Advisory Opinions - Supreme Court to Review ‘Remain in Mexico’

Episode Date: February 22, 2022

Today’s podcast is more fast-paced than the NBA All-Star game. David and Sarah talk about the Supreme Court and immigration, Trump and free speech, vaccines and drama in the Fifth Circuit, qualified immunity, and no podcast would be complete without a quick conversation about treason. Buckle up, this pod never slows down.   Show Notes: -Fifth Circuit opinion -Eleventh Circuit opinion -Scott’s law review article: “Qualified and Absolute Immunity at Common Law” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. And Sarah, just thinking about this podcast, I'm already tired. It's a full meal. It is a full meal. My goodness. We were just talking, I think, at the last podcast

how unusual it is to have to struggle to come up with topics anymore, which is something that does happen when you're a writer, when you're a podcaster. It's not that every news cycle is not created the same. So sometimes it's kind of hard to come up with stuff, but holy smokes, not this time. Okay. We're going to hit topic after topic after topic, and we've promised we're going to keep it tight and we're going to get through a bunch and we got a bunch to get through.

We've got a SCOTUS decision to take the Remain in Mexico case for review. We've got a district court holding that Trump might be able to be held liable for the January 6th rally and the free speech implications thereof. We have some, I don't know, spiciness. Is that the proper term at the fifth circuit court of appeals around a vaccine mandate case so it's got it all it's got vaccine mandate and some really sharp uh language that is couched with a lot of bless your hearts and with all due respects whoa, we've got the 11th Circuit case. I promised you we're going to talk about and we are going to talk about it. We've got Missouri defying federal gun control efforts and the interesting aspects around that.

And then we've got a Voting Rights Act case that set part of legal Twitter on fire in the last couple of days. And we could talk more. And let's be honest, David. We may not get to some of these, but we may have to push them to Thursday. Let's be honest with our listeners. If your heart is set on the VRA today, I'm giving it a 20% shot. Yeah, I'm giving it 20%. But don't be discouraged because we will get to that for sure. And we're going to get to it in a live podcast if we don't get to it today. We're going to be doing a live podcast from Yale Law School. So that is going to be exciting, Sarah. We're looking forward to that. But let's just, let's start. SCOTUS, remain in Mexico.

Tell us about it. All right. So at the end of last week, we got an orders grant, certiorari granted in Biden v. Texas. It was kind of a surprise on a few fronts. One, maybe a surprise that they took it at all. And we'll get to some of the merits on that in a second. But here was the big surprise, David. They didn't take it on an emergency basis, but they did put it on the calendar for the April sitting this term, David. So for those keeping track, the Alabama redistricting case is going

next term. Harvard affirmative action also going next term. The parties agreed on an extended time for their briefs. And so briefs are actually not going to be due until July in the Harvard affirmative action case that pushes it to next term. So huge race cases for next term. As we've talked about, sort of bookends on some of these race issues, actually, of like, when is using race for good, actually using race for bad and who gets to decide. And so I don't know, packing those both into probably October for argument, maybe early November. Um, woof. Okay. So then right now, February way after when you would normally get anything left, uh, for this term, boom, incomes remain in Mexico,

the migrant protocol program. And they're hearing it this time. And David, look, this to me is the court continuing to struggle with how to deal with cases that need quick resolution. Do you do it on the shadow docket slash emergency docket? And then everyone's mad because you like did it on these like quick briefs with no oral argument. Do you do it? And that was, um, well,

several cases, the eviction moratorium, to some extent, the Texas abortion case at the beginning, or do you take the case on the emergency basis, treat it like it's on the emergency docket, but then have oral argument? That's what they did in the vaccine mandate case.

People still had complaints about that. Or this is like the third way. Do you treat it in the normal course, grant cert, but then basically speed up the argument, squeezing it in to your April sitting, which is relatively soon, not as soon as they did the vaccine mandate case. That was like two weeks. This is more like two months. And then, of course, there's just the normal course of business where you're like, nope, cert granted. And it's next term. So I feel like we're watching the court struggle in real time with which of those options makes the most sense for the facts in front of them, or maybe for the court as a whole and for the institutional integrity of the

body. It's been a messy term, I think, on those grounds, David. Yeah. No, I would totally agree. And I would also say there's no clear answer. No. There is no clear answer. If you're talking about what litigants are used to prior to the Supreme Court, in other words, what are you used to when you're litigating and you're thinking that the Circuit Court of Appeals is going to be the last step and a cert grant is just a vain hope, you're kind of used to it continuing to be pretty rapid. You're used to a shorter briefing schedule. You're used to shorter decision time horizons. But when it comes to the Supreme Court, because of the gravity of the decision, something about that can sometimes feel off. It feels like it's too hasty. And we talked

about, well, at the very least, come on, let's have oral argument. I mean, that's something that sort of gives people more confidence that what's happening is in a more normal course of business. Oral argument is quite common in the lower courts, even for emergency proceedings. And Supreme Court seems to have, of course, heard the cry of advisory opinions and is doing oral arguments. But there isn't a great solution. And a lot of this stuff has to be case by case. Yeah, that's what I was going to say. There's not a principled reason yet that we're able to apply of why, for instance, the vaccine mandate

would get sort of emergency oral argument in two weeks, but the Remain in Mexico policy would get quick cert turnaround oral argument in two months. Like if you were, you know, behind the veil, like how would you describe which cases get which? I feel like there's an intuition on why one gets two weeks and one gets two months, but it's not an intuition really based on anything except how urgent it feels to me. Right, right. And one just grotesque speculative intuition is that it's faster when a majority of the court is dissatisfied with the lower court opinion, and it's slower when a majority of the court is fine with the lower court opinion.

But this is somewhere in between, right? Squeezing it into this term, they did not need to do that. Right now, the remain in Mexico policy is in effect while this case is pending. So if the majority likes the remain in Mexico policy, as one could imagine, just based on the politics, then they were better off scheduling it for next term, but they didn't.

