Advisory Opinions - Guns and the Aloha State

Episode Date: February 15, 2024

Do people have a right to gun ownership even if it conflicts the “spirit of Aloha”? Sarah and David dig into a 53-page opinion from the Supreme Court of Hawaii that teeters on the edge of defiance. The Agenda: —Clarifying public accommodation and the anti-Zionist bookstore —Carrying a gun without a permit v. the Second Amendment —The Law of the Splintered Paddle —Bruen makes an appearance —Trump's briefs (to the Supreme Court) Show Notes: Today's episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we're doing the Hawaii gun case. We're talking about the Trump team's filing and we're doing the Hawaii gun case. We're talking about the Trump team's filing at the Supreme Court on the immunity case. And yes, we're actually doing American Nightmare today, finally. But first, we talked about public accommodation law at the end of the last episode, and we got a lot of questions about why we didn't sort of weave in 303 Creative. Remember, that's the Supreme Court case decided last term

about whether a website designer must design websites for gay weddings and marriages, and whether she can do that without violating Colorado's public accommodation law. Now, I think the reason, David, that we didn't talk about 303 Creative is like, in our mind, they're pretty unrelated, bookseller versus website designer, that we didn't talk about 303 Creative is like in our mind, they're pretty unrelated, bookseller versus website designer, but we should have explained it. So why don't you try? Yeah, well, 303 Creative,

really the battle here was whether this was a classic public accommodations case or not. So the facts in the case were that the website designer said that she would design a website for anyone of any sexual orientation, religion, faith, ethnicity, nationality, etc. So therefore, she was not discriminating on the basis of these protected identities. She was just saying she was not going to design a website that had a message that she did not approve of. So her argument was that this

was not really a discrimination issue at all. It was a compelled speech issue. And by the way, Colorado helped her out greatly by basically stipulating to that effect, saying she did not engage in discrimination on the basis of identity. And so then once it became, can Colorado use its public accommodation law to compel someone to say a message, regardless of who the speaker was, say a message that she did not approve of. And that's why this case, in my view, it actually turned out to be not that important from a First Amendment standpoint, because it was just, hey, we have 80 years of case law on this, and it says you can't do this.

So I'm trying to think of like the equivalent for the bookseller. Basically, if they wrote books at the bookstore, and someone said, I want you to write a book about me, then you would fall more into the 303 creative world. Or it would be you have to stock a book by, you know, maybe it's you have to stock a book by someone that this is a message. If you're not helping this person get their message out, then you are discriminating against them on the basis of their identity.

That would be, I think that would be probably the counter example that, no, of course, you couldn't go into a bookseller and say, hey, you have to stock my book. And then when the bookseller says no to me, I would say, well, why are you discriminating against me because I'm white and male? That would be a 303 creative scenario

and the bookseller would win that case. Okay, so another question we got is, what do you do when the star of David as a symbol symbolizes both, I'm a member of this religion, but also can symbolize, I believe this political ideology? You know, in that case, I think I would be pretty certain that the tie would go to the protected class here. In other words, if there's a high overlap between a political symbol and an ideological, a political symbol, and then a symbol that signifies a protected class, the protected class gets the protection. And so

if you could say, well, it's really about politics, but there's also a perfect overlap or near perfect overlap with the protected class, it's hard for me to see a court kind of giving you that get out of public accommodation free card. Okay. What if everyone who walks in the store, they ask, we don't serve Zionists in this store, and here's three questions

to determine whether you're a Zionist. Probably store. And here's three questions to determine whether you're a Zionist. Probably okay. I think that one's just fine. Yeah. Weird. Weird, super weird, super dumb. And maybe it would hurt your business.

Yeah, probably hurt the business. What with the delay in getting in the store. Exactly. Well, you know, especially when they have to have their like committee resolve close calls, you know. What if their definition of Zionism is belief in the existence, belief that the state of Israel should exist? Would that be violating someone's or discriminating on the basis of national origin?

Like they're willing to serve you if you're Israeli, but you have to agree that the state of Israel shouldn't get to exist. That one I think is hard. That one's hard. That feels like, yeah, that one's hard. It feels like the only practical way to do it is the questionnaire. And we already said the questionnaire is fine.

Yeah, but the questionnaire, oh, interesting. So as long as you're asking it to everyone, you wouldn't even find out that they're Israeli. Therefore, you're not discriminating on the basis of national origin. But if the questionnaire only says, do you believe the state of Israel exists? Like, again, like come up with, you know, do you believe the state of Ukraine should exist? And then anyone who answers yes to that can't come in your bookstore. You're probably just discriminating against Ukrainians. Yeah.

In a different country than one that's in a conflict. Albania. I don't know. Yeah. Yeah. You. Yeah. If you say there is no Albania.

Yeah. And like you can only shop here. Albania. Yeah. And then like so only Albanians have an opinion on this. And therefore, is your like workaround. Yeah. That's probably going to given those facts and the obscurity of the country, that's

obviously. And it turns out that the owner hates Albania. That's obviously a direct attack on Albanian identity. Yeah. Look, I think the answer to all of these is if it's a pretext for discrimination on the basis of race, religion or national origin, then you're violating the public accommodation law. So all of this would go to, is this actually a political opinion

or is it just a pretext to discriminate? Yeah. Which is really what 303 Creative was kind of about. Right, right. Except that they stipulated. Except for the stipulation. It's amazing. I go back to that case as just a really amazing example of how the way you practice a case can incredibly, deeply influence the outcome. When it comes to non-discrimination laws more generally, whether it's public accommodation or employment non-discrimination or gender non-discrimination in education, etc., you're always looking out for the pretext.

you know, know of any category of person allowed, you're done, you're completely done. Or if you say, well, I'm not gonna hire any person who's in a protected, one of the protected classes, they know you're done. So they're always going with, oh, I didn't fire this person because of their race, I fired this person because they were tardy four times. And then you have, say, 17 white employees

that have been tardy 15 times and they're all there. You know, so then you look at is this pretext? But that's always the issue where in every every non-discrimination case I've been involved in, it's really a battle over pretext. All right. Now, David, tell us about this Hawaii opinion on the Second Amendment and Hawaii's constitution. And just note, everyone, that this is the Hawaii Supreme Court. And this, I think, baffles a lot of non-lawyers. But if you're talking about an issue of state law, state constitutional law, for instance, the state Supreme Court is the last court you get to go to. So if you think your state constitution sucks and the state Supreme Court says, no, yeah, it sucks, you don't get to go to the U.S. Supreme Court. They will not revisit or reinterpret or give the last word on state law.

