrett too. First of all, I love Kataji Brown Jackson, a fellow 305er, Palmetto high. So let's shout out to her.

But Barrett has also been a little unpredictable on the criminal cases as well and has split with Katanji Brown Jackson on some of those issues. But the truth is, Ellie, people have been making the criticism you make for a long, long time. This is not new on our justice system. People complained about the Warren Court, that it was too liberal and it was a crazy court. And then it went the other way.

Elections have these consequences because the presidents appoint all these judges. And so we got to win some freaking elections and get some more judges there if we want to if we want the courts to swing back the other way. The Supreme Court is what it is after we lost a bunch of elections. And after they stole that seat, what are we going to do? We have to win this next election. Doesn't look so good right now. Ellie and David.

Again, David, I agree, but like, let's also be clear when people were complaining about the Warren court being too far left and too far liberal, what they were complaining about was the Warren court taking their racism away. Like they were complaining like, oh, I used to be able to kick this stuff on black people. And now the Warren court won't let me. Sounds like that's that was their argument, right?

Like that's a little bit different. I'm not complaining because the conservative Supreme Court like is lowering taxes. All right. I'm not complaining because now there's a 28% corporate tax rate as opposed to a 33% corporate tax rate. I'm complaining that they've taken away the Voting Rights Act, Section 2, right? Like the issues are not,

while I understand that the partisan breakdown feels similar, the issues that we're talking about are just not, right? So, but to your point, we've got to win elections. I totally agree, we have to win elections, like the elections should matter. But the problem with the Supreme Court is that even have to win elections, like the elections should matter. But the problem with the Supreme Court is that even if you win elections,

that doesn't necessarily help you deal with people who have lifetime appointed power. Over the past, through 2020, right? Through the election of Biden, over the previous 32 years, we had an even split, 16 years of a Republican administration, 16 years of a Republican administration, 16 years of a Democratic administration. Yet the Supreme Court was not balanced, right? It was a super

majority of Republicans because of death, because of strategic retirements, because liberals don't know how to say goodbye, because Anthony Kennedy knows exactly when to get off the court to give it to his protege Brett Kavanaugh. Like the asymmetry and the price is right. And conservatives retire now has a permanent conservative majority on the court that frustrates the outcome of elections. Ellie and David, I want to talk about the timing of this decision.

Did the assassination attempt on Trump speed this up or was it always going to be ahead of the RNC? You know Roy, a lot of folks have said that the timing is suspect. She released it right after the assassination, right on the eve of the convention. She wrote a 93 page order. So that took a lot of time. She may have released it on Monday, as opposed to later in the week for timing purposes, but it looked like that order had been worked on for a long time.

I don't think she rushed it out over the weekend or anything like that. I think Ellie would agree on that. We are way over time, but I'm having so much fun listening to you guys. I have one more question for each of you. And then of course, I'll give each of you 15 minutes for rebuttal.

To the end of it. So then of course, I'll give each of you 15 minutes for rebuttal to the... Uh, so, so, Ellie, isn't the fact that Trump hired her for a lifetime job with virtually no accountability, like the greatest conflict of interest, necessitating recusal like of all time. And by the way, I don't just put that on her. You kind of have a passage in your column at thenation.com this this week where you basically say the

Democrats never miss an opportunity to miss an opportunity. You know, you basically make the argument that I've been making for a lot of years, which is that if you are on the ground, waving the Constitution in the air, and your opponent has one foot on your neck and the other foot they're kicking you in the vital organs repeatedly, you're not winning that argument. I mean, you're not winning that argument. I mean, you kind of take the position that Merrick

Garland is doing the, you know, is trying to do the noble thing or perhaps he's OD'd on Ambien or something or is this a is this a classic case of the Democrats never missing an opportunity to miss an opportunity? Yeah, it's an I keep calling it an asymmetric war, right? And we don't want to I don't like to use war analogies, especially given the what the shootings that are bad and and whatever. It's an asymmetric conflict, right?

And the asymmetry involves the Democrats chewing closely to the rulebook, right? They are trying to do things in the way things have traditionally been done. And so the analogy I like to use is like the Democrats are playing chess and they're moving their pieces and they're saying, Ah, checkmate, sir, I have got your king surrounded. Right. And that's not the Republicans are playing check. I don't know any Democrats who talk like that, by the way. Well, I went to school in Massachusetts. So I know Democrats are talking. The Republicans are not playing checkers.