They scheduled it for April. So let's get to the merits. This is the migrant protection protocols, which I screwed up the name three seconds ago. So sorry about that. Also known as remain in Mexico. This means that when you are trying to cross the border, asking for asylum, that you stay in Mexico while that's pending. That's the very short version. It's a little more complicated. But previously, you were allowed, paroled into the United States while your asylum claim was pending. Some people were held, but they couldn't hold everyone. And the rest of the people were

just sort of released on their own recognizance. There were ankle bracelets, there were notices to appear, things like that. And this is like, nope. Now, during the Trump administration, they started this migrant protection protocols where you stay in Mexico during that time. And so there's none of that capacity problem in the United States or people getting paroled into the country. All right. So the Biden administration in January 20th, you will note that's inauguration day, January 20th, you will note that's inauguration day, DHS suspended the MPP program. June 1st, they permanently terminated it. And Texas and Missouri sued that suspension decision and the termination decision in federal court. We don't need to get into some of the paperwork here, but the paperwork gets messy and it gets interesting if you're into the some of the paperwork here but the paperwork gets messy and it gets interesting

if you're into the administrative procedures act the short version is that if you remember with daca there was like initial letter and then the administration was uh like oh we'll do a second better letter after our first letter got found wanting by a district court. They did something similar here. They get enjoined by the district court from suspending the program. And then the Friday before the oral argument at the fifth circuit, they put out two new memos. It didn't work for DACA. The fifth circuit was having none of it here. You have friend of the pod,

judge writing for the three-judge panel. Judge Barksdale, who's an HW appointee, known for being really middle of the road, especially on the Fifth Circuit. You could almost consider him center-left, frankly. Judge Englehart, Trump appointee, definitely considered to the right. And then Judge Oldham,

quite the firebrand at this point on the Fifth Circuit. One of the three judges that I would say have really changed the Fifth Circuit. We'll get to what some of that means maybe when we talk about the other decision that Judge Oldham is on later. Willett and Ho being the other two, in my view, who kind of changed the, I don't know, changed the makeup of the Fifth Circuit in a lot of ways. So Judge Oldham is annoyed. This is a 3-0 opinion. It is long. This is the opinion that the Supreme Court's reviewing, right? That's why I'm talking about this Fifth Circuit opinion. So there's the APA part, which again is like directly DACA following, you know, the administration is trying to undo something that the previous administration did. And oh, and stop, just stop for just for a second. And I think we've referred to DACA a couple of

times, but some of our new listeners might know, might not have that on instant recall what happened with DACA. Yeah. So in DACA, the Trump administration tries to rescind the DACA program whereby basically people who were brought here as minors could get basically a legal status, work permits, et cetera, that were renewable. And they said they were no longer renewing them. that were renewable. And they said they were no longer renewing them. Yada, yada, yada, lobster bisque. Chief Justice Roberts says that the administration didn't do it right. They didn't rescind it right. It violated the APA. It was arbitrary and capricious. And they just needed to redo it. But of course, by that time, the administration had run out of time or political will, and it never got done. DACA ends up back in place. Very similar to what

we're seeing here on the APA side. Folks, I think, still trying to figure out what arbitrary and capricious review means now under Chief Justice Roberts. DACA, I think, opened the door to a new, DACA, I think, opened the door to a new, very heightened APA review from the Supreme Court, which I have some beef with. This, I think, will sort of swing the door wide open if it's going the way that I think it's going to go, which is, in fact, nope, these letters don't work. You have to basically go through a full agency policy review process, either publishing a rule through notice and comment rulemaking, even though the initial policy wasn't done that way, or you have to have a letter that addresses every possible thought that could pop into a judge's brain about what costs and benefits you should have considered in reviewing the policy.

So there's the APA side of this that I think will be the reason everyone watches this at the Supreme Court. But in the Fifth Circuit opinion, David, there was some fun stuff. Do you remember the case of the seven bishops from law school? The case of the seven bishops from law? I do not remember the case of the seven bishops from, I do not remember the case of the seven bishops. I'm not surprised you don't, but you should because it's from 1688. Oh, I was old enough to have heard about that then. Okay. Yeah. So the case of the seven bishops was, as you can imagine, an English common law case about when the king could suspend or dispense with laws. And so in that case, it was, I think, Charles II and James II.

Charles dies, James takes over, whatever. Both of them are Catholic stewards overseeing a Church of England country. Catholic stewards overseeing a Church of England country. And so the parliament had put laws in place saying that in order to have a position, an office in the country, you needed to swear allegiance to the Church of England. And Charles and James both suspended and or dispensed with those laws for, well, in Charles's case, he suspended it for the people he wanted. with those laws for, well, in Charles's case, he suspended it for the people he wanted. And in James's case, by my memory, he said, yeah, that law is now just not enforceable anymore. So he dispensed with it. And this actually informs current law today for us in terms of non-enforcement policies, right? You can't go knock on the police officer's, you know, car door and say,

I want you to enforce the law against that person who did a thing wrong. That officer is under no obligation to do that. However, the president can't simply say we're no longer enforcing X law across the board. And so a whole lot of our cases are what's in between those two things. A presidential pronouncement saying he's not enforcing the law. Very few people do that, though one could argue that DACA and DAPA were pretty close. All the way down to individual police officer not enforcing specific law against specific person in specific case. And so the question on MPP is, and it's so similar to DACA, right? In DACA, they were saying that it was a case-by-case application. And so it was the discretion side of non-enforcement. And Texas in that case also argued, no, it applies to everyone. It's a blanket change of the law, blanket non-enforcement policy, where you happen to have to turn in an application, but you're not reviewing them on a case-by-case basis really to see whether that blanket non-enforcement policy applies. You're just reviewing it to see whether they meet the category that you set for blanket non-enforcement. Very similar with MPP. They're claiming it's a case-by-case basis for review, but it's clearly not. They are simply saying they're not going to

enforce part of the immigration law, which has this safety valve. If you can't hold everyone, then you're supposed to put them in a contiguous country like Mexico. So that's the argument going on. Yeah, I mean, I think that I think those two things make it super duper interesting. And this is Judge Oldham writing now. to follow in exercising its enforcement powers. In other words, the executive cannot look at a statute, recognize that the statute is telling it to enforce the law in a particular way or against a particular entity, and tell Congress to pound sand. That is why the Supreme Court and the Fifth Circuit have consistently read this previous case as sheltering one-off non-enforcement decisions rather than decisions to suspend entire statutes. Heckler's progeny never has allowed the executive to affirmatively enact prospective class-wide rules without judicial review. So David, to me, this is like we had DAPA,

that was about the parents of DACA recipients, that the Supreme Court held as a no-no. That's the no-no doctrine. Well, it was a 4-4. That's true. So it upheld the Fifth Circuit's no-no. That's right. That's a really good point. Good clarification. Then we get DACA, part two of this Shakespearean non-enforcement tragedy,

where the Supreme Court holds that, in fact, DACA will go back in place because of the APA problem, even though they never rule on the constitutionality of the DACA original program. And now you've got part three that has both the APA problem and the non-enforcement problem. And it's going to get argued in April. David, we will be talking about this. Yes. And, you know, it's funny because these both DACA and DAPA and Remain in Mexico,

get a lot of attention because they are right directly to the hot button issue of the day of immigration. And so there are cases that get a ton of attention just because they're so consequential. But what's fascinating to me, separate and apart from the real world consequences of the outcome, it's the way in which this is messing with administrative law. And there's always been sort of this, you know, I've been a part of this sort of conservative legal movement idea that says the way to reform administrative law is to take this judge-made doctrine called Chevron, which grants deference to administrative interpretations of statutes, and overturn Chevron and remove that deference.