Your only remedy at that point is to argue that somehow the state constitution violates the federal constitution and thus entereth Hawaii. This is an interesting case and it has not been, this might surprise you, Sarah, the reporting around it has been a little bit off, it seems like to me, but understandably off because the opinion is really quite confusing. And I actually, when I finish this, I'm going to end it by saying maybe I'm off. I had the, we haven't talked about this case yet. Yeah. I literally had the exact same conversation with husband of the pot. I called him and was like, this is a perfect example of, am I dumb or are they dumb? Yeah. One of us is dumb. Yeah. One of us might be dumb on this podcast. So let me tell you

my theory of the case here. And you tell me if, if I'm dumb. I'll try. But it is, it is a very interestingly drafted opinion that, okay, I'm just going to walk through it and it will figure it out. Okay. So essentially what's happening is you have a person who was allegedly trespassing. This is a really simple fact case. So that, you know, it just begins with a sentence. The facts are slim. By the way, throughout this opinion, you have the topic sentence of paragraphs. It's just a very short declaration. And it's an interesting effect. I'm not sure how I feel about it,

but it's one of the most interestingly written opinions. But there's a place called Flyin' Hawaiian Zipline and the owner named Dwayne Ting saw some men on his property via his videos. So Ting calls the police, officers start heading over. Meanwhile, Ting decides, you know what? I'm going to saddle up my ATV, grab myself my AR-15, and go after them guys. And so he does, gets in his ATV, grabs his own rifle. And then as the opinion says, he corrals the defendant, a guy with the last name

of Wilson. So he corrals him with the AR-15. Police arrive. When the police get there, this guy says, I have a weapon in my front waistband. He lifted his shirt. He had a small 22 long rifle caliber pistol loaded with 10 rounds of 22 caliber ammunition. A records check reported that the pistol was unregistered in Hawaii and Wilson had not obtained or applied for a permit to own a handgun. So he moves to dismiss. Wilson moves to dismiss the case, basically saying, you can't prosecute me for just simply possessing a firearm for self-defense purposes outside the home. I've got a right to do it. Hawaii statutes that are limiting that right are too excessive.

to do it. Hawaii statutes that are limiting that right are too excessive. You know, classic kind of defense to this case, post Heller, post McDonald, post Bruin, a lot of folks are challenging some of these firearms possession rules. And so the Hawaii Supreme Court, this is where, Sarah, it starts to get confusing. So the Hawaii Supreme Court is evaluating the Hawaiian Second Amendment. So the Hawaii Constitution has its own vision. I say Hawaiian Second Amendment, I don't know what number it is, the Hawaiian version of the Second Amendment. So the Hawaii Constitution has its own version of the Second Amendment, and it's nearly identical. version of the Second Amendment, and it's nearly identical. You know, there's no meaningful difference in the wording at all. And so they start interpreting, and as you said, Sarah, they start interpreting the Hawaiian Second Amendment, which is identical in language to,

or nearly identical in language to the federal second amendment. They then spend a long period of time, essentially, and this is where it gets really confusing. So tell me, you know, tell me if you think I'm losing it here. So they then do a really long discussion of text history, tradition, all of the Bruin stuff, and essentially say Bruin is all wet. Therefore, under the Hawaiian constitution, again, Hawaiian constitution, that he can be convicted. So they interpret, they go through and say, Bruin is all wet. Therefore, under the Hawaiian constitution, under Hawaii law, he can be convicted. And you're saying, well, wait a minute.

Isn't there a Second Amendment here? Because isn't he also protected by the actual Second Amendment? Well, yeah. So then at the very end of the opinion, and I'm scrolling, scrolling, scrolling all the way down to it. So I'm going through page after page that includes a citation of, I kid you not, the law of the splintered paddle from sort of... Oh, we're going to go into Hawaii history here for sure. Oh, yeah. So there's the law of the splintered paddle. I mean, like it goes into the spirit of aloha within the Hawaii constitution. I mean, all of this goes into ancient Hawaiian history

or maybe not ancient, but it goes into Hawaiian history. And then you go down, down, down, down, way on down. There's a whole section called the aloha spirit. And then at the very, down, down, down, way on down. There's a whole section called the Aloha Spirit. And then at the very end, it says, we also hold that the Hawaiian statutes do not violate the Second Amendment to the United States Constitution.

Quote, the right secured by the Second Amendment is not unlimited. The right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose, citing Bruin. States retain the authority to require that individuals have a license before carrying arms, citing Kavanaugh, concurrence, citing another couple of cases. And it says they allow a person to carry a handgun for self-defense outside the home

if they have a license. And then says there's no Second Amendment right here at all. And so done. So it's the weirdest thing. So they're saying it doesn't violate the state constitution because essentially the whole thing about Bruin is all wet and it doesn't violate the federal constitution because, hey, you can have a

licensing scheme done. And is that not weird, Sarah? Is that not? Am I am I missing something here? I found it very weird. I want to look at the audience and say, did you follow how weird that was? It's because it's a state constitution. They interpret it by essentially launching a broad side against existing Supreme Supreme Court authority against existing Supreme Court authority. And then at the very end, they wrap it up by saying, well, that Supreme Court authority doesn't protect him anyway. Is that it? Is that right? So for those who are curious about the Hawaii Supreme Court, before we dive into the rest of this, they're appointed to tenure terms by the governor of Hawaii, who picks from a list of four to six candidates sent from the Hawaii Judicial Selection Committee. The nominee is subject to confirmation by the state Senate.

They have to be a U.S. citizen, a Hawaii resident, and licensed to practice law for at least 10 years. Then after 10 years, the Judicial Selection Commission can opt to retain an incumbent justice for another 10 years, mandatory retirement at 70 years old. So the Hawaii Supreme Court has five members currently. And for those who do not keep up with their Hawaii politics, in fact, there has been a Republican governor of Hawaii. Linda Lingle was the sixth governor of Hawaii from 2002 to 2010. And she was the first Republican elected governor of Hawaii since 1959. First female governor and first Jewish governor. I mean, I guess when there's only been six, like a lot of first left to go there. Anyway, one, the chief justice has been

appointed by her. The other four have been appointed by the following, following on democratic governors. So I mentioned all that because there's a great book. There's, I'm sure, plenty of great books about the history of Hawaii. But I am partial to Sarah Vowell's book, Unusual Fishes. We don't learn about the history of Hawaii as Americans, at least not in Texas. And it really is fascinating.

And frankly, this opinion, maybe because of text history and tradition, maybe as a troll on text history and tradition. Feels like it. Feels, it felt a little trolly, honestly as a troll on text history and tradition. Feels like it. Feels, felt a little trolly, honestly, but regardless. It did, yeah. Walks through some of that history.