The Republicans have taken the chessboard, shoved out all the pieces, are hitting the Democrats on the head with the chessboard and shoving the queen of the Democrats. You know, when Republicans don't care about your rulebook, they don't care about traditions, they don't care about precedent. They care about winning. They care about power, they care about winning, they care about power, and they have it. And at some point the Democrats need to understand that they are not playing,

they are not playing a game, all right? They have to at some point play to win, and you rarely see the Democrats doing that. So just to finish off with Merrick Garland, I think David would agree, the easiest way to get around Eileen Cannon's opinion that the special counsel was unlawfully appointed would not be to appeal it to the 11th circuit would be for Merrick Garland to say, okay, I'm the AG, I now sue Donald Trump,

I charged him with these crimes, let's go. I clearly have the authority to do that. But Merrick Garland doesn't wanna do that. Merrick Garland doesn't like the optics of that during election season. So that's not gonna happen. And that's what I'm talking about with this asymmetric conflict.

Merrick Garland is worried about the optics and the rules and the whatever, as opposed to doing what is necessary to win. And you're not suggesting doing anything illegal. In fact, quite the contrary. In light of Judge Cannon's decision, you're suggesting he do exactly what she basically told him to do.

We are our own worst enemies here. David Marcus, before we go, last question. As I was saying earlier, this dismissal was not based on the underlying facts of the indictment. Again, I'm remiss to say technicality, but what she found was that the appointment of the special council was unconstitutional, has nothing to do with the facts or the evidence. Looking at the rather compelling evidence here, what would have been some of your defenses? Had you been, you were one word away from possibly being the former president's lawyer

in this matter. What would have been the defenses had this case proceeded before a fair and impartial judge and jury? Yeah, good, good question. But before I get to that, Billy, I think one critical point is we want judges to be a check on the executive branch right we don't want judges just rubber stamping everything the executive branch does that's the whole purpose we have a judicial branch that's a whole purpose we want them in criminal cases doing things like this and about the recusal but I'm sorry but far be it for me to make Ellie's argument for him I think what he's saying is then who is the checker

balance on the judicial branch itself they appear to be unaccountable. Who polices the police, I suppose, in that matter, right? Well, that's the beauty of our system. I mean, we don't want judges just to recuse because they're a Trump or a Biden judge. I think, you know, if your argument were to hold that she should have recused because she was appointed by Trump, then what?

A Biden judge also should recuse? Who should hear the case? Should she should have recused because she was appointed by Trump. Then what? A Biden judge also should recuse. Who should who should hear the case? Should Merchant have recused because he donated what was it like five cents to the Dems? I mean, you have to be careful with these arguments because they can be used by both sides. And you don't want the whole point of a federal judge is that they're not supposed to be one way or the other. I thought Ellie's criticism before about, you know, looking at the court and being able to decide was not about the particular case was we can figure out the judge how they would vote. And that's been true for a long, long, long time. That's sort of how our system

has been because presidents appoint justices. And so you can't have recusal based on just that. And that's the problem that we face every day in our system. I'm for more criminal cases getting dismissed. That's what I'm- Will you take off your institutionalist hat for a moment and answer my, oh no, hang on. 15 minutes rebuttal from Ellie- Can I have an answer to that, right?

Like the, honestly guys, the most radical thing that I believe is that the president who appoints a judge, that judge should have to recuse themselves from cases involving the president that appointed them. And that would apply equally to Republicans and Democrats. Ruth Bader Ginsburg could not sit in the Bill Clinton, Paula Jones situation. And Eileen Cannon or Neil Gorsuch could not sit in Trump related cases.

I think the most fair thing in this country would be that you can't pick your own judges. And so if you are a president and you've appointed a judge and now you're a president and you are a litigants in a case, that judge has to recuse themselves, that would be fair. And I think that would be more ethical. I don't have a problem if that's the rule. We just don't have that rule now.

I guess that rule would apply, you know, with with Merchant should have should have recused in the New York case because he donated to the Dems. So, I mean, I don't have a problem figuring out a rule. I like Ellie's rule, but that that is not our rule. And that's why she didn't recuse. And that's by the way, why the special counsel didn't move to recuse her or try to get her thrown off the case.

So, you know, unfortunately we don't have that rule in place. We, fortunately, or hopefully, we will still have a rule of law to discuss in the after times of the election in November. And I hope to have you both back. We ran out of time for you to answer my question, David, but I'm really super curious about it. So we'll have to do that some other time.

This was a blast, guys. Thank you so much for being here. TheNation.com for Ellie Mistal, for TheDefensePodcast.com for David O. Marcus. Thank you, gentlemen. Thank you. Thanks so much.