And what feels like kind of is happening is that Chevron is kind of going away anyway by just injecting, as I've said before, arbitrary and capricious review with steroids and HGH. Which I'm not sure is the right, I don't love where this is headed. It's like Chevron died with a whimper instead of a bang, and the whimper is causing ripple effects through administrative law, which it's helpful if you want to rein in the administrative agency sort of in the end result. But super heightened arbitrary and capricious review is

somewhere pretty close to intermediate scrutiny, David. Does the judge think it's arbitrary and capricious? Well, and that's, that's, you hit the nail on the head because if the actual words arbitrary and capricious review that the words arbitrary and capricious remain as part of the standard, well, then it does really get to the point where it's just kind of what the judge thinks. Because if you want to grant deference, you can say arbitrary and capricious. It's not arbitrary and capricious. Are you kidding me? So to be clear, the arbitrary and capricious review has become arbitrary and capricious. Well said. Well said. All right. So he promised to keep it tight. Moving on.

Okay. This one's a doozy. Okay. This one is a doozy. This is the case of Benny Thompson v. Donald Trump et al. Eric Swalwell v. Donald Trump et al. James Blasingame and Sidney Hemby v. Donald Trump at all. And the short way of stating this is a civil action against the president,

against Rudy Giuliani, against Trump Jr., against the Oath Proud Boys, Oath Keepers, leader of the Oath Keeper of the Proud Boys, Enrique Torrio. This was the short version? January 6th. So it's basically a shotgun civil litigation against all of these individuals on the behalf of the congressmen and others trying to obtain damages for- Wait, to be clear, David, is it shotgun or is it blunderbuss shotgun blunderbuss is even less a blunderbuss would be like i think i agree i just want to make sure that we are now it's rifle shotgun blunderbuss on this podcast and we will be using all three

yes this is shotgun this is shotgun uh and it's trying to get civil damages and the key the key section that they are the key um provision provision of federal law they're suing under is Section 1985. And this is the key part of the statute. any person from accepting or holding any office trust or place of confidence under the United States or from discharging any duties thereof or to induce by like means any officer blah blah blah blah blah. This is a conspiracy. It's essentially a anti-conspiracy statute directed at punishing those who try to prevent officials from performing their duties. Now, what is notable about this decision? What's notable, most of it is not notable. It granted Trump Jr.'s motion to dismiss. The judge granted Trump Jr.'s motion to dismiss, granted Giuliani's motion to dismiss, did not grant the Oath Keepers motion to dismiss. Oath Keepers, remember, did some actual breaching of the Capitol, did not grant Enrico Tarrio's motion to dismiss. So all of this seems kind of normal. The people who are not involved directly in violent activity are out. The people who were involved in violent activity in Ontario,

you know, is someone who is in a leader position in one of the more violent groups. But then this is what's notable. The judge said that he's denying President Trump's motion to dismiss, that he's denying President Trump's motion to dismiss, and he's denying it because there's a couple of interesting aspects to this. One, what I would say is relatively conventional, relatively conventional. And the other one, eyebrow raising that goes back to something we talked about right after January 6th. So the relatively conventional part was the judge said, in essence, if you're going to hold someone liable for conspiracy, you don't really have to have evidence that everyone got in the same room, had a handshake agreement, and move forward on that basis. that a conspiracy is sort of a broader concept, and a conspiracy can include

a call and response, in essence, kind of relationship between the principal actor and the instigator. And all of that is kind of interesting, not particularly revolutionary, but here's what's particularly interesting, Sarah, and this is the nub of it, because essentially, regardless of what Section 1985 says, regardless of the conspiracy sort of reasoning here, none of that matters if the heart of the conspiracy is what Trump said. In other words, Trump's actions are based, Trump's status as a conspirator is based on what Trump said. And if what Trump said is protected by the First Amendment, then there's not, a conspiracy civil action just can't survive. And so this court said that Trump's

And so this court said that Trump's speech on January 6th and around January 6th was actual incitement. And I don't know if listeners remember this, but this is something that Sarah and I talked a lot about right after January 6th. Was Trump's speech actually inciting violence? And this is how the judge phrased the test. Okay, so he says, and I'm reading, one treatise has distilled Brandenburg into a three-part test requiring proof that one, the speaker subjectively intended incitement. Number two, in context, the words were likely to produce imminent lawless action. And three, the words used by the speaker objectively encouraged and urged and provoked imminent lawless action or imminent action. Now, what's interesting to me about this is, in essence, what the court did is that he and and trump's defenders have said well there are

in his speech there were these key words peaceful or the key word peacefully march down to the capitol and uh in and be peaceful fight like hell but there's the word peaceful. And essentially what the court rules, and this is what I'm really interested in your view about it, is that that was essentially swamped by all of the other facts surrounding the speech the, the command to march down to the Capitol. This was not something the permit was granted for. Um, the fight like hell comments were clear to the people when they heard them. And that, that word peaceful is, was essentially swamped by the surrounding circumstances. And the analogy, if I would compare it to is back in the days, and this is an imperfect analogy, I know, but back in the days when I was litigating free speech cases, I mean, litigating speech code cases, often you would have a speech code that would have lots of

obviously unconstitutional statements in it. Something along the lines of acts of intolerance will not be tolerated was the actual phrase that I litigated. the lines of acts of intolerance will not be tolerated was the actual phrase that i litigated but then sometimes they'd throw in a savings clause like nothing herein is to be interpreted as violating academic freedom but the whole thing going before and violated academic freedom and free speech and courts were like no an ordinary person hearing that would think would still believe that protected speech can be punished. But peaceful is pretty clear. Peaceful is pretty clear. And so the question is, does the word,

does that peaceful exhortation mean that Brandenburg, does that one reference to peacefulness, what does that do? Does that mean he is safe under Brandenburg or is it still open? And the judge said still open. And I've been waiting to hear your thoughts on it, Sarah, ever since this decision was handed out. I've said it before when we talked about all of this after January 6th, this comes nowhere close to incitement for me. A few reasons. One, Donald Trump had been saying nearly identical things, not just for months preceding this, but during all of his rallies, in his campaigns, et cetera.

So is all of that incitement? Because incitement, by the way, shouldn't be sort of like our Fourth Amendment, right? You have to have reasons to search the car. Whether you find drugs in the car is irrelevant to whether it was a reasonable warrantless search, for instance. And it's hard to do that. It's hard to say that, like, well, your reasons were reasonable, but you didn't find any drugs and vice versa.

