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that they take their. Welcome.

1:41

To another bonus episode of Strict Scrutiny

1:44

your podcast about the Supreme Court and

1:46

the legal culture that surrounds it, including

1:48

all of the attempts to hold former

1:50

President Trump accountable. I'm just gonna say

1:52

this is a lot right now because

1:54

usually we do this Bonus episodes at

1:56

the end of the Term by Donald

1:59

Trump. Can't Stop. stop and we can't

2:01

stop and we won't stop. And that's because we're

2:03

your hosts. I'm Alyssa Murray. I'm

2:05

Kate Shaw. And I'm Leah Litman. And

2:07

if you hear rain in the background,

2:09

it is because I decided to decamp

2:12

to Southern California and Southern California decided

2:14

to have monsoon season. But

2:16

it never rains in Southern California.

2:19

And yet it has been raining

2:21

for several days straight. I

2:24

think you need to take this up with Tony, Tony, Tony. Do

2:27

you know what I mean by that? You don't. Do you

2:29

have any idea? Okay. All

2:32

right. Stairs in Generation X. So

2:34

we finally, finally got the DC Circuit's opinion

2:36

in the immunity case. And that is what

2:38

we are going to be talking about today.

2:40

We wanted to break it down what it

2:43

means and what will happen next. So first,

2:45

maybe let's start with what happens

2:48

next. Like can the trial actually

2:50

proceed? The DC Circuit in a

2:52

unanimous opinion rejected President Trump's arguments

2:54

that he is immune from prosecution.

2:56

This is a case that involves

2:58

the January 6th indictment in DC.

3:00

But the immunity arguments

3:02

might extend to the other

3:04

cases and the DC Circuit's reasoning

3:07

and opinion makes clear courts probably

3:09

not going to be receptive to

3:11

those arguments elsewhere. Now that

3:13

they've rejected the immunity arguments, can the trial proceed?

3:15

Right. So that's the bottom line holding and we're

3:17

going to break it down. But in terms of

3:19

what happens next, the DC Circuit was

3:22

really attentive to this question. So it

3:24

tailored its mandate. It seemed to try

3:26

to prompt a quick resolution. So

3:29

it said in the opinion that the mandate will

3:31

issue on Monday. The mandate issuing

3:34

would mean that the trial can happen in

3:36

the near term. But, and

3:38

this is an important part, the court

3:40

said that the mandate will not issue

3:42

Monday if Trump files an application for

3:45

a stay of the mandate, in which

3:47

case the mandate will only issue if

3:50

and when the Supreme Court resolves the

3:52

stay application. And that's

3:54

really important. It means that Donald

3:56

Trump has until February 12th to

3:58

go to SCOTUS to seek

4:01

a stay at this ruling or

4:03

the trial proceedings can

4:05

occur. And it means

4:07

that absent a stay, the

4:09

trial is ready to go and

4:12

he will be subject to a

4:15

legal proceeding in the District of

4:17

Columbia. What

4:19

this means is unless the

4:22

Supreme Court issues a stay

4:24

or unless Trump files a

4:26

request for a stay, it's

4:28

possible that the D.C. District

4:31

Court could actually go along

4:33

with getting a trial up

4:35

and running while the Supreme

4:38

Court considers whether to grant

4:40

certiorari. Again because this mandate,

4:43

right, that allows the

4:45

District Court to go forward

4:47

with the potential trial, you

4:50

can only stop that mandate if you get a stay. And

4:53

unless the court grants a stay, while

4:55

they're sitting on a potential cert petition,

4:57

deciding whether to hear the case, that

5:00

isn't necessarily going to stop the District

5:02

Court from going along with a trial.

