Latest / rationally BASED / Episode 20 | Anti-Weaponization Fund – Tit-for-Tat or Unilateral Disarmament?

Transcript

Episode 20 | Anti-Weaponization Fund – Tit-for-Tat or Unilateral Disarmament? · rationally BASED

• 0:00
  SPEAKER_00: Welcome back to Rationally Based, a podcast about law and politics on the edge.
• 0:04
  SPEAKER_00: Catherine, what's on deck for today?
• 0:06
  SPEAKER_02: Well, today we're talking once again about lawfare and the anti-weaponization settlement fund.
• 0:11
  SPEAKER_02: First, is it legal?
• 0:12
  SPEAKER_02: Second, what do we think of the sue and settle tactics that created the fund?
• 0:16
  SPEAKER_02: Democrats have engaged in those for years.
• 0:19
  SPEAKER_02: Should Republicans refrain?
• 0:20
  SPEAKER_02: Is that unilateral disarmament?
• 0:22
  SPEAKER_02: Third, who has standing to sue over the fund anyway?
• 0:25
  SPEAKER_02: Not that such technicalities would stop district judges.
• 0:28
  SPEAKER_00: Let's dive in.
• 0:47
  SPEAKER_02: And I'm Catherine Johnson with Center of the American Experiment.
• 0:50
  SPEAKER_00: And we are so excited to welcome back, hopefully, as a regular co-host, Joshua Kleinfield.
• 0:57
  SPEAKER_00: Josh, welcome, and why don't you tell us about yourself?
• 1:00
  SPEAKER_01: Well, thanks, Elon.
• 1:01
  SPEAKER_01: Thanks, Catherine.
• 1:02
  SPEAKER_01: I'm so, so very glad to be back.
• 1:05
  SPEAKER_01: A little backstory.
• 1:06
  SPEAKER_01: Elan and I have been friends for years, and we started uh thinking up this podcast together.
• 1:12
  SPEAKER_01: I don't know, what was it, 18 months ago, something like that?
• 1:15
  SPEAKER_01: More?
• 1:16
  SPEAKER_00: It's actually been more like four years we've been talking about.
• 1:19
  SPEAKER_00: Are you serious?
• 1:20
  SPEAKER_00: Oh wow.
• 1:20
  SPEAKER_00: It's been a long time.
• 1:21
  SPEAKER_00: It's been a number of years, Josh.
• 1:23
  SPEAKER_01: But I mean, I think what happened was we looked around at the world of legal podcasts, and we thought somebody needs to put together a high level of legal sophistication with an understanding of what the Trump moment is all about.
• 1:37
  SPEAKER_01: And so truly rationally based.
• 1:41
  SPEAKER_01: And uh and then I went into the administration and couldn't do it.
• 1:44
  SPEAKER_01: I was um uh part of uh Secretary McMahon's beachhead team at the U.S.
• 1:48
  SPEAKER_01: Department of Education on January 20th, 2025.
• 1:51
  SPEAKER_01: And I stayed in the administration until uh just some weeks ago.
• 1:55
  SPEAKER_01: And so now I'm a private citizen again, and I can finally join up, and I'm so glad to be here.
• 2:01
  SPEAKER_00: Well, we are so excited to have you to our uh listeners.
• 2:05
  SPEAKER_00: Don't forget to like and subscribe and spread the word.
• 2:08
  SPEAKER_00: We also have a Substack, rationallybased.substack.com, where we can follow you if you give us your uh emails and we can communicate with you directly.
• 2:15
  SPEAKER_00: You can get sneak peeks and stuff like that.
• 2:18
  SPEAKER_00: But okay, let's get to uh the meat of it.
• 2:20
  SPEAKER_00: Catherine, where should we start?
• 2:21
  SPEAKER_02: Um, okay, well, let's jump right in with the new DOJ anti-weaponization fund.
• 2:27
  SPEAKER_02: Uh, this is making a lot of waves among our fellow legal podcasters and other kind of legal commentarians.
• 2:35
  SPEAKER_02: Um, it all started when President Trump sued the IRS over the illegal leak of his tax returns.
• 2:42
  SPEAKER_02: That was in 2019 and 2020.
• 2:44
  SPEAKER_02: Um, the whole thing is a little bit weird because Trump is also the head of the IRS.
• 2:49
  SPEAKER_02: So the IRS did leak his tax returns, so that's a legitimate grievance, but he's kind of on both sides of this thing.
• 2:55
  SPEAKER_02: So now Trump has effectively settled with himself.
• 2:59
  SPEAKER_02: And it's the settlement there, as part of that case, that creates this 1.8 billion anti-weaponization fund.
• 3:07
  SPEAKER_02: Um, and it'll be used to pay out claims of individuals who have been victims of lawfare and legal process abuse at the hands of the Biden administration, primarily.
• 3:17
  SPEAKER_02: You probably have all seen reports from the media and other like crazy leftist types that this is a slush fund.
• 3:26
  SPEAKER_02: Um, but they have repeatedly said, the DOJ has, that that's not the case.
• 3:30
  SPEAKER_02: And in fact, Democrats and Republicans alike have been encouraged by the DOJ to apply to the fund.
• 3:36
  SPEAKER_02: Um, it applies to anyone that is the victim of this kind of government weaponization.
• 3:41
  SPEAKER_02: Plus, another thing that I found interesting that I didn't see a lot of places is that this fund already existed, essentially, uh, called the judgment fund, which is something that Democrats have used to pay their friends from for years.
• 3:54
  SPEAKER_02: In fact, Peter Strzok and Lisa Page got$2 million from the judgment fund in 2024.
• 4:00
  SPEAKER_02: So Trump is earmarking money from this judgment fund for victims of government weaponization.
• 4:06
  SPEAKER_02: So, per the DOJ, this is about seeking accountability for all Americans who were victims of lawfare and weaponization, millions of Americans whose online speech was censored at the behest of the government, parents silenced at school boards, senators whose records were secretly subpoenaed, churchgoers targeted by the FBI, and so on.
• 4:25
  SPEAKER_02: So I did find a really good example of someone who has already applied to this fund and could certainly benefit from it.
• 4:31
  SPEAKER_02: This is an example courtesy of the Federalist who obtained a request from Jim Trupus to Todd Blanche for$3.2 million from the fund.
• 4:41
  SPEAKER_02: Truopus had dared to legally represent Donald Trump in the wake of the 2020 elections.
• 4:49
  SPEAKER_02: He was one of these people that the Democrats went after as part of their fake electors prosecutions.
• 4:55
  SPEAKER_02: So in his letter to Blanche, Troopus wrote that he and his family have lived a nightmare since he stepped forward in November of 2020 to represent the president.
• 5:04
  SPEAKER_02: Uh, the government weaponization against me includes no fewer than 17 separate legal actions.
• 5:10
  SPEAKER_02: He wrote, asserting that he has been buried under 1.7 million in costs associated with the left's lawfare campaign against him over the past five plus years.
• 5:20
  SPEAKER_02: He's had to draw down his retirement savings and will likely cost me my family home and the balance of our retirement funds.
• 5:27
  SPEAKER_02: There's also like a side story where his son got pulled over by federal enforcement when they were leaving a Disney cruise.
• 5:33
  SPEAKER_02: Like they just went after him in every single way.
• 5:36
  SPEAKER_02: That's one specific example, but as everyone who's been paying attention knows, there are hundreds, thousands more of these examples.
• 5:44
  SPEAKER_02: Um, people have absolutely been harmed by the legal actions of Democrat administrations.
• 5:51
  SPEAKER_02: And so that's kind of the official justification for this fund.
• 5:55
  SPEAKER_02: First question, I think, outright, Elon, is this legal?
• 6:01
  SPEAKER_00: Okay, so I know I'm supposed to talk about that, but now that you've talked about the Troopist example, I have to remind our listeners, this was before Joshua joined.
• 6:10
  SPEAKER_00: Um, but remember we talked about the alternate electors.
• 6:13
  SPEAKER_00: I call them alternate electors.
• 6:15
  SPEAKER_00: The left calls them fake electors.
• 6:17
  SPEAKER_00: I just think this is such a crucial example, okay, of actual law fair.
• 6:23
  SPEAKER_00: And it shows you what the left does.
• 6:25
  SPEAKER_00: So the reason I know about this is because I was in Arizona for a long time.
• 6:28
  SPEAKER_00: My first institution was in Arizona, my first academic institution.
• 6:32
  SPEAKER_00: And there are there, the Democrat Attorney General is going after the so-called fake electors.
• 6:38
  SPEAKER_00: And Trupus was a fake, so-called fake elector in Wisconsin.
• 6:42
  SPEAKER_00: And what they're doing is they're going after these individuals under various state laws.
• 6:47
  SPEAKER_00: Well, what's the key state law at issue here, okay, is forgery.
• 6:52
  SPEAKER_00: So this is utterly insane, but it shows you the depth to which Democrats are willing to make their opponents' lives miserable.
• 7:01
  SPEAKER_00: So, what is a forged document?
• 7:04
  SPEAKER_00: A forged document is, I think the example we used, Catherine, uh, I sign a document and I sign it as you.
• 7:11
  SPEAKER_00: I pretend to be you.
• 7:13
  SPEAKER_00: And look, I sign over your house to Elon Warman or something like that.
• 7:17
  SPEAKER_00: That's okay.
• 7:18
  SPEAKER_00: That's a forged document.
• 7:20
  SPEAKER_00: In Wisconsin and Arizona, these alternate electors signed a certificate of election or a certain, I can't remember exactly what it's called.
• 7:29
  SPEAKER_00: I think it's called a certificate of electors or a certificate of election with their own names.
• 7:33
  SPEAKER_00: It's it's their own name.
• 7:35
  SPEAKER_00: The claim is that the things they said in the documents are lies, that they are not actually the duly qualified electors.
• 7:43
  SPEAKER_00: But that's the the crazy thing is, it doesn't matter if you sign something that has a lie in it.
• 7:48
  SPEAKER_00: That's not a forgery if you sign your own name to it.
• 7:51
  SPEAKER_00: And of course, the whole theory is preposterous because the certificates of election have no legal force without what's called a certificate of ascertainment by the head of the state election, like the head state election officer.
• 8:04
  SPEAKER_00: They they're literally meaningless.
• 8:06
  SPEAKER_00: Every year there are dozens of alternate uh certificates of electors or whatever.
• 8:11
  SPEAKER_00: All of this is to say, and why am I focusing on this?
• 8:15
  SPEAKER_00: The grievances here are real.
• 8:18
  SPEAKER_00: The grievances here are real.