Your reasons were unreasonable. But yeah, when you did that search, there was a kilo of cocaine in the trunk. Incitement's the same thing, right? It shouldn't actually matter what happened after. What matters is whether those words alone were reasonably likely to result in violence. Yeah. Do you think Donald Trump knew what the permit was for? Give me a break. That's insane to me. So yeah, I mean, I've said all along that I don't think this is anywhere close to actual incitement. I think this is in fact exactly why we sort of scoff at the sedition acts that have popped up in this country from time to time, specifically at the

founding and around World War I. I hate what happened on January 6th. I've talked extensively about that. I don't want to minimize what did in fact happen. But we now know that lots of those people there had a plan way before Donald Trump said anything. They had guns that they were keeping in various safe locations, in, you know, hold places, in Northern Virginia. That wasn't because of what Donald Trump said. I don't like what Donald Trump said. I wouldn't vote for him based on what he said.

But the idea that we're going to limit all of our First Amendment rights because he's awful? No. Yeah, this case is, i feel like it's closer to the line than than you feel and one of the reasons why i think it's closer to the line is that um i the question of if you're going back to the original the original uh standard which contains both sort of subjective and objective elements. Was this aimed towards creating violence? Was it likely to create violence?

Those kinds of questions, I think, really militate against the president. Was it aimed? I think question one doesn't. Did he want violence to happen? I actually think no. I think it's a close call, but no. Was it likely that violence would happen if they marched to the Capitol? That one's a closer call.

Yeah. Especially because we now know that people had a plan with guns being held and they had a plan to be violent. But that's my point. It doesn't matter what Donald Trump says at that point. Their plan was to go be violent. And that's where the incitement part gets, I think, really messy here. Yeah. So I'm thinking on one. So if you go one, two, three, one, the speaker subjectively intended incitement, I would say the balance of the evidence would be yes. You say the balance of evidence would be no. In context, the words were likely

to produce imminent lawless action. I say the balance of the evidence, yes. You say the balance of the evidence, no. I say the balance of the evidence, yes, on that. Oh, yes, on that. But that's different than the speech causing it. Yeah. And then number three is the words used by the speaker, objectively encouraged and urged and provoked imminent action this is the weakest part to me um objectively encouraged because it did say earlier peacefully and patriotically the judge do you know how many politicians say we need to fight this fight like hell to make sure so that's now incitement based on that objective test based if he's if that happens objectively those words will then be held to be incitement.

Now you'd still have to meet the other two prongs. I acknowledge that. But I don't want those words to be under an objective test when you're standing in front of the Supreme Court and saying, we need to fight like hell to keep Roe on the books. Yeah. That's not incitement. But in the opinion, as the Judge Martin notes, and there are some leaps of inference here Yeah, that's not incitement. own aides had raised the potential for violence so that this was in rather than a mob a quote unquote oh rather than someone in front of the supreme court a whole bunch of activists pro-life

or pro-choice um like your normal sort of supreme court crowd this was a crowd that had been mobilized to be wild um okay what about chuck Schumer sitting in front of the Supreme Court with a mobilized crowd that was worked up and him saying, I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. And he wasn't saying it to them. He was saying it to the crowd that was in front of there. Now, this is my point about the drugs being found in the trunk of the car. Nothing then happens. So we don't think those words were inciting because there wasn't any violence. If something had happened,

if someone had taken a shot at Gorsuch through the Supreme Court window later that night or an hour later, wouldn't you look back on that? Or what about right then? Then it might, then it might. I mean. But my point is like, that's not then an objective that's the fourth amendment

problem that's now it depends on whether you find cocaine in the trunk of the car and i don't think it should matter especially on our first amendment rights my god yeah so anyway on on number three objectively encouraged and provoked imminent lawless action that's the weakest one and the judge tries to deal with it by saying, well, the peaceful exhortation was near the beginning of the 75 minutes and the fight like hell and march down there was at the end of the 75 minutes. And that was in essence, you know, those were the words ringing in the ears of the protesters at that moment. The other thing you raised a point that I I think though is really important, and that is the attack had already, amongst key players, the attack on

the Capitol, the best evidence that we have, this was something that was going to be set in motion virtually no matter what Trump said. That there were plans here to attack the Capitol basically no matter no matter the context. And in fact, the attack on the Capitol began before Trump stopped speaking. So this is something that I think is. And so by the time the crowd arrived, the crowd that had been allegedly incited arrived, there was already a chaotic situation and process. And so that's something that I think is a real factor here. Now, if you were going to be able to uncover that there was some sort of conspiracy within the White House and the Oath Keepers and the Proud Boys to launch the attack, that's one thing. That's a different thing. We don't have evidence about that. That's a different thing.

But if the attack is beginning and the attack is planned and this thing is going to launch, no matter what Trump says, then to me, that's a real factual problem here for the plaintiff. And it goes back to some of the stuff that I've been talking about with Trump here. You do not want to stretch the law to punish the President of the United States. That by itself, to is dangerous when you are stretching the law. Yeah. And I want to be real clear on whose side I'm on here. I don't care one wink about former President Trump's First Amendment rights, but I care a whole lot about mine. Right. This has been my position from day one. If you want to go back to read some of the arguments I made

about obstruction of justice and Mueller, if you want to read about my arguments I made and multiple things where I think Trump really, where I think Trump's actions were reprehensible, and then the argument was, are they also unlawful? Time and time again, I was having trouble pulling the trigger on unlawful because while I could see the argument and while I thought the arguments were valid, I couldn't match them within precedent. I couldn't match them within precedent. You have the language of various federal criminal statutes. It's really broad. The language of federal criminal stat it, defines it, explains it. And that case law has existed for decades.

And some of this stuff, when we're talking about Trump, it's okay. If you read the statute, you think I can make an argument. If you look at the case law, you're thinking I've got to stretch the cases, if that makes sense. And my argument has long been, if we're stretching the cases to try to prosecute a president, you're opening the door to political prosecutions. And I'm worried about that. Now, that doesn't mean that I think Trump, in other contexts, hasn't done things that I think fit within precedent, that they fit within a statute and they fit within precedent, and you don't have to stretch the precedent. And in those areas, in particular, some of the actions he took in Georgia, part of me

thinks if he wasn't the president, he'd already have been indicted. And that's a different thing. If it's a different thing, if my analysis is saying, if he wasn't the president, he'd already be indicted or in imminent danger of indictment, that's when I think the rule of law should come crashing down. If he's not the president, he wouldn't be indicted or it'd be a stretch to indict him. That's when I think don't indict the president, if that makes sense. So that's where I am on this, but I think it's a very interesting, long, thorough opinion. And we're going to put it in the show notes. And one of the things I think that's interesting about it is the comprehensive

discussion of all that occurred around January 6th. And just even though I disagree with the opinion, want to note, Judge Mehta, I mean, super respected. I think he's a great district judge on the bench. He had the Mazars case about providing records, their accounting records, to the House Oversight Committee that went to the Supreme court. Um, so he's, he's had a lot of these biggins. Yeah. Yeah. No, very, that's what makes this worth really talking about. Very respected district judge, but yeah, I, I'm, I'm much closer