5:04

Now in the event that the court

5:07

granted cert, obviously that would stop the

5:09

trial from happening, but

5:11

that's kind of there. And the

5:13

reason why that's potentially important is it takes

5:15

four votes to grant certiorari, but it

5:17

takes five votes for a stay. So

5:20

in order to actually stop any

5:22

potential trial, you would need five

5:25

justices, not just the four, you

5:27

know, to grant cert. And

5:30

you know, so we will kind of see what

5:32

happens, but I think we will know more maybe

5:34

at the end of next week or

5:37

possible early next, just because it seems

5:39

like Trump, his incentive is to file

5:41

a stay application with the Supreme Court,

5:44

get that further delay, then

5:46

the Supreme Court is going to act on the

5:48

stay application. And

5:51

yeah, so we could know more about whether they're going to

5:53

speed it up. Yeah. And we should

5:55

say that the DC Circuit actually took one delay

5:57

tactic off the table that seemed important, which is

5:59

that They said that the mandate

6:01

is not going to be paused just

6:04

because Trump files a petition for rehearing on bank,

6:06

meaning like in front of the full DC

6:08

circuit. It would only be

6:10

paused if the rehearing petition is granted.

6:13

So that, I think, almost

6:15

certainly suggests that Trump is not

6:17

going to pursue review in the

6:19

full DC circuit because there's not

6:21

any real delay advantage in doing

6:23

so. So I think he is likely to go

6:25

right to the Supreme Court. And then the only

6:27

question is, will there be five votes for a

6:30

stay, which would, again, pause proceedings

6:32

while the court considered what to do. But

6:35

while the cert petition is pending, things could

6:37

move forward. We could actually have a trial.

6:40

So the DC circuit did what

6:42

it could, I think, to accelerate these proceedings,

6:45

although I think we all share the

6:47

sentiment that the court sat

6:49

on this longer than we expected. And

6:51

yet now we have an opinion, and it's long, and it's thorough,

6:53

so let's break it down. Well, before we break

6:55

down the opinion, can we talk a little bit about what we

6:57

think the Supreme Court might be likely to do

7:00

here? Sure. Leah just said it

7:02

takes four votes to grant certiorari. It requires

7:04

five votes to stay the

7:06

DC circuit's order. I

7:08

think the stay is pretty likely to happen. I

7:10

don't think the court is going to want

7:12

to be in a world where there's a trial

7:14

happening, a jury is impaneled, and all of a

7:17

sudden cert is granted and it stops. So I

7:19

imagine there will be five votes just as

7:21

a practical matter to stay this. I

7:24

think it's a certainty that the

7:26

court should take this. I

7:29

think it's very likely it will. I also

7:31

think the court has an institutional incentive to

7:34

take the case, which is if, as we

7:36

all kind of expect to happen, the court

7:38

says President Trump can appear on the ballot

7:40

in the upcoming election, then taking this case,

7:42

in which I think the court is likely

7:44

to reject Trump's version of immunity arguments, gives

7:47

the court some additional credibility because it

7:49

allows them to issue a ruling for

7:51

Trump and against Trump and kind of

7:53

balance out any public perceptions or

7:55

coverage they might get about potentially favoring

7:58

Donald Trump and the Republican Party. potentially,

8:00

but they can only get that if

8:03

they move expeditiously, right? Like, or

8:05

they should not be afforded any kind

8:07

of goodwill for rejecting the immunity arguments

8:09

if the effect of them slow

8:12

walking the decision is that there can't be a

8:14

trial anyway, right? So it'll mean

8:16

a lot, both what the court

8:18

does here with respect to the stay application that

8:20

we all expect and also the when. And, you

8:23

know, they moved very, very

8:26

swiftly to schedule oral arguments in the

8:28

14th Amendment disqualification case. And of course,

8:30

that's a case where Trump really wants

8:33

that lower court opinion to be reversed. So if

8:35

they're happy to accelerate

8:37

a Trump initiated case that,

8:40

you know, is about Trump asking for

8:42

some relief, but they're not eager

8:45

to take up swiftly review

8:48

of a lower court opinion that goes against Donald Trump, I

8:50

think that will send a very clear message.

8:52

And the public, I think would be rightly,

8:55

very, very unhappy with the Supreme Court. So

8:57

it just matters a great deal how quickly they move.

9:00

Okay, let's get into this opinion.