• 8:20
  SPEAKER_00: I don't know about Troupist, but I'm sure he had to defend his bar license.
• 8:24
  SPEAKER_00: Do you know if he had to defend his bar license?
• 8:25
  SPEAKER_00: I'm sure he did.
• 8:26
  SPEAKER_00: I mean, look, John Eastman, I'm like not gonna be the first person to like defend John Eastman.
• 8:32
  SPEAKER_00: I, you know, and things that the legal theories he's advanced, but he was advocating for his client.
• 8:38
  SPEAKER_00: Uh he lost uh the legal theory, and he is now being prosecuted in multiple states for these so-called fake electoral schemes.
• 8:46
  SPEAKER_00: He's defending his bar license, which has been rescinded.
• 8:48
  SPEAKER_00: Like these are the the left will go will, I just there are no ends, right?
• 8:53
  SPEAKER_00: To the depths.
• 8:54
  SPEAKER_00: I am mixing some metaphor here, you know, to which they will go.
• 8:57
  SPEAKER_00: And I don't know, like I almost I almost want to stop here.
• 9:01
  SPEAKER_00: I almost want to stop here and like jettison our episode notes and just say, like, do we care if this is legal?
• 9:07
  SPEAKER_00: These people should be paid.
• 9:08
  SPEAKER_00: The left has to be stopped.
• 9:10
  SPEAKER_00: I don't know, my crazy just basically.
• 9:12
  SPEAKER_01: Well, I I um I I want to continue with our episode notes because I like them, and I do think the question of whether this is legal is a good question.
• 9:20
  SPEAKER_01: But, but I think what this example brings home is that the public justification for the settlement fund, right, which is that there are people who have been the victims for lawfare and deserve compensation, is totally justified.
• 9:34
  SPEAKER_01: There, there is no reasonable person could deny that there has been terrible lawfare by the Democratic Party, by the left, against people who supported Trump or the Trump administration, or just people in a variety of circumstances on the right, that it's had terrible personal consequences and that often they've been financial consequences.
• 9:51
  SPEAKER_01: And in our legal system, it's just as a matter of civil justice, they deserve financial compensation and they deserve their sort of day in court and their recognition.
• 10:00
  SPEAKER_01: So for all those reasons, the fund is, I mean, it might be subject to abuse, there might be complaints about it from all sorts of perspectives, and we could talk about them, but the underlying basic justification is right as a matter of justice.
• 10:15
  SPEAKER_01: And now, Ilan, tell us if it's right as a matter of law.
• 10:17
  SPEAKER_02: Well, and just one more thing on that.
• 10:19
  SPEAKER_02: Like the president has the power to pardon people criminally, but not civilly.
• 10:25
  SPEAKER_02: So this is kind of uh in addition to that, something that you can think, you know, okay, when when the president, I mean, Elon, you know more about this, but when they give the president the pardon power, maybe they weren't considering the fact that Democrats were going to be able to ruin people's lives through other ways than just throwing them in jail.
• 10:40
  SPEAKER_02: And so I think this is an interesting addition when you think about it that way, and all the power the president does already have to power people criminally.
• 10:47
  SPEAKER_02: This just adds the civil element to it.
• 10:50
  SPEAKER_01: Could I add something to that, Catherine?
• 10:52
  SPEAKER_01: There's also the fact that this has been going on not just for years, but for decades, just in a less extreme way.
• 10:57
  SPEAKER_01: So people, I'm older than both of you.
• 11:01
  SPEAKER_01: Um people of my, you know, generation have seen, you know, for example, social ostracism in college or in high school or something, for sort of disagreeing with the prevailing orthodoxy for a very long time.
• 11:15
  SPEAKER_01: Or professional consequences that don't rise to the level of lawfare, but do involve, you know, losing professional opportunities or reputational damage, or um, uh just being rejected for jobs and for um, I was just I I just happened to be having dinner with these two very, very famous, distinguished kind of giants of of the law.
• 11:38
  SPEAKER_01: And they were discussing how they had never been given any award whatsoever.
• 11:44
  SPEAKER_01: And um, you know, in in the field of academia, after a long and successful career, you get some recognition in the form of awards.
• 11:51
  SPEAKER_01: It could be a little petty to care about getting them or not getting them.
• 11:55
  SPEAKER_01: Uh, and they were laughing about it, but because they were conservative, despite their enormous achievement, they'd never gotten anything.
• 12:01
  SPEAKER_01: So this kind of um uh imposing professional and personal consequences for being on the wrong ideological side has been going on for decades.
• 12:11
  SPEAKER_01: It became extreme in the last few years when with examples like the Jim Troopist one you just gave.
• 12:19
  SPEAKER_00: And I'll add, and then I'll talk about the legal stuff too.
• 12:22
  SPEAKER_00: We're gonna get to this, not just in, you know, sort of these other tangential areas, not tangential, important like academic, you know, accolades and uh, but actually with judgments, with settlements, the Obama and Biden administration did this on steroids, but they just did it quietly and kind of in secret.
• 12:39
  SPEAKER_00: And that's what's so crazy about this.
• 12:41
  SPEAKER_00: This is not new.
• 12:42
  SPEAKER_00: Okay, so is it legal?
• 12:44
  SPEAKER_00: Well, it's complicated.
• 12:47
  SPEAKER_00: It depends how it's done.
• 12:48
  SPEAKER_00: There's how it was done and how we can imagine it.
• 12:51
  SPEAKER_00: Like, I totally agree.
• 12:52
  SPEAKER_00: Like, other commentators have made that point, and that's that's true.
• 12:55
  SPEAKER_00: What is this judgment fund that Catherine talked about?
• 12:57
  SPEAKER_00: Well, historically, how do you get money uh from the government if, say, a mail carrier runs over your foot with a with you with their mail truck, right?
• 13:07
  SPEAKER_00: And your foot is shattered.
• 13:08
  SPEAKER_00: You have a tort claim against the government.
• 13:11
  SPEAKER_00: But the government, the the mail carrier doesn't pay you, it's the government that pays you.
• 13:15
  SPEAKER_00: But the government can't pay you without an appropriation.
• 13:17
  SPEAKER_00: And so it used to be that they would do this in committees.
• 13:20
  SPEAKER_00: Like you go to the 1800s, someone says, Oh, the government breached a contract, they owe me money.
• 13:25
  SPEAKER_00: Congress would have to hold a hearing, some committee would hold a hearing, and they would pay money out.
• 13:30
  SPEAKER_00: Eventually, they siphon this off to the court of claims, but they would often still have to issue appropriations, right, to pay judgments that existed against the government.
• 13:38
  SPEAKER_00: Because again, the government can't pay you without an appropriation from Congress.
• 13:41
  SPEAKER_00: And eventually they decided this is too unwieldy.
• 13:44
  SPEAKER_00: We are going to permanently appropriate for a judgment fund so that whenever cases are actually brought and damages are owed through a court judgment, then you can just pay them without coming to Congress for a specific appropriation.
• 13:59
  SPEAKER_00: This makes total, total sense.
• 14:01
  SPEAKER_00: Now, the problem is the statute also allows for the government to settle claims, both that have been initiated as litigation, or if litigation is anticipated or imminent.
• 14:16
  SPEAKER_00: So you can imagine the abuse here.
• 14:19
  SPEAKER_00: All of a sudden, someone could claim, oh, I have this grievance against the government and uh liberal activist groups have done this for decades.
• 14:29
  SPEAKER_00: They come up with this theory uh that they are harmed, and then the a favorable administration can just say, okay, well, in anticipation of litigation, or because we've been doing this ongoing litigation, we are going to settle with you for 300, you know, for like$3 billion or something like that.
• 14:49
  SPEAKER_00: And so this has been done, and we're gonna go through some of the examples in which the Obama and Biden administrations have really abused this process.
• 14:56
  SPEAKER_00: I do think the only difference here is that's just kind of naked and open that this is happening.
• 15:00
  SPEAKER_00: Now, there are differences.
• 15:02
  SPEAKER_00: Okay, there are differences.
• 15:04
  SPEAKER_00: Catherine, as you highlighted, it is weird like Trump sued himself, kind of right.
• 15:09
  SPEAKER_00: The he has he has so many legitimate grievances, by the way.
• 15:13
  SPEAKER_00: But uh the IRS leaking, right?
• 15:15
  SPEAKER_00: His grievances, it kind of shows you that there's a really there is a deep state, actually.
• 15:19
  SPEAKER_00: In a way, it's what you say, well, Trump was in charge of the IRS.
• 15:22
  SPEAKER_00: Okay, it didn't stop the person from leaking the information, right?
• 15:25
  SPEAKER_00: It turns out there is a deep state that he can't fully control.
• 15:30
  SPEAKER_00: But look, certainly put putting aside his legitimate grievances, right?
• 15:34
  SPEAKER_00: There are certainly you don't want Obama, uh he did other things more secretly, more adeptly, if if you will.
• 15:41
  SPEAKER_00: You don't want Obama coming up with a grievance, suing his own government, and then settling with himself for a billion dollars.
• 15:48
  SPEAKER_00: Like you that everyone can understand that you don't want that to happen.
• 15:53
  SPEAKER_00: Now, maybe the problem with the settlement fund is that it doesn't anticipate, it sort of presumes that both Obama and Biden and Trump that all three would act sort of in good faith and not do something like this, but strictly from the letter of the settlement fund or the judgment fund, really what is to stop a president from doing this, other than his sort of good faith sort of behavior.
• 16:16
  SPEAKER_00: But okay, last point about this, and then we could just uh kind of break it down a bit more and go to the historical uh examples.
• 16:23
  SPEAKER_00: So if Trump had a legitimate grievance, could he settle with himself?
• 16:28
  SPEAKER_00: Again, awkward for the reasons we said, probably shouldn't do it for the reasons we said, but why couldn't he?
• 16:34
  SPEAKER_00: Why couldn't he settle with himself for a billion plus dollars and then give that money privately to set up his own sort of commission, right?
• 16:43
  SPEAKER_00: Now, this isn't what's happening here, and of course, there's no plausible way Trump is owed a billion dollars for the bigger.
• 16:49
  SPEAKER_02: Okay, this seems better though than that, Elon.
• 16:52
  SPEAKER_02: Like he's not giving himself any money this way.
• 16:54
  SPEAKER_02: Not no money is going to anyone in the Trump family, it is going to this fund.
• 17:00
  SPEAKER_02: Wouldn't you think that's better than it going to him directly?
• 17:04
  SPEAKER_00: Um, morally better, normatively better, possibly legally worse, but actually I'm not clear about that either.
