Advisory Opinions - All But Assured

Episode Date: January 27, 2020

David and Sarah discuss the news from John Bolton's book, what's wrong with Congress, and the death of Kobe Bryant. Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Spring is here and you can now get almost anything you need for your sunny days delivered with Uber Eats. What do we mean by almost? Well, you can't get a well-groomed lawn delivered, but you can get a chicken parmesan delivered. A cabana? That's a no. But a banana? That's a yes. A nice tan? Sorry, nope.

But a box fan? Happily, yes. A day at Sunshine? No. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol in select markets. Product availability may vary by Regency app for details. Welcome Welcome to the Advisory Opinions Podcast. We have, I think what you'll find to be a fascinating pod today.

We're going to talk up-to-the-minute current events, and we're also going to talk long-term constitutional trends. But before we get into that, I want to ask you, we've had a great response to this podcast, and I just want to make sure that everyone who's listening has also subscribed to thedispatch.com. Go to thedispatch.com and enter your email. It's free for another few glorious weeks before the oppression of the paywall comes thundering down upon you. But you can get a real look at all that we're doing at The Dispatch, and it's really exciting.

There has been some just absolutely top-notch content there. And then also we'd ask you to subscribe to this podcast on iTunes, on Google Play, Stitcher, wherever you get your podcast content. So please subscribe to us at the podcast, and please subscribe to thedispatch.com. And with that, our two big topics today are going to be John Bolton, as you might imagine, and as you might not imagine, what is wrong with the United States Congress, which is a rich topic.

But before we get started on that one, let's talk Bolton, and I'm just going to set it up briefly before I punt it over to Sarah. And the basic facts are this. For much of the impeachment battle, the president's defenders have said that there is no firsthand evidence of a person who actually talked to the president saying that they heard the president tie military aid to Ukraine to Ukrainian investigations of Joe Biden or CrowdStrike. And a New York Times report came out yesterday for everyone but political nerds. It was lost in all of the stories about the terrible, terrible accident in California that claimed

Kobe's life and the life of eight others. But New York Times reported that Bolton's book contains allegations that he heard from Trump that military aid was going to be contingent on investigations. Now, the exact nuances and details of that, we don't know. The exact words, we don't know. But it sent in kind of an earthquake through the impeachment proceedings. And now there's a real question as to whether Republicans are going to vote to call him as a witness, because he doesn't have a right to just show up and be a witness. He has to be called as a witness. So that's the basic setup. And Sarah, I love your immediate reaction. So the one thing you left out in the intro is that the attorney for John Bolton also put out a statement last night after the initial New York Times piece.

Charles J. Cooper, Chuck Cooper from Cooper and Kirk. And full disclosure, I did work for Chuck Cooper after my 1L summer and we remain close. So all the disclosures necessary there. Sarah knows everybody. You just have to know this. Sarah knows everybody. I think that's an important disclosure. No, it is. He put out a statement basically blaming the pre-publication review process for this leaking in the first place. It's a, I don't know, five sentence statement, six sentence statement about all of that.

At no point does he dispute any of the reporting. Right. Which is relevant because, you know, if there had been an immediate denial, that's not really what the book says. There's a lot more to this, etc. That's not what happened. The president has come out and denied it. Right. Which is not always the most credible source as to what the president has said or done.

So I do want to start with pre-publication review because I think it is, you know, I get that it's sort of a DC parlor game, but it's relevant. How did this get out in the first place? How did the New York Times get it? So when you served in a senior government position and you had TSSCI clearance, for example, which is the highest clearance level that includes compartmentalized programs and things like that, and you want to write a book afterwards, the First Amendment runs into basically what you signed in order to get your security clearance, which is you agreed to pre-publication review of any books or materials like that. That is what Bolton did. He then put that through what amounts to the National Security Council's process. The National Security Council, I do not know who is in that pre-publication process in the National Security Council. It would be somewhat limited.

But, you know, there's no hard and fast thing of who's supposed to see it. And so-and-so is like, why don't you read this portion and tell me if you think there's any problem here. The manuscripts can get passed around somewhat more broadly than perhaps the pre-publication review was intended. This is a problem for exactly the reason that we see here. Authors are agreeing to have this pre-publication review, the only purpose of which is to certify that you are not disclosing classified material. And instead, and David, you may have a different take on sort of the more cynical take of how this leaked, but instead what can happen at least, not saying that's what happened here, is that they can leak the contents of your book, hurting your book sales

or helping your book sales, or in this case, certainly affecting an impeachment trial that is ongoing. Yeah, you know, there's a, the pre-publication review part of this I think is very interesting because I think there's a human side of this that you allude to, which is you have in your possession a juicy piece of information with no real hard and fast prohibition on you sharing it. So what is to stop you from hitting copy-paste on a portion of it, emailing it to a friend and say, get a load of this? I mean, as a practical matter, not much.

