Supreme Court to Review ‘Remain in Mexico’

Today’s podcast is more fast-paced than the NBA All-Star game. David and Sarah talk about ...

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Today’s podcast is more fast-paced than the NBA All-Star game. David and Sarah talk about the Supreme Court and immigration, Trump and free speech, vaccines and drama in the Fifth Circuit, qualified immunity, and no podcast would be complete without a quick conversation about treason. Buckle up, this pod never slows down.

Show Notes:

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  1. Karin

    Isn’t Sarah trying to have her cake and eat it too? OTOH, she argues (correctly IMO) that the results of the potentially inciting speech should not play a part in judging whether it meets Brandenburg standards, and OTOH she nods in agreement with David at the end of the segment, when he says that the more he learns about the prelaid plans for January 6, the less culpable he finds Trump’s words. Can’t have it both ways: either you judge his speech by its outcome or you don’t.

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      Sarah Isgur vertical-nib Author

      Hmmm I take your point. I think to me is this issue: Trump has said this a lot of times and then you can build two arguments from that a) it can't be mens rea for incitement if he said it before and it didn't result in violence or b) it can still be incitement bc sometimes words take a while to built their momentum and the fact he had said it before and it eventually led to violence was predictable. So then one needs to ask why did this time result in violence? Is there evidence that his words built up to violence or was there another trigger. The point about the planning going into Jan 6 provides the alternate explanation for why violence hadn't occurred previously with the same words but did this time, if that makes sense. So the violence isn't what makes it incitement--but it goes to whether he could meet the mens rea when he had said it before.

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    George.Skinner

    I think Sarah’s argument with respect to incitement only works if you look at January 6 in isolation. Sarah notes Trump had been saying similar things for months, and that we now know that preparations for the assault on the Capitol had been underway for some time before the January 6 speech. Therefore, she concludes, this proves that January 6 couldn’t be considered incitement. Another interpretation is that Trump had been inciting people to violence for months, as evidenced by the preparations and the actual assault. If prosecutors can add in evidence confirming that Trump was indeed satisfied and excited by what he saw on TV coverage from the White House, the idea that he was *not* attempting incitement becomes increasingly implausible.

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  3. Stef

    I would bet a non-trivial yet non-sunstantial quantity of money that the person David mentioned as stepping back from public life and commentary while still in his prime is Thomas Sowell.

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  4. Frank Pepp

    I'd cut Trump some slack on incitement if he took all reasonable actions to immediately stop the violence once it started. There is a certain slack we cut to people being idiots.

    But after the clearly violent and inciteful rhetoric, having been briefed on the potential for violence, and apparently being delighted at it while family and lawmakers begged him to call the mob off - accepting all those as facts(which I understand can be contested) - we have to attribute actual malice to him. A willingness to see members of Congress and his own Vice President murdered.

    Pick your law. Dereliction of duty, incitement, treason. He seemed to have cleared all the bars given all I wrote was true.

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    Ben Connelly

    Haha, I’ll second that Larry Tribe - Rudy comparison. Although I do think Giuliani’s gone a little further off the rails than tribe has.

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  6. Joe

    Due respect, but Sarah is right about the first amendment. It's actually a bit disturbing that you can predict when David will agree the amendments need to be suspended: when it's possible to punish Trump. That seems to be the price David is willing to pay for liberty. #SAD

    Edit: I say this because Sarah's argument is extremely straightforward and David's argument can only be appreciated by a lawyer. David talks about stretching the law to punish Trump being bad, and then argues for it. Step back.

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    Marc Frischhertz

    Sarah, did you miss the Jonathan Turley take on Fox News? If Tribe has lost his way, then Turley is the leader of the pack

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      Aylene Wright

      Yeah, and I think Turley is just being a hack, sadly without any age related cognitive decline as an excuse. That being said I don't think he was ever seen as having the caliber of legal mind that Tribe was.

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    Marc Frischhertz

    Question: was Marc Anthony’s eulogy in Shakespeare’s Julius Caesar incitement?

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    Aylene Wright

    So the question that kept haunting me during the discussion of whether Trump's speech qualified as incitement under Brandenburg; but isn't that a precedent from criminal law? Does it necessarily apply to a civil lawsuit?

    Both David and Sarah seemed to assume the same rule applies, and it's only the burden of proof that is different, hence their use of the "balance of the evidence" not "proof beyond a reasonable doubt".

    But couldn't the difference be more like the difference between the precedent that a state can impose a vaccine mandate under its police power, but that the precedent doesn't necessarily apply to what the Biden Administration tried to do with OSHA to impose a de facto federal vaccine mandate. That is, it's not just the burden of proof but that the actual rule would be different.

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      Marc Frischhertz

      The lawsuit is based on a conspiracy statute and obstruction of congress. The whole conversation was a little off.

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  10. Tngraham

    The comparison of Larry Tribe to Rudy Giuliani was apt, but the principal reason for their politically symmetric cases of derangement isn't age, but partisan bubble syndrome. While it's true that people can get a bit off of their game in their seventies and eighties, I think it's extremely doubtful that that's what is happening here. Your comment was prejudicial enough that I actually do think you owed a bit more in terms of evidence supporting the thesis that the best way to account for their behavior is debility due to age. There are plenty of younger people, presumably in full command of their powers, who are acting in similarly lunatic ways. It is far more likely, on average, that a given instance of stupidity is due to extreme partisanship than that it is due to mental decline or senility.

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