Latest / rationally BASED / Episode 23 | When Law Firms Go Hard Left: Trump & the Law Firm EOs

Transcript

Episode 23 | When Law Firms Go Hard Left: Trump & the Law Firm EOs · rationally BASED

• 0:00
  SPEAKER_01: Welcome back to Rationally Based, the podcast about law and politics on the edge.
• 0:04
  SPEAKER_01: Catherine, what's on deck?
• 0:06
  SPEAKER_03: Well, first we're going to take a dive into the latest developments in Trump's actions against partisan law firms.
• 0:11
  SPEAKER_03: Does Trump have the power to revoke their security clearances for having engaged in lawfare against him?
• 0:16
  SPEAKER_03: Can courts even review those decisions?
• 0:18
  SPEAKER_03: After that, Eugene Carroll has more developments.
• 0:21
  SPEAKER_03: Should Trump go after her?
• 0:24
  SPEAKER_01: Let's dive in.
• 0:38
  SPEAKER_01: I'm your host, Elon Warman, a law professor at the University of Minnesota Law School.
• 0:42
  SPEAKER_03: I'm Catherine Johnson with Center of the American Experiment.
• 0:44
  SPEAKER_00: And I'm Josh Kleinfeld, the Rouse Professor of Law at the Spelia Law School, George Mason University.
• 0:49
  SPEAKER_01: As always, hit that like and subscribe button.
• 0:51
  SPEAKER_01: Your early support is so very, very important.
• 0:53
  SPEAKER_01: But Catherine, where should we start?
• 0:55
  SPEAKER_03: Well, let's start with Trump's actions against the law firms that have been most partisan, most radical, if you will.
• 1:01
  SPEAKER_03: So to recap, in early last year, 2025, shortly after taking office, President Trump issued a series of executive orders targeting um prominent law firms.
• 1:12
  SPEAKER_03: Seems like old news today, but it's actually not because there was some there was some legal drama.
• 1:16
  SPEAKER_03: Okay, the DOJ withdrew the case and then they backpedaled a day or two later and sought to withdraw the withdrawal the withdrawal.
• 1:24
  SPEAKER_03: Okay, so recently the DC circuit heard oral arguments.
• 1:28
  SPEAKER_01: And it was high drama at the time, right?
• 1:30
  SPEAKER_01: I mean, I think the DOJ said that, oh, we've settled, we agree that we're not going to pursue this anymore.
• 1:35
  SPEAKER_01: And I think I guess Trump hadn't heard of it.
• 1:37
  SPEAKER_01: And he was like, no, how dare you?
• 1:39
  SPEAKER_01: Like, I didn't want this withdrawal, like, bring it back.
• 1:41
  SPEAKER_01: And so it was pretty armed.
• 1:42
  SPEAKER_03: Such is the rumor, I think.
• 1:43
  SPEAKER_03: Right.
• 1:43
  SPEAKER_03: Yeah.
• 1:43
  SPEAKER_01: So that's uh probably what happened there.
• 1:45
  SPEAKER_03: So the orders directed federal agencies to revoke or suspend security clearances for attorneys at these firms, review and potentially terminate government contracts with the firms, bar firm attorneys from federal buildings and certain interactions with the government, and then take some other punitive measures.
• 2:01
  SPEAKER_03: So to cover a couple of examples of what these firms did to make the Trump administration take action here, the EOs mention a lot of different things, but mostly it's dishonest lawfare tactics against Trump and the Trump administration.
• 2:15
  SPEAKER_03: Um, they name trying to rig elections, DEI discrimination by these firms that violate civil rights law.
• 2:22
  SPEAKER_03: And then also a number of specific actions by these law firms, particularly against the administration itself.
• 2:27
  SPEAKER_03: So to go through, you know, these are the four law firms that are still currently involved in this little litigation.
• 2:33
  SPEAKER_03: It sounds like a couple of them already settled, right?
• 2:36
  SPEAKER_03: But some of them that um are currently still involved, Perkins Coy, and by the way, Cooey.
• 2:40
  SPEAKER_03: Cooey?
• 2:41
  SPEAKER_03: I was gonna say these law firms, they all have weird names.
• 2:43
  SPEAKER_01: I don't mind if you mispronounce their name.
• 2:45
  SPEAKER_01: Okay.
• 2:46
  SPEAKER_03: Big law.
• 2:46
  SPEAKER_03: Okay, Perkins CUI.
• 2:48
  SPEAKER_03: The firm represented the Hillary Clinton campaign and the DNC and hired Fusion GPS, which of course, of course, commissioned the steel dossier.
• 2:57
  SPEAKER_03: Now they've also generally had a long history of democratic election law work and representing progressive causes and clients.
• 3:03
  SPEAKER_03: The Trump admin accused them of working to overturn election integrity measures like voter ID laws.
• 3:08
  SPEAKER_03: Suspin Godfrey is another one.
• 3:10
  SPEAKER_03: They rehired a lead prosecutor on Muller's team after his work on the Russia investigation, and Trump accuses the firm of embracing partisan prosecutions.
• 3:18
  SPEAKER_03: Wilmer Hale hired former special counselor counsel Robert Muller and key team members after the Russia probe.
• 3:26
  SPEAKER_03: The executive order basically criticized this as rewarding participants in a partisan investigation that weaponized the government against Trump.
• 3:34
  SPEAKER_03: And then finally, Jenner and Bloch uh leave counsel for Dominion in its massive defamation case against Fox News and related other suits against Rudy Giuliani, Sidney Powell, Mike Lindell, the like.
• 3:46
  SPEAKER_03: Um, others that were involved over those 2020 election claims.
• 3:50
  SPEAKER_01: And so that's what we're dealing with here, right?
• 3:52
  SPEAKER_01: We're not dealing with, you know, criminal prosecutions of the law firms.
• 3:56
  SPEAKER_01: We're not even dealing with civil prosecutions for any sort of wrongdoing.
• 3:59
  SPEAKER_01: What we're dealing is with uh specific uh law firms who have um are overwhelmingly partisan and have overwhelmingly engaged in actions targeting the Trump administration and Trump himself.
• 4:10
  SPEAKER_01: And the question is, must the Trump administration continue to give those firms government contracts?
• 4:15
  SPEAKER_01: Must the Trump administration continue to give them security clearances?
• 4:19
  SPEAKER_01: And the reason we want to talk about this is because the conventional wisdom among law professors, especially, uh, and probably the conservative intelligentsia more generally, but I'm not entirely sure uh I think that's fair.
• 4:30
  SPEAKER_01: Yeah, you think that's fair, uh, is that this is so blatantly unconstitutional, and no one's even willing to have a rational discussion.
• 4:36
  SPEAKER_01: So some law professors, including friends of ours, have said things like Aren't the law firm executive orders the most unconstitutional thing this administration has done so far?
• 4:46
  SPEAKER_00: That's a quote.
• 4:47
  SPEAKER_01: That is a direct quote from uh from a law professor.
• 4:51
  SPEAKER_01: Another uh says that the executive orders involving law firms involve the use and abuse of real executive powers rather than the assertion of non-existent powers.
• 4:59
  SPEAKER_01: And in this sense, they are more emblematic, more representative of the constitutional questions raised by the administration.
• 5:05
  SPEAKER_01: Another, um, I believe this was a law professor, though it was a law professor.
• 5:09
  SPEAKER_00: Law professor, friend of mine, very painful.
• 5:11
  SPEAKER_01: Uh said, this is as arbitrary an exercise of executive power as one could imagine, just a lawless, explicit targeting of political opponents.
• 5:20
  SPEAKER_01: Can't even imagine an argument in favor of this.
• 5:24
  SPEAKER_00: Well, can't even imagine an argument in favor of this.
• 5:29
  SPEAKER_00: Shame on them for not even being able to imagine the argument on the other side and deliver it fairly.
• 5:35
  SPEAKER_00: I think I think these are hard questions.
• 5:36
  SPEAKER_00: Make no mistake.
• 5:37
  SPEAKER_00: I think the legal questions here and the philosophical questions here are tremendously difficult.
• 5:41
  SPEAKER_00: And we're gonna try to articulate the best argument on both sides of the issue.
• 5:46
  SPEAKER_00: Hopefully, we'll be fair.
• 5:47
  SPEAKER_00: We'll do our best, but at least we'll be able to articulate the view on the other side.
• 5:50
  SPEAKER_00: And you come to rationally based to get the articulation of the view on the administration side.
• 5:55
  SPEAKER_01: So, Josh, what is your, I guess, high-level maybe we should start philosophical.
• 5:59
  SPEAKER_01: Like, what is your high-level philosophical take about like the role of law firms in American society and must they be brought to heel?
• 6:07
  SPEAKER_01: And what's your general high-level take about all of this?
• 6:09
  SPEAKER_00: So philosophy then law?
• 6:10
  SPEAKER_00: Philosophy first?
• 6:11
  SPEAKER_00: Okay, let's do that.
• 6:12
  SPEAKER_01: Because I don't feel like talking right now.
• 6:13
  SPEAKER_01: So you philosophy first.
• 6:16
  SPEAKER_00: I think we've been facing a profound problem in this country.
• 6:19
  SPEAKER_00: And we've been facing it for decades, but it became acute in the sort of five years running up to this last election.
• 6:26
  SPEAKER_00: And it's the problem of elite professional institutions and more generally just institutions, places of employment, going hard left.
• 6:35
  SPEAKER_00: It doesn't matter.
• 6:36
  SPEAKER_00: I mean, if you think about that moment in like 2024 when it was at its very worst, it didn't matter if you're a doctor or maybe a management consultant or a lawyer or an accountant or maybe not a professional at all.
• 6:48
  SPEAKER_00: You're a banker, you don't forget the banker or whatever.
• 6:51
  SPEAKER_00: It just does it didn't matter.
• 6:52
  SPEAKER_00: You could be a construction worker.
• 6:54
  SPEAKER_00: And your institution, the place where you work, had swung hard left.
• 7:00
  SPEAKER_00: Elite hospitals close their doors to doctors on the other side.
• 7:05
  SPEAKER_00: Elite companies close their doors to executives on the other side.
• 7:09
  SPEAKER_00: Universities profoundly closed their door to faculty and to a large extent to students who were more conservative-minded.
• 7:17
  SPEAKER_00: K-12 schools, which are universal institutions, not elite institutions, closed their door to teachers on the other sides.
• 7:25
  SPEAKER_00: And not only did they close their door in terms of employment, right?
• 7:29
  SPEAKER_00: They used whatever power was at their disposal in their little corner of the universe that they can uh controlled in a left-wing direction.
• 7:37
  SPEAKER_00: So you had a thumb on the scale of medicine in a left-wing direction.
• 7:40
  SPEAKER_00: You had a thumb on the scale of for-profit companies in a left-wing direction, maybe with respect to corporate charity or human resources or any number of things.
• 7:47
  SPEAKER_00: Um, you saw it in teaching, you saw it in curriculum design, you saw it in scholarship, you saw it in sort of, I mean, you saw it like if people were running an orchestra and they had a thumb on the scale uh in favor of soloists or in favor of uh composers who were um uh raise your minorities or had social justice projects.