I guess what I find odd about just that section is that it's walking through major points in Hawaii's history. So they walk through the deposition. Is it deposition when you depose someone? Yeah, I guess it is. But like, do we use, are those two words the same to depose someone and to depose a king? Same word, different meaning. Yeah. Okay. So, okay. So there's the quasi deposition of the king, the bayonet constitution where literally at gunpoint, they make him sign away all of his

rights as king, basically. The daughter later says he absolutely would have been killed if he had refused to sign it. So she takes over on his death, same as a normal monarchy, then she's really deposed the second she tries to actually be queen. So that takes us to 1893. And this whole time they're running through what the gun rights were at that point. So then they walk through the 1898 to 1959 territorial governments sort of rules and regulations on guns. This line maybe stood out. Though the Hawaiian islands were now ruled by a subjugating nation, Hawaii continued its historic tradition of strict weapons regulation. maybe stood out. Though the Hawaiian islands were now ruled by a subjugating nation, Hawaii continued its historic tradition of strict weapons regulation.

I mean, it's not false. No, it's not false. Yeah, you're a territory. Then, and I'll get the number slightly wrong, something like 94% of Hawaiians vote to become a state rather than to continue as a territory. Now, there's some argument that like,

well, okay, but those aren't great choices., like continue being subjugated or have full rights. It's up to you. Yeah. So yeah, they picked full rights. Thanks for that. They would have preferred though, to have their country back. I'm more than willing to accept that as a distinct possibility. But regardless, they skip straight from, you know, the end of the territorial government to nothing 500 years before becoming a state but then not touching what happens once they become a state but you know what's fun about that David it doesn't matter because that's up to the Hawaii state supreme court none of us get to have any say over what they decide their state constitution means. So we can all laugh about their Aloha spirit section of this. And many people wrote news

stories about it. But they get to do that. And they get to say that the Aloha spirit is how they interpret their state constitution. What they don't get to do is say that the US Constitution doesn't apply because of all this history about how they didn't want to become is say that the U.S. Constitution doesn't apply because of all this history about how they didn't want to become a state in the first place. And so they get to retain sort of their own thing here. Right. That's not how that works. Right.

Because otherwise, Texas has some thoughts. In fact, a lot of states have some thoughts. Yeah, that's what was so weird about it. And it's very easy. And when I first saw like some of the news reports about it and looked at glimpses of some of the language, I thought, oh, these guys. And I even mentioned it on the podcast. These guys seem to have defied the Supreme Court.

It seems to me they just trolled the Supreme Court that what they essentially did was say, OK, let's do this is what text history and tradition should look like. Supreme Court. Right. And so this is how it comes out in our state. Supreme Court, you messed up, but we're not really defying you because you said we could have a licensing scheme anyway. Now, I am not convinced that the Hawaii Supreme Court's very brief summary of why the Second Amendment, as interpreted by the federal, like by the United States Supreme Court, doesn't protect this defendant. That was a very cursory analysis. Yeah. So I wanted to get to that. But hold on. Let me read something for those who are curious

what the Aloha spirit is and why that's getting like sort of chuckles in law world. In Hawaii, the Aloha spirit inspires constitutional interpretation. See this previous case from a concurring opinion. When this court exercises power on behalf of the people and in fulfillment of our responsibilities, obligations, and services to the people, we may contemplate and reside with the life force and give consideration to the Aloha spirit. and reside with the life force and give consideration to the Aloha spirit. That is actually statutory from 2009. Pretty cool, I gotta say, to have that codified into law.

The spirit of Aloha clashes with a federally mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. So that's the part, that's the sentence that's a problem. Because if you're simply saying, and maybe you think they were cursory, but like, no, we did think about it. The Second Amendment just doesn't apply here, the federal U.S. Second

Amendment. And in interpreting our state constitution, you don't have additional protection. As in, a state constitution only comes into effect if it's the ceiling on the right basically you need to go to the ceiling on the right and their argument if it's their argument that the u.s constitution protects less in theory then you would go to the state constitution and say does it protect more but they kind of did the reverse And that sentence is concerning because it seems to be that they're saying the U.S. Constitution is more protective than the state constitution. But we don't care because, quote, it clashes with the state constitution. Again, this is where I guess I get frustrated of being accused as being a both sides-er because we get a whole lot of coverage of Texas trying to quote unquote defy the Supreme Court

from the right and how all these people are trying to secede and there are nullifiers. But then no one's noticing this actual sentence in a Supreme Court opinion that says the spirit of Aloha clashes with a federally mandated lifestyle. That's first of all, that's a weird phrase. Yeah. That lets citizens walk around with deadly weapons during day to day activities. And we'll take a quick break to hear from our sponsor today, Aura.

Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A

frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay, but David, here's my question to you. At one point, they say, for instance, the Second Amendment only protects law abiding citizens. By definition, Wilson was trespassing. Therefore, he wasn't law abiding. Therefore, Second Amendment doesn't even apply. And then second, they sort of say, and again, it's pretty short, as you noted, even if it does apply. He's walking around, never tried to get a permit a permit you know putting it in his waistband

the second amendment doesn't protect that like you certainly the state can require you to get a permit therefore the second amendment doesn't apply to you because you never even bothered to try to get a permit so it's not like you can challenge our permitting process as being too onerous or in violation of the second amendment so So take those two arguments separately, David. One, can you say someone is not protected by the Second Amendment if they're not law-abiding? And the example of not being law-abiding is trespass because that was brought up in some of these recent arguments,

Rahimi, for instance, where Justice Roberts says, so like, what if you're speeding? Like, what if it's something unrelated to owning a gun? Now we can just say you don't have a Second Amendment right because you're not law abiding anymore because you got a speeding ticket. I mean, that's the heart of the Rahimi case. That's the case about the domestic violence order

that then basically suspends someone's Second Amendment right. So take that one first. Yeah. So I don't think it's the heart of the Rahimi case because the Rahimi case, the order is very directly related to a demonstration of physical danger to another person. So you have a domestic violence restraining order, which indicates that you're a threat. And in his case, it's an agreed domestic violence a quite concrete way that they're a threat makes a lot more sense than sort of saying, okay, if I'm lawfully carrying,

and let's say I'm lawfully carrying a weapon, and I suddenly go from 65 miles an hour to 70, by accelerating those five miles an hour, I'm now no longer lawfully carrying the weapon. I don't think that's going to fly. Or I'm walking across some property. You know, this guy, he says it was an inadvertent trespass in the case. We weren't intending to violate this guy's property rights. You're walking in the woods and you cross a property line without knowing it. Suddenly, the fact that you're carrying a gun when you do that adds a whole new criminal charge. I'm not so sure about that, Sarah. I think that

