Advisory Opinions - SLAPP Shot

Episode Date: March 9, 2020

David and Sarah preview tomorrow's primaries with a special focus on Michigan, thoughts on coronavirus, the Trump campaign's lawsuits against the Times, the Post, and CNN, the execution of Nathaniel Woods, and an "in-depth" discussion on the XFL. Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to BMO ETFs. Where do you get your insights? Volatility has continued to be a hot topic. I think the Fed does have other cards to play. Are these mega cap tech companies here to stay? Never before has there been a better time to be an ETF investor. BMO ETFs presents Views from the Desk, a show all about markets and investing with ETFs.

New episodes every Thursday morning. It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. I'm liking these very action-packed podcasts that we've been doing, hitting a lot of topics, and we're going to do it again. We've got five topics. We're going to see,

ask, what are, we're going to ask Sarah, what are you looking for in Tuesday's primaries? We're going to talk briefly about the coronavirus in a manner in which we do not pretend to be experts. We're going to talk about the Trump campaign's lawsuits against CNN, New York Times, Washington Post. And by listener demand, we're going to talk about the Nathaniel Woods Capitol case in Alabama. This is a person who was executed in Alabama in spite of the fact that he had not, he was convicted of felony murder without having pulled the trigger. So we're going to go through that and we're going to wind up with the most in-depth expert analysis of the XFL that you will find on a political slash legal podcast in the United States. We may even want to narrow that further, but OK. I stand by that statement. Before we

launch into our conversation, and once again, please follow us, subscribe on Apple Podcasts to this podcast. Please become a member of the Dispatch and please rate us on Apple Podcasts to this podcast. Please become a member of the Dispatch and please rate us on Apple Podcasts. You guys have been doing a fantastic job of that and it helps us out a lot. So before we get to coronavirus, which we will get to coronavirus, we've got primaries looming tomorrow. We have Mississippi, we have Missouri, we have Michigan. This is the 3M primary day. And what, two more, correct? It's five primaries? Yeah. And so, Sarah, what are you looking for? Yeah, I mean, let's be honest. Only one of them matters. It's the do or die, it's the kill shot on the Sanders campaign in Michigan. So this is a state that mattered a lot in 2016 for him versus Hillary.

And, you know, there's been some like, I don't know, scuttle swirling comments that I'm kind of agreeing with. And I think tomorrow will be really important to determine whether this is true or not, which is 2020 shows us not how strong Sanders was in 2016, but how weak Hillary was in 2016. Right. And I think that's an interesting take that I'd want a little more data on, but there's certainly a lot of data right now to back that up.

And why Michigan is interesting, A, the Sanders campaign really will have trouble surviving after that because it's one of the states that Trump won in 2016. You know, Pennsylvania, Michigan and Wisconsin have been playing an outsized role for the last four years for a good reason. Michigan's the first one up in the primaries. Two, though, Biden did not do well with one group on Super Tuesday that I think we should all be looking to see whether he could expand on in Michigan. And that is in Minnesota and in North Carolina. We talked about this a little. Sanders won voters who felt like the economic gains of the last several years had passed them by. Right. Those voters are going to be very important to winning in November.

And it doesn't mean that they won't come home, of course, to Democrats by November, no matter who the nominee is. But you want to see Biden making gains, at least in that group, even if he doesn't outright win it against Sanders. What you don't want to see is Sanders really consolidating that group, because in 2016, what we know is that a lot of those voters ended up then going for Trump, not coming home to Hillary Clinton. And so that's that is one number that I'll be looking really carefully at for Michigan. I think we should expect I mean, there's not a lot of polls in Michigan, but the ones that we see have an average of Biden winning by 7%, but those include pre-Super Tuesday polls. It's very possible for him to win by double digits and even high double digits. Expect him to win the suburbs.

Expect him to win women and African-Americans and all the groups he won last time. What you want to look for is those groups he didn't do well with on Super Tuesday in California and whether he's making some inroads. You know, you're right. I think you're exactly right to pinpoint Michigan. And there's going to be this really interesting dynamic where in 2016, I remember this vividly. I mean, this was when Hillary was, you know, Hillary had come out of Super Tuesday, had done really well in the South. And then all of her momentum comes to the screeching halt in Michigan, which actually then turned into a preview of the 2016 general election, in part because her African-American base didn't turn out for her in Michigan. Well, that's an interesting point, too. So the Sanders team publicly many times told

reporters that he was giving a speech on race this weekend and to reach African-American voters. And then he at the last minute did not. What's interesting about that is not that he's conceded the African-American vote to Biden. It's that, OK, then what is your plan moving forward? How are you expanding this base that you have of young people, Latinos, well, young people and Latinos? And it made sense when he was like, okay, now we're going to hit African Americans. Now we're going to do this. The only base expansion that I saw this week in Michigan was that he has clearly made a concerted effort to reach Arab Americans in the state. That's great, but it is not going to be a national strategy to win this primary. And as the Sanders campaign decided that they're good where they are,

that they don't want to make concessions, you know, what they said in their reasoning for why he ended up at the last minute scrapping that race speech was his experience as a white Jewish man can't speak to that. I get it, but he's also male. Like, does that mean he can't represent women? Like, you know, that logic doesn't work a lot for the presidency. Right. So I'm not sure whether the Sanders campaign has packed up on winning the primary and now they're on to some other strategy of just being the progressive movement. That's where he's going to spend the rest of his public career. I don't know.

Well, you know, this I think this this Tuesday, I mean, if he loses in Michigan, which he appears set to do, he's going to be utterly routed in Mississippi. I think people are assuming he's going to be routed in Missouri. At that point, he's going to start to have this real math problem with the delegates. Oh, yeah. And then he has Florida coming up next. Now, I guess he's got a debate in between now and then, where I think the their sort of like last hope is he's going to expose Joe Biden as being, you know, having some some cognitive difficulties or whatever. It was really interesting to see Bernie Twitter and Trump Twitter sort of unite over the weekend and trying to amplify, you know, Biden's difficulties. But the other thing that I think Bernie has, too,

and I'm interested in your take on this. I think Bernie kind of has two problems in going forward. One, there's just no indication that Bernie is going to do anything other than be Bernie. And by that, I mean he hires this new guy as a senior advisor named Philip Agnew. And I don't know if you followed this at all, but this is a guy who has a Twitter feed full of like 9-11 trutherism, real anti-American hostility. He shares a cartoon that won second place in Iran's international Holocaust cartoon competition. You know, like this is these these are some of the people,

like Bernie has a real surrogate problem and he also has this real stubbornness problem that he's just gonna keep being like this. That's number one. And the other thing is, I've seen Bernie debate a lot by this point. You know, one of the dreary aspects of the job that we have is we watch all this point. You know, one of the dreary aspects of the job that we have is we watch all this stuff.