And so, yeah, when you're sending something in for pre-publication review, you're just rolling the dice on a leak. And I think at this point, you know, what we've seen from leaking is leaking is nearly inevitable. And so what... Yeah, and it's a big problem in this case if you're, again, we're using John Bolton sort of as an example of the pre-publication review more than in the specific, but he did not have an Amazon page up yet for his book. Right. So any pre-publication sales couldn't happen until I think they got it up this morning. So look, 12 hours maybe didn't cost them much. But if you were doing this from the publisher side and wanted to do it the best way possible,

first of all, the book's not coming out until March 13th. You'd wait another month at least. And then you'd have your Amazon site up so that people could pre-order the book. And I think it will have an interesting effect down the road for other people who, you know, James Comey had to send in his book for pre-publication review. Andy McCabe had to send in his book for pre-publication review. And it sounds like from Chuck Cooper's statement, they were very much afraid of this exact thing happening. Lots of reporters were trying to talk to Bolton, interview Bolton, get their hands on what he was going to say in that book. And he had declined all of that so that the book could speak for itself.

If that's really your strategy and you take them at their word that that was their strategy, this is a disaster. And moving forward, I think you could see more legal pushback on the pre-publication review process, which isn't great for the intelligence community. But there we are. Yeah, I could. Yes, exactly. I mean, if you're a writer, you would want to see if there is any way to accompany the pre-publication review request with a series of NDAs with defined individuals, with specific defined individuals as the only authorized reviewers, and each one of them signs an NDA. I mean, I can easily imagine seeing that happen. But here's the thing that's interesting to me. So, and correct me if I'm getting any of this chronology wrong, because

the Ukraine issues had so many twists and turns and peaks and valleys. Mostly valleys. Mostly valleys. So the House asks Bolton to testify, doesn't subpoena Bolton. So Bolton refuses to testify voluntarily. Correct. But at the same time, he's writing a book that he's publishing that contains all kinds of information material to this investigation, if the New York Times report is to be believed. So it appears. book, when Congress asks you to come testify, you go testify. I just want to just sort of put a pin in that. And also, if the Senate is deliberating and you have information relevant

to these proceedings, he's indicated he's willing to come if subpoenaed. And in this situation, the Senate would have to vote for him to come in and testify. But there is nothing to stop him from publishing the relevant excerpt of the book in the Dispatch tomorrow or The Atlantic or The New York Times or. Set aside book sales. I think John Bolton's very lucky that this leak happened when it did, because I think a really bad scenario for him is the impeachment trial ends with no witnesses and the president's acquitted and, you know, next week. And then six weeks later, his book comes out with all this stuff that was relevant. And everyone's like, WTF, John Bolton? Right. You know, if we had known that, we would have called you as a witness, etc., etc. So I actually do think long term, that's why I made the, you know, wanted to make the pre-publication conversation a little bit more global, because I

think long term, this actually helps John Bolton, whether it helps his book sales or not, I think it would have really hurt his reputation to have sat on the information for all the reasons you just said. Right, right, exactly. And I think that he, at this point, I feel like he has an obligation to just spill it, to just say, to just say what he knows. If you're willing to put it in a book and make money off of it, you probably, as a public servant, should be willing to tell the American public at a time that it is most relevant, the U.S. Senate at a time that it is most relevant, etc. But again, I think the pre-publication review thing is interesting legally. You've got the First Amendment versus the class, you know, getting your classification thing. You've got these NDAs that people could throw out in the future.

You've also got, you know, a statement from you, a sworn statement saying there is nothing remotely touching on classified information that I am including. Therefore, I am simply not submitting my book for pre, you know, publication review. Right. Which wouldn't really fly. But, you know, come at me, bro. Yeah, exactly. And I think that that might actually end up being the more common response that you might have a publisher's legal team, especially on a very high profile book, vet it, vet it very carefully, hire national security

law, lawyer schooled in national security law to vet it and then say, come at me, bro, and then wrap yourself in the flag in the First Amendment if bro comes at you. Big bro. Yeah, we haven't had a case like that in a little while. People have challenged it before and lost, but after this, I think they have a better case. So, okay. I also want to talk though politically about what this does. Yes. I think it is very difficult now. I think it was difficult before. I think it is near impossible now for four senators, Republican senators, not to defect and vote to hear from John Bolton. And then the question becomes, I don't see how Mitt Romney says, I was open to hearing witnesses. I was deciding whether to hear witnesses. Well,

now that this used bombshell has come out, I'm open to hearing witnesses. I was deciding whether to hear witnesses. Well, now that this used bombshell has come out, I'm voting against hearing witnesses. Right. I don't follow that. So assume with me that you have four votes to hear from John Bolton. Then I think the other votes get much, much harder because then it's like, OK, well, if you want to hear from John Bolton, why aren't you willing to hear from this person and this person from the House manager's side of things? Right. Then it gets even messier because Tom Cotton and others have promised that if there is a vote to hear from witnesses on that side, they will force a vote to hear from witnesses

like Joe Biden, Hunter Biden, a variety of other people who some could argue are somewhat irrelevant to this discussion, but politically highly relevant. This becomes sort of an all out shooting war within the U.S. Senate. Right now, it's a pretty cold war. This will be a very hot war affecting 2020 senators big time. Yes. To quote Joe Biden, it's a BFD. There's a joke, by the way, that I curse a lot, lot more than David off this podcast, which is totally true. But sometimes it's fun to like sort of kind of curse with David here to like see his reaction. So yeah, David, it's a BFD. Yeah, yeah. Was that a quote or a paraphrase, Sarah?