• 17:11
  SPEAKER_00: Because people like to forget about this.
• 17:14
  SPEAKER_00: Obama did the same thing.
• 17:17
  SPEAKER_01: Okay, so can we get there in just a second, though?
• 17:21
  SPEAKER_01: I I just want to say for you know, our listeners who might not be lawyers, um, I just thought I'd back up for a second and say a word about how settlements work and how sue and settle works.
• 17:32
  SPEAKER_01: So, settlements, so here's an example of just a really standard settlement.
• 17:36
  SPEAKER_01: Uh, say the federal government sues a school district, and the claim in the suit is that the um the school district is meeting out discipline on a racial basis in violation of students' civil rights.
• 17:48
  SPEAKER_01: Um, and let's imagine uh that the facts are on the federal government's side, and the school district doesn't want to litigate a hopeless case and uh wants to settle.
• 17:57
  SPEAKER_01: Okay, so totally normal so far.
• 17:59
  SPEAKER_01: Settlements are very flexible legal instruments, so the two sides can agree on whatever they think will uh rectify the legal wrong.
• 18:06
  SPEAKER_01: So maybe, maybe in the case I imagined, uh the school district agrees to clear the victim's records, change school disciplinary policies, and retrain teachers.
• 18:17
  SPEAKER_01: Normal, right?
• 18:18
  SPEAKER_01: And ordinarily this process is adversarial, so the two sides negotiate adversarially on what the settlement will be.
• 18:26
  SPEAKER_01: But now imagine if one of the parties is the federal government and the two sides are ideologically aligned and they want the same thing.
• 18:32
  SPEAKER_01: How could this work?
• 18:33
  SPEAKER_01: That's the sue and settle scenario.
• 18:35
  SPEAKER_01: Uh so, same case, uh federal government sues a school district saying they're meeting out discipline on a racial basis, but they're both on the same ideological side.
• 18:45
  SPEAKER_01: And the school district says, you're absolutely right.
• 18:47
  SPEAKER_01: What would it take to settle this?
• 18:49
  SPEAKER_01: And the federal government says you have to put in place a comprehensive anti-racism curriculum and train every student and every teacher in your comprehensive anti-racism curriculum.
• 18:59
  SPEAKER_01: Well, the federal government would ordinarily have no authority over local curriculum.
• 19:05
  SPEAKER_01: And you can easily imagine a scenario where the state government, let's say the state legislature, the state department of education, or the state school boards or county or district school boards, all considered a comprehensive anti-racism curriculum and they rejected it.
• 19:20
  SPEAKER_01: They were like, let's do science and math and history and stuff like that.
• 19:24
  SPEAKER_01: Well, now you've got your comprehensive anti-racism curriculum, how through sue and settle tactics.
• 19:31
  SPEAKER_01: And the new curriculum, as I've imagined the case, is required by law, not by statute, which would have to go through the democratic process, not by regulation, which would have to go through the process we call the APA or Administrative Procedure Act process, and also provides for some democratic accountability.
• 19:49
  SPEAKER_01: The sue and settle outcome is court-ordered, but it isn't genuinely the product of judicial judgment.
• 19:56
  SPEAKER_01: There isn't a judge sitting back here and saying, here's the legal wrong, I rectify it by means of an order of an anti-racism curriculum.
• 20:04
  SPEAKER_01: No, the parties negotiate it, the court puts its stamp on it, and the stamp gives it the force of law.
• 20:11
  SPEAKER_01: So is that legal?
• 20:13
  SPEAKER_01: Well, the typical view, uh, this is a well-known prom, it's not like this is novel, is that this is a misuse of the legal process and that it's a threat to the democratic process, but it is legal in most circumstances.
• 20:26
  SPEAKER_01: Um, you could imagine an outright sham lawsuit that might cross some uh lines of legal ethics.
• 20:33
  SPEAKER_01: You could imagine general legislation like for the whole country through a lawsuit, that might violate some constitutional separation of powers considerations.
• 20:41
  SPEAKER_01: But in general, no specific provision of law forbids the suicidal tactics.
• 20:47
  SPEAKER_01: The control on it is that courts can refuse the settlement if they choose to exercise their judgment in that atypical way.
• 20:55
  SPEAKER_00: Now, in this case, though, it was a private settlement, right?
• 20:58
  SPEAKER_00: So it wasn't court approved.
• 21:00
  SPEAKER_00: Though there have been other such settlements, which I want to talk about.
• 21:04
  SPEAKER_00: And the other thing is there have been no like claimants in advance.
• 21:08
  SPEAKER_00: So you're just anticipating that people will sue and therefore setting up this judgment.
• 21:14
  SPEAKER_00: So, right, so Catherine, to answer your first question, and then I want to go back to what Josh said and actually list these examples.
• 21:19
  SPEAKER_00: It's sort of a melding of things, right?
• 21:21
  SPEAKER_00: If you had a few plaintiffs who J Sixers say, or Thupas, what was his name?
• 21:26
  SPEAKER_00: Thupas, I think.
• 21:27
  SPEAKER_00: Trupus.
• 21:28
  SPEAKER_00: Trupus, sorry.
• 21:29
  SPEAKER_00: Trupus, Trupus, my my apologies.
• 21:32
  SPEAKER_00: Uh so Mr.
• 21:33
  SPEAKER_00: Troupus or a J Sixer had filed a claim already.
• 21:37
  SPEAKER_00: And in settlement of those claims, uh, you basically create this fund and you anticipate all the other people who are gonna come out of the woodwork, right?
• 21:45
  SPEAKER_00: That would be one thing.
• 21:46
  SPEAKER_00: But here it's Trump who sued himself and then settled on behalf of all these other people who have not yet sued.
• 21:53
  SPEAKER_00: So it is a bit different, but it's actually not that different from what Obama did.
• 22:00
  SPEAKER_00: And so uh Josh mentioned that this sue and settle tactics happen a lot.
• 22:04
  SPEAKER_00: So we called some examples with the help of friend of the pod, uh Ted Frank.
• 22:12
  SPEAKER_00: Um, all right, Catherine, what uh who's really doing yeoman's work, as I said, uh on this issue.
• 22:17
  SPEAKER_00: He's been fighting sue and settle um for many years.
• 22:21
  SPEAKER_00: He also fights class action settlements that don't benefit the class at all.
• 22:24
  SPEAKER_00: And we're lawyers, plaintiffs' lawyers, who are all Democrats, by the way, uh get paid hundreds of millions of dollars to basically.
• 22:30
  SPEAKER_01: Now, there I disagree.
• 22:31
  SPEAKER_01: I I know quite a few class action plaintiff's lawyers on the right.
• 22:34
  SPEAKER_01: It's a new thing.
• 22:35
  SPEAKER_01: It's like a growing thing.
• 22:37
  SPEAKER_00: Oh, I should get in on that, uh, Pi then.
• 22:39
  SPEAKER_00: Yeah, yeah.
• 22:40
  SPEAKER_00: It's profitable.
• 22:41
  SPEAKER_00: We all should.
• 22:42
  SPEAKER_00: Okay, Catherine.
• 22:43
  SPEAKER_00: So we have some examples.
• 22:44
  SPEAKER_00: Which should we talk about first?
• 22:46
  SPEAKER_02: Um, let's go to the one that I found most interesting: Cobel v.
• 22:51
  SPEAKER_02: Salazar.
• 22:52
  SPEAKER_02: Uh, in 1996, an activist sued on behalf of Native American tribes, alleging the government had mismanaged various funds held in trust for the Indian tribes.
• 23:03
  SPEAKER_02: But the DOJ litigated that aggressively and won many times.
• 23:08
  SPEAKER_02: But the Obama administration still made a big payout to those Indian tribes anyway, even though they hadn't lost.
• 23:15
  SPEAKER_02: I don't I was very confused.
• 23:17
  SPEAKER_01: So, what was pretending.
• 23:18
  SPEAKER_01: Didn't they take a$500 million?
• 23:21
  SPEAKER_01: They won, the Indian tribes won, they won$500 million, but then the Obama administration rejected the$500 million and upped it to$3.5 billion, even though they were formerly on the other side.
• 23:33
  SPEAKER_00: And gave$100 million as part of the settlement in attorney's fees to their Democrat Party donor plaintiffs' lawyers.
• 23:43
  SPEAKER_00: Right.
• 23:44
  SPEAKER_02: So it would be like lawyers.
• 23:47
  SPEAKER_02: This is a dream job.
• 23:48
  SPEAKER_00: It would be like it would be like Elon and I um uh filing a suit against the current Trump administration on something they actually support and believe in, and then settling and then paying us like$100 million and us being how how how about how about we sue on behalf of white students who got loans instead of grants because grants were discriminatorily given on the basis of race, which obviously would be just uh a just lawsuit uh on our behalf.
• 24:17
  SPEAKER_00: We should do this.
• 24:18
  SPEAKER_00: Oh my gosh, Josh and and then the uh Trump uh Department of Education.
• 24:23
  SPEAKER_00: Um I guess Josh just left them.
• 24:24
  SPEAKER_00: So recused, recused.
• 24:27
  SPEAKER_00: Can't do it.
• 24:28
  SPEAKER_00: A little conflict there, but like then pay me$100 million in attorney's fees.
• 24:32
  SPEAKER_00: Um, I'm giving idea, getting uh ideas here.
• 24:34
  SPEAKER_00: But yeah, what what was crazy about this lawsuit, okay, is that Clinton fought it, Bush fought it, everybody fought it because that's your job.
• 24:42
  SPEAKER_00: Your job is to defend the federal government, right?
• 24:45
  SPEAKER_00: Now they ended up losing, uh, as Josh said, on the merits here.
• 24:49
  SPEAKER_00: Uh the trust funds for the native tribes was held to have been sort of uh uh mismanaged, and they wanted billions and billions and billions, and the DOJ fought it and fought it and fought it, and the last word on it was you get 400 some million dollars, right?
• 25:03
  SPEAKER_00: That that's it.
• 25:04
  SPEAKER_00: And then instead of saying, Great, that's what you get, the Obama administration hardly, I think within a year of their coming into power, said, Oh no, we'll settle with you for three and a half billion dollars.
• 25:16
  SPEAKER_00: The taxpayers didn't approve that, the courts didn't require that, and of course, your Democrat Party constituency, your plaintiff's lawyers get a huge payday, which of course will come right back to you in campaign donations or like a big chunk of it.
• 25:31
  SPEAKER_00: Like, what in abuse?
• 25:33
  SPEAKER_00: And no one, no one is talking about that.
• 25:35
  SPEAKER_00: Okay, a little different, a little different, clearly abusive.