And I have never seen Bernie be particularly agile in his debates. He's kind of got one mode. He just talks about his agenda. No, but that's very effective. I mean, I don't think so. You're selling that as a negative. I would sell it as a positive. You can't get that man off message. Well, that's true. But if his goal is to sort of expose Biden, isn't that a little bit different than talking about Medicare for all again and again and again? Oh, oh, yeah. Like, I don't think he'll be able to do it. Right. But I think he'll be really effective at talking about his economic agenda and, you know, the corruption and the millionaires and the billionaires. Yeah. And the issue was always, could that message expand his base? For a minute, it kind of looked like it would. And then we got actual numbers

back from these states and it didn't. Right. Exactly. Exactly. And seen. And, you know, it is an interesting to sort of rethink 2016 in light of the emerging information. And and I just want to say, look, 10 days ago, this race looked totally different. So we can't make too many assumptions going forward. But to to reevaluate 2016 in light of this really a remarkable Biden surge and this really remarkable Bernie crash, it is it is really interesting. It will be very interesting to think through 2016 again and think through how much of the Bernie influence on the party post 2016 was less of an artifact of the strength of his ideas and more of an artifact of sort of this artificial strength that he had as a result of Hillary's weakness.

How much is sort of this idea of Trump as a, you know, kind of invulnerable, politically magic candidate is a product of his unique campaigning gifts. And how much is a product of Hillary's weakness as a candidate? I mean, these are going to be very interesting things to discover over the next several months. And maybe on Thursday, we should discuss the new Hillary documentary. And so we shall. Just as a preview, watched it on Hulu, reluctantly started it and couldn't stop watching. It was... Okay, Thursday, don't spoil. Okay, okay.

Sorry, sorry. Well, moving on from politics to, well, to pandemics and politics. That'd be like a good coffee shop name. Yeah, coronavirus. It would feel weird not to talk about the number one news story in the world right now. But I'm also very cautious about it because the one thing that has been so unhelpful

on Twitter and elsewhere is to have all of these voices that really don't know what they're talking about, about a highly technical problem that requires deep expertise to respond to, suddenly acting as if we have something to say about this. Right. I mean, punditry in general is a little like football. Like if you know sort of the basic rules, you get to have an opinion. Virology is not like that. These people have spent their careers planning for pandemics. And now the rest of us are like, anyway, so I read an article. Or I saw a really compelling tweet thread.

Right. And I clicked on the bio of the guy at the tweet thread and it looked impressive. Yeah. So I. You'll notice I haven't been tweeting much this week. Yeah, I have not. Yeah. So I have noticed I haven't been tweeting much this week. Yeah, I have not. You know, I tweeted one thing earlier today and and it was just basically something that is encouraging to me. And it was this. Amidst uncertainty, there are bright spots in my corner of the world.

Civil society is responding very well to the virus. Folks are altering habits cheerfully and institutions are responding, even as swarms of volunteers are cleaning up Nashville. It's encouraging. I'm referring to the tornadoes on Nashville that just devastated parts of downtown. I mean, it's really been amazing to see the public response there. But yeah, because that's sort of like I want you to say more about that, because on the one hand, what you need are a lot of people coming out to volunteer and be in close proximity to each other. And on the other hand, what the individual self-interest is, is, dear God, don't go out and be in close proximity to a bunch of strangers. So how is that coming together? Yeah, I mean, I think it's coming together in the fact that, number one, there's just overwhelming need. Like this is a disaster

that killed almost two dozen people, devastated homes. I mean, people are in a real crisis and that's actual and immediate, whereas the transmission of coronavirus feels much more theoretical and possible rather than actual or immediate. But at the same time, what you're seeing are rarely in my life have I seen messages. And I'm not saying necessarily that the federal government has done a great job at this, but the federal government is not the only relevant entity. Everything from media to state governments, to local governments, to word of mouth, it has spread that, hey, we don't want to be touching each other as much. That if you feel bad, if you're feeling sick, don't go out of the house.

And so I have noticed this really dramatic change in the way people are interacting with each other. No one is shaking hands. That's just super basic, but nobody's doing it. I've noticed, I was at church yesterday, and for one, the attendance was down by about a third. And if you're in church in the South in late spring, right when allergy season is, I mean, early spring, right when allergy season is coming online, there is one thing you hear all through the church. It is a coughing. It is sniffing. It is sneezing. And my church was quiet as a library. The healthiest people. Only the healthy.

Talk to God. And it just reminded me. And look, I'm not making any projections about spread. I'm not making any projections about ultimate outcome here. But it reminded me how much we depend on civil society. And can I also make a point about moving forward? At some point, this will be over. And there are things I hope we keep from this time period. One of which is getting rid of perfect attendance type activities. It is silly, A, because as Carly Fiorina was fond of saying, activity doesn't equal accomplishment. Showing up to school is an activity. Learning things is an accomplishment. Rewarding people for showing up, not even half the battle, like really very little of the battle. But second, that then follows people through to work and

everything else. And we've had this culture, particularly in America, of like, tough it out. And I mean, that person showed up when they had the flu. Right. Why? Why are we praising that? That's a terrible thing. And we talk about, you know, the people who want to minimize the virus are talking about how many more flu deaths there are each year. That's true. Do you know it would cause fewer flu deaths if people would stop going to work with the flu and getting everyone else sick when they have symptoms? Because that's a big difference between this virus and the flu virus that we believe that we know at least, which is that you know you have the flu. Stay away from the rest of us. Well, and you know, there's an interesting question here that now that we have seen what it looks like when a society says, hey, we're worried about a sickness spreading, so we're not going to go to work. We're not going to shake hands. We are going to have that, you know, we are going to wipe down a countertop before we sit down and eat. We are going to do those things. If that became part of our lifestyle during flu season, for example. Imagine. Imagine. But especially because for coronavirus, and again, we're only looking at very preliminary numbers from other countries