9:02

And to be very clear,

9:04

they took a long time on this. And

9:06

they're definitely showing their work here, the

9:08

three judges of the DC Circuit, this

9:10

is a methodical and exhaustive

9:13

opinion that goes through all

9:15

of Donald Trump's arguments, even this really stupid

9:18

one. So you know, good on them. So

9:20

first of all, it's important

9:22

to note that this is a per curiam

9:25

opinion. So what does that mean? Well, one

9:27

per curiam opinion is by the court. So

9:29

typically, in an appellate opinion, there

9:31

will be one judge who authors the opinion

9:33

and the other two judges can either join

9:35

or not join. But the one judge

9:37

is the author, unless it's a per

9:39

curiam opinion, where the one judge

9:42

or maybe a group of judges is speaking for

9:44

the entire panel. And here, I thought

9:46

it was really interesting that they made

9:48

a decision to make this the decision

9:50

of the panel as opposed to any

9:52

one judge. And I wondered if

9:55

that was to insulate the three of

9:57

them from the possibility of political blowback.

10:00

from Donald Trump supporters, or

10:02

whether this is sort of a Brown versus Board

10:04

of Education move or a Bush v. Gore move

10:06

to sort of say like we are speaking with

10:08

one voice and that voice is the voice of

10:10

the court. Who knows? I think maybe all of

10:12

these things could be true, but I think it

10:14

is notable that it's a pro curiam opinion. Agreed.

10:18

So the opinion is 57 pages long.

10:21

And we'll note some general things about

10:23

it before we actually dive into the

10:25

specific arguments. Throughout the

10:27

opinion, the judges repeatedly rely

10:30

on separate writings by the

10:32

following justices. Let's see

10:34

if anything jumps out to you.

10:36

Justices Thomas, Gorsuch,

10:40

and Kavanaugh. It's

10:42

almost like you're going to need

10:44

one of these dudes votes right

10:47

in order to get to five.

10:49

And in particular, the opinion emphasizes

10:51

the significance and import of the

10:53

Supreme Court's 2020 decision

10:56

in Trump versus Vance, which rejected

10:58

President Trump's argument that he was

11:00

immune from subpoena. They're from again,

11:02

a New York state office. That

11:05

was a somewhat fractured opinion,

11:07

but there Justice Gorsuch and Justice

11:09

Kavanaugh voted with the bottom line

11:11

conclusion that President Trump was not

11:14

wholly immune from the particular subpoena.

11:17

I do love this pulling of

11:19

receipts. Like this was, as a

11:21

judicial interpretive method, the pulling of

11:23

receipts was noted and notable. This

11:26

panel has a host of receipts,

11:28

not just from the justices, but

11:30

it turns out from various Republican

11:32

senators and from Trump himself, as

11:34

we'll get into in a second.

11:36

So, you know, overall, the opinion

11:38

has some fairly memorable lines in

11:40

explaining their overall conclusion that Trump

11:42

is not immune. The

11:44

opinion says, quote, for the purpose of

11:46

this criminal case, former President Trump has

11:49

become citizen Trump with all of the

11:51

defenses of any other criminal defendant, but

11:53

any executive immunity that may have protected

11:55

him while he served as president no

11:57

longer protects him against this prosecution. He

12:00

will walk through a couple of the grounds that

12:02

Trump had asserted for establishing this really

12:04

expansive immunity that he was asking

12:06

the court to embrace, and then we can break

12:08

down what the court does with those arguments. So

12:11

maybe let's just tick through the kind

12:13

of three main ones first, which is, first, the

12:15

federal courts just lack the power to review

12:18

the president's official acts just as a matter

12:20

of the separation of powers. Two,

12:22

that functional policy considerations, also

12:24

rooted in the separation of

12:26

powers, require immunity to avoid

12:29

intruding on or undermining executive

12:31

branch functions. And then three,

12:33

an argument that we talked about a bunch after

12:35

these arguments. Stupid. We

12:37

still have to describe it. We

12:41

put on clown noses and narcotics.

