transcript

Speaker 1:
[00:00] But what makes these memos such a bombshell is that they show John Roberts mobilizing his right-wing colleagues, not just to vote a certain way on the merits for openly political reasons, but to enjoin that clean action plan right now before any ruling from the DC. Circuit. And before 2016, the Supreme Court just did not do that.

Speaker 2:
[00:21] Yeah, a couple of months ago, Steve Flodick, the legal commentator, called this case, West Virginia v. EPA, the birth of the shadow docket. And that was before these memos leaked. Welcome to Law and Chaos, where the Supreme Court is even more corrupt behind closed doors than it is in public, and the DOJ's plot to steal state voter data keeps getting shut down in court, and Kash Patel is not as think as you drunk he is. We've got a lot to cover, so let's get after it. Hey guys, I'm Liz Dye, and with me as always is Andrew Torrez. Andrew, how are you?

Speaker 1:
[01:07] I'm great, Liz, how are you? Did you have a nice weekend?

Speaker 2:
[01:09] I had a lovely weekend. So cultured, so much culture. And I did not work very much this weekend, so that was amazing.

Speaker 1:
[01:17] Well, I can't imagine anything more cultured than doing another episode of Law and Chaos, so why don't we start off with the...

Speaker 2:
[01:24] Ta-da-da!

Speaker 1:
[01:26] Tuck it alerts.

Speaker 2:
[01:26] Okay, there is a whole lot of Trump administration bullshit, but let us start with some good news. The satirical website, The Onion, seems to have finally worked out a way to take control of Infowars and turn Alex Jones' hate factory into something great.

Speaker 1:
[01:41] I sure, I mean, this one has been a long time coming, Liz. We followed this intently and we were on all of the hearings before US Bankruptcy Judge Christopher Lopez in Texas. There was a deal whereby The Onion was going to front some cash, and the biggest component of their offer to buy the assets of Infowars out of bankruptcy was a liability waiver by the Sandy Hook plaintiffs, by both the Connecticut and Texas state plaintiffs. And it was just clear Judge Lopez had problems with that methodology, right? It was less cash but greater overall value to the estate, and he never really could wrap his head around it. He thought it was too much of a moving target, and he canceled the auction that would have sold those assets to The Onion. We were very disappointed, but Judge Lopez refused to order a new sale, either to direct it to the Alex Jones front group or have another auction. Alex Jones filed 11 different pleadings, motions for reconsideration, whatever, and instead Judge Lopez just said, a pox on all your houses. This case shouldn't be in bankruptcy. Go fight about it in state court, which on the one hand was unsatisfying because as you and I have talked about, that really pit the Connecticut plaintiffs who have a billion dollar judgment against Alex Jones, against the Texas plaintiffs who have a $50 million verdict against Jones.

Speaker 2:
[03:10] Right. And that might end up as a $5 million verdict because Texas is not a particularly plaintiff-friendly state.

Speaker 1:
[03:17] Yeah, exactly. But today, the Indian announced on social media, well, its parent company, Global Tetrahedron Inc. or whatever. It's very funny. Announced that they had a tentative deal to license the Infowars website and its back catalog of content from the court-appointed manager of the assets, right? Who was appointed by Texas State Court Judge Maya Garragamble. She was the one who presided over the original litigation in Texas. The New York Times reports that that deal was worth $81,000 a month or just shy of a million bucks a year. It must be approved by the court and Alex Jones will obviously appeal. But it looks like this nightmare is finally, finally coming to an end and the Sandy Hook families might actually see some money from Alex Jones.

Speaker 2:
[04:07] God bless. Okay. Next up some less nice news or mixed news anyway. We've talked a fair bit on the show about the Justice Department Civil Rights Division harassing states to turn over their voter rolls. That division is being run by Magaloon, Harmeet Dhillon and so it's willing to take, let's say unorthodox positions in court. The purpose of this seizure of data is twofold. First, the DOJ wants to retcon Trump's lies about fraud in the 2020 election and make it seem like they are true. Second, they want to establish a national voter registry and then refuse to let anyone who's not on it vote in federal elections. This is a plan to enact disenfranchisement at scale and it's completely illegal. States run their own elections unless Congress passes a specific law and the president has zero role in the administration of elections.