for the most part. But we're all taking these precautions in part because this is really most likely to affect our parents' age or above. And actually, the same is true for flu once again. So if we're going to be very considerate, wouldn't it be nice if that consideration lasts far past this? Yes. Well, and there's a we can wrap this up with that. I have just a couple of sort of political economic thoughts here. We can wrap this up with that. I have just a couple of sort of political economic thoughts here. One is that I shared briefly in the dispatch, our flagship dispatch podcast. Please subscribe and listen. Cross promotion. One is. It is. It is absolutely the case that we could contain this virus here, that we could limit its damage here,

that American civil society and American government could respond together in a vital one-two punch that makes this not nearly as serious as it's been in China, not nearly as serious as it was in Italy or South Korea. And we could still suffer big economic consequences to this thing because of what happens in the rest of the world, which demonstrates the extent to which we often boast of things, whether it's strong economies, whether it's rising stock markets that are not completely in our control. Not completely. I'm shocked, shocked to find gambling in this establishment. And then the second thing is, I think that a lot of the commentary around Trump has been wildly overblown in both directions. I do think he gets credit for limiting travel

out of China early on. He should get credit for that. And there were media outlets that criticized him for that when he made the decision, just because they're sort of a reflexive criticism of everything that he does. It is also true that there have been some testing failures. I don't, it's not like Donald Trump is designing and assembling the tests, but that's a problem. But, you know, look, That's a problem. But, you know, look, rather than sort of tweeting what he tweets, wouldn't it be better if he sort of tweeted, used that enormous platform, that bully pulpit to more consistently sort of communicate what the CDC is saying and communicate the advice that a lot of its advisors are saying in other forums? All of this trying to minimize, trying to minimize, trying to minimize, as we said in our morning dispatch, he better hope he's right about this.

He's better hope he's right about it. Because if you minimize and you minimize and you minimize and you turn out to be wrong, that is, I mean, that will be hung around him, rightfully so, as sort of a dangerous and irresponsible use of his bully pulpit from this day forward. Let me give you the political analysis of what you just said. If this thing is a complete disaster, the economy tanks, tens of thousands of people die, it won't have mattered politically what he said. It's going to get hung around his neck anyway. He will lose re-election because the economy's tanked. So therefore, if that's the outcome, if it's bad,

then it doesn't matter what he said, in which case then the only outcome that matters is if he's right. See what I'm saying? There's no downside for him to what he's doing right now politically. Fast forward to November. Now, of course, a very good counter argument to that is maybe it shouldn't all be about November. Right. But, you know, if wishing made it so. Yeah, yeah, yeah. I mean, it's this thing. This thing is a test for not just the federal government. It's a test for the state government. It's a test for each of us as we decide how we interact with our fellow human beings. Jim Garrity tweeted it out where kids of parents who had been exposed to a virus went to a school dance. And, you know, that that's the kind of thing that if you're a public health official, if you're the president of the United States, if you are a mayor, if you will make you pull

your hair out, because a lot of this also depends on a huge amount of voluntary compliance. Because a lot of this also depends on a huge amount of voluntary compliance. So this is one of those circumstances where it feels to me like lots of different systems have to work together at once. We have the capacity to do that. We have the ability to do that. Whether or not we have the willingness and the competence to do that will remain to be seen. So let's talk defamation. Yes.

All right. Now we shall now move on to the legal portion of this legal podcast. So, Sarah, the Trump campaign is feeling increasingly litigious. It has now sued The New York Times. It has sued the Washington Post. And it has sued, most recently now, CNN. Yes. And it has sued them over opinion columns published by each publication. For example, I'm looking at the complaint filed against the Washington Post. And for example, it is claiming here, here's one of the key paragraphs. It says on or about June 13th, 2019, the Post published the article entitled Trump just invited another attack. Mitch McConnell is making one more likely by Greg Sargent, which contained,

and this is I'm quoting from the Trump campaign complaint. I'm not making a legal judgment. The defamatory claim that special counsel Robert Mueller concluded that the campaign, quote, tried to conspire with a, quote, sweeping and systematic attack by Russia against the 2016 United States presidential election. That's one of the complaints. Yeah. And the other two are similar in the sense it's always it's about the Russia collusion effort. They're all opinion columns. Yeah. And like so let's dive in on The Washington Post one a little.

Yeah. We'll just pick one here. So if you go to that op ed. And like, so let's dive in on the Washington Post one a little. We'll just pick one here. So if you go to that op-ed, the paragraph in question says, Mueller also concluded that Trump and or his campaign eagerly encouraged, tried to conspire with, and happily profited off those efforts. Yet Mueller did not find sufficient evidence of a criminal conspiracy and then that paragraph links to an atlantic piece that is called five things i learned from the muller report by benjamin wittes that uh discusses that further so um and again, so the the New York Times piece that's over a line that says that the campaign had, quote, an overarching deal to with Vladimir Putin's oligarchy to is that the campaign, quote, assess the potential risks and benefits of again seeking Russia's help in 2020 and has decided to leave that option on the table. Based on the comments that Jared Kushner and Donald Trump made in public statements that they would not per se reject information about a political opponent in various interviews that they gave. So, I mean, this is fun, right? Let's talk some libel law.