you're going to have, certainly under the current case law, you're going to have problems. The other part regarding licensing and permitting, the interesting, so Bruin is permitting, the interesting, so Bruin is that a state cannot have a may issue. It cannot be a may issue state. It has to be a shall issue state, but a shall issue state does not mean constitutional carry necessarily. So what that, the differences are a may issue meant that I have to show that I have a reason for the gun and a, and a state official subjectively using, you know, various criteria, but he makes a subjective determination about my ability or my right to possess a firearm and carry one for self-defense. And the Supreme Court says no to that. But it does not say then it has to be constitutional carry, which is any person

who's eligible to buy a firearm can also carry a firearm. The constitutional right is their gun permit. So there's no indication the Supreme Court's going that far. So you can have a carry permitting process as long as it is not subjective. So you could have, you have to have a class, you have to pay a fee, you have to get a fingerprinting, et cetera, which is like what all I did when I got a carry permit in Tennessee years ago. Such a humble brag. And, and so, you know, that is lawful, but not all of those will be lawful. So if you say, okay, Supreme Court, yeah, we'll let you have a permit for a gun no matter who you are if you pay us $1 million.

You know, obviously, you can't put that high a barrier, but you can put some barrier. And missing from the opinion really is a meaningful discussion of the actual permitting standards in Hawaii versus the Second Amendment, as opposed to versus the Hawaii Constitution, which you're right, Sarah, is entirely the province of the Hawaii Supreme Court to interpret. But the Second Amendment is hovering over here and their discussion of the actual Second Amendment

is so short and cursory, it's so conclusory that it's easy to sort of think that, hey, that whole discussion of the Hawaii Constitution, that was really our Second Amendment discussion, too. But if it was really your Second Amendment discussion, too, then that's where you get the defiance part. It's a mess. It's a mess. Yeah. And this one line, honestly, if they'd taken out this line, I think it would be much

harder to say they were defying the Supreme Court so much as they just gave short shrift to the analysis of the federal constitution because they could argue, like, we don't know this stuff very well. We don't do a lot of federal Second Amendment work. Feel free to go to the federal courts to try your hand at that one. Yeah. But it's this basically our constitution clashes with a federally mandated lifestyle like again if you read that as if there were you know the spirit of aloha clashes if there is a federally mandated lifestyle but instead it seems another way to read this is our constitution clashes with the current interpretation of the second amendment by the u.s supreme court that lets citizens walk around with deadly weapons during day-to-day activities. Again, I actually generously, like if you're reading it generously, I don't think that's what they meant. I think they meant

if you think the federal constitution allows any citizen to walk around with deadly weapons during day-to-day activities, then that clashes with our state constitution. But we don't think that's what the federal constitution does either. But they wrote it in a snarky way. Yeah, well, that's what was so confusing because I'm reading this whole thing and I'm thinking, okay, I'm looking for the defiance. I'm looking for the defiance.

Ah, there's the defiance right there. This federally mandated lifestyle clashing with the aloha spirit. But then I would get all the way down to the very end in the last like not, you know, like last page 1.1 pages or so. And it goes ahead and has this independent determination that it doesn't violate the Second Amendment. It's literally it starts on page 52 of 53. Yeah.

It's one page long. Yeah. So on the one hand, it's like, oh, wait, it clashes. And then at the very end, they seem to be saying, never mind, it doesn't clash because this doesn't violate the Second Amendment. Wild. So where they end before page 51. So right before they get to the Second Amendment, this is the spirit of Aloha section right after it talks about the clashing with a federally mandated lifestyle.

The history of the Hawaiian Islands does not include a society where armed people move about the community to possibly combat the deadly aims of others. Quote, the law of the splintered paddle shall be a unique and living symbol of the state's concern for public safety. That's in the Hawaii Constitution. Again, I kind of want to go read this constitution because it sounds beautiful. The government's interest in reducing firearms violence through reasonable weapons regulation has preserved peace and tranquility in Hawaii.

A freewheeling right to carry guns in public degrades other constitutional rights. The right to life, liberty, and the pursuit of happiness encompasses a right to freely and safely move in peace and tranquility. Laws regulating firearms in public preserve ordered liberty and advance those rights. There is no individual right to keep and bear arms under the Hawaii Constitution. So there is no constitutional right to carry a firearm in public for possible self-defense. There is nothing wrong with any of that. Unless you read it to say, and we don't care if the U.S. Constitution does include an individual. Right. And that's why the ceiling thing matters, because if you already know that the Hawaii

Constitution is below the ceiling of the U.S. Constitution, then you didn't really need to do all of this. For 51 pages. Right, because the only question then is like, the U.S. Constitution doesn't protect this and the Hawaii Constitution certainly doesn't protect more than the U.S. Constitution. We're done.

Which means the entire opinion could have started a few sentences down on page 52 and run another two paragraphs on page 53. It would have been a very short. Yes. Yes, it is. It is wild. And I totally get why people say they defied the Supreme Court because there's language in there where it seems to say quite bluntly, hey, this is why constitution clashes with federal mandate. But then they have the last page. And David, this again is why I get annoyed with the like, no, no, don't, you know,

when the left bans to kill a mockingbird in a school district, that's nothing compared to what the right is doing banning books. When the, you know, a blue state says that it's defying the U.S. Supreme Court. No, no, that's nothing compared to what the red states have been doing. I take the point, actually. There have been fewer examples on the left of this, fewer book banning, fewer Supreme Courts, maybe, although the Texas Supreme Court

certainly hasn't said anything like this. But I get it, like the governor saying that he's gonna ignore stuff. But the spirit is the same, and we should have the same reaction to both, which is deep concern of a country that is fraying, where there's an unwillingness or total disinterest in living in a pluralistic society.

Yeah. It's the same problem. Maybe it's less, maybe it's different. Maybe you're okay with it if you're on one side or the other. But it should concern us whenever it happens, regardless of the topic and regardless of the quote unquote color of the state. Yeah, absolutely. Absolutely. And sort of, yeah. And regardless of the topic, I think is really important because there's this sort of view that if you really like a law and someone is sort of

is engaging in civil disobedience or making noise about defying it, they're the monster. They're the abomination that causes desolation. But if you don't like a law, then it's like, yay, civil disobedience. And there's a great book that touches on a lot of these issues. David, what's the name of that book? It was written by this guy. book? It was written by this guy. Oh, gosh. Divided we something. Yeah, no. Divided we fall. No, I, it's so funny. All of this is unfolding. The one thing I will say, there's two thoughts that come to my head. One is I published my book way too early. Oh, yeah. And the other one is, regretfully, my thesis is bearing out. You can see it behind me. It's on my bookshelf right there. Yes, there it is. I see it. I think my regret is that I had you sign my book when we

were like buddies, but not like best friends forever. And I'm wondering what you would sign in my book now. Should we check out what you wrote in my book? Hold on. Oh, gosh, no. What did I write? Okay, Don, be ready to edit. All right, I've got the book. I've opened it up. First of all, the signature is like uppercase D, lowercase L, uppercase F, lowercase L. I don't understand how that's your name, but okay. There's no L's in your name at all. Interesting. Okay. And then the inscription says, to my partner in crime. That's it.