• 8:05
  SPEAKER_00: It was just a universal in our society.
• 8:07
  SPEAKER_03: Well, and kind of interesting that the time that I was in college, everyone said, just wait until you get out into the real world.
• 8:12
  SPEAKER_03: It's so much better out there.
• 8:14
  SPEAKER_03: It might be crazy right now in college, but just wait.
• 8:17
  SPEAKER_03: Once you get into the real world, it's all different.
• 8:19
  SPEAKER_03: And then I entered the real world and I was like, oh my God.
• 8:22
  SPEAKER_03: I mean, I went to work at a conservative think tank, but my friends who went to work in the real world were like, wait, this is just as bad.
• 8:27
  SPEAKER_01: No, this is interesting because like when I was in college, and I'm a bit older than you, um, not that much older, uh, they said the same thing.
• 8:34
  SPEAKER_01: And we still say the same thing.
• 8:35
  SPEAKER_00: Like, I was in college, and I'm older than both of them, they said the same thing.
• 8:39
  SPEAKER_00: Actually, this was just this is one of the profound This is one of the profound mistakes of the conservative movement, really, is um the conservative movement has been telling itself and telling one another universities are crazy, people get out into the real world and then they'll get normal again.
• 8:56
  SPEAKER_00: Well, actually, the universities on the most powerful institutions in society, and I include uh for-profit corporations, I include law firms, I really think the universities are the center of it all.
• 9:06
  SPEAKER_00: And their ideas and their people transformed the so-called real world.
• 9:11
  SPEAKER_01: Yeah, they got out of college, and eventually enough of them get out of college and now they are the real world, right?
• 9:16
  SPEAKER_01: So, Josh, my first question, I know you aren't quite done, but is the problem when you say thumb on the scales, I just want to make sure I understand, is the problem because we have a 50-50 culture, half the country is Republican, half the country has different ideas, but all the major institutions of society are overwhelmingly on one side.
• 9:30
  SPEAKER_01: Would all this be a problem if 90% of us generally had a consensus that the things they were doing was good, then we would just say, hey, these institutions reflect the culture?
• 9:39
  SPEAKER_01: Or is the problem That's fair.
• 9:41
  SPEAKER_00: I mean, I think that when you have um there's probably all sorts of things about which we have 90, 95% consensus and it's built into our institutions, and most of us, me included, don't even notice.
• 9:53
  SPEAKER_00: It's hard to speak to the abstract issue.
• 9:55
  SPEAKER_00: But concretely, we have 50-50 parties, and on many of the most controversial issues, like uh racial preferences, for example, you actually have quite stable supermajorities against them.
• 10:06
  SPEAKER_00: I mean, one of the most singular facts of American politics is that in every imaginable poll and referendum and election, for what, four decades, five decades?
• 10:18
  SPEAKER_00: Uh, when racial preferences have been put to the test, stable supermajorities of the country have been against it.
• 10:24
  SPEAKER_00: And every single institution in America practices racial preferences, virtually without exception.
• 10:29
  SPEAKER_00: That is one of the great political facts of our time.
• 10:32
  SPEAKER_00: How do you get a country like that?
• 10:33
  SPEAKER_00: Well, the way you get it is you have this system of elite control of institutions that is profoundly different from what most Americans think.
• 10:42
  SPEAKER_00: And they and each institution has power over a certain domain.
• 10:45
  SPEAKER_00: Maybe it's medicine, maybe it's music, maybe it's, I don't know, uh media, maybe it's Hollywood, right?
• 10:50
  SPEAKER_00: Like movies that are coming out.
• 10:52
  SPEAKER_00: We all saw the bias and, you know, the products of Hollywood.
• 10:55
  SPEAKER_00: Uh and maybe it's a county, maybe it's consulting, maybe it's law.
• 10:59
  SPEAKER_00: And so let me turn to that.
• 11:05
  SPEAKER_00: First of all, there's something deeply unfree about a society built this way.
• 11:10
  SPEAKER_00: I mean, free speech?
• 11:11
  SPEAKER_00: Free speech is a joke if we have free speech against state action, but all imaginable employers can say you're unhirable because you oppose trans rights or because you endorse Trump or something like that.
• 11:24
  SPEAKER_00: It's an awful way to live.
• 11:25
  SPEAKER_00: And if it were a state actor behind it, it would be clearly unconstitutional.
• 11:29
  SPEAKER_00: It would be a First Amendment violation.
• 11:31
  SPEAKER_00: You'd say, you can't not hire me because I endorse this presidential candidate.
• 11:36
  SPEAKER_00: I have First Amendment rights.
• 11:38
  SPEAKER_00: You certainly can't prosecute me.
• 11:39
  SPEAKER_00: You can't exclude me from work.
• 11:41
  SPEAKER_00: But if private actors do it, there's no legal instrument designed for that.
• 11:45
  SPEAKER_00: One thing uh many non-lawyers don't know is that the First Amendment only applies to state actors.
• 11:51
  SPEAKER_00: Your law firm, your uh private university, your whatever can discriminate against you for your political opinions.
• 11:58
  SPEAKER_00: And so we have this basic problem in this country.
• 12:01
  SPEAKER_00: We have a constitutional system which is designed for state oppression, oppression by the government.
• 12:07
  SPEAKER_00: And then we have we have an elaborate system of rights against the state, but it's an end run around that system.
• 12:12
  SPEAKER_00: If private institutions in lockstep oppress one half of the citizenry for their politics, and if virtually all of the most wealthy private institutions, most influential private institutions discriminate that way, we have a profound democratic problem and there's no clear legal recourse.
• 12:28
  SPEAKER_00: So, with that, let me turn to the law firms, right?
• 12:32
  SPEAKER_00: The legal profession is unique in this regard, because the legal profession are actually, it's actually the profession that are is the arbiter of our rights.
• 12:41
  SPEAKER_00: They're the ones who defend our dem democratic rights, our free speech rights, and the like.
• 12:45
  SPEAKER_03: Scary thought based on most of the lawyers I know, no offense, but people.
• 12:48
  SPEAKER_00: So, you know, it's bad.
• 12:50
  SPEAKER_00: It's it's bad if um you can't be a doctor unless you're on the left, if the medical profession closes its door.
• 12:57
  SPEAKER_00: It's bad if you can't work in, you know, Hollywood without being on the left.
• 13:02
  SPEAKER_00: But what if you can't be a lawyer without sort of pledging your soul and the resources of your major top 100 uh incredibly power uh powerful, well-resourced law firm on the left?
• 13:14
  SPEAKER_01: Or just what about you're a person, a citizen, and you can't get legal services from the top law firms unless you have some liberal code.
• 13:21
  SPEAKER_00: Or you get legal services from someone who has um very few resources, is sort of hand to mouth in the legal profession, is working in a small law firm, and the other side is getting legal resources from, you know, the the top law firms in the country with billion dollar revenue and thousands of lawyers and unlimited resources at their disposal.
• 13:42
  SPEAKER_00: Well, then you have a problem that's not just oppressive, right?
• 13:45
  SPEAKER_00: It's actually a problem for democracy.
• 13:47
  SPEAKER_00: It's actually putting a thumb on the scale of one side in democracy.
• 13:51
  SPEAKER_01: Uh so And is it the problem that these firms are just this aristocratic resource?
• 13:56
  SPEAKER_01: This aristoc like it's an oligarchic institution in a way that self-perpetuates by giving its elite services only to other elites and people who think like they do.
• 14:05
  SPEAKER_01: Is that what makes it anti-democratic?
• 14:07
  SPEAKER_01: Or what exactly is anti-democratic about it?
• 14:13
  SPEAKER_00: I think it's uh the it's first of all the suppression of political opinion on the other side.
• 14:19
  SPEAKER_00: You become um like a like a person to be banished from polite society if you're on the other side.
• 14:28
  SPEAKER_00: And so you find your opportunities curtailed.
• 14:30
  SPEAKER_00: I don't think that's not consistent with my conception of democracy, which includes a conception of free speech and free association.
• 14:37
  SPEAKER_00: Uh but it's also the power imbalance, a power imbalance that doesn't reflect an imbalance in underlying numbers.
• 14:43
  SPEAKER_00: It reflects power over this profession, power over the medical profession or the accounting profession or the legal profession.
• 14:49
  SPEAKER_01: Like a 50-50 issue or even an 80-20 issue in favor of the conservative viewpoint.
• 14:55
  SPEAKER_01: If you have 99% of elite legal resources only going to one answer, that's like a well, the the minority view, the 20% view, that is an enormous in-kind contribution to a view that is anti-democratic.
• 15:06
  SPEAKER_00: Yeah.
• 15:06
  SPEAKER_00: So contrary to the remote.
• 15:07
  SPEAKER_00: And in fact, we do have some numbers on this.
• 15:09
  SPEAKER_00: Based on the stats, I was able to find uh 92% of all campaign contributions from uh uh top uh 100 law firms employees go to Democrat-affiliated groups.
• 15:19
  SPEAKER_00: So we're looking at, if that's right, about a 92% to 8% split.
• 15:24
  SPEAKER_00: That's the same as universities, it's the same as the media profession or the journalism profession.
• 15:28
  SPEAKER_00: It's sim similar to Hollywood.
• 15:30
  SPEAKER_00: It's an incredibly biased profession.
• 15:33
  SPEAKER_00: So um there if you're trying to remedy that situation, if you're trying to say there are consequences for being this partisan on one side, you might be trying to do that for good and sufficient reasons, right?
• 15:48
  SPEAKER_00: You might be trying to do that because you recognize that we can't have a society where this much legal power is on one side.
• 15:55
  SPEAKER_00: We can't have a society where our major institutions are this biased.
• 15:59
  SPEAKER_00: Now, I confess that the fit with our typical political ideas and legal instruments is a difficult one, but we're just in a new situation as a society.
• 16:07
  SPEAKER_00: We designed a constitution for an oppressive state and we got an oppressive private institutions.
• 16:12
  SPEAKER_00: And now I'm going to make it even harder.
• 16:14
  SPEAKER_00: What if the people on one side, the people on the side that control the institutions, go after the professional licenses of the people on the other side?
• 16:23
  SPEAKER_00: What if you're in a lawfare situation where it's just almost routine to use instruments of the state, like state bar associations, for example, to try to um uh disbar people who defend the Trump administration?
• 16:36
  SPEAKER_00: Can the Trump administration then retaliate?
• 16:38
  SPEAKER_00: Well, now we're building into this underlying social problem I'm trying to highlight here.
• 16:43
  SPEAKER_00: Uh, we're building in a further sort of lawfare tit for tat problem, a problem of unilateral disarmament.
• 16:49
  SPEAKER_00: So the justification for these EOs is this is an effort to create consequences for extreme partisanship on one side.
• 17:00
  SPEAKER_00: I again, are there good arguments on the other side?
• 17:03
  SPEAKER_00: 100%.
• 17:04
  SPEAKER_00: Good legal arguments, good philosophical arguments.