Speaker 1:
[04:59] Yeah, and even the laws that are constitutionally permitted for Congress to enact are carefully circumscribed. And in this case, to make matters even more grotesque, the Trump administration is relying on the Civil Rights Act of 1960 as a basis for its request. Now, that is a law that was passed by Congress to ensure that black voters were allowed to register and cast their ballots, right? So the law allows the Department of Justice to demand voting materials from state and local officials who disenfranchise voters, if there are good reasons. That's not the exact wording of the law, but that's the gist of it.

Speaker 2:
[05:39] And that's why five courts now have tossed the Justice Department's lawsuits, which they filed to get these unredacted voter rolls, including Social Security numbers. I think they've filed like 29 lawsuits. On Friday, a judge in Rhode Island became the fifth to dismiss one of these DOJ lawsuits on the grounds that the government had not articulated any reason to substantiate its demands, and that was not compliant with the Civil Rights Act. Right.

Speaker 1:
[06:02] But that is not stopping Harmeet. Citing the aforementioned 1960 Civil Rights Act, she sent officials in Wayne County, Michigan, which read Detroit, a demand for all of their ballots from 2024. And as justification, she points to three alleged cases of voter fraud, none of which were in 2024, and all of which were caught and prosecuted by local officials along with one of the big lie cases from 2020 that alleged voter fraud. That case was, of course, dismissed.

Speaker 2:
[06:36] Right. So State Attorney General Dana Nessel told the Justice Department to go pound sand. I would assume that a lawsuit is incoming to enforce this demand letter. And in related news, the Justice Department, under the active Attorney General's supervision of Todd Blanche, has become even more blatantly corrupt. We talked about Trump's shakedown suit against the IRS for the wrongful disclosure of his tax returns. It was filed a few months ago. The parties have now jointly moved for more time to file their briefs since they report that they are in settlement talks, which is it means clear Todd Blanche is going to loot the treasury to enrich the Trump family.

Speaker 1:
[07:16] There is no way to overstate how this is just theft. Okay, so first, Trump's lawsuit is long outside the two-year statute of limitations since the disclosures happened in 2019 and 2020 and it is 2026. So that means you get nothing. Even if you ignore the statute of limitations problem, the statutory maximum for wrongful disclosure is $1,000 per document. Punitive damages are explicitly prohibited as against the government. So, okay, I don't know, assume it was 100 of his documents that got to, that's $100,000 maximum. Trump has demanded $10 billion.

Speaker 2:
[07:59] Right, and that is on top of the settlement the Justice Department is already negotiating in his Federal Tort Claims Act case to make him whole for the malicious prosecution in the raid on Mar-a-Lago.

Speaker 1:
[08:10] Yeah, yeah, hey, pursuant to a lawfully secured and lawfully executed search warrant with the maximum deference to Trump's lawyers who were there. Anyway, Trump, by the way, is still trying to lock people up over that valid law enforcement action and the Mueller Russia investigation. Apparently, it's all one big conspiracy, which conveniently is how he's trying to get around the statute of limitations problem there as well. And as long as we're talking about this, that conspiracy investigation is being run out of Miami, and they hired a new prosecutor this week. The New York Times reports that Joe DiGenova, the US. Attorney for the District of Columbia under Ronald Reagan, was hired as counselor to the Attorney General and detailed to the Southern District of Florida. Liz, you're making that face at me again.