That's all you wrote. I'm not good at the signature. I'm not good at that. I expect you to bear your soul in the inscription for the next book that you sign for me. All right. Moving on. The Trump team filed their 110 page brief to the U.S. Supreme Court asking for the Supreme Court to continue the stay of the mandate from the D.C. Circuit.

And remember, that means the mandate when it issues from the DC circuit saying that the president does not have absolute immunity to criminal prosecution, basically means that the ball goes back to the district court and the district court can proceed with setting a trial and proceeding to trial. So maybe that's a good way to think of the mandate, David. It's like the ball. So like, or the pen, whatever, you know, depending on what industry you work in, like only one person can have the pen at a time on a document. So like, yeah, the DC circuit currently has the pen. And if the mandate issues, the pen goes back to the district court. And what the DC circuit was saying is, uh, this pen goes back to the district court on Monday, February 12th, unless you ask the Supreme Court to take the pen, in which case we'll keep holding the pen until they answer that question one way or another. None of it should be particularly surprising. But first of all, the standards for granting a stay of mandate pending disposition of a

petition for certiorari are well established. I'll just translate that, right? Stay the mandate until the Supreme Court decides whether to take the case or not. So do you let things keep proceeding down below or do you freeze stuff while the Supreme Court decides whether to take the case? Okay, here's the standard. One, there must be a reasonable probability that four members of the court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction. Don't worry about that last part. That's just referring to the original jurisdiction cases.

We care about certiorari here. Yeah. Two, there must be a significant possibility of reversal of the lower court's decision. Three, there must be a likelihood that irreparable harm will result if that decision is not stayed. I am so sorry, non-lawyers,

that we use all sorts of words to talk about different levels of probability. So like reasonable probability, significant probability, and a likelihood. So that's the percentage is different for each one of those factors. I know, it's crazy. How do we live in this world, David? Okay, so let's take these one at a time. One, the reasonable probability that four members of the court

would consider the underlying issue sufficiently meritorious. As in, is it likely to get granted cert? That's all that means. You know, it's an issue of national importance. You have Jack Smith having already told the court to take the case. Yeah.

Certainly a reasonable probability. That's not even more likely than not. Oh, I think they meet that test. I think they meet number, prong one, and it's not that tough that they meet that test. Prong two, there must be a significant possibility. I don't even know what percentage we're talking about. There must be a significant possibility

of reversal of the lower court's decision. They lose that one. Big. Womp womp. There's not even a significant probability. Possibility. No. There's a very low probability on that one. But okay. Number three, there must be a likelihood that irreparable harm will result if that decision is not stayed. I do think they win that one. Oh, I don't think so. Okay. So this one's fun, right? Because if a president has absolute immunity from criminal prosecution, that means they have immunity from the process itself, meaning from the trial. So the irreparable harm in that case, the violation of the right would be to stand trial at all. So if they don't stay this pending the resolution

of whether they take cert or not, I think pretty clearly there would be irreparable harm that would result because a person who is immune from standing trial would stand trial. But see, the key word in there is likelihood. And that's what gets me about this. How can you divorce likelihood of irreparable harm? Because when they use the term irreparable harm,

you have to realize that there's some kind of terms of art around this because irreparable harm doesn't mean what it means in regular English all the time. It can mean any time you've lost your constitutional rights is irreparable harm. So when you have lost your First Amendment rights, one of the reasons why you're given injunctions to allow you to speak is it's very hard to measure your harm and money damages. And so when you're just simply being deprived of your right to speak, so they call it irreparable harm. And violations, deprivations of constitutional rights are irreparable harm. and violations, deprivations of constitutional rights or irreparable harm,

if the test was a possibility of irreparable harm or a reasonable probability or, well, possibility of irreparable harm or reasonable possibility or whatever, I'd be with you, but it says likelihood. And the only way they get irreparable harm is the finding the constitutional violation in this case, which is not gonna happen. I see your point And it's kind of tricksy in my view.

It's tricksy, isn't it? Because it kind of builds in number two, as it would be irreparable harm if there's a likelihood that they're going to overturn the other decision, because otherwise there can be no harm because there was no right to begin with. Right. I don't think that's how I've ever read that. And I don't think that's how any lawyer has ever read irreparable harm standard. But I acknowledge to you that that's not an unreasonable interpretation, but it's never how an irreparable harm standard

has been read before, David French. Well, because this is, remember, this is always like number three. And if you're arguing this, what you end up arguing is you argue, look, we're going to succeed on the merits. And that means there's the reparable harm. So when you're arguing this, you always go from, I've just established we're going to succeed on the merits. And then when you succeed on the merits under the existing case law, that is a reparable harm. No, I hear you. Yeah. You're crazy, but I hear you. succeed on the merits. And then when you succeed on the merits under the existing case law, that

is irreparable harm. No, I hear you. Yeah, you're crazy, but I hear you. Okay. So those are the standards for whether the Supreme Court should issue this day. Here's the remember, I complained loudly about the D.C. Circuit's bizarre departure from its normal process in saying, basically, you can't go en banque and you've got four days to go to the Supreme Court about this or else we issue the mandate. And that they were taking into account a factor, i.e. the defendant's interest in delay, which is not a legal factor, and baking it into this order, which I thought was inappropriate. So here's how the Trump brief handles that. On February 6, 2024, the D.C. Circuit panel issued a per curiam opinion ruling against President Trump's immunity claims, providing an analysis that overlooks and

mischaracterizes many of President Trump's major arguments. On the same day, the D.C. Circuit entered a judgment directing the clerk to issue the mandate to the district court in four business days if President Trump did not file an application in this court to stay the mandate in that time. The D.C. Circuit's judgment directs the clerk to issue the mandate on February 12th unless President Trump notifies the clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, in which case the clerk is directed to withhold issuance of the mandate pending the filing of a petition for a writ of certiorari, in which case the clerk is directed to withhold issuance of the mandate pending the Supreme Court's final disposition of the application. The D.C. Circuit further directed that the filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate.