Yeah. Well, you know, the basic they have. Let's let's first talk law, then then facts. Number one, I'm going to go on a not too far of a limb and say they're losing these lawsuits. And here's why I say that. One is these are under New York Times v. Sullivan. The statements, the allegedly libelous statements have to have been made with an actual malice. In other words, with knowledge that they were false or with reckless disregard for the truth for you to prevail. It's a high bar. It's a very high bar. And in practice, I mean, that bar sounds high when you read it. In practice, it is almost impossible to surmount. You can survey the law of these kinds of suits. And you will find very few examples of a plaintiff prevailing when they're a public figure, especially challenging statements in an opinion column. Now, the fact that I think that is part of the key, by the way. Yes. The fact that it's an opinion column isn't

an ironclad defense. In other words, I can't say, I couldn't say, for example, in an opinion, I couldn't make a false statement of fact to support my opinion in an opinion column. I couldn't say. Right. And just slap the word opinion on the top. Exactly. No, it's not a cure-all. Exactly. But. Exactly. But. But it is different. Exactly. But exactly. But but it is different. It signals that I'm making a judgment here. This is a judgment call, not a hard news reported piece. And one of the things I think that is difficult about some of about his complaints. Let's just take the let's take the CNN complaint, for example.

He says this. This is the Trump complaint. He says the statement that the campaign has decided to leave the option on the table of seeking Russian assistance was made up out of whole cloth. Now, what the actual report says, or the actual CNN article says this, the redacted version of the Mueller report was made public April 18th. Not surprisingly, it wasn't long before the Trump campaign suggested it was keeping the option of soliciting help from a foreign government for the 2020 campaign. So it's soliciting help from a foreign government for the 2020 campaign. And then it goes on to talk about in early May, the very next paragraph, Rudy Giuliani,

one of Trump's attorneys, announced he was going to Ukraine to meet with the president-elect to urge him to pursue an investigation into links between Joe Biden's son and a Ukrainian gas company. While Giuliani canceled the trip after receiving bad press, the campaign never suggested it did so because it's illegal to seek help from a foreign government. You know, this was written on June 13th, 2019. We just went through an entire freaking impeachment over the idea that was Trump trying to hold up aid, lethal military aid, vital military aid to Ukraine in exchange for an investigation of Joe and Hunter Biden. The idea that that is not enough to support the claim under the New York Times v. Sullivan standard that it was keeping open the option of soliciting help from a foreign government for the 2020 campaign is ludicrous.

They win this. There's also an issue in all three of these where they're citing in the complaint sort of this overarching statement that then the piece goes on to defend with fact stuff. Yeah. So legally, these were all filed in federal stuff. Yeah. So legally, these were all filed in federal court

based on diversity jurisdiction, which means they were from separate states and that the amount in controversy met the minimum for federal jurisdiction. This is very relevant because if anyone out there is familiar with anti-SLAPP statutes, they don't apply in federal court often. And they definitely don't apply in D.C. and Georgia, which are two of the three.

Well, tell the people what a SLAPP, anti-SLAPP law is. I am so glad that you asked. I am so glad that you asked. So this makes it more painful to file frivolous defamation suits. Right. These are state laws that make early dismissal of meritless lawsuits easier for people who have been sued for defamation. And often you have to pay the attorney's fees. Yes. and so there's sort of a punitive aspect of it slap s-l-a-p-p stands for strategic lawsuits against public participation which is sort of

a meaningless phrase but it's really about exactly this suing reporters and opinion columnists by public officials for things you don't like that they said to you that were critical, not because you think you're going to win, but to intimidate them and basically bully people into not wanting to say something critical or else they'll get dragged into court. Yeah. And it's especially a tactic that is problematic if you have a person with deep pockets filing a series of lawsuits against people who don't have many financial resources. And you can... Which includes almost all local media at this point. Exactly. That's exactly right. And so a strategic lawsuit against public participation is, hey, I don't have any basis for believing that I'm going to win. But what I'm going to do is I'm just going to bleed you dry financially.

And so what this does is it gives me the ability, if I'm a defendant, to summarily dismiss and get attorney's fees. And Sarah, one of the two of us has actually won an anti-slap motion and collected attorney's fees for it. Hey, that's exciting. Good for you. I've settled mine. attorney's fees for it. Hey, that's exciting. Good for you. I've settled mine. And so it can be very, very effective. And it's very interesting that the Trump administration or the Trump campaign, just like Devin Nunes, by the way, he's been filing a series of lawsuits against individuals, has tried to steer clear of those jurisdictions with anti-SLAPP statutes. There's a good reason for that. Most of these complaints could not survive an anti-SLAPP motion. And there is no, there's been talk of having anti-SLAPP laws on the federal side, but no real movement in that direction. And the Trump administration,

the Trump corporation, Trump entities, and Trump himself through time has filed many defamation suits dating back to, I think his first one, which is the 1984 suit against the Chicago Tribune over an opinion column about how ugly a building he wanted to build was. Now, that is a good pull of trivia right there. I was not aware. But, you know, there's another thing that's interesting that's happening here, because if you look at, and again, I'm looking at the Washington Post complaint, what I've noticed from a lot of the hardcore Trump defenders is they have started to have a very expansive definition of the quote unquote Russia hoax. Okay, so there is a version of this, which is the, let's just say, what I would say is a legit claim of the,

a legit use of the term Russia hoax, or those people who run around believing the Steele dossier is true, down to each and every specific allegation. That is unsupported. And most of the material allegations of the Steele dossier are unsupported. And if you're running around believing the Steele dossier, you know, that Michael Cohen met somebody in Prague, et cetera, et cetera, et cetera, then that is the Russia hoax that I would say is a fair definition of the term. But what you're beginning to see, and you've really seen it since the Mueller report came out, is that they're expanding the definition of the Russia hoax to include the things that the Trump campaign actually did. OK, so it is actually true that Donald Trump Jr. met with a Russian lawyer in response to an invitation to meet to share information gained from the Russian government as part of a Russian government plan to help Trump win. That was the invitation of the meeting. And Donald Trump Jr. said, if that's what you say, I love it. And he brought in Jared Kushner and Paul Manafort into the

meeting. Now, it didn't turn out, according to all available evidence, that they received the evidence that was promised. But is it fair to call that tried to conspire with? I think that's. This is David, by the way, trying to get us sued. was sued, I don't think I would file an immediate motion to dismiss. I think I just want it. I would go straight for discovery. I would I would serve interrogatories and document requests unlike anything they have ever seen. But the so part of this, quote unquote, Russia hoax is they're trying to get the actual facts that were uncovered in the Mueller investigation essentially ruled out of bounds. Not long ago, I was having a conversation with a person, he's a pastor at a very large church, very active in the evangelical world, and I mentioned the facts that were contained in the Mueller investigation. And he said, no, that's the Russia hoax. I said, no, no, that is not the Russia hoax. There are facts

about Roger Stone's attempts to contact and try to establish a ongoing communication pipeline with WikiLeaks. There are facts about the Donald Trump Jr. meeting. There are facts about Manafort sharing polling information. There are facts about Michael Cohen lying to Congress about about Trump Tower Moscow. I mean, these are facts. And if you say these facts, you will get gang tackled online quickly as being saying, well, you're spreading the Russia hoax. And this raises the next question on these libel suits, which is the political question. OK, then if they can't win, fine, there's no anti-SLAPP federal law, but then why do it at all?