Well, I mean, it's an acronym of a quote. Okay, okay. So I agree with you on the politics of this. I mean, this is opening Pandora's box here. It is very hard for the senators who have expressed a desire to hear from witnesses to suddenly say no. And I'm hearing a couple of competing things from folks I know on the Senate side. And one sort of competing idea I'm hearing is that there are a lot of senators who actually do want to hear from Bolton. They just want others of their colleagues to vote for it. They just want others of their colleagues to vote for it. In other words, yes, yes.

Brave Sir Robin. Yes. Let's hear from Bolton. Mitt, Susan, Lisa, Lamar, can you do this for us? Can you do us a solid? And so I'm hearing that, but I'm also hearing that, in fact, no, they recognize the Pandora's box. And so the goal is to then say, well, we're just going to throw Bolton into sort of the James Comey or even worse, the Lev Parnas box of, oh, look at these liars. You know, look at these people who are self-interested.

We don't need to hear from lying, self-interested, corrupt people, which for Lev Parnas, as I wrote in my newsletter, subscribe, as I wrote in my newsletter, I don't believe or disbelieve anything he says. I think the guy is a very shady character, and I want to see documents that corroborate. I don't feel quite the same way about John Bolton, and lumping those two together, as I saw Senator Kennedy from Louisiana do, I think is absurd. So I don't know which way they're going to go. Are they going to go with the full-on smear of John Bolton that says, we don't need to hear from this deep state coup architect who loves endless wars? Or are we going to go with we really do want to hear from him, but we're not quite brave enough to vote for it, but surely four of you guys are.

And as a reminder to some of our younger listeners who may or may not have been alive during the Florida recount, John Bolton is the guy who walks in and very famously says, I'm with the Bush-Cheney team and I'm here to stop the count. So arguing 20 years later that he's a rhino who's not a loyal Republican, who's not a party man. I'm not saying a lot can't change in 20 years, by the way, but if you had a Tiger Beat poster of John Bolton, that would be the quote that's on it. And who hasn't had a Tiger Beat poster of John Bolton? That mustache gets me

every time. Well, and you raise a good point. And it's, so you go back to 2000. And from 2000, really increasing into the Obama era, in the Obama era, John Bolton was an absolute fixture on Fox News, an absolute fixture. And, you know, I heard more than one grassroots Republican during the Obama years say, you know, we need, when another Republican wins, I can't wait for John Bolton to be Secretary of State. I can't wait for John Bolton to be UN ambassador. I can't wait for John Bolton to be a national security advisor. I mean, that was the kind of person that grassroots Republicans wanted to see in the executive branch when the next Republican came around. And then now you see the new senator from Georgia saying, well, he's just after his

15 minutes of fame. He's pretty famous. He is. And it's been a lot longer than 15 minutes. That's right. And so that's one of the things that makes me wonder if the smear strategy is going to be operable as a way to sort of duck out of the witness question.

But I don't think it's going to be that easy to duck out of. I don't know. I mean, I think that, as we've seen repeatedly over the last three years in particular, but it's not brand new either, I think the smear campaign will work better than maybe you think. Yeah. Well, I think it'll work pretty well. Yeah. I think it will. certainly not every Republican by any stretch, but for an awful lot of people in this country,

the definition of your worth is tied to your loyalty to Donald Trump. And if you're not loyal to Donald Trump from that moment forward, you are a betrayer of some kind. And so it's very easy to make the argument that this guy who Donald Trump picked, he's Donald Trump's choice for national security advisor, is really, truly his true colors have come out now. And now we know that he's the Benedict Arnold that he's been all along. I feel like there are there are millions of people that are ready for that, that message. Well, and what I have found frustrating about that so far is that it doesn't, and John Bolton maybe proves the point even more, there is nothing that you could do to prove loyalty if you ever then become disloyal. Right. That is the proof of your deep statiness.

Yes. There is no other evidence that will be introduced in your Salem witch trial. Right. You can't float or wait, witches do float, witches don't float. I don't remember. But you can drown. Therefore, you are a witch or something. Right.

If you float, you're a witch. There was this, I wish I could, I used to be able to in college, I could quote the entire Monty Python and the Holy Grail dialogue cold with amateur versions of the accent. Yeah, I mean, my favorite part, which is related, is the what else floats, ducks, churches, small rocks. Yes. Very small rocks. Yes. Oh, I remember that.

