A Different Kind of Impeachment

Plus: The Fellowship Athletes case gets resurrected.

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The David and David show looks at Speaker McCarthy’s call to open an impeachment inquiry against President Biden. They also break down a big win for the Fellowship of Christian Athletes in Ninth Circuit free speech case. And…

-Trump cases update

-New Mexico Gov VS the US Constitution

Show Notes:

–How Trump’s DOJ gave Biden a major assist on impeachment

-OLC opinion on House vote for impeachment

-Trump Seeks Recusal of Judge in Federal Elections Case

-Trump demands recusal by Judge Chutkan

-Judge Tells Trump to Use Secure Facility for Secret Evidence

-Fellowship of Christian Athletes v. San Jose Unified School District Board

-New Mexico’s governor seems to think it’s okay to ignore the Supreme Court

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Comments (82)
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  1. Steven Jensen

    Giving The Dispatch an honest try - to see if you are a smart, honest, and well-intentioned group - or not. Lots to coach you on already…
    1) You need to reframe the way you talk about January 6th. For the vast majority of people there - this was an important and historic out-pouring of Patriotism and love for our nation. There was rampant evidence of election manipulation and no courts would listen - claiming a “lack of standing” or some other cowardly duck. The people who caused violence or removed barricades or signs all need to be punished. Problem is that there were at least hundreds and possibly thousands of FBI agents causing the chaos who will never be rightfully prosecuted. But for the 1.2 Million Americans who demonstrated peacefully - their cause of honest elections with full audit capability for the public should be applauded and supported.
    2) If you want to be considered a serious journalist, then you need to open your eyes and ears a bit more around the Bidens. No evidence for impeachment?? Haha. Right. Because honest people generally all create 20 shell-companies to hide what they are doing. That’s standard practice. And the $Millions paid-out to the Bidens by foreign governments or foreign companies couldn’t possibly impact policy that Joe Biden worked on. And, “Well, son of a bitch!” Joe Biden wouldn’t ever hold $ from a country to stop investigation into himself or his son.

    I’ll stop there for tonight. I’m told you folks at The Dispatch try to call it straight. I’ll watch and listen and read for a while before I make up my mind. This podcast isn’t starting well…

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    1. Cjonespam

      Hey Steven, I salute your efforts to give The Dispatch an honest try. But perhaps you should start by commenting on a more recent article, rather than on a 2-week-old podcast thread? These aren't terribly active after a few days...

      That said, "calling it straight" probably involves fewer assertions that TD should change its reporting based purely on your say-so. Most of the things you're saying were discussed and dismissed years back. But here's something you may want to consider - you say:

      "There was rampant evidence of election manipulation and no courts would listen - claiming a “lack of standing” or some other cowardly duck."

      If there was rampant evidence of election manipulation, then why did Bill Barr - the Attorney General Trump picked himself - find no evidence of that?

      https://www.bbc.com/news/world-us-canada-55153366

      And you may want to refresh yourself on the ~60 cases alleging fraud in the election; while some of them were dismissed due to lack of standing, most were dismissed because the evidence was obviously flawed. I particularly call your attention to the case of Donald J Trump for President v. Hobbs, where the Trump campaign admitted that many of the affidavits it submitted were "false" or "spam."

      https://en.wikipedia.org/wiki/Post-election_lawsuits_related_to_the_2020_United_States_presidential_election_from_Arizona#Donald_J._Trump_for_President_v._Hobbs

      You haven't said you're a fan of Donald Trump - maybe you're not - but when I see people saying similar things to you who are fans of Trump, the question I always want to ask is: why do you think anything will be different this time? Even if there was fraud, the man he picked to be Attorney General was unable or unwilling to find it, and none of the 3 Supreme Court justices he nominated were willing to rule in his favor. Why does anyone think he'll do a better job this time around, given his clear failure in picking "competent" people last time around?

      Interested to know your thoughts!

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      1. Steven Jensen

        Thanks for your reply. I’m still getting engaged here, so will try to catch-up with the more current podcasts and articles as we move forward. If “Bill Barr said there is nothing to it” is your best defense of the 2020 election, then I’m afraid you’ve placed your foundation in quicksand. I don’t give a rip what Bill Barr says. I trust him as far as my niece can throw him (not very far). We should have been able to do full forensic audits anywhere there was doubt. People with nothing to hide would allow it. I’ve been involved with elections a lot longer than you and I know what an honest one looks like. 2020 was not honest. Moving the counts away from precincts to big black-box county election centers was the biggest mistake we’ve made, but there are many others. Our current election system is designed for rigging. And, yes, I’m a legitimate process expert who can stand behind my words on this.