• 25:39
  SPEAKER_00: Okay, what else?
• 25:40
  SPEAKER_00: We have so many examples, and and I think it's important to talk about this because even our friendly podcasts on the kind of on the right, the semi-right, the semi-right, right?
• 25:50
  SPEAKER_00: The weak right everyone likes like harping on Trump and and they say, well, you know, it doesn't make it right that Obama and Biden did it, but that's not the point that we're getting at.
• 25:59
  SPEAKER_00: Okay, there's a broader point here, which we'll get at, which is Obama did it, Trump tried to stop it the first time around, and then Biden undid Trump's attempt to stop it and kept kept going.
• 26:11
  SPEAKER_00: That's the story we want to tell our listeners.
• 26:13
  SPEAKER_00: What are we suckers?
• 26:14
  SPEAKER_00: Are we the only ones that are supposed to not use the judgment fund in this way?
• 26:18
  SPEAKER_00: So we're we're building that story.
• 26:20
  SPEAKER_00: That's where we're going.
• 26:21
  SPEAKER_00: Okay, Catherine, what's our next one?
• 26:22
  SPEAKER_02: Okay, one more.
• 26:23
  SPEAKER_02: So from Ted Frank.
• 26:24
  SPEAKER_02: Um he says Congress repeatedly rejected Obama administration requests to fund a program for electric vehicles.
• 26:31
  SPEAKER_02: In the Volkswagen Diesel case in NDCal, DOJ settled its civil case against Volkswagen by having them fund the program instead of having 1.2 billion go to the treasury.
• 26:45
  SPEAKER_00: Yes.
• 26:46
  SPEAKER_00: Okay.
• 26:47
  SPEAKER_02: Dieselgate.
• 26:48
  SPEAKER_00: Dieselgate was a real thing, by the way.
• 26:50
  SPEAKER_00: Like Volkswagen had committed a crime, like clearly criminal, right?
• 26:54
  SPEAKER_00: They they were, what was the situation?
• 26:56
  SPEAKER_00: They put in wow, they were devious.
• 26:59
  SPEAKER_00: What like can you even imagine this happening today?
• 27:01
  SPEAKER_00: They put in like software into their cars, and they would know that the software would be able to detect if it was being tested for emissions.
• 27:10
  SPEAKER_00: And it was able to like lower the emissions reading.
• 27:12
  SPEAKER_00: And this was all discovered when some private university, which was just testing emissions out of vehicles, uh ran a test and saying, hey, the car's readout is different than what we're reading.
• 27:24
  SPEAKER_00: And wow, like huge, huge scandal.
• 27:28
  SPEAKER_00: But the question is, by what right did the Obama administration have to settle that case, in part by requiring them to pay millions of dollars to fund an electric vehicle program that Congress had specifically rejected.
• 27:43
  SPEAKER_00: Sue and settle, getting private actors to get the government to do things or getting the private actors to do things for the government that the government would not be able to do because no legal authorization to do it.
• 27:56
  SPEAKER_00: This is again an abuse that no one seems to talk about.
• 27:59
  SPEAKER_00: Catherine, another one we have to talk about.
• 28:01
  SPEAKER_00: Vilsac.
• 28:02
  SPEAKER_00: Um let me actually make sure I understand uh uh the name here.
• 28:05
  SPEAKER_00: It is Vilsac.
• 28:06
  SPEAKER_00: So there were a case um brought uh, I think at the very beginning of the Bush administration, uh for Hispanic farmers who sued.
• 28:14
  SPEAKER_00: And the reason I'm talking about this, just so our listeners know, is because this is the closest analog to the anti-weaponization fund.
• 28:20
  SPEAKER_00: People say, oh, this is so different, this is so different.
• 28:23
  SPEAKER_00: No, not that different.
• 28:25
  SPEAKER_00: So they sued, these Hispanic farmers sued on the ground uh that they were discriminated against unlawfully in the receipt of loans and loan terms and various conditions.
• 28:34
  SPEAKER_00: So they sued the USDA, okay, uh the Department of Agriculture.
• 28:38
  SPEAKER_00: And they tried to get class certification because if you could have a class action, then all of a sudden you can get payouts on behalf of a bunch of people who aren't actually physically there parties to the lawsuit, right?
• 28:49
  SPEAKER_00: And class actions are how you get hundreds of millions or billions of dollars instead of one individual might get just a hundred thousand dollars, right?
• 28:56
  SPEAKER_00: Plaintiffs' lawyers like class actions because you can aggregate all the people who have not actually sued, but on whose behalf you're suing.
• 29:03
  SPEAKER_00: Well, what happened?
• 29:04
  SPEAKER_00: Class certification was denied time and again over a 10-year period.
• 29:11
  SPEAKER_00: So they they they didn't have a class.
• 29:12
  SPEAKER_00: They didn't have a class.
• 29:13
  SPEAKER_00: What did the Obama administration do?
• 29:16
  SPEAKER_00: We'll create a fund and we will allow anybody who would have been a member of the class to make a claim for payment.
• 29:25
  SPEAKER_00: Why is this like the Trump anti-weaponization fund?
• 29:29
  SPEAKER_00: Because the criticism of the Trump anti-weaponization fund is that nobody's actually filed a claim yet.
• 29:34
  SPEAKER_00: There is no class action lawsuit, right?
• 29:36
  SPEAKER_00: It's an anticipatory fund in case people want to come and make a claim.
• 29:40
  SPEAKER_00: Okay.
• 29:41
  SPEAKER_00: Well, that's what the Vilsac V.
• 29:42
  SPEAKER_00: Garcia, the love v Vilsac, that's what this was.
• 29:46
  SPEAKER_00: It was bigger than the anti-weaponization fund in 2026 dollars.
• 29:51
  SPEAKER_00: It was bigger.
• 29:52
  SPEAKER_00: It's like 2 billion something.
• 29:54
  SPEAKER_00: And they said anybody who claim who has this claim, even though there's no class certification, even though you never filed a lawsuit, you can come and make claims on it.
• 30:04
  SPEAKER_00: It is exactly like what the Trump administration uh is doing.
• 30:08
  SPEAKER_00: Again, to advance their political priorities.
• 30:11
  SPEAKER_00: So there are so many of these uh precedents.
• 30:14
  SPEAKER_00: I do want to say um one other thing uh about this.
• 30:18
  SPEAKER_00: Um and I can't remember, Josh, I don't think you mentioned this part.
• 30:21
  SPEAKER_00: So there's something called the cypre doctrine, which I'm not gonna get into exactly, but it's this idea where there are like donors or wills, and if their intent can't be perfectly followed or precisely followed, you you give the money to something as close, like a close approximation to like effectuate donor intent.
• 30:36
  SPEAKER_00: Well, in a lot of these settlements, they say, okay, and if there aren't people to collect the money, then the rest of the money goes to some NGO that does some work along similar lines.
• 30:48
  SPEAKER_00: So, for example, an NGO that advocates for Native American interests, or an NGO that advocates for Hispanic farmers, which all sounds good, except these NGOs, as we know from recent history, have tremendous political power and they are all aligned with the left.
• 31:04
  SPEAKER_00: And you get these payouts from the taxpayers.
• 31:06
  SPEAKER_00: Um now in the Vilsack case, turns out only like a couple hundred million was paid out.
• 31:10
  SPEAKER_00: Unfortunately, I think the rest went back to the judgment fund.
• 31:13
  SPEAKER_00: So I don't think they had a Cypre example in that one.
• 31:15
  SPEAKER_00: But in many of these settlements, once the claimants are gone, they just give it out to some left-wing NGOs.
• 31:22
  SPEAKER_00: So those are just some examples.
• 31:24
  SPEAKER_02: Cass Well, any other ones you want to talk about, or should we one more that really kind of blew my mind and we can just do it quickly.
• 31:31
  SPEAKER_02: Um, so because we talked about the Biden student debt relief issue on the podcast.
• 31:36
  SPEAKER_02: As it turns out, the administration settled a collusive lawsuit in order to forgive billions in loans anyway, even though we all know that uh this is found unconstitutional at the Supreme Court.
• 31:49
  SPEAKER_02: Uh, apparently he forgave a bunch of student loans in the end, after all.
• 31:53
  SPEAKER_02: I had no idea.
• 31:54
  SPEAKER_00: Yeah, so it was a it was smaller scope.
• 31:56
  SPEAKER_00: This is a case called Sweet Against Cardona.
• 31:59
  SPEAKER_00: And again, um, hat tip to friend of the pod, Ted Frank, uh, for highlighting this on uh social media.
• 32:06
  SPEAKER_00: If you're not following Ted Frank of the Hamilton Lincoln Law Institute, you should.
• 32:11
  SPEAKER_00: Um, but it here there was a statute applicable to like this small loan program that specified the conditions under which borrowers could actually sue or petition the government to have their loans forgiven because their institutions of higher education had committed certain acts or omissions, like, you know, like uh paper mills, or you're you're not actually educating us properly, or you've committed fraud, or you know, whatever.
• 32:35
  SPEAKER_00: And so we can actually, we've been misled, right?
• 32:38
  SPEAKER_00: And so our loans can be forgiven.
• 32:40
  SPEAKER_00: And what happened is so the the the plaintiffs initially sued the first Trump administration just to clear a backlog, like please, like process these faster so we could get our debt relieved here uh on the basis of these acts of remissions from these bad actors.
• 32:55
  SPEAKER_00: And then the Biden administration came in.
• 32:57
  SPEAKER_00: And what did they say?
• 32:58
  SPEAKER_00: What happened?
• 32:59
  SPEAKER_00: Well, the plaintiff's lawyers, of course, what did they do?
• 33:02
  SPEAKER_00: They amended the complaint to just demand debt relief.
• 33:06
  SPEAKER_00: It's like that wasn't what you were asking when Trump was in office.
• 33:09
  SPEAKER_00: So they literally took the opportunity, like, oh, we have a friendly administration who might settle with us collusively.
• 33:15
  SPEAKER_00: They demanded debt relief and then they extended it to a loan program, a much bigger loan program, to which the Ax or emissions provision did not apply under the statute.
• 33:26
  SPEAKER_00: And so they literally came up uh, you know, with uh millions, I think, of dollars of debt relief, not not on the order of the what was it, you know, billions of of the initial one, but again, clearly trying to get around uh restrictions in the law.
• 33:40
  SPEAKER_00: So Democrats have done this all the time.
• 33:43
  SPEAKER_00: And in fact, I think, I think now we get to it, Trump tried to stop it the first time, and then they thwarted even that.