But you're exactly right. The proof of your perfidy is saying something against Donald Trump. Which is a big problem. Which is a very big problem, which means that if you're a human being who is in administration and you see something wrong, if you see something wrong, the very act of saying what you saw with your own eyes discredits you. And that's very deeply dysfunctional. Very deeply dysfunctional. Welcome to 2020. Oh, yeah. Now, let's deal briefly with the substance of what he might say. I think that we just need to wait and see on what it is. But I think that those people who are expecting him to say very clearly

that Trump said to him in no uncertain terms, with no weasel words or ambiguities whatsoever, that I'm holding this aid until the Ukraine investigates Joe Biden, are probably, my guess is going to be a little bit disappointed because it's highly likely that the way Trump expressed his wishes was in a kind of a Trumpian word salad-y kind of way. And if you're taking notes in real time, I'm guessing there's going to be some sort of ambiguity or nuance in there that is going to be less than, so in other words, instead of the like real time of, it will be a smoking gun, but maybe the smoke is more wispy than we might imagine. Well, to quote a previous podcast of ours, I don't think that we'll have a note that

says do crimes. Right, right, exactly. Yeah. No, it's not going to be as clear cut as that notepad that Lev Parnas shared with the world. But yeah, so it remains to be seen. And that's why I just think we need to hear from him. And if the Senate dithers and the Senate continues to be dysfunctional in approaching this, put it out into the world. Just put it out into the world. Just put it out into the world. It doesn't even have to be an essay, which is sort of unsworn. Do it in an affidavit. Tell your story in an affidavit. Put it under oath. Tell your story. I have also said repeatedly that I don't believe that John Bolton's, if he were to testify, the book, whatever else, is going to be a flaming grenade at the Trump presidency at all.

I do expect some critical parts to it. Right. But, and, you know, I get that this leak looks pretty bomb throwy. But, and so maybe I just will turn out to have been wrong, which is not that unusual. But it could be a mixed bag for everyone calling him to testify. Yeah, no, I agree. I think, you know, it's one of those things where it was very the substance of the leak was very interesting. The fact, as you noted, that Chuck Cooper did not dispute the substance was very interesting. noted that Chuck Cooper did not dispute the substance was very interesting. But there's all kinds of context around this that we just don't know, which is why we need to hear from him.

And I agree with you. I think that it would be unlikely in my view that John Bolton is, what is the movie where, oh, is it Scent of a Woman where Al Pacino says, I'm going to take a flamethrower to this place. That would be surprising to me if he was just taking a flamethrower to the Trump administration, which I think would actually make his testimony more credible. If he's going to say this thing that a lot of people suspected happened didn't happen, but this thing that others suspected happened did happen, I think that kind of thing, you know, would make him a more credible witness. But again, we don't know until we see, and we've, at this point, we've just got to see it. I don't see a world politically in which

they do not call him to testify at this point. I thought it was actually fairly likely on Saturday. I think it is all but assured as of 6 p.m. last night. Well, let's conclude this portion of the podcast with Sarah's quote, all but assured. Yeah, I'm going to regret that. Yeah, I think we'll make that the title of the podcast oh all but assured but i'm gonna agree with you i think it is i think it it is all but assured he'll testify and i'm gonna even go farther and say inevitable that we hear the full substance of his claims before the book publication date and before the conclusion of the trial? No, I'm not going that far. I'm sticking with all but assured for that.

Okay. Yeah, all but assured. Just to be clear, listeners, we will drive a bus through all but assured later down the road. The but is doing a lot of work in that sentence. All right, next topic. Yes. So, you know, this is going to be an evergreen topic, but I think it's one that it'd be great to sort of lay down a marker about where we stand on why we are where we are. been an awful lot of smart people who have said, look, if you want to know why politics is broken, what you have to understand is that the constitutional order right now is inverted in a way that the founders did not expect or want. And that constitutional order had the legislative branch as truly the supreme branch of government, not the unchecked branch, but it certainly wasn't a equal branch. It was supreme. It could override vetoes. It could fire the president. It could fire

any chief justice of the Supreme Court, or any justice of the Supreme Court. It had control over the jurisdiction of the federal courts. I mean, this is the most powerful branch of government, and in practicality right now, it's the least powerful. It has become, as Jonah has said many times, a parliament of pundits. In other words, it's almost as if people run for Congress to be a pundit and not to be a legislator. And that has enormous consequences for our constitutional republic. It makes the president far more powerful. It makes presidential contests far more weighty. It makes the checks on the president far less effective. It makes presidential contests far more weighty. It makes the checks on the president far less effective. It makes the judicial branch far more powerful. And notice

when I say president and judicial branch, I'm talking about the two branches of government actually most removed from the people of the United States, and the branch of government most connected to the people is the least powerful. And that explains an enormous amount of frustration. So we're going to talk about why. And to go first on why, ladies and gentlemen, Sarah Isger. I have so many feelings about this. So first of all, to tie it in, Chuck Cooper is going to be our theme for today. If you are unsatisfied at the end of this podcast, I will highly recommend his fall 2015 piece in National Affairs called Confronting the Administrative State that Chuck wrote. But let's start by quoting Federalist 51. Ah, good.