This order departs from the D.C. Circuit's ordinary procedures, which provide, consistent with federal rules of appellate procedurecedure 41B, that, quote, the court ordinarily will include as part of its disposition and instruction the clerk withhold issuance of the mandate until seven days after the expiration of the time for filing a petition for rehearing or a petition for rehearing on bonk,

and if such petition is timely filed until seven days after disposition thereof. Again, you don't have to even understand all that. The point is, they didn't follow their normal procedures, and I didn't really ever see a reason why. And I guess I want a whole DC Circuit opinion on why you get to depart from your normal procedures because of an election.

Same thing, by the way, if Jack Smith were trying to do whatever, like Jack Smith wants to speed it up because of an election. Donald Trump wants to slow it down because of an election. Why does why is one side more compelling than the other? Both of them want something related to an election that's not a legal standard. Oh, I think there is something more compelling when the argument is, if the government, if the U.S. says, we believe we can convict him beyond a reasonable doubt, the interests of justice compel this prosecution,

and the defendant, if he just runs out the clock, can just exonerate himself, that's a extremely unusual situation that does actually give, if there is a public interest in the prosecution, which a prosecution should not be brought unless there's a public interest, this is a United States versus, not a, you know, individuals versus. And if there is a United States interest in prosecuting him on the merits of this case, I mean, isn't that a relevant factor? No, but moving on.

I mean, isn't that a relevant factor? No, but moving on. No, I just I don't think that's a legal factor for the mandate. But I have just lost my motion to Judge Isker very emphatically. You got nod-dogged hard. So I'm always curious how briefs start out, because remember, they only have four days to write this 110 page brief. Oh, it's amazing. Yeah.

So I'm almost looking for typos in this thing because the likelihood that you're able to site check it and really go over it well is so limited in that amount of time. But I mean, I'm sure there were a few. I did not see them. So here's how it starts. This application is deja vu all over again. Citing Yogi Berra Museum and Learning Center Yogiisms, HTTP, Yogi Berra Museum dot org about Yogi Yogiisms.

Two months ago, after the district court denied President Trump's claim of presidential immunity in this criminal case, the special counsel filed a petition for certiorari before judgment, asking this court to undertake an extraordinary departure from ordinary appellate procedures and decide the vital and historic question of presidential immunity on a hyper-accelerated basis. This court correctly chose to follow standard judicial procedure and declined to do so. Now, at the special counsel's urging, a panel of the D.C. Circuit has, in an extraordinary fast manner, issued a decision on President Trump's claim of immunity and ordered the mandate returned to the district court to proceed with President Trump's criminal trial in four business days unless this court intervenes, as it should, in parentheses. This court should

stay the D.C. Circuit's mandate to forestall once again an unprecedented and unacceptable departure from ordinary appellate procedures and allow President Trump's claim of immunity to be decided in the ordinary course of justice. I'll run through their takes on the factors. First, the likelihood that this court will grant certiorari in the future is extremely strong. And then they cite the special counsel's brief. That's a nice troll. Second, you knew that was coming. That would have been malpractice. Oh, yeah. I mean, we said that that was a weird part about the special counsel doing this in the first place because they just handed their brief to the other side. But for a month from now.

Yeah. So there we are. There's a lot of special counsel citations here. Second, there is far more than a, quote, fair prospect that this court will reverse the decision below. The panel opinion misapprehends and contradicts the original understanding of the executive vesting clause and the separation of powers as interpreted in an unbroken line of legal and historical precedent all the way back to marbury versus madison yada yada i mean i already

said that i thought they got part of that immunity discussion wrong because they skipped over and conflated what ministerial and discretionary mean and basically blew up ministerial so much that anytime there's a statute something's ministerial which actually just undoes any distinction between ministerial and discretionary that being said i also said the outcome isn't going to change because of that, although it may affect individual counts, especially that DOJ count, I think, which is, I've always said, is a pretty weird count to be included. Third, absent a stay, the irreparable injury is inevitable. It is axiomatic that President Trump's claim of immunity is an entitlement not to stand trial at all and to avoid the burdens of litigation pending review of his claim.

Yada, yada. We already talked about that one. David, here's what I do think is interesting about that, that I think is a thumb on the scale only in the stay context, which is because presidents are absolutely immune from civil liability for all official acts. And that's the we don't have any precedent on the criminal side. To me, there's almost like a, the only time we've talked about immunity is in the civil context where we found full immunity. Now, we specifically said that didn't apply in the criminal context. And again, you know, my opinion that in fact, there is a more compelling government interest in the criminal context. And again, you know, my opinion that in fact, there is a more compelling government interest in the criminal context, because that right to a public

right, if you will. However, the fact that the only precedent on the books did find absolute presidential immunity to me goes to that irreparable injury standard, I guess a little bit under your theory. I can see that. Yeah, I can see that. I keep getting hung up on prong two. Yeah, I can see that. I keep getting hung up on prong two. Oh yeah, he's going to lose. Yeah, yeah. But he might lose in the sense that there's not absolute presidential immunity. And now you have to go back and determine whether the act, not on the out, like for

civil absolute immunity, it's all official acts, including at the outer perimeter. Maybe for criminal, it's only all official acts including at the outer perimeter maybe for criminal it's only core official acts you know like maybe we're actually just going to shrink the universe so it won't be absolute immunity but there will be some immunity in which case the whole thing's getting sent back which is not a reversal the way that a normal person would think of it reversing but it would be a reversal for the stay prongs yeah yeah it would be a reversal for the stay prongs. Yeah. Yeah. It would be a reversal for the stay prongs. And, you know, the one thing I keep thinking about is if you just took this in a vacuum and you evaluated, it's not Donald Trump, it's Donald Smith. And they're making a claim

with an equivalent level of underlying merit. This is the stay is not getting granted. But these factors, sometimes they just grant the stuff without even explaining. Like they just grant. Oh, for sure. Right. Yep. And so they can just decide, hey, you know, prong one, it's prong one is so big and so important here that we're just going to kind of run past prongs two and three.