• 17:06
  SPEAKER_00: But that's a rational basis for these EOs that apparently these legal commentators just didn't see.
• 17:12
  SPEAKER_01: So, Catherine, what about the political commentary?
• 17:14
  SPEAKER_01: Because I don't hear polit politicians of political classes talking about what Josh, I hear them talking more about like the Russian collusion thing and these law firms should be brought to heel for that.
• 17:22
  SPEAKER_01: Or what's your sense of the sort of the political world?
• 17:25
  SPEAKER_03: Or yeah, I don't know.
• 17:26
  SPEAKER_03: I I I feel like I've heard similar things that this is insane that he's going after them, that that, you know, he's targeting um, he's targeting it.
• 17:33
  SPEAKER_03: It's an act of retribution, is what I keep seeing.
• 17:35
  SPEAKER_03: And to me, that is kind of weird because it seems better that it would be that he would go after specific law firms that have done something so insidious.
• 17:47
  SPEAKER_03: They've used the legal system, they've abused the legal system in a way to kind of subvert democracy, as we've talked about.
• 17:55
  SPEAKER_03: Um, and he's going after those law firms in particular, these six, however many it started out with, five or six.
• 18:02
  SPEAKER_03: Not just all Democrats.
• 18:03
  SPEAKER_03: He's not just saying, anyone who disagrees with me, you are never gonna get a government contract.
• 18:08
  SPEAKER_03: I think that would be maybe a little more questionable, um, just from my perspective.
• 18:12
  SPEAKER_03: But when you actually look at what they have done and how much of an impact they've had, of course, why would he give these people clearances when they have been so um awful and what they have done to his administration?
• 18:24
  SPEAKER_03: But it's not a blanket ban on Democrats.
• 18:26
  SPEAKER_03: Doesn't that seem better?
• 18:28
  SPEAKER_00: I don't know.
• 18:29
  SPEAKER_00: I mean, I again really hard questioned.
• 18:35
  SPEAKER_00: But but here's the thing if if what Trump said was, if what his administration said, is law firms that are extremely partisan in either direction, a law firm that is, you know, let's just imagine hypothetically 99% or more on one side of the political aisle, as measured by, let's say, their pro bono activities, um uh ineligible for government contracts or security clearances because we just don't think you're trustworthy, right?
• 19:07
  SPEAKER_00: We have a problem with extr excessive partisanship in the in the law firms.
• 19:11
  SPEAKER_00: I would think that is not personal retribution.
• 19:14
  SPEAKER_00: It's not retribution at all.
• 19:15
  SPEAKER_00: It's an effort to correct a social problem.
• 19:17
  SPEAKER_00: We could discuss whether it violates the law firm's First Amendment rights or whatever, but it would be an effort to what you're pointing to is something more like retribution for individual action.
• 19:26
  SPEAKER_00: And that almost seems more problematic to me.
• 19:29
  SPEAKER_01: Yeah, I'm I'm I'm not sure about that because again, and this has been a theme of some of our episodes, uh, that Trump is not doing to them what they do to us, so to speak.
• 19:38
  SPEAKER_01: He's not going after political opponents generally.
• 19:41
  SPEAKER_01: What he's doing, and we've talked about this a couple of times in the Letitia James example, the James uh Comey example.
• 19:47
  SPEAKER_01: We'll talk a little bit about this in the Eugene Carroll uh example, potentially today, and maybe also in the law firm example, is they have engaged in abuse of the legal process to go after Trump and or his political enemies.
• 19:59
  SPEAKER_01: And it's that abuse that must be punished.
• 20:01
  SPEAKER_01: I don't actually know if the law firm EOs are good fit for that.
• 20:04
  SPEAKER_01: I do think there are arguments about, hey, you may you helped make up the steel dossier and helped give legal cover for all of that.
• 20:11
  SPEAKER_01: Like you can't be trusted with a security clearance.
• 20:13
  SPEAKER_01: I think that's a bit more concrete.
• 20:14
  SPEAKER_01: But I do think the EOs are a bit broader and and and maybe trying to address the progression.
• 20:18
  SPEAKER_00: Well, you could again imagine uh the law fair point put in a more general form, right?
• 20:25
  SPEAKER_00: So like um any law firm where there is credible evidence that it has abused the legal process to uh uh undermine democratic politics, you know, give adequate definitions to those things, should lose its security clearance.
• 20:43
  SPEAKER_00: That's law.
• 20:45
  SPEAKER_00: I mean, that would at least be policy in general form.
• 20:48
  SPEAKER_00: I guess what I'm saying is that what what troubles me, I've defended these EOs, but I they trouble me in various ways.
• 20:54
  SPEAKER_00: What troubles me about them is that they are individualized.
• 20:57
  SPEAKER_00: This law firm, Perkins Cooey, this law firm, Wilma Hale, this law firm, Paul Weiss.
• 21:01
  SPEAKER_00: That that troubles me.
• 21:02
  SPEAKER_00: I mean, I'm down.
• 21:03
  SPEAKER_03: If if Trump were to be like, I ban all Democrats from stepping into federal buildings, I'd be down with that too.
• 21:09
  SPEAKER_03: So I mean, that's fine.
• 21:10
  SPEAKER_00: Well, that would clearly be a First Amendment violation.
• 21:12
  SPEAKER_00: And and it it would does that matter?
• 21:15
  SPEAKER_00: Okay.
• 21:16
  SPEAKER_01: Well, I it all this goes a little bit to the legal merits question.
• 21:20
  SPEAKER_01: This is what I kind of want to talk about.
• 21:21
  SPEAKER_01: Okay, let's get into it.
• 21:22
  SPEAKER_03: Yeah, is this actually legal what he did?
• 21:25
  SPEAKER_03: So can he deny public privileges based on political opposition?
• 21:30
  SPEAKER_01: Because Catherine, you just gave sort of a political instinctual answer.
• 21:33
  SPEAKER_01: Like Democrats have gone way overboard.
• 21:34
  SPEAKER_01: They must be punished somehow.
• 21:36
  SPEAKER_01: Josh gave a philosophical answer about sort of the role of law firms in society.
• 21:40
  SPEAKER_01: And can our democratic society sort of persist if 99% of elite legal services are in fact just in kind contributions worth trillions of dollars to one side of a political issue that is not even a 50 50 issue, but that's like a 2080 issue on the other side, right?
• 21:55
  SPEAKER_01: Can that is a fundamentally anti democratic force because it is, you know.
• 22:00
  SPEAKER_01: To thwart sort of majoritarian impulses.
• 22:02
  SPEAKER_01: And my question is the more the legal one, and it relates to both of these points that you've made.
• 22:07
  SPEAKER_01: And so the legal question, Catherine, identified correctly is like it's a public benefits, public privileges, right?
• 22:12
  SPEAKER_01: There's no question that uh the Trump administration or Congress can't pass a law that says law firms are prohibited from associating with whomever they want.
• 22:22
  SPEAKER_01: Uh law firms, um, well, I mean, I don't know, regulation of commerce, if you make maybe Congress could pass a law.
• 22:29
  SPEAKER_01: I don't know, saying, you know, if if you have to, you can't discriminate on the basis of race, you can't discriminate on the basis of political affiliation or something like that.
• 22:37
  SPEAKER_01: And 99% of Democrats.
• 22:39
  SPEAKER_01: Uh so I I don't know um exactly uh what Congress uh uh could do uh in this respect.
• 22:46
  SPEAKER_01: But the question here is no one's telling these law firms you have to change anything.
• 22:52
  SPEAKER_01: All we're saying is we don't have to give you a public benefit if you keep doing what you're doing.
• 22:57
  SPEAKER_01: We don't have to give support in any way.
• 22:59
  SPEAKER_01: We don't have to give you a government contract.
• 23:00
  SPEAKER_01: You're not entitled to government contracts, it's not a private right.
• 23:03
  SPEAKER_01: You're not entitled to security clearances.
• 23:05
  SPEAKER_01: And so, what's the doctrine that governs these situations?
• 23:08
  SPEAKER_01: We've talked about it a bit before on this podcast.
• 23:10
  SPEAKER_01: It's called the doctrine of unconstitutional conditions.
• 23:14
  SPEAKER_01: So, what this doctrine basically says is ordinarily the government can't, you know, uh require you to give up constitutional rights, but it actually can, as a condition of receiving a public benefit, a public privilege, to which you're not otherwise entitled if the condition or restriction is somehow germane or rationally related to the public benefit.
• 23:36
  SPEAKER_01: So for example, uh government workers lose First Amendment rights at the government employment door, at the government uh office door.
• 23:45
  SPEAKER_01: They can't engage in political speech on the job.
• 23:48
  SPEAKER_01: Uh the Supreme Court upheld suspicionless searches of homes for welfare recipients in the 1970s.
• 23:54
  SPEAKER_01: And would it otherwise violate the Fourth Amendment?
• 23:58
  SPEAKER_01: Yes, but it doesn't actually violate the Fourth Amendment because we we're not just doing this um totally independently.
• 24:06
  SPEAKER_01: You can deny us entry, but then you lose the welfare benefit.
• 24:09
  SPEAKER_00: So just to be clear, if if we're just talking about the First Amendment perspective, I mean, can you say, you know, if Republican presidents say um Democrats aren't eligible for welfare benefits or Democrats can't uh uh apply for veterans benefits or something like that.
• 24:28
  SPEAKER_00: Clearly a First Amendment violation.
• 24:30
  SPEAKER_00: But if it's something to which they're not otherwise entitled, like I don't know, well, a welfare benefit.
• 24:38
  SPEAKER_01: They're not it's a part it's a public benefit, right?
• 24:41
  SPEAKER_01: So even those examples would be an unconstitutional conditions doctrine example, right?
• 24:45
  SPEAKER_01: In other words, take away the public benefit.
• 24:47
  SPEAKER_00: If the government said nexus between the welfare benefit and their political viewpoint, and that's why it would be unconstitutional under this doctrine, it would be illegal under this doctrine.
• 24:56
  SPEAKER_01: So what you're saying, what you're highlighting is there there would be a clear First Amendment violation if the government just imposed this totally independent of any benefit, right?
• 25:04
  SPEAKER_01: If the government said, you must be a Democrat or we will send you to jail.
• 25:08
  SPEAKER_01: Okay, well, that that would be a violation.
• 25:11
  SPEAKER_01: Now, if it said you must be a Democrat in order to get welfare benefits, but if you don't want welfare benefits, that's fine.
• 25:18
  SPEAKER_01: You can be a Republican then, right?
• 25:19
  SPEAKER_01: That would be an unconstitutional conditions problem.
• 25:22
  SPEAKER_01: Can it can this is this condition a sort of legitimate condition for the receipt of a public benefit?
• 25:27
  SPEAKER_01: And in that case, the answer is obviously not, because there's no germane connection between political affiliation and the receipt of Medicare or Medicaid.
• 25:35
  SPEAKER_00: So box number three is going to be someplace where there is a connection, a nexus between the um um government benefit and the political association.