than you are just saying Brandenburg test met here. Um, but the more i learn about january 6th in an odd way the the the worst january 6th gets in a weird way to me it lets trump off the hook for the speech more if that makes sense because it wasn't what was happening and what was in motion on January 6th ultimately may have had very little to do with the speech itself because what was in motion was well above and beyond the speech. 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. All right, we got this circuit to do. You want to take the lead on this one or? Yeah. So we have an unsigned per curiam opinion from the Fifth Circuit. On the panel are Judges Elrod, Oldham, who we discussed in the previous MPP case, and Judge Smith. Judge Elrod is a W appointee. Judge Oldham is a Trump appointee. W appointee. Judge Oldham is a Trump appointee. And Judge Smith is an HW. Nope. Judge Smith is a Reagan appointee. I always forget that. Smith and Jones are the two Reagan appointees left on

the Fifth Circuit. Now, disclaimer, Judge Smith and Judge Jones basically share chambers. They share like a kitchen and a little library living area. And so Judge Smith, because I clerked for Judge Jones, Judge Smith is basically like my uncle who lived next door. So I am not totally unbiased on this, but also Judge Elrod, I call my judge-in-law, and Judge Oldham is like besties with husband of the pod. So this is a problem. This whole opinion is a problem for me. And I say all that because like you're about to like, there was a fight at Thanksgiving dinner is what we're about to have here. Yes, yes.

Now, are these friends IRL as the kids say? Like the judges? Yes. Yeah, I mean, when I see Judge Smith, like I consider him an elder, like a, you know, so I'm- No, no, no, the judges, not you, the judges themselves. Oh, yeah, well, when we talk about where the Fifth Circuit has gone recently,

maybe we can dive into some of that. But yes, in theory, is the answer. Maybe too friendly is actually part of the problem here maybe they're all too close gotcha maybe people need to like go live in different dorms like everyone living in the same dorm isn't working i don't know this is a case about united airlines vaccine mandate and united airlines said uh if you have a medical or religious exemption request, we will review those. And on the religious side, if we find that you do have a sincere religious belief, you will be put on unpaid leave until the pandemic's over, which they estimated would be about 72 months from when they initially did this rule. months from when they initially did this rule. The plaintiffs asked for an injunction against that and claimed irreparable harm because, right, like one of the pilots, for instance, was making

$350,000 a year, which, whoa, by the way, I knew they got paid a lot, but I didn't know they got paid that much. Wow. I mean, there are a lot of partners who don't make that much, David. I know. I'm grateful that they fly me safely every time. So worth every penny pilot, every penny. I don't know what I'm complaining about. I'm thrilled to have you. Uh, but I can understand if you were making $350,000 a year and now you're making nothing, uh, that that might affect your lifestyle. This one pilot noting that he has like three girls in college, one in college, two girls applying to college, whatever. Sounds hard. And I don't want to dismiss that that's difficult. The problem, David, is a few things.

One, in employment law in particular, you get all sorts of things on the back end when you win. I'm going to describe them to you here using Judge Smith's dissent. Title VII confers enviable remedies. If the plaintiffs win at trial, the district court may order back pay, reinstatement, any other equitable relief as the court deems appropriate. The fact finder also may compensate future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non- future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses. Even punitive damages are available if the plaintiffs prove that United acted with malice

or with reckless indifference to their rights. And the court may award a reasonable attorney's fee, including expert fees, to the winning side. The mere possibility of those remedies weighs heavily against a claim of irreparable harm. As in, if your harm is just financial, your harm is not irreparable. Okay, so this sets up our problem here. Yeah. The majority, the two judges, and I do think this was probably Judge Elrod writing based on the tone, because it's a very...

Well, all of these judges were interviewed, by the way, on our special pod over Christmas, David. Oh, all three, okay. All three. Oh my, this is really discomfort rising. This is. It's very uncomfortable for

me. So you can go listen to all three judges' personalities to get a sense of why I might think that Judge Elrod- One was a singing judge, if I'm- Judge Elrod was singing, Judge Smith talked about the designated hitter rule, and Judge Oldham talked about his bromance with Judge Thapar, the inter-circuit bromance that is the Oldham-Thapar friendship.

Okay, so the majority says, look, this isn't precedential. All we're saying is that, look, there's irreparable harm here because unlike these other employment cases, this is ongoing coercion. United just wants them to get vaccinated. It actually isn't a racial discrimination case or these other sort of normal in the course of events, employment, adverse employment actions that you then sue about. And then like, yeah, you get money at the end or you don't or whatever. In this case, United keeps telling them to get vaccinated. It sent a postcard to their house, not a letter, a postcard, which the majority notes, you know, maybe that was so

that their family could read that without having to open it and see that their family member wasn't vaccinated. And so it's the coercion that they're getting the injunction against. And they're like, and look, we're not even deciding whether they should get the injunction. All we're saying is that this meets the standard for irreparable harm. And the district board can go back and look at all of the other prongs, which we've talked about, right? Likelihood of success on the merits, there's a public interest prong. We're just talking about the irreparable harm prong. And look, it's not even presidential. We're not even publishing this opinion. This is not a big deal. So that takes 23 pages for them to discuss why coercion is different than the normal

employment, adverse employment action. And then, David, we get to page 23. And from pages 23 to 80, Judge Smith burns it down. He is having none of it none of it david okay so look on the merits i think judge smith makes a compelling case again i'm not sure it's like a slam dunk case i think this coercion thing is unique compared to most employment decisions um But Judge Smith notes, for instance, that the majority, by the way, Judge Smith throughout his dissent

uses the cleaned up parenthetical, which we've talked about on this pod, where you take a quote and just change it to make it easier to read in the context that you're using it for. Judge Kagan, Justice Kagan does it, and I feel weird about it. But Judge Smith, huge proponent of this now.

So in one of his cleaned up parentheticals, quoting from the majority, each day, they say the pressure to choose between a job and a jab grows heavier. But he says they never actually argued that. In fact, the plaintiffs have said under no circumstances, never will they get this vaccine. And the majority answers, well, they say that now, but that could change. And Judge Smith answers, well, that's not our job to then read their minds and decide that they'll change their minds if they say they're never going to change their minds. And it's not coercive, is it? And he says the indefinite loss of income is not a reparable injury, nor is reputational harm, nor costs incurred in the

absence of a stay, nor is losing one's health insurance or home, nor is reassignment, nor is reputational harm nor costs incurred in the absence of a stay nor is losing one's health insurance or home nor is reassignment nor is the appointment of another person to a position the plaintiff would have occupied but for the employer's unlawful discrimination those are all citing different cases for precedent um and look that's just on the merits and we would probably not talk about this case on the merits david though i though I find it interesting if you're into employment law. But things go a little wonky at various points. He says he dedicates several pages to complaining about it being unpublished, even though the majority notes that it only takes one judge to publish an opinion. So he actually agreed to keep it unpublished. And he says, like, maybe it's a good thing it's unpublished because then it doesn't have

precedential value, but they're trying to like hide the ball here and change law. And here's the paragraph, David, that I think has gotten quite a bit of attention. Although there's the line that says the good ship fifth circuit is on fire. That's in there. Okay. If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action,

without a likelihood of success on the merits for two reasons, and devoid of a reparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest and despite decades of contrary precedent from this circuit and the supreme court all while inventing and distorting facts to suit my incoherent reasoning

i would hide my head in a bag so okay that hide my head in a bag by the way is from footnote 22 of justice scalia's descent in obergefell that's the gay marriage case right no 22 fairly famous for scalia acolytes scalia lights uh here's his footnote if even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began, the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons within a lawful realm to define and express their identity, I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. So that's the reference that Judge Smith was making.