First of all, all of the Federalist papers, not all, many, many of them are about checks and balances, how the separation of powers will work both within the federal branches and also within the relationship between states and the federal government and how each one was going to protect their dominion. Federalist 51 is the one that's quoted most often. But since I know we have law students listening, you know, sing along with me, if you will, at home. The great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others. Ambition must be made to counteract ambition. That's a famous quote.

That's it, right? In nerd circles. In our circles, David. In our circles. So that was the idea. That's the structure, is that each of the three sort of lean against each other. And if you removed one, the whole thing would fall apart.

Nobody wants to be removed from that. And therefore, this will always hold up the federal government. I mean, enter in the progressive era, which, Ben, I'm going to, you know, we're going to make this a pretty quick history. So forgive me for skimming over your favorite parts. But, you know, the progressive era's motivations were largely that you wanted expertise in the bureaucracy and that the bureaucracy could do a lot more good using science and expertise and all of this other stuff. But in order for it to do that good, it couldn't be in there for four-year terms.

It couldn't be at the whim of presidents, etc. And we needed agencies dedicated to these areas so that experts could live in their little enclaves with their fellow experts, etc. So this is really the Wilsonian revolution of the federal government. Although, in fairness, Teddy Roosevelt is certainly beginning it before that. Fast forward not that far to the next Roosevelt. And you're really going to see the explosion under FDR of the administrative state. And let's just, David, I'm going to give you some numbers. Okay, let's hear it.

In 2015, at a Senate Judiciary Committee hearing, one senator said that the Federal Register indicates there are over 430 departments, agencies, and sub-agencies in the federal government. departments, agencies, and sub-agencies in the federal government. The Federal Register Index shows that there are 257. The United States Government Manual says there are 316. FOIA.gov says 252, yada, yada. Like, we don't know how many federal agencies there are. There's over 180,000 pages in the Federal Code of Registry. So these are just all the fun facts. And we haven't even gotten to the legal side. The non-delegation doctrine, which we'll jump into here in a second, dies with Schechter-Poultry. Yes.

It was great knowing you. Thank you, Schechter-Poultry. And what is the non-delegation doctrine for those following along at home? I feel like we should have a law student call-in portion right now. Oh, that'd be great. They have to answer. Yeah, Socratic method. So non-delegation is the idea that Congress cannot give away its legislative authority, except that it turns out Congress very much can give away its legislative authority right now. And we can, if you want, David, talk about Chevron and our deference if we want to get super into the weeds. But I think the most important case was last term.

Gundy, which was like the great white hope for reinvigorating the non-delegation doctrine, goes down 5-3, not reinvigorating the non-delegation doctrine goes down 5-3, not reinvigorating the non-delegation doctrine. So we are still living in a full delegated world. And I think as long as we're in that world, and I know I've talked about the 17th Amendment before, and don't worry, we will do a separate podcast on why the 17th Amendment destroyed America. Because the people demand it. why the 17th Amendment destroyed America. Because the people demand it. I got one whole email asking for more on the 17th Amendment.

That I don't see how Congress can take back its power. I don't see how Congress will take back its power as long as they can delegate and the executive can delegate all of this to these federal agencies. Yeah. Okay, David, that's my song. Go ahead. Sing along. I think that's a great explanation.

And I would add to this, it just kept getting its own momentum. So, you know, like the snowball rolling downhill becomes the avalanche. the snowball rolling downhill becomes the avalanche. Congress began to learn that what it could do is it could pass laws based on intentions. And then it's not that the laws didn't have substantive provisions, but they left a lot of gaps. And so they could entirely delegate to the executive branch the hard part of making the law real. So the Affordable Care Act had a lot.

Such a good example. Yes. It had a ton of gaps in it. And so. The Affordable Care Act, and again, this isn't fair, but the Affordable Care Act basically was signed into law as due health care. Yes. Due health care. And then sent over to HHS.

Yeah, it was due health care with the substantive provision of the individual mandate, etc. But the details, which were so important. You know, it's so funny. I'm reminded of the Nancy Pelosi quote that says we have to pass the law to see what's in it. Indeed. She was actually correct in a very substantive way. No one knew what the Affordable Care Act truly was until after it was passed and the regulations were promulgated. contraception mandate. That wasn't in the statute of Obamacare. That was a decision made by the Obama administration to execute and implement Obamacare. So you can now pass financial regulations, health care regulations, or financial statutes, health care statutes, all kinds of reforms,

and you just sort of dump into the president's lap and the administrative state's lap the job of actually writing the law, and then they have the power to interpret the law that they write. And if they have a- Chevron. Correct. And if they have administrative law judges, they then, so they write it, they execute it, and they interpret it.

All three branches- Yes, exactly. All three branches of government in the presidency. And then here's the other thing about it. It's so large. It's so titanic. It's so hard to change these regulations that the president is now only in sort of nominal charge of the whole process.