• 25:44
  SPEAKER_01: It involves a public benefit, a public privilege that you're not otherwise entitled to.
• 25:48
  SPEAKER_01: And the First Amendment, what otherwise would be a First Amendment violation, is made a condition of a receipt of that benefit.
• 25:54
  SPEAKER_01: So we're not actually imposing the First Amendment restriction on you independently.
• 25:59
  SPEAKER_01: You can still exercise your First Amendment right.
• 26:02
  SPEAKER_01: We're only imposing the condition if you want this public benefit.
• 26:07
  SPEAKER_00: If you have a history of endorsing Hamas and other terrorist groups, you can't get a security clearance.
• 26:12
  SPEAKER_00: Or you can't get a student visa.
• 26:14
  SPEAKER_01: How about that?
• 26:14
  SPEAKER_00: Or you can't get a student visa.
• 26:15
  SPEAKER_01: I mean, the thought they're absolutely constitutional.
• 26:17
  SPEAKER_01: And so the stuff that fires it's a great, yeah.
• 26:20
  SPEAKER_01: And so FIRE, Foundation for Individual Rights and Expression, that used to be educated, filed this lawsuit about the student visa, saying, Oh, it's a clear violation of the First Amendment rights.
• 26:28
  SPEAKER_01: And I'm like, hello, this is in unconstitutional conditions.
• 26:31
  SPEAKER_00: Yeah, I think that's very logical.
• 26:32
  SPEAKER_00: Because the thought would be they are absolutely free to express their support for Hamas, but they're not entitled to get a student visa or a security clearance or whatever else if they're expressing their support for Hamas and if there is a connection to uh being a student or being certainly security clearance, which makes it easier.
• 26:51
  SPEAKER_00: And that's why this case is hard.
• 26:53
  SPEAKER_03: Go back what you just convinced me.
• 26:55
  SPEAKER_03: I don't think it is hard.
• 26:56
  SPEAKER_01: I think it's hard.
• 26:56
  SPEAKER_03: Why is that so convincing?
• 26:58
  SPEAKER_03: I'm like, I'm okay, you're right.
• 26:59
  SPEAKER_01: Catherine, I love having you on the show.
• 27:00
  SPEAKER_01: You're my biggest fan.
• 27:01
  SPEAKER_01: But you say things like Yela, that was fire.
• 27:03
  SPEAKER_01: Like, no, no, no, you just convinced me.
• 27:05
  SPEAKER_01: Don't go back.
• 27:06
  SPEAKER_01: No, so remember we started with those legal scholars who said, isn't this the most unconstitutional thing ever?
• 27:11
  SPEAKER_01: And I'm like, hello, unconstitutional conditions doctrine.
• 27:15
  SPEAKER_01: Did you do an unconstitutional conditions doctrine analysis?
• 27:17
  SPEAKER_01: Because actually the government is allowed to condition the receipt of public benefits like government contracts and/or security.
• 27:22
  SPEAKER_01: But now explain why it's a hard case.
• 27:24
  SPEAKER_01: Because it is hard.
• 27:24
  SPEAKER_01: Right.
• 27:25
  SPEAKER_01: The hard case is is it germane?
• 27:27
  SPEAKER_01: Give me a welfare, you know, the welfare searches in the home welfare context, right?
• 27:31
  SPEAKER_01: I can see the argument.
• 27:32
  SPEAKER_01: Like if we're going to give you benefits, we want to make sure you're not just doing drugs at home and not wasting the money in some respects.
• 27:37
  SPEAKER_01: Like you could think it's stupid, but whatever.
• 27:39
  SPEAKER_01: It's it's you a rational government actor could think that that's germane to the receipt of welfare.
• 27:44
  SPEAKER_01: Uh for a neutral apolitical civil service, it's germane to not require uh to require them not to engage in in politics or political speech on the job, right?
• 27:53
  SPEAKER_01: If you're in the civil service.
• 27:54
  SPEAKER_01: So the question here is is withholding government contracts and or security clearances germane because of X, Y, or Z, right?
• 28:05
  SPEAKER_01: Is the fact that they um overwhelmingly are progressives and don't hire Republicans, for example?
• 28:10
  SPEAKER_01: Is that a germane reason to condition the receipt of benefits?
• 28:14
  SPEAKER_01: Of course.
• 28:15
  SPEAKER_00: I mean, is the is the is the premise of that, of course, that um a firm, let's say a firm is 92% Democrat, 95, 99% Democrat, and detests Trump and litigated against him, and then he wins.
• 28:29
  SPEAKER_00: Is it therefore likely or more likely that that firm will give away state secrets?
• 28:34
  SPEAKER_03: More likely they would give away state secrets.
• 28:35
  SPEAKER_01: Well, but I think, Catherine, your point was your point was that the specific law firms, and by the way, this is why you must follow us on YouTube, because look at Catherine's expressions.
• 28:44
  SPEAKER_01: Um, but your point was that there were specific law firms that actually had historical episodes where they arguably engaged in situations, lawfare, that makes them sort of untrustworthy with state secrets.
• 28:56
  SPEAKER_03: I do think that's different than just Democrat versus Republican, which I agree is a little bit maybe iffier, but when you've clearly abused the legal process to go after your political enemies, and now you want a security clearance from those political enemies.
• 29:09
  SPEAKER_01: Germane.
• 29:10
  SPEAKER_01: Put aside state secrets.
• 29:11
  SPEAKER_01: Let me ask Josh a question.
• 29:13
  SPEAKER_01: If a law firm filed, you were in the Department of Education, they filed, what, 83 lawsuits against everything you did, got TROs, totally lawless, uh, that the judges did, just totally styming the administration.
• 29:26
  SPEAKER_01: And suppose it was like two or three law firms who consistently filed these lawsuits that you think aren't meritorious and so on.
• 29:32
  SPEAKER_01: Do you have to make their job easier?
• 29:34
  SPEAKER_01: Do you have to make their life easier and say, sure, here, have have government contracts, have um security clearances?
• 29:40
  SPEAKER_01: Or can you say, you know what?
• 29:41
  SPEAKER_01: All you do is lawlessly, in our view, interfere with our administration's uh priorities.
• 29:46
  SPEAKER_01: You're engaging in this judicial type of law fair, and we don't want to enter into a contract with you.
• 29:51
  SPEAKER_01: Why should we enter into a contract with someone whose sole purpose is to destroy everything that this administration does?
• 29:57
  SPEAKER_01: I mean, that isn't a classic germane condition, right?
• 30:01
  SPEAKER_01: But it does feel right to me.
• 30:03
  SPEAKER_01: Doesn't I want it to my audience?
• 30:04
  SPEAKER_01: It doesn't mean it's legal.
• 30:06
  SPEAKER_01: Okay.
• 30:06
  SPEAKER_01: My intuition here is they would be right to do that.
• 30:09
  SPEAKER_01: It doesn't mean it's legal.
• 30:10
  SPEAKER_01: Like, I I don't know.
• 30:11
  SPEAKER_01: So, so let's do some hypotheticals.
• 30:15
  SPEAKER_01: It would clearly not be germane to say only Republicans get welfare benefits.
• 30:20
  SPEAKER_01: Absolutely.
• 30:21
  SPEAKER_00: I don't think that's germane.
• 30:22
  SPEAKER_00: I think we all three agree, right?
• 30:23
  SPEAKER_01: Yeah, right?
• 30:24
  SPEAKER_01: Right?
• 30:24
  SPEAKER_01: Yeah, yeah.
• 30:25
  SPEAKER_01: I mean, yeah, okay, good.
• 30:26
  SPEAKER_00: Oh, thank gosh.
• 30:27
  SPEAKER_00: Okay.
• 30:28
  SPEAKER_00: Um, what about university funding?
• 30:30
  SPEAKER_00: Well, university funding is and I can't talk about the things I did at the Department of Education.
• 30:35
  SPEAKER_00: I was trying to get it out of him.
• 30:36
  SPEAKER_00: Like, I can't do it.
• 30:37
  SPEAKER_01: I've got a um, he's got what is it, a two-year statute of limitation or a two-year before you could talk about it?
• 30:42
  SPEAKER_01: What's the no, it's okay.
• 30:43
  SPEAKER_00: Go ahead.
• 30:44
  SPEAKER_00: I can talk in the abstract about uh university funding.
• 30:46
  SPEAKER_00: And I think university funding is a really interesting analogy here.
• 30:52
  SPEAKER_00: Um let's say that, you know, the federal executive is concerned about extreme partisanship on university campuses and the consequences of that partisanship.
• 31:03
  SPEAKER_00: So you've got a campus that is getting ample uh federal funding, and it's uh uh essentially bans Republicans from being hired on the faculty or conservatives from being hired on the faculty.
• 31:18
  SPEAKER_00: So they engage in a behavior that would be clearly unconstitutional if performed by a state actor, but they're a private actor.
• 31:25
  SPEAKER_00: So they just sort of they just sort of say, you know, we just don't want your kind, meaning conservatives on this campus.
• 31:31
  SPEAKER_00: They do the same with students.
• 31:32
  SPEAKER_00: So they establish like a democratic echo chamber, a progressive echo chamber.
• 31:37
  SPEAKER_00: This is not unrealistic.
• 31:39
  SPEAKER_00: This is actually how it is on these campuses, except a few people slip through.
• 31:43
  SPEAKER_00: Um, and then they they're applying for federal grants.
• 31:46
  SPEAKER_00: And you could imagine an executive that says, well, listen, you're free to be a liberal lunatic asylum, but we're not going to fund it, right?
• 31:54
  SPEAKER_00: That's the democratic deal.
• 31:55
  SPEAKER_00: You're free to be this way, but we don't have to f.
• 31:57
  SPEAKER_00: That's very, very sensible.
• 31:59
  SPEAKER_00: But the way this germaineness doctrine works actually makes it pretty tricky because they say, no, no, no.
• 32:04
  SPEAKER_00: We've applied for a physics grant.
• 32:06
  SPEAKER_00: And that has nothing to do with the fact that we're all progressives here and we endorse the most left-wing views imaginable and we exclude the other side.
• 32:13
  SPEAKER_00: So you have to give us the physics grant if the underlying science is not a good thing.
• 32:16
  SPEAKER_01: I actually think that's a bad argument because I think progressives politicize science.
• 32:20
  SPEAKER_01: They actually do exactly what they accuse conservatives of doing.
• 32:22
  SPEAKER_00: I think what you can't trust even the science grants.
• 32:24
  SPEAKER_00: I 100% agree.
• 32:25
  SPEAKER_00: I think that with the what you can do is with the science grants, with all of the grant funding, you can say that when you create a pervasively biased environment, it affects the scholarly environment in all domains.
• 32:36
  SPEAKER_00: I think that's fair.
• 32:37
  SPEAKER_00: And it establishes the germaneness.
• 32:39
  SPEAKER_00: But you can see the underlying problem here.
• 32:41
  SPEAKER_00: And you can also see, like, what if they said, okay, all our funding, uh fun fact, um, about I think it's 70%, 80% of university funding from the federal government is NIH funding.