Look, they go back and forth on the merits in a really smart way, but there's just. Well, that's so can I tell you the two parts that stood out to me that are a little different so first is i just want to highlight the bless your heart with all due respect um the the bless your heart with all due respect portion the majority with what I'm sure are the most wholesome intentions. Screws this whole thing up. Yeah, junks. Facts, text, history, and precedent resulting in a one-off change in the law that alters the result for these parties. So that stood out to me.

But here's the other one. Okay. Now, Sarah, there's something going on here. Now, Sarah, there's something going on here. It's difficult to imagine what creative lawyers, not to mention federal judges spurred on by zealous law clerks, will do with these new tools. But a safe guess is there will be more work for courts, more disruption and uncertainty for private business, and more power for judges. Whether those things are good is not up to us i the part that stood out to me not to mention federal judges spurred on by zealous law clerks something's going on yeah

i'm not gonna i'm not gonna guess um but i'm not guessing i I'm not gonna guess. Um, but I'm not guessing. I'm just saying, yeah, I think, well, let's back up to something we do know, David, which is that just was it last week?

Time has lost all meaning. So early February, they were at oral argument and, um, an advocate from the department of justice came to the microphone with a mask on and, uh, judge Smith asked the lawyer to remove his mask. The lawyer said, I would prefer to leave it on. And Smith replied, we would prefer that you remove it. Thank you. And that was the end of that and that got a whole

bunch of attention he got a judicial complaint ethics complaint filed against him as like an anti-science anti-vaccine yada yada and like you read this opinion david whoo this guy is not anti-vaccine even a little uh no and i wonder if some of the vitriol um it's it is you know this and i know this as well uh it feels really bad to be unfairly attacked and your character questioned when you when that's not what happened right that this story just takes hold and especially as a judge who can never push back except except by the way, when defeating an ethics complaint, but he may not even then get to push back because it may just get dismissed, to have people like saying all these things that you know aren't true.

And then you're like, no, these other people, they're anti-vaccine, not me. So I wonder if some of that was at play. But look, overall, the Fifth Circuit has gotten really, really chippy. We've talked about this with other opinions before. And I don't know whether it's because the Fifth Circuit has now skewed so heavily conservative compared to some other circuits, like with conservative, not just Republican appointed judges, but I mean conservative judges. Or if it's that all of these people know each other really, really well. Everyone on the Fifth Circuit basically professionally knew each other before they got on the bench. You know, Willett, Ho, Oldham,

Smith, Jones, Elrott. I mean, I could name a name. Like, you know, I don't know. I don't know what's causing the chippiness. I think that Judge Smith's a name like, you know, I don't know. I don't know what's causing the chippiness. I think that Judge Smith's opinion would have gotten zero attention, really, if it had not included some of the lines that we've been quoting. At the same time, he had, there was a real legal dispute on the merits. I'm not sure that it needed all the chippiness. And I've said that before, by the way, about other judicial friends and uncles.

I don't like snark. And this wasn't snarky, but it was like snark adjacent. It's hard to be... Snark implies something other than a pure frontal attack. Right? This isn't funny. Snarky usually tries to go for funny.

Judge Smith, to his credit, he's not trying to score cheap laughs here at all. No, no. But like footnote 98, this is no personal criticism of my two conscientious co-panelists who serve with integrity, dedication, and skill. It's a main reason we have panels of three allowing for honest differences

on matters large and small. But you want to hide your head in a bag? Yeah. You can't say both. Yeah, that's why I say bless your heart and with all due respect. Yeah, yeah. No, I have to say, I mean, I found the majority unpersuasive. I've practiced, I've been involved in many employment disputes over the course of my life, some involving Title VII, some involving constitutional cases because these were public employees.

And in the Title VII context, what you're going for, because you're in a job for compensation, The job has a monetary value attached to it. It's one of those areas of law where the monetary calculation, at least of a portion of the damages, is really easy to make because you had a salary, right? And so this idea that you get injunctive relief is actually pretty foreign to this area of law because you have that monetary damage. And then as Judge Smith points out, there are a lot of other aspects to it that constitute a deterrent effect. So it's not simply the case that you can say well we'll we'll get rid of um you know john smith and the worst that can happen to us is we'll just have to pay as you know get his give him his back pay and give him his job back it can get a lot worse fast than that so that there is a deterrent effect and then there was a really odd part of the uh of the majority

where you know what they're really trying to do do, and you can see what the majority is trying to do, is the majority is trying to say, in essence, that the gravity of this is greater because of the religious aspect to it. The religious aspect makes this more consequential. more consequential. Now, the interesting part of that is traditionally that's been kind of the opposite of the case in Title VII cases, that religion has been sort of the, you know, it's been sort of the Cinderella stepchild of non-discrimination law, where if you're a religious plaintiff in Title VII cases, especially if it's an accommodation claim as opposed to sort of an outright religious discrimination claim where you're saying, we're not hiring Christians or we're not hiring Jews. There, you're very robust. But if you're asking for an accommodation, like I don't work on Saturday or I need some other accommodation,

religion, those claims are pretty weak typically. But you can tell they're trying to make this a lot stronger. And there's this phrase in there, there's a quotation in there that's a little weird because it says this court and the Supreme Court have held the quote, the loss of first amendment freedoms, even for minimal periods of time, unquestionably constitutes a reparable injury. But this isn't a First Amendment case. United is not the government. And so that was a kind of an odd citation, but it was part of what really felt was going on in the majority was they were trying to say this is especially bad because of what it's infringing on religious conscience. And I found that interesting because it's so different in tone from the vast majority of Title VII cases,

especially religious accommodation Title VII cases that I've seen. So I just wanted to highlight that as particularly interesting. And let's just leave it on this. After the all while inventing and distorting facts to suit my incoherent reasoning, I would hide my head in a bag. It's worth ending on the next sentence. Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion? Burn.