And I think that the, you know, Andrew McCarthy wrote a nice piece in national review that i'll give a shout out to um about this as well and he says that it's crazy right that like trump's having a good week you know a good month or whatever this is pre-coronavirus and uh and like and he just can't help but shoot himself in the foot and i don't think that's it at all i i do enjoy the piece by the way and it's worth reading but i think they absolutely see a strategic interest in this which is one uh slap right not anti-slap slap um which is to make these outlets think twice especially on opinion columns about what they're publishing two to the extent it doesn't do that fine uh but there's a reason that it's CNN, Washington Post, and the New York Times. And when you go look at trust in media declining, and they've done these by individual outlets.

Pew has done some. There's actually a lot happening right now on the social science side of this. Those are the outlets being driven down most in terms of trust with a partisan gap. Right. And I think heading into a campaign season, you take out the enemies that are going to be most effective. And so if the New York Times, Washington Post and CNN have sort of the highest circulation of, you know, trust and everything else, then you can say we're suing them for libel.

Yeah, they're so bad. Don't trust what they're saying now because we've sued them for things they've said in the past. And I think that that will be effective amongst a certain group of voters. And there's a there's very little cost, as we said, without anti-slap litigation. Yeah, they'll get dismissed. They don't really have to pay attorney's fees. It's kind of a wash for both organizations.

Maybe the New York Times and others might get an opinion beyond just the dismissal granted about how frivolous this was, but maybe not. And I don't think, like you suggested, David, that they'll pursue discovery. I think they'll go for the dismissal. No, no, no. I mean, their counsel, you know, their counsel, the best interest of the client here are to, is to pursue an immediate dismissal. Because if you ring up the legal bills with discovery, I mean, those things can mount. And it's not like The Washington Post, CNN, or New York Times are going to hire the cheapest lawyers in America. They're going to, the legal bills will mount quickly. But the. No, although that being said, don't underestimate Jeff Zucker, Arthur Salzberger. Like, who knows how litigious people are feeling right now. That's true. That's true. You know, and and I also think that this is

just part of Trump does a very good job of knowing what people like him for and doing more of that. And so if if he understands very keenly that millions and millions and millions of Republicans like him for fighting the media more than George Bush did, more than Mitt Romney did, more than really any other Republican did. And so this is doing exactly what those millions and millions of people is that same set of people is also most likely to disbelieve any allegation about Trump and Russia. They're most likely to disbelieve all of this. And so they're going to read it and say, oh, yeah, these are all lies and good for him. And this is, you know, this is sort of Trump version of fan service. And that that's sort of a core of his entire reelection strategy, which is not, hey, I'm going to reach out to all these new people. It's, I won once with this army, I'm going to win again with this army. And this army is going to be even more dedicated than it was in 2016 because they have now learned that I take care of them and I do what they, I do what they like me to do. And I think that's part and parcel. And that's exactly what Bernie's strategy was this time around as well.

Yes, indeed. So we're full circle. Okay. I don't want to give short shrift to our, well, I didn't really mean that to be a double entendre, but to our death penalty conversation. Yes. Because I think it's an important one and an interesting one. Yes. So do you want to go through the facts of the case or do you want me to go through the facts of the case? Well, there's the facts as they've been reported and then there's the facts as they've been described in the brief.

Yes. I think starting with the facts as they've been reported is actually important because that's what most people saw last week. Yeah. So I'm going to do that. But bear in mind, this is not necessarily the facts as they've been pled in some of these briefs. And this is going to be interesting because I don't actually know what you're going to say about your assessment of the case. because I don't actually know what you're going to say about your assessment of the case. Ditto.

Yeah. Yeah. So I've had longstanding feelings about this is such a perfect case to discuss for me. So Nathaniel Woods was executed last week. He was convicted of what amounts to felony murder for the killing of three police officers. A fourth one was shot and survived. Woods and the accomplice were in their Birmingham apartment where they lived and sold drugs. And the police officers, the four, were there to serve a misdemeanor warrant for Woods.

Spencer, the accomplice, says that he shot the officers when he saw them beating Woods and pointing a gun at him. And his defense was that he pulled the trigger in self-defense at that point. It's worth noting this was the deadliest day in Birmingham police history. And also relevant is when Woods is arrested for this. Before trial, they offer him a plea deal of 20 to 25 years in prison that he turned down. The reasons for why he turned this down become very important.

But he says that his trial lawyer told him that he could not face the death penalty because he wasn't the trigger puller. That is wrong as a matter of law of course because felony murder uh you know if you're all part of the same plan it doesn't matter who pulled the trigger it matters that you were part of the plan so both woods and spencer were convicted of murder both were sentenced to death Spencer the trigger puller however has not had his death penalty carried out so there's also some outcry here that the trigger puller is alive and that the accomplice the alleged accomplice with these you know some of these stories uh was put to death okay i think that's a pretty oh and one other

important thing alabama does not have a unanimous jury requirement for sentencing it does have to be 10 or over so 10 of the 12 jurors on the case voted in favor of the death penalty and the judge then decided in favor of the death penalty we'll get that that's actually very unusual in this country right now but not unheard of and it it seems to be changing. The Supreme Court has not taken up for our views. So I went back and I found the original. I read multiple court decisions about this case because it had a really interesting procedural history. Although the facts of the case are not. It is not one of those death penalty cases where there's substantial, substantial evidence. The famous death penalty cases that you will read about and that really