And we may never know whether they run past them, run through them, over, under, aboard. We had to memorize prepositions when I was in junior high school. Aboard, about, above, according to, across, beyond, yeah. Wow. Yeah. I graduated from public school in Kentucky

and literally had no clue about almost all major grammar rules. I just went by what sounded right. I loved diagramming sentences. Isn't that weird? I found it really relaxing. Relaxing? Really relaxing. And it was one of those things that the older kids would always tell you, like, oh, just wait till you have to diagram sentences. So it also in my head was something that like adults do, even though it turns out that no adults diagram sentences. Yeah, yeah. No, I've never. But, you know, Nancy, my wife, she can diagram the heck out of a sentence. It is like she's in her element helping my youngest in grammar. I mean, just to it. Yeah. Yeah. All right, David, last and definitely not least, American Nightmare. So for our core audience that has gone and watched this, this is number one show on Netflix. And I said I wanted to talk

about it a couple weeks ago. And I didn't mean to make that big a deal about it. And I told you guys that this whole segment is going to disappoint you if you thought we were building up to something major. But now we have to talk about it. And the expectations are all out of whack. And as a former campaign operative, like it hurts my soul to like, have expectations mismatched with where this is headed. You're not going to let people down with this. You're not. I promise you that. Okay. So, uh, there's a few things worth noting here and spoilers, right? If you haven't gotten to watch this show and you think you're going to, but also don't, it's not actually that good. I watched it because I had a whole bunch of friends texting me saying like, OMG, you have to

watch this. And I'm like, that's weird. I don't really watch like true crime documentaries. But yeah, whatever. I've got two and a half hours to spare. I was on a plane. So a man basically walks into a police station and says, my girlfriend was kidnapped at gunpoint last night. Please help me. To which they say, what do you mean last night? It's 3pm. What? Why are you only getting here? And he says, look, they walked last night? It's 3 p.m. What? Why are you only getting here? And he says, look, they walked into our bedroom while we were sleeping. There were strobe lights. There were like three dudes. They held a gun to our head. They made us drink sedatives.

And then they told me that there'd be a camera on me. And that if I tried to call 911 or anything, they'd kill her. So when I woke up, there was a camera on me. And so I didn't. But then I just realized like there's no ransom coming in. They're not answering or whatever. And so then I woke up there was a camera on me and so I didn't but then I just realized like there's no ransom coming in they're not answering or whatever and so then I called 9-1-1 and I don't know what else to do and the police immediately jumped to the conclusion that they had some fight the boyfriend accidentally killed her then he freaked out didn't know what to do for a few

hours and decided to come up with this whole kidnapping story so they're interrogating the heck out of him so let's just stop right there, David. In the show that's portrayed as unfair and bad police work. No. Because that's 99% of the time what's happened. Like the boyfriend did it. The husband did it. I'm, you know, for those who've watched The Staircase,

now I'm a little biased because obviously I've raised lots of owls. No, the owl didn't kill her, you dum-dums. The husband, like Occam's razor, which is more likely? The owl did it or the husband did it? It's always the boyfriend, David. And the more elaborate story, the boyfriend or the husband concocts with the more amount of time

between the commission of the crime and the boyfriend or the husband concocts with the more amount of time between the commission of the crime and the reporting of the crime. Yeah, this is this would be like the grizzled, the grizzled detective talking to the young detective. He's like, boss, I got a live one. I've got the boyfriend in. He was locked up all on his own for like 15 hours and and the grizzled veteran says son she did boyfriend did it the boyfriend did it son and yeah okay so that's the first part that i find outrageous to blame the police for thinking that this is the same crime they've seen over and over again however 48 hours later she walks to her parents home 400 miles away from where she was with her boyfriend. And she tells the exact same story as the boyfriend.

These men walked in. We were held at gunpoint. They made us drink this sedative. I was put into the trunk of a car. Then I was transferred to another trunk of the car. I'm hearing traffic go by. And then I'm held at this cabin. At first she says she wasn't sexually assaulted. Then she says that in fact, he said

if she told the police that she was sexually assaulted, he'd kill her family. But she then tells the police that she was in fact sexually assaulted twice. Now here's where it does get a little weird for the police. They didn't assume she's lying yeah and it's because the movie gone girl had come out recently and when interrogating the boyfriend they found out that the boyfriend had been texting with his ex-girlfriend and that she had found it and had been super pissed as one would be generally speaking uh so they think that she's gone girled herself that doesn't make any sense the whole point of gone girl is that she's like gone yeah and then he gets charged like you wouldn't come back after two days and it's not come back girl yeah right and like in the movie she comes back but only to like then

have him oh i don't know like you haven't seen the movie it's actually a pretty good movie i've not seen the movie you know what david you know what i liked about the movie it was an original premise not a story that we've already done before. Did you know they're remaking the movie Twister? Yes, I saw that. Yep. What? It's not like that movie was made in black and white or before there were talkies. And it's not like everyone's saying, you know what you need? Another Twister. Twister. Yeah. Wow. Okay. Anyway.

Really weird. That movie's classic. I know. Well, who doesn't love a tornado? Okay. So then they start blaming her. They basically then say they're going to indict both of them. I don't even understand

how that can be possible because if she's gone girling, then he's innocent. And if he did it, then she's innocent. How did they both do this? And for what purpose? But they say they're going to charge her for lying,

for wasting police resources. And like, he's somehow implicated. I don't even follow all that. Although I will tell you that I thought the documentary gave really short shrift to some major questions that I would have had about like sort of the legal process and what was actually happening and maybe some of the details.

In the meantime, there is another six months later, I guess. sort of the legal process and what was actually happening and maybe some of the details in the meantime uh there is another six months later i guess um there's a break-in many hundreds of miles away parents with their 22 year old daughter a man tries to take their daughter and the dad just fights like hell and he doesn't take the daughter but they obviously call the police the guy left his cell phone behind and in the best procedural police procedural ever they dial mom on the cell phone which by the way is exactly what they that's true like that will that happens every time they can get a cell phone unlocked you dial mom and then you say oh my gosh we found this cell phone whose is it she's like oh it's my son's oh, he doesn't know his phone's lost. Where's your son staying? We'll bring it back to him. Oh yeah,

he's at this cabin in Tahoe. Cool, cool. Your son's a serial rapist. Okay. So they go to the cabin in Tahoe and they find this guy. He's been wanted for stalking, peeping, sexual assault, but they've never been able to bring charges. He is a graduate of Harvard Law School and a former Marine. Whoa. But David, before we get to what I think everyone can guess where I'm going with this, that there's something that'll be relevant about that last bit. Let's just take a moment for me to complain about this show. Like the most important complaint I have. It is a huge failure of public service to have young women watching this show and think that

when a man with a gun to your head says, take this sedative, don't scream, get in the trunk, don't scream, don't let anyone know where you are, don't try to fight, that you'll survive. She's a one in a million story. There's a reason that we don't have a lot of firsthand accounts of girls in trunks saying what it's like to hear cars passing by. And to realize that they don't know that she's in the trunk of this car or just driving on the freeway during everyone else's morning commute because they don't survive that. Yeah, right. Don't take the sedative. You are better off. because they don't survive that. Yeah, right. Don't take the sedative.