All right, David, let's move to the sister circuit in fact uh the 11th circuit used to be part of the fifth circuit it broke off into two different circuits so it's a little bit similar david and i can't believe i'm saying this to your texas tennessee argument you know texas used to be a colony of tennessee i, it's not in any other respect, but I just, I can't believe I said that out loud. I'm embarrassed for myself. I'm sorry, listeners. David, tell us what happened in the 11th Circuit. Okay. This is a case, and I want to highlight this case because this is one of these cases where, and I'm going to keep talking about this, where there is this collision between the right to keep and bear arms and police intervention, especially police intervention where the identity of the police are not obvious.

That we're in law, we're just going to have to figure this out because too many people are getting killed. And this is a case coming out of the 11th Circuit. And I'll just hit some of the highlights. So after about five minutes before midnight on June 7th, 2016, a Henry County 911 operator spoke to a caller who reported hearing a woman's screams and three gunshots. The caller gave her the address and said the noises were coming from a few houses down. So the caller has given the address of the caller, but not the address from where the sound was coming from. And so the person also said they'd called 911 earlier, but there was no call history of that. And they also said, the caller said, help me please and then nothing else.

And then the operator asked for what's the closest street to the intersecting street. So you can tell they're trying to get directions. And it says, the operator asked a follow-up question. If I'm looking at your house, where exactly would their house be? And again, gave directions. It's kind of vague.

It's not super helpful. And this is an ominous statement from the 11th Circuit. That is where the seeds of tragedy were sown. So number one, you have a call of shots fired, screams, someone saying, help me. So what? The police are going to come to that. So zero fault what the police are gonna come to that so zero fault of the police answering that that is absolutely if there is ever time every time you want the police going it's then so the 911 dispatcher sends the police to the line to the location the call and then tells them to go down a few houses on the right, maybe three houses. So then here we go. The three officers who all wore police uniforms parked their cars along the roadway with their blue lights off. Before approaching the Powell's house, this is the

plaintiff's house, the officer asked the supervisor why dispatch believed this was the correct location and asked to get more information. When the supervisor dialed the number that originally called 911, the original caller's mother answered and agreed that the sounds had come from the right, south of the caller's location going towards this particular road. From the perspective of the person standing on the road, the Powell's house is to the right. So, in other words, they were going where they had been given direction. So the officers approached the Powell's house is to the right. So in other words, they were going where they had been given direction. So the officers approached the Powell's house. As the officers walked down the long driveway,

there were no lights on inside or outside. It was very dark. Because they were going to a call involving domestic violence with shots fired, their officers approached cautiously trying to avoid to be targets for a shooter. One of the officers carried a rifle. So they go out, they go to carry, you know, they go to the house. But then the Powells who are inside begin to notice problems. There are dogs barking. Powell did not hear any knocks on her door or rings of her doorbell. But he did hear dogs barking and that it awakened her and her husband. So they get out of bed.

They don't check their front door. Instead, they go to a laundry room door. To make a long story short, they go out and open the garage door. The husband walks out holding a pistol in his hand. After walking 10 to 15 steps at a normal pace, he stopped, turned to face the walkway leading up to his front door, saw an officer where the officer was positioned. When Powell stopped walking, he was standing straight up and his arms were pointed

down. The wife walks out with him and then essentially sees that her husband, the wife sees that her husband was looking at someone. And he starts to raise his right arm, one holding the pistol, gets the pistol hip high. The officer goes down to one knee, fires three shots. David Powell drops to the ground, runs, calls 911. He dies the next day. Long story short, qualified immunity for the officers in this circumstance. And this is one of these cases, Sarah, that's really, I raise it because this is one of these cases where it's so tough to know what the right call is about qualified immunity.

Because here you have the police in good faith answering a call in good faith answering a call about shots fired um i have some what concerns about their lights not being on police lights not being on that would signal that police are in the area but maybe there's some good faith maybe there's a good reason why you wouldn't want your lights on and And then a person comes out who thinks there's a prowler outside and acting in complete good faith and sees what looks to be a prowler, lifts their gun and they die. And did anybody do anything wrong here? And that's why we have qualified immunity, David. And that's why revisiting

qualified immunity, as one husband of the pod did in his law review article that he wrote when I came home with a baby, the clearly established law test can be quite pointless when what we're trying to get at is what you just said, David. Did anyone do anything wrong? Okay, but that's when I'm saying that's why we need qualified immunity gone, because in a normal litigation, what we would immediately be going to would be, was there, you would be going into a fact-finding analysis as to whether there was any negligence here, and if so, on whose part was their negligence. And that's one of my issues here, is that you have situations like this, and it could very well be the case that a jury would say, there's no negligence here, there's no violation of civil rights, this is just a completely tragic mishap that was triggered by vague directions.

It wasn't even the person who made the calls problem about the vague directions. You have a conventional straight ahead case about fault. But what qualified immunity does is it cuts you off from that. It cuts you off from that entirely. So it's interesting that you would say- Again, according to husband of the pod law review article, which we can put in the show notes, it's called Qualified Immunity and Absolute Immunity at Common Law. Such a catchy name. Believe it or not, we literally talked about this title. Clickbait. Yeah. Clickbait. Yeah. We did make it catchier than it was. So the absolute immunity part doesn't matter too much for our purposes, but at Common Law at least, qualified immunity could be overridden by showing an officer's subjective

improper purpose. While today, a plaintiff must establish the stringent, clearly established law test. And the plaintiff had the burden to prove improper purpose with clear evidence. While today, of course, there is confusion over who has this burden. So, David, the point, I think, is you're talking about, well, I don't know who you're saying should have the burden, but I think in my version of the plaintiff has to have the burden. I mean, of course, if a plaintiff is proving, is attempting to argue a violation of civil rights,

they should have the burden of proof. But anyway, go ahead. But to force something to go to trial, which is costly, lengthy, has effects on one's career potentially, you would still create a qualified immunity. It would just, the standard, instead of clearly established law,

would be that the plaintiff would need to have some factual showing of improper purpose. Now, if they allege facts that have any basis, you know, that then need to go to a fact finder to determine whether that's true, that's how you would then get to a jury. But you would still have qualified immunity. It would just be based on this improper purpose. And from the facts you just alleged, David, this person would get qualified immunity under current law, and they would get qualified immunity under the common law version of qualified immunity. Under a husband of the pod version.

Under 1871 Clarence Thomas qualified immunity. Wait, Clarence Thomas isn't that old. Can I tell you a really weird story? Can I tell you a really weird story? So we have the wonderful, incredible drawing of husband of the pod arguing the pointed to Justice Kagan and said, Mama. And then he pointed to Justice Thomas and said, Mama. Oh, no. Oh, no. I have no idea why he thinks Clarence Thomas is his mother, or I think he uses Mama and Dada to mean male and female, why he thinks Justice Thomas is female. But it was weird, and I'm trying to teach him that no, that's not true. Yeah, that's funny. That's funny.