• 33:52
  SPEAKER_02: Yeah, well, this is where it's important to point out because one of the things that you'll hear people say when they're talking about this issue is well, I don't understand.
• 33:59
  SPEAKER_02: Aren't conservatives worried that future Democrats are gonna do this same thing?
• 34:04
  SPEAKER_02: And you you have to understand that they were already doing this thing.
• 34:08
  SPEAKER_02: They were already doing this thing like crazy.
• 34:10
  SPEAKER_02: And that is a nonsense argument.
• 34:12
  SPEAKER_02: And the other thing is that this is a fund specifically to try and counteract the inappropriate actions by Democrats, the weaponization of government and the law fair.
• 34:23
  SPEAKER_02: This is directly trying to counteract that.
• 34:26
  SPEAKER_02: And so just don't fall into that trap that people will set where aren't you afraid that uh president AOC will do this?
• 34:33
  SPEAKER_02: President AOC would have done this anyway.
• 34:36
  SPEAKER_02: So what are we going to do?
• 34:37
  SPEAKER_02: We're just gonna not, we're not gonna play politics, we're not gonna, we're not gonna play the same game.
• 34:42
  SPEAKER_02: That's what Republicans have done forever, and it's led to a lot of our failures.
• 34:46
  SPEAKER_02: And finally, we have someone in President Trump who's willing to say, I'll play ball, I'll play your game.
• 34:52
  SPEAKER_01: So you have a quick pickup on that?
• 34:54
  SPEAKER_01: Because I I think it goes to the big philosophical question of this episode of our podcast.
• 35:00
  SPEAKER_01: And one of the big philosophical questions facing American politics today and the American right today.
• 35:05
  SPEAKER_01: So, and um, you know, philosophical, I'm a philosopher uh as well as a lawyer by training.
• 35:11
  SPEAKER_01: I'm uh I was a philosophy professor as well as a law professor uh previously.
• 35:16
  SPEAKER_01: Um so I'm gonna say something really abstract and general and philosophical, but let me get there in a little more of a concrete way.
• 35:24
  SPEAKER_01: Let's start with that person that you mentioned previously, Catherine, Jim Trupus.
• 35:28
  SPEAKER_01: So there's a lawyer who dared to represent the Trump campaign.
• 35:32
  SPEAKER_01: And the left wanted to hurt him for engaging in that representation as a sort of retribution, but it also wanted to scare other people who might want to do the same.
• 35:42
  SPEAKER_01: So it tried to destroy his life, go after his son and his family, um, and it succeeded.
• 35:48
  SPEAKER_01: It bankrupted him, it uh cost him years of happiness.
• 35:52
  SPEAKER_01: With anyone who's been through that kind of scale of litigation knows that it consumes a life.
• 35:58
  SPEAKER_01: The thing I want to note is that's norm-breaking, right?
• 36:02
  SPEAKER_01: We had a norm against using the agencies of the government to destroy people's lives as sort of political retribution for just doing their job, for being lawyers.
• 36:10
  SPEAKER_01: And the left broke that norm against engaging in that kind of lawfare.
• 36:16
  SPEAKER_01: Okay, now that's the lawfare norm-breaking.
• 36:19
  SPEAKER_01: Let's talk about the suicidal tactics.
• 36:20
  SPEAKER_01: I mean, you just brought up a bunch of really compelling examples.
• 36:23
  SPEAKER_01: I can't talk about Sweet v.
• 36:24
  SPEAKER_01: Cardona, but I can talk about like the Volkswagen Diesel case or Garcia v.
• 36:28
  SPEAKER_01: Wilsack or uh Corbel v.
• 36:30
  SPEAKER_01: Salazar, all of which are like, oh, we've got the legal process, we can't get the legislation we want.
• 36:36
  SPEAKER_01: So let's arrange for our friends to sue us or take advantage of a convenient lawsuit and make a deal with them.
• 36:42
  SPEAKER_01: Well, that's norm-breaking.
• 36:44
  SPEAKER_01: That wasn't done before, and then it exploded onto the scene 20 years ago in the Obama administration and continued in spades in the Biden administration.
• 36:54
  SPEAKER_01: What we're seeing here is part of a larger pattern that could be repeated across literally hundreds of examples, where the Trump administration is accused of breaking sacred norms and doing something unprecedented.
• 37:08
  SPEAKER_01: And in fact, there's a lot of precedent, and the norms were broken a long time ago by the left.
• 37:13
  SPEAKER_01: And the left doesn't notice or pretends not to notice or deliberately suppresses information, and Republican fellow travelers do the same.
• 37:20
  SPEAKER_01: So, what are some examples as we multiply this across, you know, across the whole of society?
• 37:26
  SPEAKER_01: Well, think about like the social media censorship of conservative voices, right?
• 37:30
  SPEAKER_01: Before X was X, it was Twitter and YouTube and the like and Facebook were systematically removing conservative voices under pressure from the government or Sue Januar on their own behalf.
• 37:43
  SPEAKER_01: Or think about suppressing the Hunter Biden laptop story in order to influence the outcome of an election.
• 37:49
  SPEAKER_01: Or just think about the sheer fact of prosecuting your chief political rival, Donald Trump, with like multiple state DAs and federal officials using every civil and criminal means available to go after.
• 38:03
  SPEAKER_01: I mean, that's like something out of a fake democracy in the developing world, right?
• 38:10
  SPEAKER_01: Like going after your political rivals with um legal actions.
• 38:14
  SPEAKER_01: Or think about something we have all experienced, right?
• 38:17
  SPEAKER_01: Which is just the very ordinary uh experiences in our places of education and our workplaces, where people with power set aside the mission in order to promote people on the basis of their commitment to sort of various social justice goals, maybe on a racial basis or an ideological basis.
• 38:35
  SPEAKER_01: This is the case of like, okay, we're an orchestra, we're gonna we're gonna pick a piece of music, not because it's beautiful, but because it was written by someone of a certain race.
• 38:43
  SPEAKER_01: Or we're a hospital, we're gonna pick someone to be an intern here or to be a doctor here because they're committed to a social justice mission, or we're whatever, you know, multiply examples literally ad infinitum, because this happened across society.
• 38:58
  SPEAKER_01: Or think about still another norm being broken, which is social ostracism for disagreeing with the prevailing orthodoxy or professional destruction for disagreeing with the orthodoxy.
• 39:08
  SPEAKER_01: This is the basic phenomenon of being a conservative or a republican and finding that your opportunities in life are curtailed both socially and professionally.
• 39:17
  SPEAKER_01: That's norm-breaking too.
• 39:19
  SPEAKER_01: So here's the general philosophical point.
• 39:23
  SPEAKER_01: When you're in a conflict situation and one side breaks a norm, the other side is always presented with a question.
• 39:31
  SPEAKER_01: How do we respond?
• 39:33
  SPEAKER_01: Do we uphold the norm?
• 39:35
  SPEAKER_01: Will that inspire the other side to return to the better angels of their nature and lead to the norm in the long run being upheld?
• 39:41
  SPEAKER_01: Or will it do precisely the opposite and lead that other side to keep breaking it even more egregiously because there's no consequences?
• 39:48
  SPEAKER_01: Or are we just morally committed to upholding the norm because, you know, well, that's that's God's rules or something like that?
• 39:57
  SPEAKER_01: Or do we respond identically?
• 39:58
  SPEAKER_01: Do we do exactly to them what they do to us?
• 40:02
  SPEAKER_01: Uh, which of course endangers the norm itself that carries consequences?
• 40:06
  SPEAKER_01: Or do we at least respond combatively?
• 40:08
  SPEAKER_01: We don't maybe do the same thing, but we don't take it lying down either.
• 40:12
  SPEAKER_01: You see this in every conflict situation.
• 40:15
  SPEAKER_01: Think about Israel.
• 40:16
  SPEAKER_01: It's attacked on October 7th.
• 40:18
  SPEAKER_01: There are numerous violations of human rights, of international law, of basic decency in the course of the attack.
• 40:25
  SPEAKER_01: Israel is presented with a question: do we do the same back to them?
• 40:28
  SPEAKER_01: Do we go to war even if we don't do exactly the same?
• 40:32
  SPEAKER_01: Um, do we say, how did we upset you and how can we fix it?
• 40:36
  SPEAKER_01: We're so sorry that you attacked us.
• 40:38
  SPEAKER_01: Game theorists study this in a totally abstract way.
• 40:41
  SPEAKER_01: And the strategy that seems to prevail is tit for tat, right?
• 40:45
  SPEAKER_01: You're cooperative until they're uncooperative, and then you give them a taste of their own medicine.
• 40:51
  SPEAKER_01: There has been a split in the conservative political movement since the Trump era dawned over precisely this problem.
• 40:59
  SPEAKER_01: One group of people says, do the same back to them.
• 41:02
  SPEAKER_01: Another group of people says, well, if we simply uphold the norm, we will lose and lose and lose.
• 41:08
  SPEAKER_01: So we have to respond combatively, which does not necessarily mean combat identically, but it means at least combatively.
• 41:15
  SPEAKER_01: And a third group says, we have to uphold the political ideals, though the skies may fall, we just have to do it.
• 41:22
  SPEAKER_01: That is almost the definition today of a normy Republican.
• 41:26
  SPEAKER_00: I'm in the second category.
• 41:28
  SPEAKER_00: I was gonna ask uh that was my question.
• 41:31
  SPEAKER_00: I don't I yeah, I don't want to I don't wanna you know make you say anything you don't want to say, but the whole point of this podcast is we get to do that.
• 41:38
  SPEAKER_00: What where what camp are you?
• 41:40
  SPEAKER_00: What should we be doing?
• 41:41
  SPEAKER_01: Second category, 100% second category.
• 41:44
  SPEAKER_01: That's a tit for tat?
• 41:45
  SPEAKER_01: No.
• 41:46
  SPEAKER_01: Well, it depends on how you define tit for tat, which is very abstractly put.
• 41:49
  SPEAKER_01: I don't think we should do the identical thing back to them in all cases, but I do think we should respond combatively and create consequences for norm-breaking.
• 41:58
  SPEAKER_01: So it depends on the circumstance.
• 42:00
  SPEAKER_01: You know, like if I could just give two examples, take the Sue and Settle example.
• 42:03
  SPEAKER_01: I do think if they do it, we should do it too.
• 42:06
  SPEAKER_01: Because if not, A, it'll go on forever, right?
• 42:11
  SPEAKER_01: You the only way to put a stop to it in real political life is if both sides do it and both sides see that this isn't how we want things done.
• 42:18
  SPEAKER_01: But second, elections have to carry equal political power for both sides.