12:43

That's right. It's

12:46

pretty bad. The panel clearly agreed with

12:48

this, but the argument that Trump was

12:50

making was basically that the Constitution and

12:52

its impeachment judgment clause does not permit

12:54

the criminal prosecution of a former president

12:57

unless Congress was able

12:59

to both impeach and convict the

13:02

president prior to the criminal prosecution.

13:04

Well, they had to reject that dumb argument.

13:06

They also took pains and probably were pained

13:08

to address Trump's argument that he was immune

13:10

from prosecution under the double jeopardy clause as

13:12

well. I'm not sure which of these arguments

13:15

are dumber, but we'll just

13:17

talk about their analysis of that

13:19

one too. But

13:21

we'll go through them in order, starting

13:23

with the idea that the Article III courts

13:26

lack the power to review the president's official

13:28

act under the separation of powers doctrine. We've

13:31

heard references to the very famous separation of

13:33

powers clause in the Constitution. There actually is no

13:35

such clause. But that

13:37

doesn't stop people from invoking separation of powers

13:39

ideas. It's so weird

13:41

that they invoke these implicit ideas

13:43

around separation of powers, but can't

13:46

seem to believe that there's an inherent

13:48

right to control your own body. So

13:51

very weird. Anyway. President being

13:53

able to do whatever they want and not have it

13:55

be illegal is actually implicit in the concept of ordered

13:57

liberty. rooted

14:00

in the history and traditions of

14:02

the country. No order of just chaos. Speaking

14:07

of being rooted in the traditions of this country, in

14:10

order to justify the expansive immunity, Donald

14:12

Trump invoked what else,

14:14

Marbury versus Madison, the

14:17

foundational case establishing the proposition of

14:19

judicial review, which is that

14:21

federal courts can strike down acts of Congress. And

14:24

here, the D.C. Circuit says, you know, he

14:27

relies on this oft-quoted statement from Marbury, former

14:30

President Trump misreads Marbury and its

14:32

progeny. So, spoiler,

14:34

power of judicial review and, you know, statements

14:37

that Marbury made in the course of reaching

14:39

that holding do not actually mean presidents are

14:41

immune from any, you know, proceedings

14:44

in federal court whatsoever. In

14:47

fact, the court went on to say,

14:49

but as the Supreme Court has unequivocally

14:51

explained, i.e. read the footnotes, no man

14:53

in this country is so high that

14:55

he is above the law. No officer

14:57

of the law may set that law

14:59

at defiance with impunity. Mic drop. And,

15:04

you know, after quoting that line, they

15:07

go on to quote a concurrence

15:10

by one Coach Kavanaugh, explaining that,

15:12

quote, that principle applies, of course,

15:14

to a president. And

15:17

that's from the 2020 Vance case that we talked

15:19

about already. Okay,

15:21

so master's tools. I love it. I love

15:23

it. I know. We have

15:25

been very hard on them, including even just

15:27

a few minutes ago, for the time they took

15:30

to issue this opinion. But they took a lot

15:32

of care with it. So we absolutely have to

15:34

give them that. Have they heard of all-nighters? I

15:38

am sure they in their court have. All the

15:40

students everywhere are left alone. I am sure they

15:42

have. Okay. Thank

15:44

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17:35

All right. So in terms of his argument

17:37

that functional policy considerations rooted in the separation

17:39

of powers require immunity, the

17:42

court has this to say, we

17:44

conclude that the interest in criminal

17:46

accountability held by both the public

17:48

and the executive branch outweighs the

17:50

potential risks of chilling presidential action

17:52

and permitting vexatious litigation. And second,

17:56

the court says we examine the additional interest raised by

17:58

the nature of the charges. in the indictment,

18:00

and this is now me, not the quote, these

18:03

are really weighty interests that the court describes.