• 32:54
  SPEAKER_00: It's medical funding.
• 32:56
  SPEAKER_00: Um, Department of Defense, Department of Energy, NASA, Department of Education.
• 33:00
  SPEAKER_00: They're all very, very small pieces of a pie that is overwhelmingly the NIH.
• 33:04
  SPEAKER_00: Uh so what if they said, our medical school is great?
• 33:07
  SPEAKER_00: It's even balanced, it's indirectly supporting an entire environment, an entire university environment that's wildly balanced on one side, and there's nothing you can do about it because you have to keep funding our medical establishment because you have no argument against it.
• 33:21
  SPEAKER_03: And then the medical establishment locked everyone in their homes during COVID.
• 33:24
  SPEAKER_03: That was a political decision, I would argue, as well.
• 33:26
  SPEAKER_01: So the people that are getting admitted into medical school and the uh the DOJ lawsuits against DEI.
• 33:31
  SPEAKER_01: Why can't you make the argument that actually every single piece of funding that we give you uh promotes and encourages uh this medical system uh that actually will lead to Americans dying in the future, and we're not gonna be part of it.
• 33:44
  SPEAKER_01: And so we're not giving you any funding as long as you engage in affirmative action and admissions.
• 33:49
  SPEAKER_01: And I don't care uh how remote this particular project seems from you, you can keep doing what you're doing and funding your own funding, finding your own funding, but why should the taxpayers pay anything into an ecosystem that is fundamentally harmful to Americans?
• 34:02
  SPEAKER_00: See, I completely agree with this.
• 34:05
  SPEAKER_00: I'm just trying to steel man the other eye.
• 34:07
  SPEAKER_00: Oh, okay.
• 34:07
  SPEAKER_00: Oh, I thought we were I'm trying to do what those podcasters didn't do and give be fair to the other side.
• 34:14
  SPEAKER_00: But I actually agree with this.
• 34:15
  SPEAKER_00: I think if you've got a biased institutional environment, and the institutional environment is on the level of the university, it's the whole thing.
• 34:23
  SPEAKER_00: Uh, if you've got a highly biased environment, it does affect scholarship, including scholarship in areas of medicine or physics or whatever.
• 34:32
  SPEAKER_00: And uh it's legitimate to withhold federal funds.
• 34:35
  SPEAKER_00: There's actually, I want to quote something.
• 34:37
  SPEAKER_00: Um uh my father was a judge on the Ninth Circuit.
• 34:39
  SPEAKER_00: He passed away quite recently.
• 34:41
  SPEAKER_00: So I take every opportunity to quote from his old cases to kind of keep the memory alive.
• 34:45
  SPEAKER_00: And he was one of the good judges.
• 34:46
  SPEAKER_00: He was clear judge.
• 34:48
  SPEAKER_00: Um and uh he had a case before all these controversies sort of broke through.
• 34:55
  SPEAKER_00: Um, it was about NEA funding, National Endowment for the Arts.
• 34:59
  SPEAKER_00: It was about funding for um uh artists who engaged in sort of political conceptual art.
• 35:05
  SPEAKER_00: There was this famous uh instance that got the country very galvanized in the 1990s called Piss Christ, very offensive, um, uh, where the performance artist took a crucifix and put it upside down in a jar of urine and demanded federal funding for it.
• 35:21
  SPEAKER_00: Um, that's that's just modern art.
• 35:23
  SPEAKER_00: That's yeah.
• 35:24
  SPEAKER_00: Uh so Finlay was a case about whether the federal the Congress in response passed a provision of a statute that said um that the NEA can and should take into account public standards of decency in deciding whether to fund art.
• 35:39
  SPEAKER_00: And uh a group of a consortium of artists, I think led by Karen Finlay who had, as I recall, she took off her clothes, covered herself in chocolate, and said, Reagan did this to me.
• 35:49
  SPEAKER_00: It was more of this conceptual art of the 1990s.
• 35:52
  SPEAKER_01: Wait, Isaac, uh, our producer, can we put both uh pieces of modern art on YouTube for our or is that gonna be too obscene and offensive?
• 35:59
  SPEAKER_03: I don't want to see it.
• 36:00
  SPEAKER_01: Okay, never mind.
• 36:01
  SPEAKER_01: I just I don't know, I thought that'd be some uh pleasure for our viewers, but no, okay, keep going, Jack.
• 36:06
  SPEAKER_00: There's all my way okay.
• 36:07
  SPEAKER_00: So what's your dad rule or my case was does the NEA have to fund this?
• 36:11
  SPEAKER_00: Is considering community standards of decency uh a violation of the First Amendment?
• 36:16
  SPEAKER_00: Catherine, what's the common sense of the thing?
• 36:18
  SPEAKER_03: They don't have to fund this, my God.
• 36:20
  SPEAKER_03: It's not art, doesn't it have to be art?
• 36:22
  SPEAKER_03: Like art is nice and pretty or whatever.
• 36:24
  SPEAKER_00: The problem is one way of handling this would be just to say this is bad art, and it is bad art.
• 36:30
  SPEAKER_00: Like, like, like I I would part of the reason I have all these music analogies is I I went to college for music composition.
• 36:35
  SPEAKER_00: I think about I think about music a lot.
• 36:37
  SPEAKER_00: Um this- I didn't know that about you, didn't you?
• 36:39
  SPEAKER_00: Yeah, yeah, yeah.
• 36:39
  SPEAKER_00: Interesting.
• 36:40
  SPEAKER_00: Um it's this is bad art.
• 36:43
  SPEAKER_00: But that isn't how the case shaped up.
• 36:45
  SPEAKER_00: The question was, can you consider standards of decency?
• 36:48
  SPEAKER_00: And here's what my dad wrote.
• 36:49
  SPEAKER_00: He wrote, artists and for that matter, non-artists are constitutionally entitled to express themselves indecently and disrespectfully toward the beliefs and values of as much of the American public as they like.
• 37:00
  SPEAKER_00: Indecency sometimes helps to communicate an idea effectively and it is constitutionally protected.
• 37:05
  SPEAKER_00: But that offensive or indecent expression cannot be censored does not mean that the government has to pay for it.
• 37:10
  SPEAKER_00: By drawing the line between private expression and government conduct, we preserve liberty for individual expression while preserving democracy for governmental decisions.
• 37:18
  SPEAKER_03: See, that is fire.
• 37:20
  SPEAKER_03: That is fire.
• 37:21
  SPEAKER_03: That's 1990s fire.
• 37:23
  SPEAKER_00: That is fire.
• 37:24
  SPEAKER_00: Judge Andrew Kleinfeld.
• 37:26
  SPEAKER_00: So the thought there, I think it's exactly the thought with respect to university funding, right?
• 37:31
  SPEAKER_00: If the universities want to be liberal lunatic asylums, go with God, but not with federal funding, not with taxpayer funding.
• 37:38
  SPEAKER_00: That we have we have First Amendment protection, we have uh uh untrammeled free expression with respect to your um your expressions of opinion on campus and otherwise, but we don't have to fund it with taxpayer money.
• 37:51
  SPEAKER_00: That's a matter of democratic decision.
• 37:53
  SPEAKER_00: And for that, we can want some reasonable viewpoint diversity, higher quality scholarship, a more balanced intellectual environment.
• 37:59
  SPEAKER_00: Can we extend that reasoning to the law firm case?
• 38:02
  SPEAKER_00: It's harder.
• 38:03
  SPEAKER_00: It is it is harder, but let me make the case and then Why is it harder though?
• 38:07
  SPEAKER_03: Because the physics thing seems way less germane, if I'm using this word correctly, than the fact that this is all lawyers doing law, like legal work.
• 38:18
  SPEAKER_03: It's not physics and political science.
• 38:20
  SPEAKER_03: It's they're all doing legal work and both these examples.
• 38:22
  SPEAKER_01: Actually, that's really well done, Catherine.
• 38:24
  SPEAKER_01: You just hoisted me by my own statement earlier about the physics thing.
• 38:27
  SPEAKER_01: If that's germane, uh then surely this is.
• 38:29
  SPEAKER_00: And maybe you know, I think I think the problem though is that with the physics thing, you have the separation of departments, right?
• 38:36
  SPEAKER_00: The political science department, we're not going to fund that because we think it's propaganda, not scholarship.
• 38:40
  SPEAKER_00: But the physics, is that connected enough to what's going on in the but what's going on in the law firm is um they are engaged in essentially democratic law fair, law fair on the democratic side, it's it's partisan activity.
• 38:55
  SPEAKER_00: Um, does that make them incapable or does it make it uh substantially less likely that they will um be untrustworthy with state secrets?
• 39:04
  SPEAKER_01: Well, let me ask how about a different one, not just state secrets.
• 39:07
  SPEAKER_01: Let me zoom out to firms generally.
• 39:10
  SPEAKER_01: Why isn't the answer like, does anybody doubt that if the if the government handed out individual contracts, okay, individual contracts to individual people for whatever, you know, building the White House or uh engaging in Iraq, you know, military contractor, the pool cleaner guy basically lawyers.
• 39:28
  SPEAKER_01: No, exactly.
• 39:29
  SPEAKER_01: I mean they contract with lawyers to do certain work for them.
• 39:32
  SPEAKER_01: And if the government under any administration ended up, they didn't announce it, but they just they just did it.
• 39:38
  SPEAKER_01: Okay, as a factual matter, as an empirical matter, they only hired Democrats.
• 39:42
  SPEAKER_01: They only hired Democrats.
• 39:44
  SPEAKER_01: Does anyone question that that would be outrageous and that that would be if probably unconstitutional, probably illegal under various existing laws over contracting and civil service if they only ended up hiring Democrats, which they do, by the way, like the State Department we talked a little bit about, all the Democrats?
• 39:58
  SPEAKER_01: How did that happen?
• 39:59
  SPEAKER_01: But does anyone again, you you can't give only welfare benefits to Democrats?
• 40:04
  SPEAKER_01: You can't give only government civil service jobs only to Democrats.
• 40:07
  SPEAKER_01: Well, here's the connection, here's the connection.
• 40:09
  SPEAKER_01: Why then should you give any support through funding, through government contracts, through security clearance to private firms that effectively do the same thing?
• 40:19
  SPEAKER_01: Have I just clinched the argument?
• 40:20
  SPEAKER_01: Or is it cinched the argument?
• 40:22
  SPEAKER_01: Clinched, cinched, what's the word?
• 40:23
  SPEAKER_01: A little bit above there.
• 40:24
  SPEAKER_00: I think it's clinched, but uh you know, I I I'm also moved by that example because that's exactly what happens on the other side.
• 40:34
  SPEAKER_00: I mean, you look like under civil service regulations, you're not supposed to take uh partisan affiliation into account when you hire um the permanent civil service.
• 40:45
  SPEAKER_00: But if you look around at these civil service agencies, they have about the same political affiliations based on exit polls, for example, of political donations as the law firms and the universities.
• 40:55
  SPEAKER_00: They're 90% plus.
• 40:57
  SPEAKER_00: And some agencies, like famously the State Department, are very nearly 100% Democrat.