• 42:23
  SPEAKER_01: And if one side has an entire political instrument available to it that the other side doesn't, then an election means a massive gain of power for one side and no equivalent gain of power for the other side.
• 42:34
  SPEAKER_01: So I think for basic democratic reasons, in the sue and settle case, what's good for the goose is good for the gander.
• 42:41
  SPEAKER_01: In the lawfare case, where you're destroying concrete individuals and trying to harm them, I am uncomfortable saying we should do exactly the same back to them.
• 42:50
  SPEAKER_01: I do not want to go that far.
• 42:52
  SPEAKER_01: In that case, I think we should respond extremely combatively and do more than just stop and prevent the law fair.
• 43:00
  SPEAKER_01: We need to exact consequences for engaging in lawfare, but I am not comfortable with the exact equivalent because it's just it's just too immoral.
• 43:08
  SPEAKER_01: But here's the question of the day.
• 43:10
  SPEAKER_00: Sorry, I was gonna toss it back to you.
• 43:13
  SPEAKER_00: Yeah, that that was wow, real really, really um profound and connects it to a lot of themes of uh this podcast and the reason we have this podcast.
• 43:23
  SPEAKER_00: Let me suggest that I think, and this goes back to what Catherine said that triggered you uh to go off on all of this.
• 43:29
  SPEAKER_00: Yeah, that's a tangent.
• 43:30
  SPEAKER_00: Sorry.
• 43:31
  SPEAKER_00: No, it's not a tangent.
• 43:32
  SPEAKER_00: It it is not a it is a monologue, it is not a tangent, it is not orthogonal.
• 43:36
  SPEAKER_00: It goes to the heart of this question.
• 43:38
  SPEAKER_00: But let me suggest that for all the people the claim that Trump is norm breaking and so on.
• 43:43
  SPEAKER_00: Not only is that not true, as you said, it's the other side that's norm breaking.
• 43:46
  SPEAKER_00: I actually think the Trump administration, for reasons Catherine just identified earlier, is taking that middle path, that category two that you want them to take.
• 43:54
  SPEAKER_00: They're being combative, but I actually don't think they're norm breaking in like the same sense.
• 43:58
  SPEAKER_00: So this goes to Catherine.
• 44:00
  SPEAKER_00: Point about the nature of the judgment fund is that of this particular settlement fund, it's to give reparations, so to speak, to give damages, so to speak, a remedy to people who have been subject to the abuses of the left that we've identified as norm-breaking.
• 44:16
  SPEAKER_00: Right?
• 44:16
  SPEAKER_00: Trump isn't going after his political opponents the way they do.
• 44:22
  SPEAKER_00: They are what Trump is doing is going after, and we could put this beyond the settlement fund, Letitia James, James Coney.
• 44:29
  SPEAKER_00: Trump is going after specifically the individuals who plausibly used legal process and state power to go after him or to go after their political opponents.
• 44:42
  SPEAKER_00: He's not just going after his political opponents.
• 44:44
  SPEAKER_00: He's not sicking the IRS the way Nixon did, or the way Lois Lerner, we all think, uh, did against the Tea Party.
• 44:51
  SPEAKER_00: He's not doing that.
• 44:52
  SPEAKER_00: He's going specifically after the people who have committed these abuses that you've described, or trying to remedy the people who have been uh the subject of that.
• 45:02
  SPEAKER_00: So let me uh go to the Catherine's other point, which is this sue and settle thing.
• 45:08
  SPEAKER_00: Okay.
• 45:09
  SPEAKER_00: Are we just gonna be suckers or should we play this game too, as as as Josh suggests?
• 45:15
  SPEAKER_00: Well, we we tried category three.
• 45:18
  SPEAKER_00: That's the point that Catherine was making, right?
• 45:20
  SPEAKER_00: We tried category three uh of Josh's categories in 2017.
• 45:24
  SPEAKER_00: One of the first things the Trump administration did under Jeff Sessions was more not quite put an end to sue and settle, but they took away a big incentive.
• 45:32
  SPEAKER_00: He he issued a DOJ memorandum, DOJ internal guidance, which is a binding on the Department of Justice, that says no sue and settle, no settlement may be entered into, to which payments to a third-party NGO is made.
• 45:46
  SPEAKER_00: And all of a sudden, the incentives for the left to do this is a lot smaller.
• 45:50
  SPEAKER_00: I mean, the plaintiff's lawyers would still get money.
• 45:52
  SPEAKER_00: Okay.
• 45:52
  SPEAKER_00: The EPA, which was a big culprit here of sue and settle, they get environmental regulations.
• 45:57
  SPEAKER_00: When the left-wing Sierra Club or whatever Natural Resources Defense Council sues the EPA, they the under Obama, they would just settle with them.
• 46:04
  SPEAKER_00: So literally, Scott Pruitt promulgated an internal rule that said any such settlement has to be produced for public comment under like the Administrative Procedure Act, right?
• 46:16
  SPEAKER_00: And and what did the Biden administration do when it came in?
• 46:19
  SPEAKER_00: They reversed both of these.
• 46:21
  SPEAKER_00: Merrick Garland, Merrick Garland, the darling of this sort of, you know, supposedly everyone thinks totally apolitical, totally nonpartisan.
• 46:29
  SPEAKER_00: And like, look, he's a he's smart.
• 46:31
  SPEAKER_00: I'm you know convinced he's decent, but I can't explain this.
• 46:35
  SPEAKER_00: I can't explain this.
• 46:36
  SPEAKER_00: You know, he says I know Catherine Further is like, I don't know about Merrick Garland.
• 46:40
  SPEAKER_00: But like what what possible reasons is they said now, like sometimes settlements like legitimately, you know, they could be effectuated through payments to NGOs.
• 46:48
  SPEAKER_00: Crap, because you know that's a source of power and money to your activist base and groups that in turn help you guys get elected.
• 46:57
  SPEAKER_00: That's why you did it.
• 46:58
  SPEAKER_00: They repealed the EPA thing.
• 47:00
  SPEAKER_00: So we tried category three, Josh.
• 47:02
  SPEAKER_00: We tried category three, Catherine.
• 47:05
  SPEAKER_00: And what happened?
• 47:07
  SPEAKER_00: They said, ha ha ha, suckers.
• 47:10
  SPEAKER_00: We're gonna keep doing it anyway.
• 47:11
  SPEAKER_00: We're gonna repeal these reforms the second we get into power.
• 47:15
  SPEAKER_00: And like, I just I just so again, I think I agree with you, Josh.
• 47:19
  SPEAKER_00: I think I'm in category two, but the point I'm trying to emphasize is I think so is the Trump administration.
• 47:23
  SPEAKER_00: They're not doing tit for tat, they're actually trying to remedy the abuses that the left has engaged in.
• 47:29
  SPEAKER_00: And then maybe we should do more.
• 47:30
  SPEAKER_00: Maybe we should do sue and settle.
• 47:32
  SPEAKER_00: Because, you know, as Catherine, you said this too, like you were frustrated by people saying, Oh, what would President AOC do?
• 47:37
  SPEAKER_00: They already did it.
• 47:38
  SPEAKER_00: Obama did it, Trump tried to stop it, and then Biden stopped the stopping.
• 47:42
  SPEAKER_00: I just reinitiated it.
• 47:44
  SPEAKER_00: So where does that leave us?
• 47:46
  SPEAKER_00: Where does that leave us?
• 47:48
  SPEAKER_02: Well, and then the other aspect of this, if we want to keep moving a little bit, is judicial power, which we talk about a lot on this podcast.
• 47:56
  SPEAKER_02: Um the courts have already intervened, of course.
• 48:00
  SPEAKER_02: So just last Friday, a federal judge, an Obama appointee, um, that was overseeing the Trump v.
• 48:06
  SPEAKER_02: IRS lawsuit, has reopened the case because it was settled out of court and there was no court-approved settlement, which I guess is common.
• 48:15
  SPEAKER_02: I don't really get the difference.
• 48:16
  SPEAKER_02: Maybe you can touch on that.
• 48:17
  SPEAKER_02: But according to the federal judge, she is reopening the case because she is empowered to investigate serious misconduct in a case before her and to see whether the court was the victim of fraud.
• 48:27
  SPEAKER_02: So she has basically put a stop to this for now.
• 48:29
  SPEAKER_02: I think there's like a temporary hold on the settlement of two weeks.
• 48:34
  SPEAKER_02: Is that right?
• 48:35
  SPEAKER_00: Yeah, it's a TRO.
• 48:36
  SPEAKER_00: So as you said, there are really two cases, right?
• 48:38
  SPEAKER_00: There's the case that Trump uh filed that supposedly was the impetus for the settlement fund's creation.
• 48:44
  SPEAKER_02: Which seems a little unrelated, by the way, but whatever.
• 48:49
  SPEAKER_00: Well, the well, well, that's an argument that they make, right?
• 48:53
  SPEAKER_02: Uh, I kind of get that argument, but I don't know, whatever.
• 48:56
  SPEAKER_00: Yeah, as as we like to say, we're also rational on the rationally base.
• 49:00
  SPEAKER_00: And what we like to do is construct the best arguments on the other sides before we tear them down.
• 49:04
  SPEAKER_00: Though sometimes, you know, like I still not sure there's authority to destroy the East Wing, you know, but it's it's already destroyed, so you know that that is what it is.
• 49:11
  SPEAKER_00: You lost that one.
• 49:12
  SPEAKER_00: I I know, I know.
• 49:13
  SPEAKER_00: It doesn't follow that there's judicial power sort of uh to do something about it.
• 49:17
  SPEAKER_00: But here, again, like the his claim, anyway, is that well, the IRS abused me, right?
• 49:22
  SPEAKER_00: They used legal process to abuse me in some unlawful way, and so I can kind of see the connection, but again, it's tricky because like he couldn't plausibly have been entitled to a billion and a half dollars, right?
• 49:33
  SPEAKER_00: So clearly it's of the more settle my case for nothing, but actually prepare to settle other people's cases.
• 49:39
  SPEAKER_00: And I could see it work kind of that way.
• 49:41
  SPEAKER_00: Um, but okay, so we had the judge who in whose court this case was filed and then dismissed because he had a voluntary sort of settlement agreement.
• 49:49
  SPEAKER_00: And what's shocking about this is a group of 35 federal judges who should know better, but then again, you know, 35 uh old judges from the heyday of Carter appointees and you know Clinton appointees and like even Bush appointees.
• 50:04
  SPEAKER_00: Come on, let's be let's be real.
• 50:06
  SPEAKER_00: Uh a little squishy.