        As for Trump - it’s not about liking him or disliking him. He’s the side-show, although an entertaining one. The main stage is all about giving government management and oversight back to the American people via honest elections. Without that, the government runs amok - which we are seeing every day now.
        Border craziness. War-mongering. Crazy deficit spending. The list goes on and on…
        These are the topics that I’d love to see discussed here in more depth.

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        1. Cjonespam

          Hey Steven, thanks for the response. I'll note that a lot of what you're saying still comes down to your say-so, without any actual proof... and that's not really how it works in the legal system, or on a legal podcast.

          You specifically said "There was rampant evidence of election manipulation." Ok, a few questions:

          1) Where is this evidence? I'm seeing a lot of inconsistency from you - is that there was rampant evidence, which was there but no court would look at it? Or is it that there was "doubt" and that should have triggered a "full forensic audit" - which is to say, there is no evidence, but you're sure they would have found some if they kept digging? And what is a "full forensic audit" anyway - is that like looking for bamboo fibers in the ballots, like what Mike Lindell wants to do?

          2) If there was all this evidence, why did the PRO-TRUMP side of the system fail so badly? You say that you don't trust Bill Barr - ok, but he was literally hand-picked by Trump, the person with the most to lose in the election, to watch out for this kind problem. If not Barr, who should have been the AG looking into this? Why didn't Trump pick that person? Why have so many lawyers on the "uncover the fraud" side, such as Sidney Powell and Rudy Giuliani, fail to prove their cases, and why have they been unable to answer simple questions like "did you actually take steps to validate the information you're submitting as true?"

          https://www.washingtonpost.com/politics/sidney-powell-disciplinary-hearing/2021/07/12/61d44ac4-e0c9-11eb-9f54-7eee10b5fcd2_story.html

          3) You claim that you're a legitimate process expert who can stand behind my words on this - great! Did you testify about this in any court case? Can you point us to the transcript of what you said? Or can you get more into the details - there are decades-old processes where each party can have observers during the election count. In your capacity as a legitimate process expert, can you point us to the actual ways that this observer process - which worked for decades before Donald Trump came along - suddenly stop working?

          I think I'm discussing in depth the topics you want to see covered - I will note that your response has not really gone in depth, because you're not actually addressing all the points I've made. But, again, most of these election topics wouldn't be covered on this podcast in late 2023, because this all happened years ago. If you want to know what Sarah and David thought about all this, your best bet is to go BACK in the archives to late 2020, and move forward. But, this thread aside, I don't think you'll find anyone who's interested in revisiting those questions at this point in time.

          Cheers!

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    Richard.O.Sienkewicz

    It would be interesting to hear some contracts-themed discussion of the Unity Engine fee structure mess. The whole thing read almost like a law school final exam issue-spotting question to me.

    https://arstechnica.com/gaming/2023/09/wait-is-unity-allowed-to-just-change-its-fee-structure-like-that/

    https://www.pentadact.com/2023-09-16-unitys-trap/

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    Retired Prosecutor

    David (either):

    I'm puzzled by the discussion of the GOP impeachment inquiry in all quarters. The question is always presented as "there is no direct proof that the President took money," despite an acknowledgement that his family members ended up with millions of dollars from foreign sources through the offices of Hunter's influence peddling.

    I don't believe for the crime of bribery the prosecution would have to show proceeds going directly to the President, and that it would be sufficient to show he received "benefit" when the proceeds went to family members.

    Rather I believe the real factual hurdle for the prosecution (or the Republicans in this case) would be the necessity of showing that some official action was taken that resulted in these payments.

    Am I incorrect here?

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      Thomas Ward from PA

      Agreed, but wouldn't the firing of the prosecutor qualify as the other side of the bribe, for starters?

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        Retired Prosecutor

        Yes.