So let's go back to. Ooh, and that's, are you about to do Humphrey's Executor? Go for it. I was not. I was not. I was definitely not going to do Humphrey's Executor. Humphrey, neither the word Humphrey nor Executor were anywhere in my mind, but that's one of those moments of like, oh, we're on the same wavelength. on the same wavelength. I don't know why this is so funny to me. David was like, no, I live in the current last 30 years. You are now going back to like Humphrey's executors at the turn of the last century. Humphrey's executor, the point of this is that that was a court case that said that the

president really couldn't fire some executive branch employees. This was upholding the civil service reform post Garfield's assassination. And that these experts within the progressive era and now within the federal government and now within the executive branch were not accountable to the president. Right. That's a pretty big problem to what you're saying. The president is only now nominally the head of large swaths of the executive branch. Right. So they, you know, I've used this analogy before, but imagine the world's biggest supertanker with an inadequately sized rudder. And so, yeah, the president controls the rudder,

but it takes a while for that ship to move. And going back to our last podcast, which I really loved having Jenny here to describe all of the regulatory changes the Trump administration was attempting to implement on religious liberty, what she was describing was the end of the beginning of a process. She was not describing the Trump administration waving a magic wand and commanding the ship of state. She was talking about the Trump administration waving a magic wand and commanding the ship of state. She was talking about the beginning of something called notice and comment rulemaking, which the beginning of notice and comment rulemaking, it took months to get that point after Trump's executive orders about religious liberty. And so this is something that is a problem with presidents of both parties. It's one of the reasons why Obama chose the memorandum method for lawmaking rather than notice and comment rulemaking, because he thought he could wave a magic wand with a

memo, but then immediately found himself enjoined in federal court, found out he couldn't. As has Trump. As has Trump. There are more nationwide injunctions in place today than at any point in history. Yes, exactly. And so what ends up happening when there's a nationwide injunction is that status quo keeps churning on along. And so you—but then the sort of really nefarious part of it is that all of the politicians that sort of orbit that status quo get credit for their intentions. Like, oh, I want religious liberty. I want immigration reform. Oh, I want all these things. And they

don't do the necessary work to accomplish them. But in the meantime, it's not like the United States is ungoverned. The administrative state just plows forward. I hope that didn't sound overly cynical. No, it sounded pretty cynical. And perhaps we actually didn't spend enough time on the incentives of Congress and some of the unintended consequences. You know, for instance, when they got rid of earmarks, I think the vast majority of Americans, including at least one person on this podcast, was like, oh, yeah, get rid of earmarks. Yeah, I was too. Those are not helping anything. Yeah.

Except it turns out that that was a core piece of Congress's power. And once you've gotten rid of the earmarks, you now have less ability for them to compromise with one another, to pass laws, and less incentive to do so. Yes. Yeah. Because what ended up happening, it also made the problem, it used to be all politics is local. So a congressman can go to his constituents and maybe he compromised on a bill that they wouldn't like, but he could say, do you see that gleaming new federal building or that eight lane highway cutting through this county? I did that for you. And it was part of the deal. It was part of the way that you got people on board. And so now they can't do that. They can't say it's much harder. It's not

that they cannot. It's just much harder to say, look at the, you know, what was it? Senator Byrd from West Virginia was the master. Oh, he was the master. You drive, even to this day, if you drive through West Virginia, it's the Byrd this and the Byrd that. I mean, because he not only got the federal bucks to flow in, he put his name, he chiseled his name in granite on it. And so you could always say. So that goes to the personal motives that were mentioned in Federalist 51. always say. So that goes to the personal motives that were mentioned in Federalist 51? Exactly. That's ambition checking ambition. And now, what is the ambition? The ambition is not so much you can't even put the office tower in your hometown, or the new highway or the new military base, but you can get on Fox. You can be seen as one of the principal defenders of the head of the party.

And so that is... It did. It made political parties far more powerful in, let's call it, a post-Nixon era in general, which is interesting because while the campaign finance was actually gutting the political parties in a literal sense, like the RNC and DNC, the political parties as a concept... The partisanship. Yeah, as the smoke-filled rooms sort of had to die out, the partisanship grew. Yes, exactly. So the party, as the dealmaker, as the kingmaker, went away. The partisanship, as I'm a leader of a team member, I'm a leader of the tribe, I've got the red jersey on.

And it was a jockeying of position to sort of see who could be the quarterback of team red jersey or, you know, his favorite wide receiver. And that's what we see on cable news all the time. Who is the quarterback's favorite wide receiver? Who is the quarterback going to hand the football off to more as opposed to who is improving my life in my district by bringing things into this district that improve its economy, improve the well-being of its citizens. And yeah, this is one thing that I'm just going to go ahead and admit I was totally wrong about.

I was all about getting rid of earmarks. And it turns out that earmarks, as far as like impact on the deficit, rounding error, like a rounding error. Everyone knows at this point the deficit problem is an entitlement problem plus a military spending problem. Those are the three biggest elements. That's what the deficit problem is. It is not an earmark problem. It's not a national parks problem. It is not a foreign aid problem.