• 41:02
  SPEAKER_00: And that is directly at the set.
• 41:05
  SPEAKER_00: So, and and think about a lot of the grants.
• 41:07
  SPEAKER_00: A lot of the government grants flow to NGOs that are overwhelmingly Democrat.
• 41:11
  SPEAKER_00: I mean, so the federal government is effectively funding a large part of the apparatus of the Democrat side.
• 41:17
  SPEAKER_00: And then you start to think about the um unilateral disarmament point.
• 41:20
  SPEAKER_00: And it's like, well, can Trump, through these EOs with the law firms, do a give the other side a little bit of the taste of their own medicine?
• 41:27
  SPEAKER_00: And if he can't, doesn't that just kind of kind of configure the scales of democratic politics so that one side has an enormous advantage over the other, no matter how many elections both sides win?
• 41:38
  SPEAKER_00: So I I all right.
• 41:40
  SPEAKER_00: I am proud to be on a podcast where we struggle with the issue to this extent.
• 41:45
  SPEAKER_00: I didn't hear that from the other podcast from which those quotes came.
• 41:48
  SPEAKER_01: I agree completely.
• 41:50
  SPEAKER_01: And let me make one legalistic point.
• 41:52
  SPEAKER_01: We were we talked about the merits of the, and it's hard.
• 41:54
  SPEAKER_01: They are hard.
• 41:55
  SPEAKER_01: I think I actually convinced myself with the last point, but but listeners, law professors, audience, whoever's listening to us, let us know if this was persuasive, and if not, why not?
• 42:03
  SPEAKER_01: Okay, push back, engage in conversation.
• 42:05
  SPEAKER_01: I know we want to talk about one other thing, uh, which is this whole case in the DC circuit might actually rise and fall on a separate issue, namely reviewability.
• 42:13
  SPEAKER_01: Is this even reviewable?
• 42:15
  SPEAKER_01: And this is part of, you know, again, judicial power, which we talk a lot about.
• 42:18
  SPEAKER_01: We talk about how you need a standing, you need a real case or controversy, you need a real cause of action.
• 42:22
  SPEAKER_03: Well, why do the judges seem to be the final word on everything everyone else does?
• 42:26
  SPEAKER_01: And exactly.
• 42:27
  SPEAKER_01: And we try to avoid that, or historically, the left doesn't.
• 42:30
  SPEAKER_01: We attack them for that on this podcast for always giving judges final say.
• 42:34
  SPEAKER_01: Well, here there's another doctrine.
• 42:35
  SPEAKER_01: Uh, under the Administrative Procedure Act, there's a there's a clause, there's a provision uh that's that precludes review, judicial review, of questions committed to agency discretion by law.
• 42:45
  SPEAKER_01: And here's the thing the security clearances are a the paragon example of a question that is committed to agency discretion by law.
• 42:55
  SPEAKER_01: So in a case uh called Webster against Doe, um uh a CIA employee was fired for being homosexual.
• 43:01
  SPEAKER_01: And the uh Supreme Court held that this was committed to agency discretion by law, but the problem, there was always an asterisk and there was a dissent.
• 43:08
  SPEAKER_01: They said, but constitutional claims survive.
• 43:11
  SPEAKER_01: So you could still review the constitutional claims.
• 43:14
  SPEAKER_01: So could you extend that here to constitutional claims involving security clearances?
• 43:18
  SPEAKER_01: Security clearances generally committed to agency discretion by law, but if you have a First Amendment claim or discrimination claim, that might still be reviewable.
• 43:25
  SPEAKER_01: I would think the Webster Vot says yes, they could still bring that claim, but for the fact that there was a DC circuit case in 2024 brought under Biden when Biden tried to revoke a security clearance.
• 43:36
  SPEAKER_01: It's not a political case.
• 43:37
  SPEAKER_01: I can't remember the facts of it, but but he alleged various um uh constitutional claims.
• 43:42
  SPEAKER_01: And the DC Circuit, just two years ago, held that the Webster V Doe carve out for constitutional claims does not apply to security clearances.
• 43:51
  SPEAKER_01: So now all of a sudden, you have the DC Circuit confronting a constitutional claim involving security clearances, and Paul Clement, who's a very good conservative lawyer, who of course Is was hired by all the law firms to try to argue this and uh against the Trump administration is trying to distinguish that 2024 case.
• 44:07
  SPEAKER_01: And I don't know if he he's gonna be able to do that.
• 44:10
  SPEAKER_01: Uh the panel is two Democrat appointees and uh one uh a Trump appointee, Judge Naomi Naomi Rao.
• 44:16
  SPEAKER_01: And they ask questions like, what does this mean if you just, you know, all black people are denied security clearances?
• 44:21
  SPEAKER_01: There's no that's not reviewable.
• 44:23
  SPEAKER_01: And the Trump administration lawyer to his credit said, That's that's right.
• 44:26
  SPEAKER_01: That's right.
• 44:27
  SPEAKER_01: It might be uncons unconstitutional, maybe it's impeachable, maybe it's a political abuse, but you courts can't say anything about it.
• 44:36
  SPEAKER_01: It's a good argument.
• 44:37
  SPEAKER_01: It's a good argument.
• 44:38
  SPEAKER_01: I think they're gonna lose two to one, uh, you know, at the in the DC circuit on this.
• 44:41
  SPEAKER_01: Um, but there is a real question about reviewability.
• 44:44
  SPEAKER_01: And so with that, uh, let's move on to E.
• 44:46
  SPEAKER_01: Jean Carroll.
• 44:48
  SPEAKER_01: You guys, I told you you wouldn't want to miss this episode.
• 44:51
  SPEAKER_01: Catherine, what's next?
• 44:52
  SPEAKER_03: She's like another saga that never ends.
• 44:54
  SPEAKER_03: There have been even more recent developments in the E.
• 44:57
  SPEAKER_03: Jean Carroll case somehow.
• 44:59
  SPEAKER_03: There are two suits going on that involve her right now that are deeply related.
• 45:02
  SPEAKER_03: First, um, just recall that she published accusations against Trump in a book while Trump was president.
• 45:08
  SPEAKER_03: And so Trump publicly defended himself.
• 45:11
  SPEAKER_03: Uh, he was asked about it by the press, of course, and he publicly defended himself.
• 45:15
  SPEAKER_03: And what did E.
• 45:16
  SPEAKER_03: Jean Carroll do?
• 45:17
  SPEAKER_03: She sued him for defamation.
• 45:19
  SPEAKER_03: Well, then New York passed a law that allowed Eugene Carroll to sue Trump for sexual assault, even though the statute of limitations had passed.
• 45:26
  SPEAKER_03: And I think we've talked about this once before.
• 45:28
  SPEAKER_01: All these topics are connected.
• 45:29
  SPEAKER_01: Lawfair, lawfare, lawfair.
• 45:31
  SPEAKER_03: It was the law.
• 45:32
  SPEAKER_03: They literally tailor-made the law for that specific suit so she could go after Trump.
• 45:37
  SPEAKER_03: Which is crazy.
• 45:38
  SPEAKER_03: So the sexual assault suit went first to trial.
• 45:41
  SPEAKER_03: Um, and the New York jury, of course, found Trump liable.
• 45:44
  SPEAKER_03: Um, this was like in the peak of lawfare against Trump season of 2023.
• 45:50
  SPEAKER_03: And so once they got that verdict, the judge in the defamation case concluded that because the jury in the other case found Trump liable for sexual assault, Trump must necessarily have been lying.
• 46:01
  SPEAKER_03: And so she was awarded like$83 million against Trump.
• 46:06
  SPEAKER_03: So basically, they laid a trap for Trump, not only open up a law to allow Eugene Carroll to sue uh that wouldn't normally have been allowed, but then prevent Trump from defending himself.
• 46:19
  SPEAKER_03: Okay, so how is this even okay?
• 46:22
  SPEAKER_03: Is my question for both of you.
• 46:24
  SPEAKER_01: I do think that there is like some theoretical justification to what's going on here.
• 46:29
  SPEAKER_01: Uh they are laying a trap for him, as you said.
• 46:32
  SPEAKER_01: But theoretically, uh, if you call someone a liar, like that could be defamation.
• 46:37
  SPEAKER_01: So Trump could be found liable, not just for the sexual assault, but for calling Eugene Carroll a liar.
• 46:42
  SPEAKER_01: Theoretically, like you could see such situations in that in which that would be plausible.
• 46:47
  SPEAKER_01: But the problem here uh I think is uh a bit different because he was the first they they laid a trap, as you said.
• 46:54
  SPEAKER_01: We all know it's about lawfare, right?
• 46:56
  SPEAKER_01: We all know that the New York jury was gonna convict him, right?
• 46:58
  SPEAKER_01: They were gonna find him liable of the sexual assault.
• 47:01
  SPEAKER_01: And then the judge in the defamation case, as you said, bootstrapped the finding of the jury that this was peak lawfare against Trump 2023.
• 47:08
  SPEAKER_01: And they said he there necessarily defamed Eugene Carroll by defending himself in a press conference when he was president, right?
• 47:15
  SPEAKER_01: So the problem, in my view, is that this is just they laid a trap for him.
• 47:19
  SPEAKER_01: Not just the civil liability uh for the sexual assault, which, you know, was tenuous at best, but also millions and millions and millions of dollars in damages for defamation through this trap uh that they laid.
• 47:30
  SPEAKER_01: One key question is whether Trump defending himself as president, okay, well, has presidential immunity, uh, which is sort of a live issue.
• 47:39
  SPEAKER_01: Uh, and I want to talk about in in a second.
• 47:41
  SPEAKER_01: In other words, if ordinarily maybe you can go after him for defamation, well, he's the president of the United States.
• 47:45
  SPEAKER_01: He was asked by a reporter and he denied it and he called her a liar.
• 47:48
  SPEAKER_01: He's defending the integrity of his administration.
• 47:50
  SPEAKER_01: Um, you know, is he supposed to unilaterally just disarm and not vigorously defend himself?
• 47:55
  SPEAKER_01: I mean, there are ways you could do it without calling her a liar and so on.
• 47:58
  SPEAKER_01: But so the presidential uh immunity question, I want to bracket for a second.
• 48:01
  SPEAKER_01: I have a different question.
• 48:03
  SPEAKER_01: My question is this now that we've decided that they've laid this trap, it was this sort of law fair, can Trump go after Eugene Carroll for the same thing.
• 48:11
  SPEAKER_01: So they're going after Trump for not just the sexual assault, right, but for alleged sexual, or I guess the jury found it, but um uh for defaming her, for lying about her.
• 48:21
  SPEAKER_01: Well, it turns out Eugene Carroll, it seems, lied under oath in her deposition about who was funding her lawsuit.
• 48:29
  SPEAKER_03: Yeah, well, it turns out it was who was funding her lawsuit.
• 48:31
  SPEAKER_03: Reed Hoffman, who's like the super rich liberal Yeah, he's a big liberal donor, and he has admitted himself that he was funding her lawsuit.