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    2. MathewA

      agreed, I think an aging father gets plenty of benefit when his son receives millions in benefits especially from foreign sources

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  4. John A

    I am not arguing that certain judges should or should not recuse in the Trump cases. I am only pointing out rules such as the following weren't discussed. These rules are from the State of Washington.

    RULE 2.7
    Responsibility to Decide
    A judge shall hear and decide matters assigned to the judge, except when disqualification or recusal is required by Rule 2.11 or other law.*
    COMMENT
    [1] Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial
    17
    duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification or recusal to avoid cases that present difficult, controversial, or unpopular issues.

    RULE 2.10
    Judicial Statements on Pending and Impending Cases
    (A) A judge shall not make any public statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending* or impending* in any court, or make any nonpublic statement that would reasonably be expected to substantially interfere with a fair trial or hearing.
    (B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.

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  5. John A

    Your podcast is fantastic. Thank you. I am a long time listener and recently retired Superior Court judge.

    One point was not mentioned regarding judge recusal. The Judicial Code of Conduct in many states prohibits a judge from recusing if there is not good cause. At least this rule exists in the State of Washington. I assume their is a similar rule, precept or policy for federal court. There was no discussion about the tension between such a rule and legitimate disqualifying bias.

    Also there was no discussion about a policy that judges need to be courageous and hear difficult cases and not recuse just to avoid them.

    There was no discussion of the long term trust in and integrity of a judicial system whereby a judge could recuse without good cause just because a case is difficult. That's not a good look for the judiciary if a judge recuses in a case in which it percevied the judge didn't need to recuse.

    There was mention of possibly a lower standard and less cause to recuse in the Trump case. There was no discussion on the integrity and long term effect on the judicial system if a judge recuses for lesser cause in a high profile case than a low profile case, especially when a litigant might be offensive or intimidating.

    There was a recitation of judges that made commments about Trump recently. This was in situations in which it wouldn't be impossible or unlikely that such judge might hear a case involving Donald Trump. There was no discussion of codes of judicial conduct that requires a judge to conduct himself in a way as to avoid conflicts of interests and recusals. There is such a rule in Washington. I assume there are similar rules in other courts.

    This was a subject that would have benefitted from referral to canons of judicial conduct.

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    1. MathewA

      great points

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  6. Dan B

    Wondering how the hosts would apply the logic of FCA v San Jose to a hypothetical. Two students, Boromir and Aragorn attend Sacramento High. They belong to a dozen Christian student groups: Christians for LGBT Marriage Equality, Christians for LGBT Fair Employment, Christians for LGBT Housing Equity, et cetera. They want to join Fellowship of the Promise Ring, a student group that begins each meeting with a statement of faith indicating that marriage is between a woman and a man.

    The group, Fellowship of the Promise Ring, declines to admit Boromir and Aragorn because they are openly gay and openly conducting same-sex dating relationships. Boromir and Aragorn ask Sacramento High to enforce a non-discrimination policy that has existed longer than Fellowship of the Promise Ring. Sacramento High says it cannot enforce the non-discrimination policy without infringing on religious exercise rights of members of Fellowship of the Promise Ring.

    Boromir and Aragorn argue, naw dawg, plenty of super-Christian student groups admitted us and some of them actively advocate for LGBT rights. Enforcing the non-discrimination policy does not infringe on religious exercise rights because plenty of Christians fully exercise their religious rights without violating the non-discrimination policy.

    Sacramento High replies, ya dawg, this group says the statement of faith is part of its free exercise of religious rights. As a high school, we do not evaluate what is Christianity and what is not part of Christianity.

    Is the decision to not enforce the non-discrimination policy effectively taking a position that the many Christians who fight for LGBT rights have it wrong and the other Christians who fight against LGBT rights have it right?

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    1. Davidbenjaminlat

      Thanks for the interesting and thoughtful hypo. It reminds me of how some religious groups are challenging abortion bans by arguing that their religions are pro-choice (see Politico link below).

      On your hypo, I think it could be a tough sell because as long as the members of the Fellowship of the Promise Ring are sincere in their religious belief (and I'm assuming that their opposition to same-sex relationships is religiously grounded), I don't think they lose their First Amendment rights simply because other religions have different views on the same issue. After all, Hobby Lobby came out the way it did even though lots of religions have no problem with contraception. It seems that the courts focus on whether the group seeking to exercise its First Amendment rights is sincere in its beliefs, and it doesn't look beyond that inquiry to consider whether other groups might have different views.

      https://www.politico.com/news/2023/06/21/legal-strategy-that-could-topple-abortion-bans-00102468

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        Thomas Ward from PA

        Like except Hobby Lobby did not object to most contraceptives, only those it deemed to be abortifacients.