18:06

And so the court goes on now and

18:08

quoting again, the executive branch's interest in

18:10

upholding presidential elections and investing power in

18:12

a new president under the Constitution and

18:15

the voters' interest in democratically selecting their

18:17

president. So I'm done with the quote now. So

18:20

those are the interests that Trump sort of

18:22

said are way less important and have to

18:24

be outweighed by the interest in

18:26

not chilling presidential conduct. And

18:30

the court just didn't seem to find that a

18:32

difficult balance to strike in favor of democracy. I

18:34

actually think this is really genius

18:37

because they're basically disaggregating his arguments

18:39

in favor of himself as president

18:41

from the office itself and asking

18:43

the public, like, do not

18:46

think about him and this office as co-extensive.

18:48

Like, he's just a dude who was in

18:50

this office. Like let's really focus on the

18:52

office itself. Yeah. And

18:54

of course, the idea that, you know,

18:56

President Trump uses the office to benefit

18:58

himself personally has always been a kind

19:00

of running theme of the Trump presidency

19:02

and Trump campaign and one of the

19:04

concerns with him holding public office. And

19:07

I thought that their analysis of these

19:09

arguments and as you were saying, like

19:11

disaggregating the person from the office, you

19:13

know, this is the person who is

19:15

asserting, you know, that it is in

19:17

the executive branch's interest that someone not

19:19

be held accountable for violating the law

19:21

when the executive, of course, is the

19:24

chief law enforcement officer and has a

19:26

duty to take care that the laws

19:28

be faithfully executed. So I

19:30

agree. I like how they approach

19:32

this here. How do you think this will interact

19:34

with the court statement? And I

19:36

think it was Trump's Trump versus

19:38

Mazar's back in 2020 that in

19:41

terms of a request for personal documents from

19:43

the president, like it would be hard to

19:46

disentangle the man from the office. I think

19:48

that part of the chief justice's opinion, because

19:50

here they seem to be saying, we have

19:52

to disentangle the

19:54

man from this office or the office

19:56

itself is imperiled. Yeah. So

19:59

there, I think it was. It was like a

20:01

little bit different because you were

20:03

dealing with a sitting president at

20:05

that point. And so directing documents

20:07

to the person who was in

20:09

the office and there, you

20:11

know, Congress was asserting an interest in

20:14

the proper enforcement of the law to

20:16

uncover legal violations, their legal

20:18

violations by a person who held the office.

20:20

I think there it might have been

20:22

slightly more complicated. I still think, you

20:24

know, the chief justice might have been

20:27

too quick in rejecting that as a

20:29

potential way of addressing the immunity argument.

20:32

But here I think it is again,

20:34

very easy to just aggregate this because

20:36

these are purely personal interests of inconvenience

20:38

and wanting to put himself above the

20:40

law versus, you know, the interests

20:42

of the office. And

20:45

in the course of rejecting this basis

20:47

for immunity, the DC circuit

20:49

took care to invoke

20:52

President Trump against himself, speaking of the

20:55

person versus the office. So

20:57

the DC circuit noted that during President

20:59

Trump's 2021 impeachment proceedings, his

21:02

counsel argued that instead of post-presidency

21:04

impeachment, the appropriate vehicle for investigation,

21:06

prosecution and punishment is the Article

21:09

3 courts. And

21:12

they cited, you know, testimony from the congressional record. So

21:14

I thought that that was a nice touch. All

21:18

right. Let's get to the third argument. This

21:20

is the one I believe I have

21:22

repeatedly characterized as specious, if

21:24

not stupid. And this is the

21:26

view that Donald Trump is immune

21:29

from criminal prosecution because he wasn't

21:31

impeached by the House and convicted

21:33

by the Senate of these acts.

21:36

And the DC circuit basically said,

21:38

LOL, no dude. I actually

21:40

just wish they'd written that. That

21:43

would have been exactly what this

21:45

stupid argument deserved. But instead, they

21:47

elaborated a bit saying that, quote,

21:49

former President Trump's interpretation also

21:52

would permit the commission of crimes

21:54

not readily categorized as impeachable. And

21:57

if 30 senators are correct, crimes not

21:59

discovered. until after a president

22:01

leaves office. And here the

22:03

court quoted a statement from

22:05

Senate Minority Leader Mitch McConnell

22:07

who said, we have no

22:09

power to convict and disqualify

22:12

a former office holder who

22:14

is now a private citizen,

22:16

end quote. So yeah,

22:18

again, master's tools, master's house. No,

22:20

but didn't you also like to

22:23

see also statements of like another 30

22:25

reports? Oh, I was getting there. Oh,

22:27

sorry. Sorry. Go on. Sorry. Sorry. Ladies,

22:30

you troll so hard. Okay.