Those things are all rounding errors compared to the deficit. And that by getting rid of that rounding error, error, we undermined Congress in a way I don't think many of us really understood at the time. Nope. And, and that's sort of the, the Berkey and conservative argument for not making large scale changes to the powers of various articles. Okay. I think, I mean, I have so much passion on this, but I think we do need to wrap with a topic close to your heart that you and I perhaps have different perspectives on. Well, you know, it's Kobe Bryant. And, you know, I followed Kobe from the beginning. So I've been a sports fan for a really, really long time.

And I have also been a Los Angeles Lakers fan for a really long time. If you grew up in the 80s and you grew up in a town without an NBA team, your state without an NBA team, like Kentucky did not have an NBA team, you and you're in the 80s and you're a basketball fan, you choose Lakers or Celtics. That was your choice, Lakers or Celtics, because that was the great- East Coast, West Coast rap. Exactly. Yeah. Tupac or Biggie. I mean- Yeah. And so I chose Lakers. And so I've been a Lakers fan for 30 plus years.

And I remember really having mixed feelings about Kobe. And those mixed feelings were really, turned much less mixed after the rape allegation against him. And I remember following that very closely at the time and just being just disgusted by even the best version of the Kobe defense, which was he did something really wrong and brutal, but not criminal. That was sort of the best version of it. And, you know, I just kind of wrote him off in a way. And then, so then my son, you know, my son is born. He's, what, three, not even three years old when that allegation occurs. He grows up, and then he starts falling in love with the game of basketball.

And lo and behold, who is the person that he centers his basketball affection around? But Kobe Bryant. And the interesting thing is, if you parachuted into basketball in 2008, in 2009, in 2010, you've just landed, like you've been a visitor from Mars, attend. You've just landed, like you've been a visitor from Mars, and you don't have all of that past context. Man, there is every single reason in the world to love Kobe Bryant. He pours his heart out onto the court. He plays with unbelievable passion and intensity. A lot about him changed after that terrible event in Colorado. He was a very outward and publicly facing family man. And millions of kids just who came of age in the mid 2000s just loved him. And it's really kind of hard to describe unless you're in the world of basketball a lot, which we were for years because Austin played high school basketball. But kids in pickup games, if they hit a fadeaway,

you would hear them yell out, Kobe! If they did an incredible move, you would hear that yell, Kobe! There was just something about him that captured them. And so I think when his helicopter went down, one of the images that really got me was of this young kid, he couldn't have been older than like 12 or 13, at the Staples Center in front of one of the wreaths with the jersey on, with a Lakers bandana, I mean, head to toe. And he was just weeping. He was just weeping. And I thought of my own son in November of 2014. We went to see Kobe play live in Memphis. And he was dressed head to toe in Lakers gear, just head to toe. And he was right about sort of that same age. And, you know, it just realized, it made me realize that there's a whole generation of people who came into the Kobe story way after the worst elements of the Kobe story.

And I don't, how do you talk about the man in full in a moment like this? You know, I think you got to reckon with the man in full. But you also got to understand with how a ton of people in this country experienced him as a person in full. And so, I don't know, it was a terribly sad day, terribly sad, just gutted to hear that his daughter was with him. And then, you know, look, the seven other people in the plane were equally precious in God's sight and equally precious as Kobe Bryant and his kid. And it's a shame that we don't have their names, you know, tripping off the end of our tongue. But I was shocked at the intensity of my feelings when I saw it.

And I think an awful lot of people were surprised at the intensity of their feelings. So that ends my... I think that is... I think that was very artic people were surprised at the intensity of their feelings. So that ends my... I think that was very articulately put, David. And I think it was not actually what I was expecting to hear from you. David and I had sort of discussed talking about Kobe and how sad he was. And I was like, I think we might have different takes on this. But that was actually far more nuanced. I shouldn't have expected less from you.

The bigotry of low expectations of David French. But I do think I had, I had more, I just had a different reaction in terms of, I think it's interesting which people we allow to be rehabilitated in our society and which we don't. Yeah. which people we allow to be rehabilitated in our society and which we don't. Yeah. If you read the transcript from his accuser that she gave her statement to the police that night and his statement to the police, prosecutors, most prosecutors in most rape cases would love to have evidence that clear cut of a violent, brutal rape. There is her blood on him. She has a physical exam that shows they were not able to count the number of lacerations

that she had internally. And when asked, did she say no? He repeated, let me think three times. say no he repeated let me think three times um and so i did think about her yesterday and what that experience must have been like for her to watch as you said like a whole generation of people who didn't grow up who grew up after that fact right who came into the kobe story after that fact, because society had allowed him to have that second chapter. And what she must be feeling today in her family, there was, so she dropped the criminal case later on. Remember, this is 2004. I think in 2020, that is not what would happen today. And I think looking at that case in 2020 eyes is just a very different experience. But she does settle a civil case. Right. He releases a statement where he talks about how he thought it was consensual, but he sees now that she didn't. Right. What a fascinating statement on consent. And I hope it sparks conversations. I think if you watch