• 48:38
  SPEAKER_03: And and this was also, I mean, this was a huge rumor that like a bunch of places were reporting that Trump the Trump administration had opened a criminal investigation into Eugene Carroll for this reason, like whether or not she had committed perjury in her testimony about this.
• 48:51
  SPEAKER_03: But then it was like kind of debunked.
• 48:52
  SPEAKER_03: They said, We're not actually doing that.
• 48:54
  SPEAKER_03: So I think it's an interesting question, but just to be clear, apparently they're not really pursuing it, or they're just pursuing it for different means.
• 49:00
  SPEAKER_01: I I want to ask that question though.
• 49:01
  SPEAKER_01: They went after Trump through a series of lawfare.
• 49:04
  SPEAKER_01: A progressive billionaire paid for it.
• 49:07
  SPEAKER_01: Eugene Carroll lied under oath, allegedly, about um paying him paying for it.
• 49:13
  SPEAKER_01: So why would it be improper for the Trump administration to go after her for perjury?
• 49:18
  SPEAKER_01: I mean, this is No.
• 49:21
  SPEAKER_03: You're sorry.
• 49:22
  SPEAKER_00: That's the base answer.
• 49:23
  SPEAKER_00: What's the rational answer?
• 49:25
  SPEAKER_00: Uh we're a little bit of both.
• 49:26
  SPEAKER_00: Or a little bit.
• 49:27
  SPEAKER_00: You know, I think you can't allow this kind of lawfare without consequences.
• 49:32
  SPEAKER_00: There has to be consequences for it.
• 49:34
  SPEAKER_00: Or it's just almost in a game theory way, it's just logical to pursue it.
• 49:38
  SPEAKER_00: Like if I if I'm like, okay, I've got a political opponent, I think I'll try to get him disbarred, tell lies about him, try to get him bankrupt, make him bankrupt, you know, use every tool in the book.
• 49:52
  SPEAKER_00: And it's kind of like I'm guaranteed there will never be consequences to me for doing any of this, then logically I should do all of it and see if any of it sticks.
• 50:02
  SPEAKER_00: There's no, it's almost like if I'm in a territorial conflict, if I aggress to try to seize territory and I succeed, I get to keep the territory.
• 50:11
  SPEAKER_00: And if I fail, there's no consequences for my territory or for my safety.
• 50:16
  SPEAKER_00: Nobody can attack me.
• 50:16
  SPEAKER_00: I'm immune, right?
• 50:18
  SPEAKER_00: Well, I should just try on Monday and try again on Tuesday and try again on Wednesday, and one of these days I'll get it.
• 50:23
  SPEAKER_00: So I think there has to be consequences for lawfare.
• 50:26
  SPEAKER_00: I am troubled by the um the implication of personal retribution.
• 50:35
  SPEAKER_00: But maybe I shouldn't be.
• 50:36
  SPEAKER_00: Am I wrong to be troubled by personal retribution?
• 50:38
  SPEAKER_00: Like, like it's not just you engaged in lawfare, but you engaged in lawfare against me.
• 50:42
  SPEAKER_00: Like, here's something that would be clearly wrongful.
• 50:44
  SPEAKER_00: Let's say that a fellow professor insults me and my nose is bent out of shape, and I'm very petty, and then I get to be president, and I'm like, go after that guy.
• 50:53
  SPEAKER_00: That would clearly be wrong, right?
• 50:54
  SPEAKER_00: We're not supposed to use power that way.
• 50:56
  SPEAKER_00: I agree with you.
• 50:56
  SPEAKER_03: Well, sure, but this is something that actually happened.
• 50:58
  SPEAKER_03: I mean, is it lawfare if she really did commit perjury and now she's gonna get in trouble for it?
• 51:04
  SPEAKER_01: So, okay.
• 51:05
  SPEAKER_01: I do think that makes a difference.
• 51:06
  SPEAKER_01: In other words, so people argue that what what's the guy's name who is running, who's now the going to be DNI, but who's head of the mortgage financial housing?
• 51:14
  SPEAKER_01: Uh Fulti.
• 51:15
  SPEAKER_01: Fulti, right?
• 51:16
  SPEAKER_01: He's head of the basically the mortgage uh agency, right?
• 51:19
  SPEAKER_01: And if he really finds actual crimes that these people have committed, right, um, that matters.
• 51:27
  SPEAKER_01: It matters if they're actual crimes, right?
• 51:29
  SPEAKER_01: Now, I don't think it's good every time there's a new administration in power to say, let me find all the people who oppose me in an election.
• 51:36
  SPEAKER_01: Let me find all the powerful people that um you know influence elections and give money to the other side and vote for the other side and let me um find crimes.
• 51:45
  SPEAKER_01: Let me start with the IRS, let's go through their tax stuff to find tax crimes, let's go through their mortgage documents to find mortgage.
• 51:50
  SPEAKER_01: Like we don't want that, generally speaking, right?
• 51:53
  SPEAKER_01: It's like the classic Soviet, who's who who uh told Stalin, name me the man, I'll find you the crime.
• 51:58
  SPEAKER_01: We don't want to do that, but that's not what he's doing.
• 52:02
  SPEAKER_01: And Catherine, you actually made the point in the a couple episodes ago on the settlement fund question.
• 52:07
  SPEAKER_01: What Trump is actually doing is just going after the people who themselves have abused the legal process.
• 52:14
  SPEAKER_01: In other words, they go after Trump and his enemies, they go after the political opponents.
• 52:18
  SPEAKER_01: He's not going after his political opponents writ large, he's going specifically after the people who did this thing that was an abuse of the legal process itself, that was an abuse of power that needs punishment, right?
• 52:30
  SPEAKER_01: Why do we keep hearing about Letitia James and James Comey and, you know, who uh Eugene Carroll, though apparently they're not actually doing that?
• 52:38
  SPEAKER_01: Those are the people who specifically abused the legal process.
• 52:42
  SPEAKER_01: And that should be punished, shouldn't it?
• 52:44
  SPEAKER_01: Otherwise, they're just gonna keep doing it, and then what's the consequence?
• 52:47
  SPEAKER_01: The worst that happens is we lose.
• 52:48
  SPEAKER_01: The worst that happens, the best thing that happens is we win.
• 52:51
  SPEAKER_01: And they're not gonna do it against our people.
• 52:54
  SPEAKER_01: It must be punished somehow, no?
• 52:56
  SPEAKER_03: It seems like a form of justice.
• 52:57
  SPEAKER_03: That's that's correct.
• 52:59
  SPEAKER_03: You're punishing a wrong that was done to you.
• 53:01
  SPEAKER_00: Well, and also the only way to stop the law fair.
• 53:03
  SPEAKER_00: Like I don't like a society with others' lawfare, right?
• 53:06
  SPEAKER_00: It's not that I want it to happen on both sides.
• 53:09
  SPEAKER_00: I want it to happen on neither side.
• 53:10
  SPEAKER_00: I'm just not convinced that you can ever eliminate it on the left side unless you're also doing it equally on the right side.
• 53:17
  SPEAKER_00: So I actually find your argument really, really persuasive.
• 53:19
  SPEAKER_00: Okay, so here's the conditions.
• 53:21
  SPEAKER_00: It shouldn't be personal to the extent possible.
• 53:23
  SPEAKER_00: If someone is engaged in lawfare, partisan lawfare of the most outrageous sort, you know, trying to disbar lawyers who are just doing their job or um lying uh in order to bankrupt someone or in order to embarrass someone, defame them, et cetera, et cetera.
• 53:39
  SPEAKER_00: If you're engaged in someone is engaged in lawfare of the worst kind, they should face consequences, including lawfare against them, until hopefully both sides see that this isn't the way to run a society.
• 53:52
  SPEAKER_03: Okay, so maybe we should get back to Elon's question about the presidential aspect of all this because my wheelhouse, okay, that's okay.
• 54:01
  SPEAKER_03: So he was president.
• 54:03
  SPEAKER_03: Trump was president when he defended himself against Eugene Carroll's claims.
• 54:09
  SPEAKER_03: Does that make a difference?
• 54:10
  SPEAKER_03: And I'd also like to point out that this whole time she was running around to CNN, MSNB Now, whatever they call themselves, like MS Now, I think.
• 54:20
  SPEAKER_03: Yeah, I don't care.
• 54:21
  SPEAKER_03: MS.
• 54:22
  SPEAKER_03: MS.
• 54:24
  SPEAKER_03: Uh she was all over the place launching accusations against him.
• 54:29
  SPEAKER_03: And he was asked about it and defended himself.
• 54:32
  SPEAKER_03: So is it seriously so wrong that he did that?
• 54:34
  SPEAKER_03: And does it matter that he was president?
• 54:36
  SPEAKER_01: So we're talking about this case right now, not only because of the rumors about going after Eugene Carroll, but because this is still a live legal issue.
• 54:43
  SPEAKER_01: So the Second Circuit recently denied the Trump administration's position here.
• 54:48
  SPEAKER_01: They argued that immunity did apply.
• 54:50
  SPEAKER_01: The infamous decision that we talked about, or not infamous, you know, the remarkable decision that we talked about on this podcast, presidential immunity, Trump v.
• 54:58
  SPEAKER_01: United States in 2024, that everybody said the sky was falling.
• 55:01
  SPEAKER_01: The question is, does that shield Trump here?
• 55:03
  SPEAKER_01: There's another question, by the way.
• 55:05
  SPEAKER_01: If Trump was, was Trump speaking in the scope of his employment as president of the United States?
• 55:09
  SPEAKER_01: And if he was, then there's an act called the Westfall Act that says the DOJ, that the Department of Justice, that the United States, takes the place of the government employee.
• 55:19
  SPEAKER_01: And so it should be the government who's on the hook for this$83 million.
• 55:22
  SPEAKER_01: And actually, apparently, you can't see the government for defamation.
• 55:26
  SPEAKER_01: And so by swapping Trump out, swapping the DOJ in, you effectively nullify the lawsuit.
• 55:32
  SPEAKER_01: This is a little too complicated, but Judge Steve Menashi, um, formerly a professor at George Mason.
• 55:38
  SPEAKER_00: Um formerly general counsel or acting general counsel of the Department of Education, a position.
• 55:43
  SPEAKER_00: So I'm also a professor at Scalia Law School and was acting general counsel of the Department of Education.
• 55:48
  SPEAKER_00: So Steve preceded me in both respects.
• 55:50
  SPEAKER_01: Uh so Judge Menashi, a wonderful, wonderful uh judge, has this really, really well done, uh relatively long descent from the denial of rehearing in the Second Circuit, basically saying Trump should have been uh replaced by the DOJ under the Westfall Act.
• 56:04
  SPEAKER_01: It's again two in the weeds, but let me just say that Bill Barr in 2020, the attorney general in 2020, said Trump was acting under the scope of his employment.
• 56:12
  SPEAKER_01: Merrick Garland rescinded that finding in 2023.
• 56:15
  SPEAKER_01: And then Attorney General Bondi reinstated the finding in 2025.
• 56:18
  SPEAKER_01: And so what did the Second Circuit say?