22:32

Judge Henderson, Judge Pan, Judge

22:34

Child, the snark is just

22:36

dripping. I love it. After

22:40

citing the statement from Senate Minority

22:42

Leader Mitch McConnell, they

22:45

also cited in a footnote statements

22:47

from a long list

22:49

of Republican senators basically saying

22:51

that Donald Trump could not be impeached

22:53

and convicted in Congress because

22:56

he was no longer president.

22:58

So there

23:00

we are. I thought this was very

23:02

deftly handled, although I also think for

23:04

brevity, LOL no would have suffice. Indeed.

23:10

But that wouldn't have gotten them the whole

23:12

master's tools bit. I mean, it's true. They

23:15

did show their work though. Yes.

23:18

And they also showed their work in rejecting

23:20

the double jeopardy arguments. And here I think

23:22

they came a little bit closer to saying

23:25

LOL no, just as they

23:27

characterized the president's argument. So again,

23:29

just to make clear what the

23:31

argument in, you know, that argument

23:33

in quotation marks, what the argument

23:35

is here, President Trump argued he

23:37

was argument ask, right? Argument

23:39

ask argument adjacent argument curious, I

23:42

don't know. But he

23:44

was suggesting that his

23:46

impeachment proceedings meant he was entitled

23:49

to double jeopardy in that he

23:51

could not be tried again for

23:53

the same offense because he had

23:55

been tried and not convicted, i.e.

23:58

acquitted in the Senate. and

24:00

therefore he was – he could

24:02

not be tried again for the same offense under the double

24:05

jeopardy clause. Okay, so here's what

24:07

the DC Circuit writes about this argument. Former

24:10

President Trump does not raise a straightforward

24:12

claim under the double jeopardy clause, but

24:14

instead relies on the impeachment judgment clause

24:16

and what he calls, quote, double

24:19

jeopardy principles. I

24:22

love it. I love it. Yeah,

24:24

black letter law. How about principle?

24:27

Exactly, exactly. And the

24:30

court, you know, goes on to say, if the

24:32

double jeopardy principles, he and folks are unmoored

24:35

from the double jeopardy clause, we are unable to

24:37

discern what the principles are or how

24:40

to apply them. I

24:42

think that's close to LOL no, right? I

24:45

mean, it's like – it's DC Circuit speak for

24:47

LOL no. Okay, okay. That's

24:49

helpful. We'll be their LOL translator

24:51

because what they meant was LOL

24:54

no. Or

24:57

just, bruh. Are

25:00

you serious, bro? And

25:02

that was not all. They note

25:04

that perhaps recognizing that normal double

25:06

jeopardy rules to favor his position,

25:08

he claims that the impeachment judgment

25:10

clause incorporates double jeopardy principles that

25:12

are distinct from the double jeopardy

25:14

clause. Again, this is borderline

25:17

art, I would say. Do

25:19

you remember those perfume commercials that came

25:21

out in the like 80s and 90s,

25:23

like Parfum

25:25

du Cure, like if you love Georgiou,

25:27

you'll love Primo. This is sort of

25:29

the same thing. Like, if you love

25:31

the double jeopardy clause, you'll love the

25:33

double jeopardy principles. But still like the

25:35

same rancid toilet water. There

25:40

also, I think, was some good real talk about the

25:42

nature of impeachment. You know, if you are – we

25:44

are going to take seriously what, if any, role impeachment

25:47

should have in thinking about a later criminal prosecution. Let's

25:50

think about what impeachment is. And the

25:52

court says impeachment is obviously a political

25:54

process. And so impeachment

25:56

acquittals are often unrelated to

25:58

factual innocence. the

26:00

acquittal in this very impeachment trial

26:02

is a perfect case in point,

26:04

right? You have 43 senators who

26:06

voted to acquit and in their own

26:08

words, they invoked a variety of

26:10

concerns about a conviction, many

26:13

of which, again, in the words of the not

26:16

guilty voting senators, had nothing to do

26:18

with whether Trump committed the charged offense.