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  7. Beckybaskinferguson

    I hope you Davids and Sarah will weigh in on the acquittal of Texas Attorney General Ken Paxton. Like you, David French, many of us Texans had hoped the state GOP would prove they were capable of policing themselves. Nope. It was noteable that Paxton’s attorney, Tony Buzbee said twice during his closing remarks that the Bush era ends today. If by that he meant the era of decent Republicans in leadership in Texas, he could not be more right. Before the verdict rendering, Lt Governor Dan Patrick who presided as judge of the proceedings, remarked that the senators pray before all sessions, that they have Bible studies. I knew then that the GOP would overlook Paxton’s myriad transgressions under the banner of faith. Sad day for Texas and the GOP.

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    JimK

    I never ceased to be amazed at the imbalance between the endless investigations of the 546 (535 plus 2 plus 9) who sit at the seats of power in our Federal government and the amount of time spent acting on behalf of the 340 million. But we keep electing the same ego-centric fatally flawed human beings to represent our interests. The two leading candidates for their party's nomination wouldn't be allowed to replace Morty Seinfeld at Del Boca Vista after HIS impeachment. If that's the best we can do, then maybe we are getting the government we deserve.

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  9. Biglaw_Blues

    Y'all are KILLING me with Sarah keeping y'all straight. ; )
    ________________________________________________________________________________
    I seriously disagree with this being called a fishing expedition, unless you mean politically that's how it will be viewed, in which case I agree.

    Imagine that you were a white collar defense lawyer moving to quash a GJ subpoena and the Government had *this* amount of smoke—sworn testimony, bank records, text messages, etc. "Nah, the money went to family shell companies and my son, not me folks!" Ok.

    What standard do you want, because it's certainly higher than a GJ, which is just "unreasonable" let alone a simple majority of probable cause, which could **easily** be true billed right now. Fed. R. Crim. P 17(c)(2); see also https://www.justice.gov/jm/jm-9-11000-grand-jury.

    Do you want BRD to even start the inquiry? If you want to go civil, the current allegations put in a pleading would survive both Rule 8 Twiqbal and heightened Rule 9 pleadings for allegations of fraud to get into discovery....
    ________________________________________________________________________________
    Trump's OLC opinion is binding on the executive, who cares? Internal House rules are nonjusticiable.

    See e.g., Nixon v. United States, 506 U.S. 224, 229 (1993) (described by Zivotosky v. Clinton, 566 U.S. 189, 203 (2012) as "holding nonjusticiable the Senate's impeachment procedures in light of Article I's commitment to the Senate of the "'sole Power to try all Impeachments'")). "We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." Nixon, 506 U.S. at 236.

    Fun fact, OLC opinion didn't cite Nixon, hmmmmmm. (Note, this is former Judge Nixon, not Tricky Dicky). Though they do mention Walter Nixon a few times.
    ________________________________________________________________________
    Agree on Chutkan recusal discussion.
    _________________________________________________________________________
    Asking for a SCIF was crazytown.
    _________________________________________________________________________
    So tired of schoolyard fights becoming court cases. Also, Mr. Latt is exactly right about CA9 becoming a more centrist circuit.

    Fun fact, 28 U.S.C § 46(c) *requires* "A court in banc shall consist of all circuit judges in regular active service, or such number of judges as may be prescribed in accordance with section 6 of Public Law 95–486 (92 Stat. 1633), except . . . [senior judge stuff]"

    In turn, 92 Stat. 1633 provides that "any court of appeals having more than 15 active judges . . . may perform its en banc function by such number of members of its en banc courts as may be prescribed by rule of the court of appeals."

    So CA9 could just have an en banc dictator of 1.. lol
    _________________________________________________________________________
    Re NM Governor's order, I was 100% with you until equivocating to DeSantis and Newsom. This is way worse.

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    1. Michael M

      Insane conspiracy thinking. Go back to Newsmax.