• 56:20
  SPEAKER_01: Oh no, you're stuck with Merrick Garland's.
• 56:22
  SPEAKER_01: I know it's it's totally they came up with a technical legal rationale for it, but it's totally preposterous.
• 56:28
  SPEAKER_01: The common sense thing tells you that's insane.
• 56:30
  SPEAKER_01: Why does Merrick Garland's certification supersede the one that came after or the one that came before?
• 56:36
  SPEAKER_01: It's actually kind of crazy.
• 56:37
  SPEAKER_01: So read Judge Menashi's uh the dissent from denial of rehearing on Blanc for that.
• 56:42
  SPEAKER_01: But the Trump immunity stuff, I really actually want to read a little bit from his opinion, and I know you pulled uh some of this, um, Catherine, but basically the Second Circuit said Trump waived the immunity argument because he didn't raise it early enough.
• 56:54
  SPEAKER_01: And Judge Menashi basically says, well, first of all, he didn't actually waive it, right?
• 56:58
  SPEAKER_01: They always made this claim.
• 57:00
  SPEAKER_01: Even if they had not raised it, there was an intervening change in law, namely Trump the United States, the big immunity decision that everybody said, Oh, we have a king now, you know, the sky is falling.
• 57:12
  SPEAKER_01: And the Second Circuit said, uh, it wasn't tough, it was a nothing burger.
• 57:15
  SPEAKER_01: They could have anticipated this.
• 57:16
  SPEAKER_01: They should have raised it earlier.
• 57:17
  SPEAKER_01: And Judge Menashi is like, how could this possibly everyone says the sky, the sky was falling because of this decision, but now it's just a nothing burger.
• 57:26
  SPEAKER_01: And so Trump effectively waived it.
• 57:28
  SPEAKER_01: And Judge Menachie has some great, you know, points here.
• 57:31
  SPEAKER_01: Um, the decision in Trump of the United States makes clear that President Trump has a serious claim that the district court conducted the trial in this case in violation of presidential immunity because the Supreme Court explained that most of a president's public communications, which was here, he was asked by a journalist about a public accusation about it, right, are likely to fall comfortably within the outer perimeter of his official responsibilities.
• 57:51
  SPEAKER_01: The president is expected to comment on matters of public concern.
• 57:54
  SPEAKER_01: Uh, his speaking to and on behalf of the American people qualifies an official act, even when not obviously connected to any particular constitutional statutory uh provision.
• 58:02
  SPEAKER_01: And so uh this, I think, uh is um I don't know if the Supreme Court is gonna take the case, but I think Judge Menashi makes a very compelling uh point here.
• 58:09
  SPEAKER_01: And so it's still alive, still alive uh legal issue.
• 58:14
  SPEAKER_01: Okay, uh Josh, I do have a question for you though.
• 58:19
  SPEAKER_01: What's your big take on all the law fair that's you know, the either, you know, the fact that the Eugene Carroll, you started off with a philosophical discussion about law firms, but what about this whole, you know, opening up the president to constant litigation?
• 58:31
  SPEAKER_01: Do you think Trump should be immunized from this?
• 58:34
  SPEAKER_01: Um, you know, for these public statements?
• 58:36
  SPEAKER_01: I feel like everything, every time he opens his mouth, does something, they're just opening them up to civil litigation, to criminal litigation.
• 58:42
  SPEAKER_01: Is this that banana republic type stuff?
• 58:45
  SPEAKER_00: I think we could take a lesson from some other countries.
• 58:47
  SPEAKER_00: If if you look at, for example, Israel, right, where they have a very, very powerful judiciary, uh uh their chief executive, Netanyahu, is constantly being called uh to account before the judiciary uh uh essentially by his political enemies.
• 59:04
  SPEAKER_00: So the legal profession, okay, a little step back for a second.
• 59:07
  SPEAKER_00: The legal profession in Israel is just as left-wing as the legal profession in the United States.
• 59:11
  SPEAKER_00: In fact, even more so.
• 59:12
  SPEAKER_01: And watch our episode with Jonathan Green on judicial supremacy in Israel.
• 59:16
  SPEAKER_00: And uh and they hate Netanyahu.
• 59:19
  SPEAKER_00: And um, they're constantly engaged in just a barrage of civil and criminal litigation to try to get him.
• 59:26
  SPEAKER_00: And remember, he doesn't get to appoint the attorney general.
• 59:28
  SPEAKER_00: The attorney general is associated with the judiciary, so the attorney general is cooperating with the judiciary to get him.
• 59:33
  SPEAKER_00: And among other things, uh, what you see is him, you know, there have been times when Israel in the middle is in the middle of warfare, is in the middle of a strategic situation, and Netanyahu can't be in the situation room because he's got to be in court.
• 59:49
  SPEAKER_00: And he's constant for on for on individual matters.
• 59:51
  SPEAKER_00: He's being accused of this and that, he's defending himself criminally, he's defending himself civilly, and he's in court, and the judge is making him testify and testify and testify.
• 59:59
  SPEAKER_00: Same thing in Brazil with Bolsonaro, when he's just like his political opponents, he's just flooded with civil and criminal litigation, and he's constantly defending himself before court, and it totally compromises the very office, not just the person, but the very office of the chief executive.
• 1:00:15
  SPEAKER_00: So the way I look at the uh presidential immunity decision that our our Supreme Court decided was that um this was, they were well aware of those international precedents and they wanted to guard us against it.
• 1:00:27
  SPEAKER_00: So some people criticize that decision for giving the president too large a grant of immunity.
• 1:00:32
  SPEAKER_00: But the thought was the remedy for a bad chief executive is a new election, not to have the courts constantly scrutinize him while in office.
• 1:00:41
  SPEAKER_00: He has to be left alone to do his job while in office.
• 1:00:44
  SPEAKER_00: He can't be in fear of what his uh partisan enemies will do with lawfare against him.
• 1:00:49
  SPEAKER_00: And I think uh it seems like the um um intermediate appellate courts and the district courts just haven't gotten the memo.
• 1:00:56
  SPEAKER_00: That's what the case is supposed to mean.
• 1:00:58
  SPEAKER_00: And to constantly hail uh Donald Trump before the courts and to litigate the sort of fine points about is he immune?
• 1:01:05
  SPEAKER_00: Is he immune?
• 1:01:06
  SPEAKER_00: Is it Garland's immunity?
• 1:01:07
  SPEAKER_00: Is it Bondy's?
• 1:01:08
  SPEAKER_00: Is it is it uh uh who is the other one who gave him immunity?
• 1:01:11
  SPEAKER_00: Barr.
• 1:01:12
  SPEAKER_00: Barr.
• 1:01:12
  SPEAKER_00: It was first Barr, then Garland, then Bondy.
• 1:01:15
  SPEAKER_00: Okay.
• 1:01:15
  SPEAKER_00: Uh to constantly litigate those fine points is to lose what the case was really supposed to do, which is let the president conduct his office, which is an office that he holds on behalf of American the American people, without being constantly assailed by this litigation.
• 1:01:29
  SPEAKER_00: I think we're in danger.
• 1:01:30
  SPEAKER_00: That's what I'm trying to say.
• 1:01:31
  SPEAKER_00: I think we're in danger of falling into the same condition of a chief executive who's assailed with litigation by his political enemies for his personal life, um, uh both criminal and civil, and is bankrupted and is his just time is consumed while in office, if we don't put a stop to this kind of thing.
• 1:01:51
  SPEAKER_03: It seems clearly like an assault on his freedom of speech, which you guys have mentioned before, like the one of the core aspects of freedom of speech is the political freedom of speech, you know?
• 1:01:59
  SPEAKER_03: And it seems like that is that is what is being attacked by all of these lawsuits.
• 1:02:04
  SPEAKER_01: Well, and certainly he, as president, has to be able to defend himself, even against like private accusations, just to do his job properly.
• 1:02:11
  SPEAKER_01: And you know, you can't just take any excuse to go after uh can can I say one thing since you mentioned Bolsonaro, and we're at our hour, uh, but I gotta say this because I have a captive audience.
• 1:02:21
  SPEAKER_01: Um, do you remember when Bolsonaro in B Brazil was convicted by the courts of corruption or whatever it was, um, and then barred from running for president or whatever that was?
• 1:02:31
  SPEAKER_01: The New York Times wrote a story about this.
• 1:02:34
  SPEAKER_01: The spirit of it was this is how we take down authoritarians at tyrants, right?
• 1:02:39
  SPEAKER_01: And so on.
• 1:02:40
  SPEAKER_01: And I'm reading, reading, reading, reading, reading.
• 1:02:42
  SPEAKER_01: And it turns out that on the Supreme Court of Brazil, which decided this case against Bolsonaro, two of the justices were key political opponents.
• 1:02:52
  SPEAKER_01: Not just like their judges who happened to be of the other side.
• 1:02:56
  SPEAKER_01: One was like the leading opposition candidate, and the other was the attorney general for the leading opposition candidate who had been appointed to the court and then sat in judgment about the leading candidate for the other party.
• 1:03:07
  SPEAKER_01: And the New York Times, no, not the reporters, no one bats an eye.
• 1:03:11
  SPEAKER_01: No one's like, wait a minute, should we pause to ask whether they should have recused whether this was a political witch hunt?
• 1:03:17
  SPEAKER_01: So I don't think America has gotten quite that far, largely because we have a sensible Supreme Court that can stop a lot of the excesses.
• 1:03:26
  SPEAKER_01: Uh so we're not quite there yet, but I do think it's reflective of where America could go if we don't rein in judicial power.
• 1:03:34
  SPEAKER_00: Can I just respond to that real quick?
• 1:03:36
  SPEAKER_00: When when I was at the Department of Education and we were just flooded with this litigation for everything we could possibly do.
• 1:03:42
  SPEAKER_00: Uh and and I think throughout the Trump administration, as you saw the flood of litigation, what it felt like is Biden and Harris had lost the election, right?
• 1:03:55
  SPEAKER_00: Uh they had lost the election, but they lived on in their judges.
• 1:03:59
  SPEAKER_00: And we were just engaged in perpetual conflict with the sort of memory of elections gone by.
• 1:04:05
  SPEAKER_00: We were essentially it was essentially like the Trump people versus the Biden Harris people, but the Biden Harris people were represented by their judges.
• 1:04:14
  SPEAKER_00: And um that's a crazy way to run a democracy.
• 1:04:18
  SPEAKER_00: It it gives too much dead hand control by presidents gone by through their judges.
• 1:04:25
  SPEAKER_00: And so the solution to that is for the legal system, for the judiciary, for the lawfare, you know, partisans, and so on, to be more um constrained to the ordinary work of the legal branch and not to be like interfering with politics to this extent.
• 1:04:44
  SPEAKER_00: Um, but it's it's we're far from that right now.
• 1:04:47
  SPEAKER_01: I think that's all we have time for.
• 1:04:49
  SPEAKER_01: So Josh will have the last word.
• 1:04:51
  SPEAKER_01: As always, like and subscribe, give us feedback, follow us on Substack, rationally based on substack.com, and we will see you next time.