26:20

There were like citations to jurisdictional reasons,

26:22

the fact that, you know, Trump was

26:24

no longer president, process based

26:26

reasons regarding, you know,

26:28

just how much time the impeachment

26:30

proceeding whether evidence could be

26:32

presented. There were

26:35

also though just explicitly political reasons

26:37

given. And so, you know, so

26:39

all of this really cuts against

26:41

any double jeopardy principle and emanating

26:44

from an impeachment proceeding under

26:46

any circumstances. Yeah, and

26:48

the DC circuit cites some of the statements,

26:51

you know, like, for example, Ron Johnson saying

26:53

the Democrats vindictive and divisive

26:56

political impeachment and noting that

26:58

of course, right, these were the sorts of reasons

27:00

that Republican senators gave for not convicting. So

27:03

those are some highlights. I mean, this is

27:05

a banger of an opinion. I mean, like,

27:07

this does feel a little bit like, you

27:10

know, an artist who took just

27:12

a long time in the studio, but

27:14

it's a great opinion and it's a

27:16

great album, but I could have used

27:18

a little more Taylor Swift just like

27:20

getting in there and getting out with

27:22

like, exactly. And just, you know, releasing

27:24

these albums at mad speed and still

27:27

winning fucking Album of the Year, a

27:29

record number of times. Tortured

27:31

Poet Society, tortured

27:33

poets department, but

27:35

all forgive that slight error. Great opinion. Great

27:38

opinion. Only because I'm still writing on

27:40

the high of Tracy Chapman's performance, which is

27:42

just like still going through my day. My

27:44

students, okay, quickly, my students yesterday morning were

27:46

like talking, talking as I started teaching and they like

27:48

wouldn't be quiet. And I was like, I know, I

27:51

know that fast car duet was incredible. And they

27:53

all looked at me like I have no idea what

27:55

you're talking about. It's not working about, I don't

27:57

know, but not really what they should have been

27:59

talking about. Like just something else constitutional

28:01

law maybe and afterwards they were like, oh we

28:03

had no idea what you were talking about It's not crazy.

28:06

I like I really just had Had

28:09

not registered the Luke Combs cover because I

28:11

love Tracy Chapman and I love this song

28:13

and the original version So I was just

28:15

like the entire self-titled album is glorious and

28:17

that's amazing amazing album, but

28:19

I like the tweet it But

28:22

I know but I was like who the fuck is this guy? And

28:25

then all these people smart me like tell me

28:27

like what a great guy he was I'm like,

28:29

I just genuinely didn't know I Had

28:33

kind of complicated feelings about him

28:35

doing a cover and getting

28:37

this, you know great

28:40

numbers and all this success from covering

28:42

Tracy Chapman song and

28:46

Watching him in the duet made

28:48

me warm to him because it

28:51

was clear. He was Lord

28:54

at the honor of

28:56

being able to appear on

28:58

stage with Tracy Chapman and

29:01

Correctly and he did. Yeah, again. That's

29:03

that's that moderated some of

29:06

my views that I had Literally,

29:08

like who is this person and people were

29:11

like, what do you mean? You don't know

29:13

Luke Combs? I'm just like I'm you're like

29:15

Luke Combs don't know her I'm genuinely like

29:17

I just tell me who it is like

29:19

what happened and like they were just like,

29:21

you know, he's a good guide I'm like,

29:23

I'm sure fine. I literally don't know But

29:27

anyway, so I mean that

29:29

was when I asked you who Tony Tony Tony was I'm gonna

29:31

take you out and shank you Thank

29:34

You Melissa. That's okay. I I

29:37

should have been more gracious when you

29:39

mistitled Taylor Swift forthcoming album The

29:42

tortured poets department. Oh, I thought it was

29:45

dead poet society. I know it sounds like

29:47

that does Jim Xers But in fact, it is not

29:50

Sorry, Leah my bad fine again.

