Hateful Conduct (But Actually Speech)

If you're going to commit a crime, don't post it on social media.

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Former VP Mike Pence is challenging a special counsel subpoena. David and Sarah look into the “speech or debate” clause cited by his defense team and its merits. Plus, a challenge to Connecticut schools transgender policy, more social media and first amendment clashes, and a little love shown to the fourth amendment on this post-Valentine’s day episode.

Show Notes:

Pence to fight special counsel subpoena on Trump’s 2020 election denial

US appeals court will rehear challenge to inclusive Connecticut transgender athlete policy

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  1. Meverest

    I'm very grateful that you addressed the rights of employee's regarding DEI training after you pointed out that the various CRT bans violate the first amendment. Often when you point out that something violates the first (or other) amendment, I'm left thinking, "But voters elected those leaders because there is a problem that needs to be corrected. How can it be addressed within the bounds of the constitution?"

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    Bill Dyer (aka Beldar)

    The limits in authority that we should impose on memoranda and legal opinions therein from the DoJ's Office of Legal Counsel are entirely the function of the fact that the lawyers rendering them receive their paychecks from the Executive Branch; in other words, they have a patent, obvious, and ripe conflict of interest in every dispute involving the Executive. Note well: It is entirely possible, and altogether common, for legal opinions rendered by lawyers with conflicts of interest nevertheless to be valid.

    But it should surprise no one — and count nothing against whatever persuasiveness and respect those opinions might be otherwise entitled to — that two of the memos are from the Nixon and Clinton DoJs in particular. Who else's administrations would you expect to RAISE such issues, obliging the Office of Legal Counsel to render opinions on the subject of the Executive's potential criminal liability, than particular POTUSes like Nixon or Clinton who've gotten in trouble with the law themselves? For everyone else, it's theoretical — unripe, not a case or controversy.

    That said: I nevertheless agree that there is nothing precedential as such in the fact that any subpart of any Department of Justice has developed legal opinions and put them in writing. Their opinions are those of advocates, not jurists — always, regardless of whether the particular POTUS currently in office.

    These opinions are going to remain policy within the DoJ until some future Attorney General decides otherwise, and indicts a sitting POTUS — and only at that point will there be an actual case or controversy for the judicial branch to consider, which will include (perhaps) this legal issue among those which must be resolved en route to a final judgment after all available appeals. And only THEN would there be precedent.

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  3. Chagonz

    Have no other place to post this given Davids move to the Times and my terminating my Twitter account a year ago. Bravo bravo for your piece today in the Times on Ukraine. I copied it and sent it to Senators Schumer and Gillebrand along with my message that if the POTUS and Dems go wobbly this year that I will terminate any support for any Dem candidate just as I will never support any Republican other than Liz CHENEY. Americans need to be clear that we face an existential crisis that will harm my sons and grandsons generations. I’m so angry this morning I could smash things /

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    DougCLE

    Sarah, so nice to see a familiar face on Bill Maher, but calling you “Political Analyst, ABC News” rather than “Last Host Standing of flagship podcast Advisory Opinions” feels like a bit of a slight.

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    Ben Connelly

    Sarah, I know I’m a bit late to comment, but Jonah Goldberg ranted about American Midnights in the G-File a couple months ago! Do you read the G-File? I feel like perhaps you should at least acknowledge his complaint, which isn’t actually about the book, but about the fact that he wrote about all this stuff years ago in Liberal Fascism and all the right people (who now love this book) dismissed him as a right-winger with a bone to pick. Maybe you’ve talked about it with him, but I haven’t seen any acknowledgment or reference to it (not that I, or any other commenter, really matter as far as this goes, but I hope you at least spoke with him about it).

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  6. Eric K

    With respect to the Second Circuit athlete case, the decision to grant en banc review is particularly interesting because the Second Circuit has a unique, decades-old, nearly insurmountable bias against granting en banc review. See, e.g., Wilfred Feinberg, “Unique Customs and Practices of the Second Circuit,” 14 Hofstra L. Rev. 297, 311-13 (1986). It would be interesting to see data as to whether recent appointments have brought the Second Circuit more in line with other circuits, or if this is just an outlier case.

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  7. Michael M

    Sarah, this was a very good podcast. But on a separate topic, notwithstanding some of the frustrations I have expressed about factually incorrect statements you and David have made that have gone uncorrected, I want to commend you for the beautifully expressed Atlantic article you recently wrote regarding the Carly Fiorina race vis-a-vis Nikki Halley’s race. Beautifully expressed, which is why I love you guys so much even though you sometimes drive me nuts 🙂

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  8. Challm

    I am two podcasts late with these comments.

    I must admit to being a bit confused by the most recent discussions on 2nd Amendment cases and the review of historic practices and legal standards of colonial gun laws. Perhaps my confusion starts based upon this premise: Prior to passage of the 14th amendment and the subsequent incorporation of the 2nd amendment to cover the states in McDonald vs City of Chicago the 2nd amendment only applied to the Federal government and the states were free to pass any gun laws they wished. Therefore, all laws from 1789 until 2010 which are really relevant as to the custom and practice would be those passed by the Federal government and state laws are irrelevant for consideration as to what the 2nd amendment should apply. This is very similar to laws on religious practice and the establishment clause. We wouldn't look to colonial laws related to religion and state establishment of religion because they would imply that we can indeed have state religions. Rather we look to the practice of the Federal Congress and the laws that they have historically passed which were ruled valid under the 1st amendment.

    In fact all laws passed by states prior to 2010 would be in effect irrelevant to the discussion and only the history of Federal laws should be pertinent to the discussion of the meaning and history of gun laws related to the 2nd amendment.

    I assume that the reason that Justices and Judges care about the history is for "originalist" reasons, but even for originalist reasons it seems irrelevant because the founders believed this amendment would only apply to the Federal government and kept the standard unusually restrictive on the power to restrict gun ownership or use. When the Post Civil War Congress extended the bill of rights to the states those restriction on Federal legislatures now applied equally to the States (albeit slowly through incorporation). Again leading me to the belief that only the history of Federal law has any relevancy. Am I missing some huge fact that makes this argument entirely fallacious?

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  9. Lawhorns

    It's pretty amusing to see many of the same people (not y'all!) who just absolutely scoffed at ISL's plain textualism revert to Sarah's reading of the Speech or Debate Clause.

    I just want to point out that, at the Founding, the Vice President would have been the *runner up* to the President in the election and would be the President's most dangerous political enemy. Although we need to read the Constitution here---as Amended by the 12A---however, we need to know what the pre-Amended status quo was first.

    2020-2022 was actually a perfect example. If we had the Founding mechanics, Donald Trump would be Pres. Biden's VP during a 50/50 Senate. Given Trump's criminal exposure, when Trump was going up from Mar a Lago to go break Senate ties *against* Biden, I bet the DOJ would have mysteriously been a whole lot more interested in rolling out criminal process...

    Textually, it seems like technically maybe the VP doesn't count. But even serious originalist scholars like Will Baude are big on constitutional liquidation and it seems pretty clear that the VP would enjoy that protection at the Founding.

    I think the next step would be if the 12A's special session even counts, or if we decide the VP's role is ministerial (rather than wielding the legislative power of voting to break ties) that it doesn't attach since there is no there there.

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  10. Echack

    On the separation of powers issue. I see no conflict. The Vice President has no power in the Executive branch while being VP. None. The VP does have power in the Senate.

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      Mike

      I just can’t believe that we are having a separation of powers debate about whether the Supreme Court would uphold a former VPs ability to avoid testifying in a case related to the former President’s involvement in a violent act against Congress and the Nation based on having been President of the Senate.

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