tend to capture the imagination often have sort of substantial elements of doubt about the guilt of the defendant. Right. This is not, it is not an actual innocence case legally. No. There are some in the media who have said that he is actually innocent. However, legally speaking, they did not pursue this as an actual innocence case. They pursued it as an ineffective assistance of counsel case. And that's why, for me, this is an important case to talk about. I don't think there's anyone out there in the country who legitimately believes that we should ever put people to death who are actually innocent there's some question on the process that we should give to actual innocence claims but even people in favor of the death penalty i know want to give more process to actual innocence claims they want to give less process to non-actual innocence claims

but just not the death penalty right argument right Argument. Right. And so so I think we should treat this not as what in the press it may be treated as, which is maybe he was innocent. I think we should treat this as what the legal arguments were, which is not an actual innocence. Yeah. And I think the press did a disservice by very briefly describing this in a way. Well, he didn't pull the trigger when the reality was these officers had come to his house before. He had told them he had threatened that if you come in here, we'll F you up. They went, confirmed that there was an outstanding warrant for him, went back to the house. When they tried to arrest him, he retreated into the house. The officers came into the house and the evidence was they didn't have their weapons

drawn when they came into the house. Woods' friend opens fire on the officers and Woods, there was evidence that Woods, this wasn't just sort of like, I'm the driver of a convenience store robbery and I had no idea that my friend's gun was loaded, sort of felony murder. This was, there was also evidence that he was pointing out targets for his friend to shoot. So this this looks to all the world like a a true ambush killing of three police officers. And I think that there's then good reason why this was not an actual innocence case. And it was a disservice of the of the media to kind of hint around at that. of the media to kind of hint around at that. And at their cert petition, part of their ineffective assistance of counsel claim is that the evidence at trial would have, would, was overwhelming and that the lawyer needed to tell him that.

That the evidence of his accomplice actions was overwhelming. So it would undermine an actual innocence claim as well. They couldn't pursue both is the point. Right. And so to me, there were two aspects of this that are ineffective assistance of counsel or two aspects that were that if you're wanting if you're wanting your death penalty cases to be as flawlessly tried from start to finish as possible and flawlessly, you know, litigated from start to finish as possible, there were two elements of this that were troubling. One was the allegation that his attorney did not tell him that he could

be executed even if he wasn't the trigger man. And the other one was that there was evidence that his initial attorney just sort of abandoned the appeal, just kind of walked away from the case. just kind of walked away from the case. This is a close one for me, Sarah. This is a close one for me. I have to be really honest. You have no real dispute about guilt. I am not somebody who is, as a matter of moral principle, opposed to the death penalty. So I'm not opposed to the death penalty in all circumstances. I support the death penalty in limited circumstances. And so it's not like I'm looking for any reason to get somebody. It's not as if I'm looking at a death penalty case and saying, because I'm opposed to the death penalty, I'm looking for any potential reason to have this sentence commuted or overturned. So I'm not approaching it from this standpoint,

but at the same time, because I support the death penalty and some limited circumstances, and because we have to absolutely do everything human beings possibly can do to support, to make sure that only guilty people are being executed, effective assistance of counsel is absolutely critical. And so when I see somebody being, when there's evidence that a person was told in plea bargain negotiations that just flat out false information about life and death, I am very leery of executing in that circumstance, but I'm very interested in your view. I've worked on a number of death penalty cases. I've also worked around this area some as well.

I worked in a neuroscience lab as a fellow for a while on criminal justice issues. And here's what I would tell you about this, David. This case is about the most run-of-the-mill, common, habeas petition death penalty case you'll see. They all look about like this. You know, when we're separating the actual innocence ones and the procedural ones. There's always allegations the procedural ones. There's always allegations of procedural error. Always. Yeah. And this one is ineffective assistance of counsel at trial that was then waived because of ineffective assistance of counsel at the appellate stage, which made them miss that deadline. So it,

and I will tell you, you know, if you go read that cert petition, there are some typos in it. They do not meet the Supreme court's filing standard. And here's a silly one that I'll point out that everyone can go look at. If you go read the cert petition on the front, where it talks about the council of record, they list their address and forget to list the state and

zip code I know that sounds silly but that is required they did not do it and it goes to like an attention to detail on the one hand it also goes to um I don't know the level of counsel that you're getting so you could argue this is ineffective assistance of counsel turtles all the way down and I think unfortunately what um this is incredibly common and I find Justice Breyer's thoughts on this and he has spoken about it at length to be somewhat persuasive at some point when the death penalty uh is not administered based on the crime but based on frankly the effectiveness of your counsel whether it falls below the legal standard for ineffective assistance of counsel it becomes arbitrary right and arbitrary is cruel and unusual uh it was compared to lightning striking. And in this case, you know, I was fortunate when I was clerking, none of the death penalty cases that I am thinking

of right now were actual innocence claims. Those are much harder to work on. But if it's really, you know, if you have a great lawyer and you're not going to get the death penalty because of that, that's a big problem for me. And whether his counsel fell below the legal standard for ineffective assistance of counsel, even reading the cert petition where there's money behind it, there's people involved. Kim Kardashian is on this situation and there are still typos and these people don't know how to file a cert petition. I think we have a big problem with our death penalty jurisprudence in this country. So I'm going to agree with that 100%. I completely, totally agree with that. I think that that's what, you know, when I look at these things, it's not a it's not a reason to execute the man that ineffective assistance is common. you know, about your work more recently. It's also true that when I had exposure to this in law school, spent some time with the U.S. Attorney's Office in Boston, and, you know,

just looking at one of the things that you end up doing is looking at some of these prisoner petitions and formulating initial responses to some of these prisoner petitions. And you look at these things and you're just amazed often at the lack at the low quality lawyering that occurs. And, y'all, I know that there are law students listening. Guys, I can just tell you, we have too many lawyers in America. Arguably, it is indisputable we do not have enough good lawyers. It is indisputable. And especially we have a real need in the criminal justice system for excellent representation.