• 50:08
  SPEAKER_00: Um, led by Michael Ludig, okay, of you know, Trump Derangement Syndrome fame, former Fourth Circuit judge, um, who's really sort of gone off the rails a little bit, um, in a in a brief written by Norm Eisen, uh who, again, like the law fair hack activist, okay, on the left.
• 50:26
  SPEAKER_00: Um, and maybe like we could say a little bit um more about him, but he and Sussman Gottfried, a law firm that Trump has tried to go after, filed this brief saying that they had a right to move the court to reopen the case.
• 50:40
  SPEAKER_00: It's like, wait, what do these former 35 federal judges have anything to do with this case?
• 50:45
  SPEAKER_00: And they they they claim that there was a rule of civil procedure that allowed them to move to reopen the judgment, rule 60.
• 50:51
  SPEAKER_00: But rule 60 basically says that a party can move to reopen the judgment.
• 50:56
  SPEAKER_00: They're not a party.
• 50:57
  SPEAKER_00: So how did they get around this?
• 50:59
  SPEAKER_00: Well, they cite a case saying that the 11th Circuit said that under extraordinary circumstances third parties, non-parties, uh who's who are not directly injured by the agreement or settlement or case or judgment or whatever can move to reopen a judgment.
• 51:16
  SPEAKER_00: So they said this is an extraordinary case.
• 51:19
  SPEAKER_00: But when you actually look at the case they cited, it didn't say that.
• 51:22
  SPEAKER_00: It said there had never been a case in which a third party not affected by the judgment was allowed to move to reopen it.
• 51:32
  SPEAKER_00: And and there, and then that there was a next sentence that said, barring exceptional circumstances, which have never been found to exist, and we don't even know what those circumstances would be.
• 51:43
  SPEAKER_00: You know, we can't let somebody who's not directly injured by the judgment reopen a case.
• 51:49
  SPEAKER_00: So they totally misconstrued this case.
• 51:51
  SPEAKER_00: The case did not hold, right?
• 51:53
  SPEAKER_00: It didn't hold that extraordinary circumstances allow.
• 51:56
  SPEAKER_00: There has never been a case ever that has allowed a third party to seek to reopen a judgment who is not directly injured by that judgment.
• 52:04
  SPEAKER_00: Never.
• 52:05
  SPEAKER_01: We might even say it's unprecedented.
• 52:09
  SPEAKER_00: It is unprecedented.
• 52:11
  SPEAKER_00: One might even say norm-breaking.
• 52:15
  SPEAKER_01: Both those things.
• 52:15
  SPEAKER_01: Wow.
• 52:16
  SPEAKER_01: What we're seeing here is um uh district courts.
• 52:25
  SPEAKER_01: You know, district courts had to approve those prior suicidal tactics, those settlements that you spoke about, Catherine.
• 52:34
  SPEAKER_00: Um the uh not all of them, not all of them, not all of them, by the way.
• 52:38
  SPEAKER_00: I mean, again, the Vilsack situation.
• 52:40
  SPEAKER_00: Literally, people who were not parties to the lawsuit were able to file claims.
• 52:43
  SPEAKER_00: That's not uh so okay.
• 52:45
  SPEAKER_00: Well that's true.
• 52:46
  SPEAKER_01: That that particular example, uh, but the other ones required judicial approval.
• 52:50
  SPEAKER_01: Um, and there was no group of concerned, you know, 35 former federal judges uh intervening in a district court allowing the intervention despite it being contrary to sort of the deepest norms of uh the deepest ordinary standards of like we don't allow non-parties to a lawsuit to just create claims sui generous in our legal system, because our legal system is based on settlements between injured parties.
• 53:17
  SPEAKER_01: But you know, again, you just see so much kind of manipulation here.
• 53:24
  SPEAKER_01: One thing that astonishes me, and it's sort of maddening, is the selective judicial oversight when it's on the conservative side, right?
• 53:32
  SPEAKER_01: So when you have district judges approving settlements that are egregious suicidal tactics previously, um there's no great outcry.
• 53:40
  SPEAKER_01: But when it happens on the conservative side, there's this massive outcry.
• 53:45
  SPEAKER_01: What it reminds me of, frankly, is you know, I remember when um when this administration was taking DEI out of federal grants.
• 53:53
  SPEAKER_01: Most Americans don't know that that whole plethora of federal grants from the alphabet soup of agencies that gives them, you know, the NIH or the National Foundation for Science or National Endowment for the Humanities or the Defense Department or whatever.
• 54:09
  SPEAKER_01: Under the Biden administration, the vast majority of those federal grants had DEI language in them.
• 54:15
  SPEAKER_01: Like you could be trying to get a reactor for a physics experiment and you had to show what your DEI credentials were.
• 54:20
  SPEAKER_01: They were put, those DEI considerations were put into all the federal grants.
• 54:24
  SPEAKER_01: When the Trump administration tried to take them out, they were sued, and a number of district courts approved the lawsuits, which were eventually overturned by the Supreme Court.
• 54:35
  SPEAKER_01: But there was a whole group of academics and lawyers and journalists and ultimately district courts who said taking DEI out of the grants is a violation of academic freedom or freedom of speech.
• 54:50
  SPEAKER_01: How can it be not a violation to put them in, but a violation to put them out?
• 54:56
  SPEAKER_01: You know, is the First Amendment just a one-way ratchet on the Democratic side?
• 55:01
  SPEAKER_01: Is that possible?
• 55:02
  SPEAKER_01: And note how effectively public opinion is being manipulated here.
• 55:06
  SPEAKER_01: And it's just the whole thing is so maddening to me.
• 55:09
  SPEAKER_01: You know, a casual encounter with the news, you hear 35 former federal judges objected to this practice, and you think, this must be really egregious.
• 55:20
  SPEAKER_01: This must be really some horrible Trump thing that no one else has ever done or would ever do.
• 55:26
  SPEAKER_01: But underneath it, the lawyers who are bringing the lawsuit are the very ones engaging in the law fair itself.
• 55:33
  SPEAKER_01: They're the people who are going after uh conservatives and trying to destroy their lives and careers, and they bring a lawsuit trying to stop the anti-weaponization fund because they're like, don't you dare try to put a stop to what we're doing.
• 55:46
  SPEAKER_01: We like what we're doing.
• 55:47
  SPEAKER_01: The 35 federal judges, I've my father was a district court judge and a ninth circuit judge.
• 55:52
  SPEAKER_01: I have known throughout my life, throughout my childhood, uh, just dozens upon dozens upon dozens of judges, they're by and large a partisan bunch.
• 56:02
  SPEAKER_01: And they're constrained when they're in office.
• 56:04
  SPEAKER_01: But former federal judges, the 35 former federal judges, are no longer constrained.
• 56:09
  SPEAKER_01: And so what happened?
• 56:11
  SPEAKER_01: The lawyers who engage in lawfare and like lawfare called a bunch of judges who are retired of their own party and said, We've we've written a brief.
• 56:19
  SPEAKER_01: Would you sign it?
• 56:20
  SPEAKER_01: I bet a bunch of them said no.
• 56:22
  SPEAKER_01: That's inappropriate.
• 56:23
  SPEAKER_01: But they didn't, it didn't matter, right?
• 56:25
  SPEAKER_01: Because if it had been a dozen who signed it, they could have said 12 former federal judges sign the whatever.
• 56:30
  SPEAKER_01: Uh they got 35 to sign it.
• 56:32
  SPEAKER_01: Then it goes to a district court judge who is herself, in my opinion, making an outrageous and therefore very partisan claim, uh, says, uh, I it is my judicial duty to oversee this, and the wool is pulled over America's eyes.
• 56:47
  SPEAKER_01: And how should we, who are rationally based, respond to this kind of BS?
• 56:52
  SPEAKER_01: I think we have to be the vanguard of media skepticism.
• 56:56
  SPEAKER_01: And we have to we have to have our facts and we have to make rational arguments about whether why the wool is being pulled over our eyes here.
• 57:05
  SPEAKER_02: Well, and just to put a clear point on what you said, Josh, which is that the lawyer representing those 35 former federal judges, um, I think you said his name, Elon.
• 57:15
  SPEAKER_02: It's this norm guy, Normizen.
• 57:17
  SPEAKER_01: He norm Eisen, yeah.
• 57:19
  SPEAKER_02: He is like the lawfare king.
• 57:21
  SPEAKER_02: That's like his thing.
• 57:22
  SPEAKER_02: He loves lawfare.
• 57:23
  SPEAKER_02: He's gone after John Eastman and Jenna Ellis and these people over these 22 years old.
• 57:28
  SPEAKER_01: He's the guy who tries to get state bar associations to disbar Trump administration lawyers.
• 57:33
  SPEAKER_02: Yes.
• 57:34
  SPEAKER_02: So it's so ironic that this is the guy of of course he's mad about the fund.
• 57:39
  SPEAKER_02: This is his life's work.
• 57:40
  SPEAKER_02: I mean, it's just absurd.
• 57:42
  SPEAKER_00: I will say also because we've given a shout out to friend of the pod, Ted Frank, his whole law firm, his whole nonprofit law firm, what it tries to do is to intervene in these class settlements to actually represent the interests of the class who are supposed to be represented by the plaintiff's lawyers who are making off like bandits with these settlements.
• 58:03
  SPEAKER_00: And time and again, courts deny his intervention, his attempt to intervene.
• 58:08
  SPEAKER_00: Because, like, oh, what do you have to do with this case?
• 58:09
  SPEAKER_00: What do you have to do with this case?
• 58:11
  SPEAKER_00: And then here, 35 federal judges come along, and a district judge is like, oh, sure, come on, come on in.
• 58:17
  SPEAKER_00: I mean, the whole thing um is is totally crazy, but like, look, even our more squishy pseudo-right of center podcasts, okay, have said this is borderline sanctionable, okay?
• 58:28
  SPEAKER_00: Uh the the motion that they filed.
• 58:30
  SPEAKER_00: So I hope that at least this is a learning, uh, eye-opening experience for the American people to see that federal judges, as Josh, you said, are also political actors in in many ways.
• 58:43
  SPEAKER_00: And so I think that's helpful.
• 58:44
  SPEAKER_00: Now, Catherine, you mentioned, I guess we have five more minutes or so, uh, in uh you mentioned uh that there's a second lawsuit, right?
• 58:52
  SPEAKER_00: Not so this we just talked about the judge in the underlying Trump lawsuit that was the impetus for the settlement, right?
• 58:58
  SPEAKER_00: Reopening it.
• 58:59
  SPEAKER_00: But of course, another hackish left lefty advocacy organization immediately sued uh in a different court in the, I guess, Eastern District of Virginia, on behalf of whom?
