You Reap What You Sow

With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach ...

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With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach State and whether Republican Sens. David Perdue and Kelly Loeffler can hold onto their seats in their January runoffs. But could all of these election conspiracy theories that are being circulated by conservative pundits and politicians ironically end up depressing turnout among GOP voters in these races? “Over last night and this morning,” David explains on today’s podcast, “there was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they may be reaping the loss of the Senate.” Today’s jam-packed episode also features a breakdown of several religious liberty cases, the White House’s alleged pay-for-pardon scheme, the U.S. census case, Attorney General Bill Barr’s special counsel appointment, and HBO’s The Undoing.

Show Notes:

–Donald Trump v. New York oral arguments transcript

–Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census

–Franklin v. Massachusetts

–General powers of special counsel CFR

–October 19 memo from Attorney General Bill Barr

–9th Circuit Harvest Rock Church case

–Supreme Court order on Harvest Rock case

See omnystudio.com/listener for privacy information.

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Comments (32)
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  1. James Bennett

    There are more problems with that test. The assassination of Lincoln was not a major event of the Civil War, as it happened after it ended.

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  2. Checking

    I love the undoing, but I just about hemorrhaged when the court allowed the wife to testify about the conversation with his mother. Not only is it hearsay, it is a violation of the Confrontation Clause.

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    Ethan Cordray

    I don't care about The Undoing, but I had the exact same opinion about "The Haunting of Hill House" on Netflix from last year. A fantastic horror series, that completely massacres its own premise in the last half of the final episode.

    This year's sequel, "The Haunting of Bly Manor," wasn't as bad, but also wasn't as good.

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  4. IHF

    On the Census Case

    Ms. Isgur's take on legal issues is usually very acute and informative, but I think she has missed the point of Justice Breyer's question at 18:14 of the transcript. I don't think it was some impassioned squishy left-wing cry a la Jean Valjean. Rather it was a reminder that the basic Constitutional text, art. 1, s. 2, cl. 3, uses the word "Persons". The term "inhabitants" is a gloss--a gloss well-supported by common law analogues, contemporary writings, and legislative usage--but a gloss nonetheless. I think what Mr. Justice Breyer was getting at is that the starting point for the discussion must be "Persons", not "inhabitants" or even "usual residents", or any other gloss. To take illegal aliens out of the reach of the census, one must first take illegal aliens out of the meaning of the word "Persons". There are some entirely legitimate paths to that exclusion, but the starting point for any of those paths is that word.

    A related point. Because the text is "Persons", I think one thing is certain. Whenever the Supreme Court does get to the merits of whether the Constitution requires the counting of illegal aliens, permits the discretionary counting (or not) of illegal aliens, or forbids the counting of illegal aliens, I am confident that the judgements on all sides of the question will reveal the childishly inadequate intellectual foundation of what has recently come to be called "textualism" or "originalism".

    Antonin Scalia was obviously a very bright man and, I gather, quite gracious in his personal relationships. However, through the tone and tenor of his opinions and his work as an academic jurist--which were rancid with contempt and disrespect for those who disagreed with him--he was also a corrosive acid eating away at the foundations of judicial legitimacy of every court, everywhere.

    Moreover, he was a bunkum artist of the first rank. His intellectual gifts, however prodigious, were the minor gifts of destructive analysis. His positive interpretive project is an incoherent mess, a collection of Ptolemaic epicycles.

    Those chickens are now all coming home to roost, as much as Chief Justice Roberts may wish that it were otherwise. We will not see the end of the harm the late Mr. Scalia has done until the last members of the McConnell Courts have doffed their robes, and perhaps not even then.

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    Angie

    I probably shouldn't have listened this late at night...lol...I got lost on some of the census stuff...
    But, I always enjoy listening to you guys
    I haven't watched any new TV shows in a long time, so, I skip the pop culture stuff, because I have no idea ...

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    Will Roberts

    I enjoyed this podcast. Your coverage on election fraud has been very helpful. Could you do a podcast on the evidence or lack of evidence for voter suppression? You often say it is overblown but haven't done a deep dive the way you have done so for voter fraud.

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    Dennis

    I enjoyed this podcast right up until “The Undoing”. I thought it was over-produced trash. I couldn’t see how it was in any way believable—even if, as Sarah says, it’s main purpose was didactic. The extravagant unreality was there from the beginning: the incredible police resources devoted to a single homicide (see also that chopper at the end); the just massive crowds and media coverage right from the start. The defense attorney I figured by the end was in cahoots with Sutherland to nail Grant. Finally, if Grant was such a clever narcissist that he could fool his psychologist wife, how come, as David points out, we aren’t misled? Finally, I didn’t see that Grant intended to kill his son, not at all. More likely to appear the martyr to his son.

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  8. Brent Herrin

    I love the podcast and look forward to it twice a week. However, yesterday I was yelling at my phone during your discussion about the attorney-client privilege. Issues around attorney-client privilege are very nuanced. Just because you tell your lawyer something does not cloak the statement in some special aura that no one can ever discover. Not all communications between an attorney and the client are subject to the evidentiary privilege, which is not to be confused with the professional responsibility rules (most states and ABA Rule 1.6) about confidentiality. Privileged communication are always covered by Rule 1.6 but not all communications covered by Rule 1.6 are privileged. Any discussions about how to (vs. how NOT to) commit bribery would be excepted from the evidentiary privilege rules under the crime-fraud exception. I don't see how you get around that. However, if you were discussing the previous commission of a crime that would certainly be covered by the privilege. Forwarding or copying third parties on a privileged communication is a big deal. Of course, my favorite as a practicing attorney is when the client on the other side is copied on a message from opposing counsel and they "reply to all" with something that was intended for only their attorney. Years ago after seeing this a couple of times, I stopped copying my client on any messages to the other side and forward the sent message after the fact to only the client to avoid such disasters. I also stopped using "reply to all."

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    1. tla

      Not a lawyer so obviously not an expert, but I always thought the point of claiming attorney client privilege was to prevent it from being included in discovery - even if it shouldn't be under the purvey?

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  9. Counterpoint

    Honestly Sarah, why did you send David on a mission to check out Big Mouth?

    The show that makes South Park look like Sesame Street by comparison! I don't think it's going to work out, but I'll look forward to hearing about it on a subsequent podcast.

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  10. G Maxwell

    I found the observations on the undoing interesting. The comment on how narcissists suggest various lies to see what the target audience accepts would seem particularly applicable to current events.

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