The Morning Show, that's a really interesting episode about consent in there. Oh, we need to talk about The Morning Show. We really, we need to do that. Yeah. I did finish it, by the way. Yeah. And so I hope that there can be some other good to come out of this other than just cheering on Kobe's basketball legacy, because I think there is more good that come out of this other than just cheering on Kobe's basketball legacy? Because I think there is more good that could come of it. That's how I'll put it. You know, and I think you raise an interesting point about who gets to move on. And part of it, I honestly think, is due to the simple fact that this happened in a pre-social media era. So if you were to ask somebody, what are the details of that case? I mean, the number of people who would know them

is vanishingly small, and it's hard to find them out. Whereas nowadays, you can cancel somebody Whereas nowadays you can cancel somebody based on bad jokes in a Twitter feed from seven years ago that are just an instant search away. different technological time in addition to a different sort of level of social awareness and tolerance for these kinds of accusations with that level of evidence attached. So yeah, I think it's really, really complicated. I remember at the time being deeply troubled by, you know, without knowing the details, you know, there is a history of white women accusing black men of rape in this country. That was definitely a part of that. Yeah, that's right. And, and I think, you know, that's, that's a separate tragedy all in its own.

And so there was a lot wrapped up in it in 2004. But, but gosh, as we talk about cancel culture now, I think we should grapple with and are against, you know, everyone at this point, Obama's against cancel culture. And yet, I don't think anyone thinks that Harvey Weinstein should be able to come back and produce movies. So we're not all against cancel culture. Right. It's just what is the gravity of the offense? That's the debate. Yeah. That's always the debate. What is the gravity of the offense? And what is the weight of the evidence and the gravity of the offense? And those are, we're going to be fighting about that. I think that, you know, those lines are going to change and move and shift. I think the alarm over cancel culture is when the gravity of the offense has become so slight as to include bad Twitter jokes or a poorly executed Twitter joke or a single Twitter comment.

Those are the things. But sure, that's on the one end of the spectrum. Yeah, exactly. And being convicted of a crime is on the other end. Completely on the other end. But there's a whole lot in between spectrum. And being convicted of a crime is on the other end. Completely on the other end. But there's a whole lot in between. Kobe was never convicted of a crime. Never found responsible in a civil proceeding.

He settled it. Correct. Correct. And where does that fall on the spectrum? And I am 100% sure that society will be grappling with a similar question at similar, you know, times in the future. And where I think about this is, I think that to discuss his legacy as if that didn't occur is just wrong. It's just wrong. It has to be wrestled with. It has to be grappled with, and it has to be a part of the story. It's obviously not the whole story of Kobe by any stretch of the imagination,

but it's a part of the story of Kobe, and it's an important part of that story of Kobe. And I totally get that in the immediate aftermath of a crash that claims his life, his daughter's life, seven other people's lives, that immediately talking about that as the defining characteristic in the midst of this ocean of grief, I don't think that's right. But to then say that we're going to talk about him without that in any context at all is not right either. And I'm still honestly on the, you know, I'm still honestly working to my thoughts and feelings about who he was sort of on the fly because I never, ever, ever thought that we'd be talking about his legacy at age 41. Yeah, and another part of this is

how much do we let the worst moment of your life define you? Right. Yeah. Yeah. And that's, and for too many kids in our criminal justice system,

we do. Yeah. Forever. Forever. Forever. So, you know, I also watched the Aaron Hernandez documentary on Netflix,

which I also recommend to folks. Morning Show, Aaron Hernandez, it's all actually very interesting legally. So perhaps we will dedicate another episode to the legal implications of shows that are streaming right now. Well, and cultural. I mean, I think that episode eight of the morning show was one of the more difficult to watch hours on TV, but also one of the more illuminating hours of TV that I've seen in a really long time. between me and my husband on consent that could be far more nuanced than I think our current conversation we're having as a culture right now. We have people screaming that affirmative consent, affirmative consent. Well, what if it's sort of physically affirmative, but you can see in her eyes, you know, and that's what I thought the morning show did such a great job grappling with what consent really can mean in practice when it is. God, our our sexual selves are so difficult and nuanced and God forbid you're 22 and there's alcohol involved or anything else like that. So with that, David.

Well, man, this is one thing. One of the things we try to do in the dispatch is not have a hot take. So what you just heard from me was sort of a confused take. A sad take and a confused take at the same time. It is sad. Yeah. Look, I don't want to make anyone think that I did not find a helicopter with nine people going down, a 41-year-old and his 13-year-old daughter to be sad. Yeah, of course. It is sad. Of course it's sad. So, yeah. Well, on that note, that concludes this episode of Advisory Opinions. And I hesitate to ask after plunging into super difficult topics, but yeah, go ahead and rate us if you like us. We would appreciate that very much. It helps us a great deal and your feedback helps us a great

deal. And as you can see from a podcast that is still in its infancy, we're absorbing your input and we're reacting. And we're going to have a whole 17th Amendment podcast based on one good email. So that's how much your input counts. And we really do appreciate it. So until next time, this is David French with Sarah Isker, and this has been the Advisory Opinions Podcast.