Speaker 2:
[09:00] Oh, for f**k's sake. Okay, let me get out my stream board here. You all may recall that there was a wee smidge of corruption in the first Trump administration and that it had a strongly Ukrainian flavor. You probably forgot though, because so many things have happened since then, that before that shakedown call where Trump demanded that President Zelensky announced non-existent criminal investigations of Joe and Hunter Biden, there was a previous iteration of the same scam that involved a Ukrainian oligarch named Dmitry Firtash. Firtash was under federal indictment in the Northern District of Illinois for bribery in India. Don't ask, it doesn't matter why, he just was, right? And he did not want to be indicted to the US to face charges. So he hired Degenova and his weird ass wife, Victoria Tenzing, to fight it. They are two lawyers that are deep in the wing nutta sphere, or they were there now, 81 and 84 respectively. So they do fewer Newsmax hits, although they still do them. And I don't think they're invited back on Fox as much, it doesn't matter. Vicki and Joe and Rudy Giuliani, and sometimes people from Representative Devin Nunes' office, used to huddle up and cahoots in the back room of the steakhouse Trump ran during his first term in office. Remember, he had this massive conflict of interest because he had a lease on the old post office building in DC., that was the Trump Hotel in those days. And the reporting was that Fear Tash offered dirt on Joe Biden in exchange for the DOJ dropping its extradition request. And that didn't happen, so then Trump turned to Plan B, which was leaning on Ukraine's president directly.

Speaker 1:
[10:39] I love just winding you up and letting you go. So okay, now DeGenova is back to investigate the conspiracy by the Biden Department of Justice to get Trump. A conspiracy that is currently parked in front of a grand jury in Fort Pierce, Florida, home to Judge Aileen Cannon and no other judges. And where a senior prosecutor just resigned because she wasn't down with whatever they're planning to do to former CIA Director John Brennan.

Speaker 2:
[11:08] Yeah. To call this Banana Republic stuff is an insult to Banana Republics, honestly. Okay. That is enough terrible shit. Let us end with a happy story out of Pennsylvania where the state's intermediate appellate court permanently enjoined that state's Medicaid abortion coverage exclusion as unconstitutional under both the Pennsylvania Equal Rights Amendment and the state's equal protection provisions of its own constitutions.

Speaker 1:
[11:34] Yeah. So here, the Pennsylvania state constitution mirrors the Fifth Amendment of the US Constitution. And for a very long time, state courts would read those provisions, what's called in pari materi. They would say federal court decisions interpreting that identical provision in the US Constitution are adopted by us as how we interpret our state constitution. But since the US Supreme Court went to the zoo under John Roberts, state Supreme Courts and now here a state intermediate appellate court have often taken the view of, no, we don't have to consider those binding at all. We don't have to read these terms in pari materi. So here you have the words are all the same, but the outcome is totally different. Like this opinion talks about strict scrutiny, rational basis scrutiny and discrimination on the basis of sex, but it comes out completely differently from analogous federal cases because those terms are attached to a wholly different statutory framework and a different set of precedents. So Pennsylvania has its own Equal Rights Amendment, which was ratified in 1971. And unlike the Federal Equal Protection Clause, Pennsylvania's Equal Rights Amendment says that equality of rights shall not be denied or abridged because of the sex of the individual. No exceptions, no card outs.

Speaker 2:
[12:49] So Pennsylvania's Abortion Control Act blocked Medicaid from covering the cost of abortion, except in three very narrow circumstances, risk of death to the mother, rape and incest. There was no exception for fetal abnormalities, no matter how severe and critically no comparable exclusion for any men's reproductive health care whatsoever. Back in 1985, the Pennsylvania Supreme Court ruled that this did not violate the state's ERA on the theory that the coverage ban wasn't sex discrimination, it was just abortion policy. The court said essentially pregnancy is a physical characteristic unique to one's sex, so it doesn't count as sex discrimination. We wouldn't let men get abortions either if men could get pregnant. That was in a case called Fisher v. Department of Public Welfare. But then, two years ago, in the case we're talking about today, which is captioned Allegheny Reproductive Health Center vs. Pennsylvania Department of Human Services, the Supreme Court in the state explicitly overturned Fisher and sent the case back down for review in light of the holding that abortion bans did violate the ERA, which just overturned Fisher. Right.

Speaker 1:
[13:52] And on remand, the State Department of Human Services, under the supervision of Governor Josh Shapiro, declined to defend the law. So the state's Republican Attorney General, Dave Sunday, jumped in and he put forward three, what he claimed were compelling state interests, preserving fetal life, protecting women from psychological harm, and respecting the rights of taxpayers and legislators who have a moral objection to using their tax dollars to fund abortion.