You are better off. Look, if he's willing to shoot you because you don't take the sedative, he was going to shoot you later after the torture. Have him shoot you there. It just, and like, same with getting in the trunk, same with not fighting. And this is like, you know, when I talked about my TERF status,

my trans exclusionary radical feminism, this is a big part of that. Not a big part. It's a part of it. Like the female experience is unique. A lot of mothers have this conversation with their daughters, like how dads have the sex conversation with their sons. The mom conversation is a little different. If he tells you to get in his car at gunpoint in the parking lot, get shot in the parking lot. You're better off because if he's willing to shoot you in the parking lot, he was going to shoot you later. And if he's not willing to shoot you in the parking lot, get away before he rapes you. Right. They never discussed that in the show. It is a miracle

that she is alive. She's now the mother of two children. She married the boyfriend. And then my second point is, boy, I'm so happy for them that through this trauma, they like created a family and marriage. And this isn't meant to disparage that at all. But the boyfriend took the sedative. Right. I just don't think I could feel safe. That's a great point, Sarah. Maybe I'm really traditionalist in this way,

but like as a woman, I expect that if I'm getting taken out of my house, husband of the pod is already dead. Right. Like that's an unstated rule in our home. Yeah. If the boys and I are leaving this house at gunpoint, he's dead. Yeah. That's the only way that happens. It's an important part of our marriage, actually. Yeah. No, I get it. I get it. We've heard I'm sure y'all have done this. Like you've heard sounds in the house. I don't get out of bed for that. And not because I'm asleep and lazy, though I am. But no, it's because they're supposed to kill him first.

Right. Give us a little bit of time to see if we can get out or fight or whatever else. So that's weird. But here's the turn, David. Yeah, I'm waiting. I'm like, we got to get to the turn here. We got to get to the turn. So he graduated from Harvard Law School after my 1L year.

And then he stayed around and was a research assistant on campus. I mentioned after my friend Will Concevoy died that Will literally saved my life one time. But I didn't tell the story. So I'll tell it now. my life one time, but I didn't tell the story. So I'll tell it now. After I had worked for Will at Wiley Rhyne, he was coming on a recruiting trip to, you know, recruit other law students. And after his day of recruiting, I met him for a drink at a very fancy hotel bar at the Charles Hotel. And I had like one or two sips of a martini and I just, I knew something was wrong. I had like one or two sips of a martini and I just, I knew something was wrong.

And it was a weird instinct, but my instinct was to run. And so I tried to run out of the bar. I only made it about three steps. I fell, I hit my head. At that point, of course, it's a little bit of a to-do, right? And so the hotel staff manager or whatever takes me out to the lobby and sits me in a chair. And this man says, I'm so sorry. He's super like apologetic. He has a very, I don't know, like meek demeanor. He's saying, she's my girlfriend. I'm sorry she had too much to drink. I can take her home. I'm so sorry for the inconvenience and to make a scene.

And I'm having trouble talking. I'm like sort of in and out. And the only thing I can sort of say under my breath is I don't know him. I don't know him. I don't know him. I don't know him. And Will Concevoy then notices that like, I'm not coming back from the bathroom. Yeah. Yeah. And he looks and clearly like, and Will is a huge guy. He's big and he's burly. As it turns out, he's not actually scary, but he definitely could kill you with his bare hands. And so he walks over and he's like, oh, what's going on? And this guy's like, oh, is my girlfriend. And he's looking at me because he doesn't know me well. For all he knows, that is my boyfriend. Right. And I'm just sort of like clearly out of it and dazed and saying,

I don't know him. And Will just gets big, burly bear. And the hotel manager is trying to get me out the door with this guy. Yeah. And Will's like, she says she doesn'tly bear. And the hotel manager is trying to get me out the door with this guy. Yeah, yeah. And Will's like, she says she doesn't know you. And the guy then totally backs off. Right. It's really weird. And then he's like, oh, OK.

Oh, sorry. And then he just disappears out the door and he's gone. Wow. So Will carried me home a mile that night to my apartment. And like, really, I mean, he saved my life that night. Goodness gracious. Do I know for sure that it's the same guy? I don't.

I'm one of those people who absolutely thinks that memories are incredibly fallible, that witness lineups are pretty horrible ways to put people in jail. But my physical description would match 100%. The demeanor matches 100%. And then you're just like, hmm, interesting. Yeah.

Wow. Wow. First, I'm sorry that happened to you. That's horrible with a capital H. Horrible. Except it was like, it's weird. It was inchoate, you know? So like, it wasn't horrible.

It wasn't particularly traumatizing because nothing happened except that Will and i became wonderful lifetime friends right because he carried me home that night and protected me and i was always incredibly grateful that he instantly believed me that there wasn't a question of like does sarah have some shady personal life right exactly no he was just instantly like nope i believe her i her. I don't know you. And we're done. Yeah. Yeah. Yeah. That's unbelievable. But I'm so sorry that happened.

And it's it's it feels like I mean, how many what's the Harvard Law universe of people like this? Right. Right. Gosh. Really, really weird. And again, if you've watched the show, you'll kind of see how my point of like the other crimes that he was committing up to the kidnapping crimes. Like he was like a serial killer. You know, he started small and then he worked up bigger and bigger and bigger. And most of the

time he wasn't successful. Like this one woman, he breaks into her house and says, I'm going to rape you. And she says, please don't. I was raped two years ago. And he goes, oh, no, I don't want to traumatize you again. And he left. Unbelievably bizarre. Really weird. Yeah. So part of the real life case, the person, he starts sending messages to the police saying, I don't know why you don't believe her. Yes. Yeah. And like she describes the rape where he was like, you know, I'm going to be gentle. I don't want this to be unpleasant for you. I mean, what? It's so. Also, David, we've talked about how I think more people should be disbarred. To California's credit, they had disbarred him the year before. Oh, and I went and looked up the disciplinary record of what actually happened and read the some of the file on that.

Yeah, I mean, I'm impressed, California, because I feel like a lot of other states don't disbar people for basically taking on a client and then like forgetting you represent the client and not doing anything. And it was in an immigration case where if you like the statute of limitations is really tight, if you forget to file specific paperwork, you're totally screwed. And so he had really messed up some people's immigration cases and taken their money, not performed the services, you know, just total delinquent representation.

And they did, in fact, disbar him before he was arrested for this. Unbelievable. Unbelievable. And with that, there are Supreme Court arguments next week, but they're not the interesting ones. And I'm so sorry to you advocates who are arguing next week that I just called your cases boring.

If you think I'm wrong, shoot me an email and convince me. But otherwise, we have very two interesting guests for one of our episodes next week. And they're repeat guests, but I think you're going to be pretty psyched to have them on together.

And otherwise, David, I just don't doubt that we're going to have some legal news between now and then. Yeah, it always works out, Sarah. With that, bye. Bye.