No, I have multiple objections with qualified immunity, one of them being, of course, it's absolutely not found in the statute. Correct. Like it's just- We all agree on that. Not found in the statute. Yeah, we all agree on- We all agree on that. Not found in the statute. Yeah, we all agree on that. The statute, in fact, contradicts it.

But what we- It just says shall be liable. I think that something like qualified immunity is needed as a grease on the wheels of our system. And I don't know that you agree with that. I agree that our current one is atextual, broken, stupid. Like I think we totally agree on that. I agree that our current one is atextual, broken, stupid. I think we totally agree on that. We may even agree on the back end of that if you don't have an improper purpose, you don't recover from a police officer, even if what they did, they shot an innocent person.

But I think in that in between, I still agree that immunity from trial serves an important purpose. between, I still agree that immunity from trial serves an important purpose. Just the test needs to be different. Interesting. Yeah. I'm skeptical of that. I'm skeptical of that. I think that as a practical matter, what will end up happening if you have qualified immunity removed are that the ambiguities, these ambiguous decisions, for example, if you're a police officer and you're lawfully performing your duties and there isn't an allegation here necessarily that there was on the part of the police, again, there are some important questions about the lights being on or not being on. That was a very big factor that led to a fatal shooting in a case I've talked a lot about where police come right outside of an apartment building in the wee morning hours late at night no lights on at all and then just start pounding on a door with allegedly no identification as being police

and that caused somebody to pick up a gun so those are questions about is, is that negligent? if your burden of proof is on proving negligence and the situation is highly ambiguous, but includes someone pointing a gun at a police officer and the police officer fires when a gun is pointed in their direction, it is very hard for me to see a legal regime that is going to hold officers routinely liable in those cases. But the problem is we just don't even get to make the case truly. And that is in contradiction of the statute. And that's my problem. Well, I've got good news and bad news for everyone.

Bad news, we're not going to talk about the sanctuary gun laws or the Voting Rights Act today. The good news is if you go to Yale Law School, you have the opportunity to hear about those two things approximately three hours before the pod will publish to everyone else. And we'll be talking about those Thursday. But before we leave, David, I want to read you a tweet. It's from Professor Lawrence Tribe of Harvard Law School. I already know what this is. Yeah. Here's the tweet. Led by Fox News Channel's Tucker Carlson, the GOP's Trump wing appears to be throwing its weight behind Putin. If Putin opts to wage war on our ally, Ukraine, such aid and comfort to an enemy would appear to become treason, as defined by Article 3 of the Constitution.

Here's my thing, David. Larry Tribe has, for the last four years, posted some of the worst legal takes on the internet, which would be fine if he were some random cable news pundit, I suppose. I wouldn't love it, but I would deal with it. You know, if Rachel Maddow posted this, I think we'd all be like, hey, Rachel, I know you don't know a ton about this and this has dangerous consequences. Let us explain them to you. You can dislike your opponents and think they have terrible ideas without accusing them of treason. But David, it's Lawrence Tribe. He holds himself out as a constitutional law expert. And lo and behold, during the Trump era, all of his opinions disfavored anything the Trump people were doing. And lo and behold, Biden, I'm sorry, David, during the Biden era, everything he comes up with somehow, including flipping on his own opinions, by the way, is totally different.

I have to say, I was hesitating saying this before based on some of his other epically bad and frankly offensive legal takes. But I think I'm going to say it now, David. Lawrence Tribe and Rudy Giuliani have far more in common than either of them think they do oh boy well that that take is a joke it is absurd let's just can we but since this is advisory opinions let's just and we cite statutes here it is 18 u.s code section 2381 treason whoever owing allegiance to the united states levies war against them or adheres to their enemies giving them aid and comfort within the united states or elsewhere is guilty of treason and shall suffer death or shall be imprisoned not less than five years and fined under this title but not less than a ten thousand

dollars blah blah blah okay blah. Okay. Russia, we are not at war with Russia. We're not at war with Russia. So that should end it right there. Okay. That should end it right there. So this objectively is not treason. There is no credible argument that this is treason. Absolutely, completely not. And so it's just, it's sad, frankly. It's sad that it has come to this. I mean, that is a classic example of a person using their position. Basically, maybe if you put him under a lie detector, he says he completely agrees with this, that he believes that fully. But it looks an awful lot to me like using your position and abusing your position for no other reason other than clicks. It's his pinned tweet right now, by the way.

He pinned it. Pinned it. Yeah, that means that no matter what he tweets after that, it will be the first tweet that people see for those who are not like Twitter literate. Then it's a testament to your character if you didn't know what that meant. Yeah.

So Tribe is 80 years old. Here's why I'm comparing them, by the way, David. These were two of the most respected legal minds in the country in the 1980s. And as our medical and scientific what we haven't had a president born after 1947, like ever something like that, something insane, right? I've had that wrong. It's whatever Barack Obama's birthday is. Um, 61. So, uh, Chuck Schumer, Nancy Pelosi, Joe Biden, Donald Trump, all of these people, Rudy Giuliani, Lawrence tribe, you know, it may just not be a good thing to keep extending people's work years because they're not quite what they used to be. So, Sarah, I want you to make a solemn agreement with me as someone who is slightly younger.

Do you want me to old yeller you? Not old, fully old yeller. Not old, fully old yeller. But if you see some serious velocity going off of my fastball, just go ahead and say, stick to tweeting about the Grizzlies. Okay. Yeah. Just, you have total freedom to say the fastball,

you have no break on the curve. The fastball is completely lost. No, you know, if you're- I think you've got a few good years left, but if I start seeing any foaming at the mouth, I'm taking you out back. But yeah, it's interesting. I can't say who it is. But years ago, I was interacting with a guy who was a leader of a pretty prominent organization. And he said this, and it really impressed me at the time. And he followed through with it. He said, I have seen too many people. And this is years ago before

Giuliani, before tribe. He said, I have seen too many people squander their legacy because they were unwilling to let go of their platform. So I'm going to let go of my position. And he said, so I'm going to let go of my position and he said at age x and that's that and I thought that's a incredibly wise and b it's pretty humble too because a lot of times people don't let go because they think well I'm needed you know my voice is desperately needed. And I thought that was humble. He said it. He did it. He let go. And you know what? His legacy, his reputation, fully intact.

And, you know, I thought that was incredibly wise. So, Sarah, and you're not the only person. I've told other people. I have multiple people with radar guns looking at my fastball. All right. Gail's going to be fun. Yes. We're heading to you, New Haven. Looking forward to it. See you soon, New Haven. And in the meantime,

for those of you who will not be in New Haven, you'll hear that podcast a few hours later on Thursday. But before then, please again, rate us on Apple Podcasts, subscribe on Apple Podcasts, subscribe on Apple Podcasts, and please check out thedispatch.com.