29:52

I'm being gracious apology accepted hashtag

29:55

growth or

30:02

double-debrity principles. So

30:05

back to the DC Circuit opinion, one

30:07

thing I had just wanted to note

30:09

is a line that stood out to

30:12

me given that the Supreme Court is

30:14

back here, the disqualification argument later in

30:16

the week. And that is in the

30:18

course of rejecting President Trump's argument that

30:20

functional concerns underlying the separation of powers

30:23

required him to have immunity here, the

30:25

court writes and explained the interest on the

30:28

other side, quote, former President Trump's alleged efforts

30:30

to remain in power despite losing the 2020

30:32

election were, if proven,

30:34

an unprecedented assault on the structure of

30:36

our government, end quote. And I just

30:38

thought again, given that the Supreme Court

30:40

is about to decide whether Section 3

30:42

of the 14th Amendment disqualified

30:45

President Trump for this

30:48

action, you know, the DC Circuit characterization of

30:50

this as an unprecedented assault on the structure

30:52

of our government stuck out to

30:54

me. You know, I think they are right. And I

30:56

think that matters. Can I ask a quick

30:59

question before we leave the topic? Can I just float something,

31:01

which is if you guys both think that

31:03

what the court is going to do is probably rule

31:05

for Trump in the Colorado case, but rule

31:07

against him here, is there some

31:09

possibility they just deny cert, let

31:11

the DC Circuit opinion stand? I mean,

31:14

it would move along more quickly and

31:16

they would have the same effect. And

31:18

the question is, if they don't, even

31:21

if they ultimately I mean, it goes back to the

31:23

timing question, but I'm just like, as I'm puzzling this

31:25

over, I just I wonder whether there's a possibility we

31:27

should consider. I definitely think

31:29

it is a possibility, but I think you are

31:32

overestimating the extent to which the

31:35

Supreme Court is going to get

31:37

flack for the delay in the

31:39

district court proceedings

31:42

in this case, if they ultimately

31:44

reject his immunity. I mean, because

31:46

of course, the Supreme Court delayed

31:49

the enforcement of the congressional subpoenas

31:51

in Bazar's, they delayed the enforcement

31:53

of the subpoenas in the Vance

31:55

case, and they actually didn't end

31:58

up bearing any real cost. for

32:00

that because their opinions rejected

32:03

the argument and it is

32:06

it goes into the story about how

32:08

understanding assessing and evaluating the court requires

32:10

so much more than just

32:12

who won in this case what's the

32:15

bottom line but I just think that

32:17

I do think that's possible I think it's greater than

32:19

50% chance they take the

32:22

case yeah but we shouldn't rule

32:24

out the at least possibility it's

32:26

a possibility but I also think

32:28

like I don't know that given

32:31

the landscape and given who this person is and whether

32:33

or not he may or may not be president

32:35

going forward like I think the Supreme

32:37

Court basically has to talk about the

32:39

fact that no you're not immune

32:42

if you use the trappings of your

32:44

office to vindicate

32:46

political grudges it

32:49

would be ideal if they said that but

32:51

if they okay like next week well

32:53

I mean nothing at all I think they

32:56

have to conclusively decide whether that's okay they

32:58

can't just let it rest with the

33:00

DC circuit my view I'd be fine

33:02

with his opinion just no it's a good

33:04

one but I mean I think you know okay

33:07

anything else we want to say about the

33:09

DC circuit DC circuit thank you it was

33:12

worth the wait I guess it was a

33:14

great opinion we're still thinking

33:16

about whether it was worth the wait but

33:19

thank you this is a good one produced

33:37

edited by melody Raoul producing

33:40

this while melody is away I'll support

33:42

from Kyle Seglen and Sheryl Atlantis music

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