And I have huge amounts of sympathy for public defenders, many of whom, if they had the level of practice, in other words, the number of clients and the amount of resources that white collar, you know, that high end, say white collar criminal defense attorneys have, would be outstanding. Right. That's such an important point. This is not to crap on public defenders. It is not that they are all bad lawyers at all. There may be some bad lawyers out there, but the vast majority, the problem is the overwhelming caseload and the pay all combined. And that, to me, makes a system that doesn't work. It's not a moral objection to the state taking a life that you have to buy into here. But if you buy into the fact that the

process as we currently have it cannot administer justice fairly and across the board without account for wealth, race, status, and all of those things, which I think if you work on these cases, you will quickly come to that conclusion. Well, I think you can be against the death penalty for other reasons. Right. And I think that, you know, I keep going back to this in my mind. This let's circle all the way back to coronavirus. How much we need competence in this country. You know, so many of our arguments, political arguments are about ideology. So many of our political arguments about pure partisanship. Man, do I wish we had more of an emphasis on just pure

competence and excellence, not just competence, but a commitment to excellence in creating functioning systems. And, you know, I think if you talk to folks who get deeply exposed to the criminal justice system in the United States, again, you will find people who are doing heroic work. You will find people who would be capable of doing incredible work if they weren't so overwhelmed. But you will also see a system that is overrun with mistakes, overrun with disparate outcomes, depending on your financial resources, overrun with disparate charging decisions based on the projections of disparate outcomes based on resources. And well, don't forget the judicial system then gets flooded with

arguably frivolous, habeas petitions as well. And so the meritorious ones don't get the attention that they deserve. Yes. And this is all, by the way, just on the legal death penalty cases. The actual innocence death penalty cases have enormous problems as well. There was an en banc case in the Fifth Circuit that I think is just worth, it will stick with me for my whole life. so a man was found guilty of armed robbery and he was sentenced to 50 years in prison he was then put on trial for murder and because of the armed robbery conviction that came first he really couldn't testify in his own defense or they would have used that armed robbery conviction to impeach his testimony so he did not testify in his own defense he was convicted of that and sentenced to death two weeks before his death sentence was to be carried out

they found that the prosecutor had intentionally suppressed blood spatter evidence that would have ruled him out as the perpetrator of that robbery. The reason that we know that that prosecutor had intentionally withheld the evidence is because on his deathbed, which had happened several years earlier, he confessed that he had intentionally withheld that evidence to a fellow prosecutor.

That fellow prosecutor did nothing with that information and continued to hold his bar license. And thank God he did have attorneys that went and were able to find that, you know, there was a number for the evidence, but then the evidence didn't show up, etc. They found that there was missing evidence and they were able to find what it was. He was released. It's an incredible story. It ends up at the Supreme Court over whether he can get money from the city of New Orleans over it. My only point being, those are the cases that we want our legal system spending a lot of time on. And the finality of the death penalty makes those very difficult. And all of these other cases that are on non-actual innocence just are an enormous strain on the system. Right. Because of it. So for me, there's a lot of reasons system-wise that the death penalty is hurting our justice system and the judicial system.

And again, to be against the death penalty does not need to be some moral or political question. It can be one of a system problem. Yeah, I agree with that. I mean, I believe that there are crimes where death is the appropriate and just penalty and punishment. But if you filter that through a system that is straining, if you filter that through a system that you cannot rely on its competence, that is its own independent issue. And, you know, there are many areas of life where idealism goes to die. that exposure to the messy complexity of a situation can make you despair of hope. And there are times when I feel like there are elements of the criminal justice system. I'm not comparing it to Iraq, for crying out loud, but it is a place where there is idealism goes to die.

That on all fronts, you know, as a prosecutor, you think, okay, I'm going to make a real difference in this society. I'm going to make a real difference in the city. I'm going to make the streets safer. And then 10 years down the line, you find yourself running a plea bargain mill. And you wonder what you're, you know, you wonder if you're what you're really accomplishing. And defense attorneys who say, I'm going to vindicate the Constitution, I'm going to help innocent people go free. And then you 10 years down the line, you're running your plea bargain mill. And, you know, you begin to wonder what is it that you're accomplishing. And, you know, you begin to wonder what is it that you're accomplishing. And I think that that's, you know, I don individuals handling the defense and capital punishment cases. There's just no bright line from A to B. But I really do wonder if I'm a

governor of a state, if I was governor of Alabama, if I was governor of a state, when the first thing that I would want to do is I would want to take a good, hard look at the capital cases and in the in the cases where in the population of death row in my state and and see with as realistic of eyes as possible. Is this system broken? And if this system is broken, nobody is going to be executed in my state. Just a quick note on non-unanimous jury findings for death. 70% of jurisdictions that permit the death capital punishment mandate an automatic life sentence if a jury cannot reach a unanimous sentencing verdict. If a jury cannot reach a unanimous sentencing verdict, some will let there just be a retrial on the sentencing side. But Alabama is the only state that permits a judge to then sentence to death for a non-unanimous verdict. Missouri and Indiana have sort of an asterisk similar situation. So there's also, you know, this is the perfect storm sort of going on in Alabama here as well. Right. Where there's a, not a thumb on the scale towards death, but a pinky on the scale towards death.

You know, you need 10 jurors out of the 12, but that's not unanimous. Right. So anyway, I think you and I will have more conversations about the criminal justice system. And we can talk about plea bargaining, for instance, in a future pod. That's a rich topic. It's a rich topic. But I think that Nathaniel Wood's case is a very interesting example of the failures of the system. Is it too frivolous to go from the death penalty to the XFL? Let's do it. Okay, we need to end on a lighter note.

Yeah. And this was Sarah's suggestion for a... Just, and not that I in any way object to talking about the XFL, but I want the people to know that they have an XFL expert. You are listening to an XFL expert named Sarah Isgert. No, I just, you know, they timed it perfectly because I was going through NFL withdrawal. And then they were like, no, wait, there's more. Yes. Yes.

Well, you know, that's the genius that at least in theory genius of the XFL is here you have the sport that is, I mean, people call baseball America's pastime. No, it is professional football. Like if you look at the top 50, I went back and I looked at the top 50 shows on broadcast television over the in the year 2019. And I think 41 of them were NFL games. Oh, yeah. So that's funny because I went back and did the top 10. Like this was actually a month ago or so. Scott and I were sitting around and he was asking me like what types of shows rate in

the top 10. And we went back 10 years to look at the top 10 ratings for the last decade. 10 ratings for the last decade. And the only things that like really even like blip onto the radar is like some of the 2015 and 2016 debates and an occasional series finale of a show. And otherwise it's Super Bowl and then championship games and then cool Monday night football games. I mean, you'll have Monday night football, regular season Monday night football games that will obliterate World Series games or NBA Finals games in the ratings. Just obliterate them. And so here you have...