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  10. Avatar photo
    Earl King

    Going to have to disagree. Biden lying about the involvement in Hunters business is evidence. Why lie? A business partners in the residence 20 times? 20 She’ll companies. He needs to be investigated. Of course the impeachment is political. They always are.
    As for the whole house vote? He might get it if there is something in bank records.

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    1. Michael M

      Absurd. How insanely credulous are you? I used to come here for smart, nuanced, moderate right commentary that would cause me to rethink my priors. Not for this nonsense.

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        The Stray Goose

        If Biden was a Republican, you would be saying something different. I would not be.

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        1. Michael M

          You are wrong.

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        The Stray Goose

        “I used to come here for smart, nuanced, moderate right commentary”

        Are you joking? There are very few conservatives here. It’s a cesspool of left-wing loonies. Laughable

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        1. Michael M

          Agree to disagree.

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      PaulH

      I too was surprised by David L.'s description of the investigation as a fishing expedition -- that implies that the House doesn't really know what it is looking for. In this case, the the possible crime is quite clear -- the then VP was bribed to change policy. And there is evidence of that crime. Hunter said that is what he was doing and he received millions of dollars to do it. To be sure, there is not evidence that Biden actually directly benefitted or took actions on Hunter's behest -- but that is what is to be investigated. Looking at bank records and e-mails to see what happened is hardly a fishing expedition.

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        Earl King

        Were it not for the FBI (not doing its job) likely due to the DOJ (as the whistleblowers said) stopping the IRS and FBI investigators of Hunter Biden and doing it the House wouldn’t have to. Since DOJ killed any investigation in to Hunter and Joe Biden over the tax crimes what choice did they have. I have no problem with the suggestion that politically an “Impeachment Inquiry” might be not ripe enough.
        I think there were political reasons pro and con probably.

        We, meaning you and I are left with a very weird vibe. The WH says they have turned over everything, 5000 emails that Joe used as an alias. Other documents. Bank Records in foreign countries may prove tough to get and yet I do not know how hard the WH will fight to keep family bank records from the House. But I have said this and I mean it. Follow the money and we’ll see if Joe Took a lot of money. As Joe said to a camera and question...."Wheres the money?” He is right of course. Prima Facia, Joe lied about knowledge of his sons gig...of selling implied access. Real decisions that were changed? Someone is going to have to rat out Biden. A Quid Pro Quo. I do thin it should be investigated...there is enough there, there.

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      2. Avatar photo
        Citizen60

        Grassley's Committee investigated Hunter & Joe Biden in 2018,-9 desperately seeking something to discredit Biden before the 2020 election. They found the shell companies, Hunter's sleazy business practices (difficult to present while Trump was in office), but no direct involvement or evidence of linkage to Biden (Hunter paid for his father's summer house to have repairs/maintenance, and said Joe did benefit from Hunter's income--but thought that might not sell well).
        Comer's Committee has been investigating, whistleblowers, found the shell companies, learned of the phone calls where no business was discussed, and speculated that the money that Hunter paid for his father's summer house might be considered a bribe.

        And, my personal favorite, the Republicans got a decision that an impeachment inquiry/committee subpoenas didn't need to be responded to in the absence of a Congressional vote to begin an impeachment inquiry--now Comer, et al claim they'll issue subpoenas to get everything Joe Biden's been hiding since Grassley's first investigation. Irony is dead #1M

        Something might turn up, but the odds of something new and dramatic seem rather low.

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        1. Michael M

          This whole nonsense about “evidence” against Joe (as compared to his admittedly troubled, influence-peddling son Hunter) is embarrassing for this podcast/forum comments. These commenters are debasing a once-great, thoughtful, middle of the road “normie” forum into a MAGA adjacent pile of nonsense.

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        Scarlette Tarte

        They have no evidence at all...which is why they got mad about the eventual charges that were brought against Hunter and yelled "not good enough, they don't implicate the president!"

        They want the JUSTICE department to manufacture some evidence.

        They are one lousy bunch. Too lazy and too likely too stupid to actually know what to look for. They have nothing. So yes, this is a fishing expedition.

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        1. Michael M

          Thank you. Honestly, it is so sad for me to witness the Advisory Opinions comment section turn into a MAGA-adjacent spin zone. This is supposed to be the podcast for the smart, balanced and rational people (even if I have frequently disagreed in substance, but in good faith).

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