• 59:11
  SPEAKER_00: Who like really, like we'll go through them, but like what gives them the right to stop?
• 59:16
  SPEAKER_00: Who's injured by the creation of the settlement fund, right?
• 59:20
  SPEAKER_00: There's a there's a we've talked a lot, as you said, Catherine, on the show about standing and particular taxpayer standing.
• 59:25
  SPEAKER_00: Taxpayers don't have standing.
• 59:28
  SPEAKER_00: You and I, we've said it many times, Catherine, can't sue over the fraud in Minnesota.
• 59:34
  SPEAKER_02: Which is lame, but whatever.
• 59:36
  SPEAKER_00: Well, okay, fair enough.
• 59:37
  SPEAKER_00: You're you think it's lame because you really believe it on the merits, right?
• 59:40
  SPEAKER_00: But like again, everybody has an equal interest in the taxpayer funds not being misspent.
• 59:46
  SPEAKER_00: So you don't have a judicially cognizable injury.
• 59:49
  SPEAKER_00: The abuse of the taxpayer funds, abuse of the appropriations process, your remedy for that is in the political process, elections, impeachment, and so on.
• 59:57
  SPEAKER_00: But there isn't a concrete, specific, particularized injury to you.
• 1:00:01
  SPEAKER_00: That's exactly what this is.
• 1:00:03
  SPEAKER_00: They're wasting money.
• 1:00:04
  SPEAKER_00: They're they're unlawfully taking money from the treasury, right, without appropriations by law, which by the way, Obama did.
• 1:00:10
  SPEAKER_00: Obama did.
• 1:00:11
  SPEAKER_00: I just remembered this.
• 1:00:13
  SPEAKER_00: So there was, I can't remember the exact details.
• 1:00:15
  SPEAKER_00: During the Obamacare, you know, uh the decade that it was there were challenges.
• 1:00:19
  SPEAKER_00: There was a problem uh with the fees being so exorbitant and the cost being so exorbitant, and they wanted to subsidize it, it had to do with the subsidies to the health insurers so that they wouldn't have to pass on the costs of Obamacare, the full cost, to the individual uh uh payers, subscribers, right?
• 1:00:36
  SPEAKER_00: The the people, because they said you can keep your doctor, your health care won't go up, like nonsense.
• 1:00:40
  SPEAKER_00: And the way they did it is by taxing people and subsidizing the health insurers with taxpayer dollars.
• 1:00:46
  SPEAKER_00: Well, Congress's appropriation for this ran out.
• 1:00:50
  SPEAKER_00: And Obama cut the check anyway from the Treasury Department.
• 1:00:54
  SPEAKER_00: It was so blatantly illegal.
• 1:00:56
  SPEAKER_00: And again, where were people?
• 1:00:57
  SPEAKER_00: There were some people on the right being like, how dare you?
• 1:00:59
  SPEAKER_00: But like totally snooze, totally snorfest, they couldn't care less the on the on the left.
• 1:01:05
  SPEAKER_00: But the point is like, who would have had the right to sue over unlawfully spending taxpayer money for the health insurers to subsidize their costs?
• 1:01:13
  SPEAKER_00: So it wouldn't look like your health insurance was going up, even though it was.
• 1:01:16
  SPEAKER_00: Nobody, nobody, because it's a generalized grievance.
• 1:01:19
  SPEAKER_00: This is the same thing misspending taxpayer money, misappropriating taxpayer money.
• 1:01:24
  SPEAKER_00: That's the theory.
• 1:01:25
  SPEAKER_00: It's a generalized grievance.
• 1:01:26
  SPEAKER_00: So this lawsuit was filed by by whom?
• 1:01:29
  SPEAKER_00: Okay, some abortion group that said, like, oh, if if you if you pay out, which you don't even know if you're gonna pay out to people who had been protesting at abortion clinics, right?
• 1:01:39
  SPEAKER_00: Like, you don't even know.
• 1:01:40
  SPEAKER_00: It's not hasn't even been set up yet.
• 1:01:42
  SPEAKER_00: They said, well, if you pay them money, that'll encourage more people like them to engage in unlawful acts in front of abortion clinics.
• 1:01:50
  SPEAKER_00: Like, I'm I'm sorry.
• 1:01:52
  SPEAKER_00: There's like too many logical leaps there.
• 1:01:55
  SPEAKER_00: It's speculative, it's not concrete, it's not imminent, it's too diffuse, it's generalized.
• 1:02:00
  SPEAKER_00: And of course, what does this judge do?
• 1:02:03
  SPEAKER_00: TRO.
• 1:02:04
  SPEAKER_00: TRO, two weeks on pause, we're gonna have a full hearing.
• 1:02:07
  SPEAKER_00: Why wasn't it?
• 1:02:08
  SPEAKER_00: I'm actually not gonna issue a TRO at all because I have no reason to think you guys have standing to bring this lawsuit.
• 1:02:14
  SPEAKER_00: So I'm not gonna issue a TRO because you're not like basic governments.
• 1:02:19
  SPEAKER_01: Could I could I just point out there, Elon, what you've just described in general terms is two techniques of power.
• 1:02:26
  SPEAKER_01: And we should, you know, ourselves and help our listeners kind of kind of see these version these techniques of power for what they are.
• 1:02:35
  SPEAKER_01: One form of power is the power to direct attention.
• 1:02:39
  SPEAKER_01: It's the media's power, it's the chattering class's power.
• 1:02:42
  SPEAKER_01: And the ability to have, what did you call it, a snorfest or snooze fest, right?
• 1:02:48
  SPEAKER_01: Um, there's something incredible that happens, legally unprecedented, uh, probably totally illegal under the Obama administration.
• 1:02:56
  SPEAKER_01: Big snooze fest, no one talks about it, not really noticed, you know, not really talked about.
• 1:03:00
  SPEAKER_01: We've given a number of examples of egregious cases of suicidal tactics for two prior administrations over a total of 12 years.
• 1:03:09
  SPEAKER_01: Snoozefest, don't talk about it.
• 1:03:12
  SPEAKER_01: This, this one gets enormous attention.
• 1:03:15
  SPEAKER_01: That is a kind of um, I'm sorry to use this very academic philosophical-sounding term.
• 1:03:22
  SPEAKER_01: It's a kind of discursive power.
• 1:03:23
  SPEAKER_01: That is, it's a power to affect the form of discourse, of democratic deliberation we engage in in this country.
• 1:03:30
  SPEAKER_01: And um, and it's it's a really sinister one, right?
• 1:03:34
  SPEAKER_01: The power to make an issue of X but not Y selectively.
• 1:03:37
  SPEAKER_01: The other thing that you talked about in the rules of standing is committing egregious outrages that are so technical in character that they pass beyond ordinary democratic notice.
• 1:03:50
  SPEAKER_01: So there are these, you know, normally you can't be a party to a lawsuit unless you're directly injured uh by the case at hand.
• 1:04:00
  SPEAKER_01: And also normally you don't cite precedents for the exact opposite of what they say.
• 1:04:05
  SPEAKER_01: But what does a district court do in this case?
• 1:04:08
  SPEAKER_01: It cites extraordinary circumstances, it miscites a precedent, reversing the holding of that precedent, it ignores ordinary rules of standing, and it's all just so technical.
• 1:04:18
  SPEAKER_01: You need a 20-minute education to even notice it if you're out in the public trying to understand this stuff.
• 1:04:24
  SPEAKER_01: Um, that's another technique of power.
• 1:04:26
  SPEAKER_01: You bury abuse in your command over attention and in your ability to manipulate technical minutiae.
• 1:04:34
  SPEAKER_01: And so we just have to be wise about it.
• 1:04:36
  SPEAKER_02: Yeah, and when the remedy, like you say, Elon, is um political, right?
• 1:04:40
  SPEAKER_02: The the way that you um rectify these issues as a taxpayer is through politics, but you can't even, as a normal person just trying to live their lives, go about their day, understand what the heck is going on, then it kind of renders that um political retribution moot.
• 1:04:58
  SPEAKER_02: I don't know.
• 1:04:59
  SPEAKER_02: You know, it's like it doesn't even work anymore.
• 1:05:02
  SPEAKER_02: So um I think that's clearly another problem as well.
• 1:05:05
  SPEAKER_02: Are you should we wrap this up?
• 1:05:07
  SPEAKER_02: Should I do my quick little political cap on this, which is kind of an asterisk on this whole conversation?
• 1:05:14
  SPEAKER_00: Yes, okay, so have the last have the last word, Catherine.
• 1:05:17
  SPEAKER_02: Well, the last word is that rumors on uh on the hill say that this fund may be dead after all.
• 1:05:23
  SPEAKER_02: Okay, so the Senate Republicans, for some reason, are actually trying to kill the fund, essentially, because they're trying to get this reconciliation bill through.
• 1:05:32
  SPEAKER_02: The reconciliation bill includes funding for Border Patrol and ICE, which has been very important to them, and they haven't been able to get it done any other way.
• 1:05:38
  SPEAKER_02: They're trying to do it through reconciliation, and they are worried that this fund is going to derail their efforts to do so because Schumer basically said uh we will, he's this is a quote, we will launch a coordinated effort to kill the slush fund before one cent goes out the door.
• 1:05:54
  SPEAKER_02: Basically trying to totally stall the whole process of reconciliation by throwing in um amendments and things that would make the slush fund, as they call it, illegal.
• 1:06:04
  SPEAKER_02: So uh Senate Republicans put pressure on Trump and the DOJ has come out and said, we're going to abide by the court's ruling, which is this um two weeks' stay.
• 1:06:15
  SPEAKER_02: I don't think it's clear yet, to me anyway, um what this means exactly.
• 1:06:18
  SPEAKER_02: Are they done pursuing the fund altogether, or are they just gonna wait and see what happens if reconciliation can, if this package can go through and then they can continue pursuing the fund after the TRO is over?
• 1:06:30
  SPEAKER_02: I I don't think we know yet, but the uh the fund is a little in jeopardy.
• 1:06:34
  SPEAKER_02: So um I think we'll just have to wait and see what happens.
• 1:06:37
  SPEAKER_00: Well, that's all we have time for today.
• 1:06:39
  SPEAKER_00: Wow, what a fun episode, Catherine.
• 1:06:42
  SPEAKER_00: Thank you, Joshua, thank you.
• 1:06:44
  SPEAKER_00: Don't forget to hit that like and subscribe button and rate us, please, on Apple, Spotify, everywhere you get your podcasts.
• 1:06:51
  SPEAKER_00: We will see you next time.