It is our shared viewership now. Here you have. So here you have the number one pastime in America. And it's one of our shortest seasons. Like the NBA season is longer. The baseball season is longer. So you have a short season. You have our national pastime. There's room for more football. And the XFL is trying to fill that void and trying to do it.

Do you remember the old XFL? trying to fill that void and trying to do it on. Do you remember the old XFL? I do. I didn't watch it. So, yep. What, that opening game was in 2001. Yep. And it had 15, close to 16 million viewers. Yeah, I remember it vividly. I remember the nickname, He Hate Me, which is the old XFL really doubled down on its WWE parentage. Yeah. And so this was going to be, this is over the top football. And so we're going to let you have a nickname on the back of your

jersey. The most memorable one was He Hate Me, which is like it was the perfect Twitter handle invented a decade before Twitter. And it was WWE on the gridiron. And for a while, I actually kind of liked it because I grew up a WWE fan. WWE fan, I, Sarah, have seen in Rupp Arena in Lexington, Kentucky, Hulk Hogan wrestle Andre the Giant in front of 24,000 screaming fans, of which I was one. I think I almost caused permanent vocal cord damage when Hulk did his, he pile-drived Andre the Giant, and then he did his thing where he would circle his hands and put his, cup his ear. All right. A little off topic. Okay, so sorry. David's a very specific type of nerd. I don't know if it's replicable. So, okay, but the XFL

this time is going for a bit of a different vibe, I think. It's more like, hey, you want to keep watching football? Here's like sort of almost like a minor league football that you can keep watching because March Madness hasn't happened. MLB is pretty boring at the front end anyway, even when it does start happening. And I, for instance, hate golf. So, and I think the rule changes.

I mean, if you're a legal nerd the xfl should be like you should be loving being able to watch the difference that some rule changes can make and i am here for that yes so the two rule changes i love one is no more extra point kicked obviously that is the number one best rule change. Oh, the most boring play in football is the ridiculous extra point that's there just because of tradition and tradition alone. And XFL says you have three potential plays. You can choose a one point extra point, a two point or a three point at different distances. And not one of them are kicked.

And so what it does is it means a game that is up to a nine point difference is just a one score. It's a touchdown and an extra point away from being tied. And so I think that's fantastic. I love that. And it's like it adds a whole element of strategy. There's like infinite number of things and i hope what ends up happening is that the xfl becomes sort of a laboratory of experiment for rule changes that then the nfl can steal sort of my point about the two-party system in a weird

way uh that the best ideas just get taken by one of the parties. Okay, but I assume, is the other one the kickoff? Yes, the kickoff. Yeah, yeah. Okay, talk about that. The kickoff is fantastic because the kickoff in the NFL has a couple of problems. One, it's the most dangerous play in football because you have these world-class athletes who get up a full head of steam before they make contact with each other. And so it's the most dangerous, but also in part for that very reason,

it's one of the most exciting if you're fielding the kickoff. So what the NFL has done is it sort of made it harder, it's much more rare to see a run back. And the NFL is fine with that because it's safer, but then it takes this whole play, sort of this whole exciting play out of the game. And so what has the XFL done? It has restored the excitement and while maintaining at least a degree of safety. So it takes the two teams, it pushes them all down the field to where essentially both the offense and the defense are lining up five yards apart at opposing lines of scrimmage. The kickoff takes place. No one can move until the runner

catches the ball. And then it's almost as if you've got a handoff to a running back, except he's going to have a little bit more of a head of steam. His offensive line is going to have a little bit more room to create holes. And it's just a lot of fun. So you actually have a kickoff return. You can actually, because of the way it works, you can actually have some plays on these kickoff returns. And it's just introduced a whole different level of excitement. different level of excitement. And yet, so XFL did win the Saturday Night Network ratings a week ago, Saturday Network ratings. So 1.8 million on Fox, 1.5 on ABC. Oh, sorry, but NBA actually won 2.3 on ABC. Of course. And NCAA on CBS, 1.9. PGA on NBC, 1.7. So it's up there.

It is beating the NFL Combine. But it's a new league. It's minor league football, really. So you've got minor league football competitive with the NBA, competitive with March Madness, or not March Madness yet, but college basketball. So that's overall pretty impressive. It's pretty good. And I think if they can keep the price down that it's costing them, like the question is survival, like long-term survival. Right. Right.

Well, and, you know, arena football had been around for, it's all a matter of cost. It's all a matter of cost. And the D.C. fans are having a great time here. I mean, mind you, we've got a good team. Those first two games were awesome. It feels good to win, of course. The beer snake is a real situation that we're building on here in D.C. I don't, you know, fully see the point, but yeah, cool.

And I don't want to spoil this. So if you don't know what a beer snake is, just Google D.C. beer snake, beer snake, D.C. beer snake. The beer snake is real. We don't have a lot going for us in D.C., but maybe we have this. Indeed. Indeed. So I'm going to go ahead and do we give an official advisory opinions endorsement to watching the XFL? Yeah. I mean, I'm watching it every week. Excellent. So this might be our first official advisory opinions, pop culture endorsement. It's too bad that we endorse something that we just said shouldn't spend money on things.

Right. Wah, wah. Well, anything else, Sarah? I'll see you Thursday. We'll talk Hillary documentary, among other topics. We'll talk Hillary documentary. We'll have some breakdown of Michigan and Missouri. And I bet you Sarah will have numbers.

You know I love math. Love that math, but thank you all for listening. Oh, and David, happy anniversary. Thank you. Thank you. 24 years. We dated for six weeks. We were engaged for three months and 24 years later, it's a great story. months and 24 years later, it's a great story. It's a fabulous story. Congrats to you both. Thank you. Well, thank you all for listening. And once again, please subscribe on Apple Podcasts and please rate us on iTunes. And we will talk to you again on Thursday. Bye.