Speaker 2:
[14:20] So none of those worked for the court, right? On the fetal life interest question, the court said, look, you've essentially admitted that this is an interest advanced by forcing women to bear children against their will, and that cannot be a compelling state interest. And on psychological harm, the court said there's no compelling state interest in protecting a competent adult from regretting her own informed medical decisions. That's just paternalism. And on conscientious rights, the court pointed out that just because the legislature has a policy preference, that doesn't mean it has a compelling interest in that preference because those two things are not the same.

Speaker 1:
[14:53] Yeah, the opinion also went further than it strictly needed to, and it declared reproductive autonomy to be a fundamental right under the Pennsylvania Constitution. That is rooted in the Declaration of Rights Privacy Protections as well as the state ERA. That is significant because if it is a fundamental right, that means strict scrutiny applies rather than intermediate scrutiny. That sets up a much broader foundation than just the Medicaid question, which man, after watching the Roberts Court just eviscerate what was left of Roe v. Wade, it is wild to see a court do this without a massive thumb on the scale, right? And just to really drive the nail, like the Pennsylvania Court said that even if you applied rational basis scrutiny, right, which is the lowest possible bar, the exclusion would still fail because it has no exception for pregnancies where the fetus cannot survive birth. So if the interest is in preserving potential life, but you won't even allow an abortion where there is no potential life, you're not actually pursuing that interest. So this is going to the Pennsylvania Supreme Court, which already signaled pretty clearly where it stands, when it torched Fisher two years ago. That was not a unanimous decision, but I am and I think we can be cautiously optimistic that this ruling is going to stand.

Speaker 2:
[16:09] I love it and I love when we can end on a positive note.

Speaker 1:
[16:13] Me too.

Speaker 2:
[16:13] Okay. It is Monday or Tuesday when you are listening to it, and this is the day when we thank our new subscribers. So on Substack at lawandchaospod.com, thank you to Colin Grover, Tara L. Drezog, or Dr. A. E. Zog, or however you pronounce it. Thank you. Thank you to Kristy and Black Bart23. Thank you to Luke North, and thank you to Sam Greenwood, who seems to like us on a lot of platforms.

Speaker 1:
[16:38] And over on Patreon at patreon.com/law and chaos pod, a big thank you to JWE, to Liza Green, Jason Crooker, Ellen Morgan, and the aforementioned Sam Greenwood.

Speaker 2:
[16:51] Thanks, Sam.

Speaker 1:
[16:52] You too can subscribe anywhere you want. You want to double up, you want to triple up, we will happily allow that. You know how to do that. Just head on over either to our website for our sub stack, or on over to patreon.com/law and Chaos pod. Sign up to give us as little as a buck an episode, and we will shout you out here on the show. You will get the ad-free episodes, you will get the extended bonus episodes. There's a new extra geeky one coming soon, I promise, and all the rest of our goodies, and you will help us continue to do this show that we love so much. Thank you all so much.

Speaker 2:
[17:27] All right. We are going to be right back to talk about Kash Patel and his interesting legal theories in a hot sec unless you are a subscriber. And we are back with a very happy birthday to me.

Speaker 1:
[17:53] Oh, Liz, I didn't know it was your birthday.

Speaker 2:
[17:55] Well, it's not. But the Lord and Kash Patel have given me this early, beautiful gift in this never-ending news cycle of doom. They have blessed me with something that is both hilarious and low stakes, and it's defamation troll suits.

Speaker 1:
[18:09] I mean, that is squarely in your wheelhouse.

Speaker 2:
[18:12] I love defamation troll suits so much. You guys, when Patel said he was filing suit on Monday, I cackled with glee. My heart swelled with joy. I was so happy.

Speaker 1:
[18:22] I don't want to interrupt, but Liz, you want to tell us what's going on here? I mean, for people who are not, say, as big a libel, slander, aficionado as you are.

Speaker 2:
[18:32] Oh, yes, I do. So, FBI Director Kash Patel is a ridiculous goober. He got his start as a staffer to Representative Devin Nunes, who ran interference for Trump on the House Intelligence Committee during the Russia investigation, and then Nunes wandered off to run Trump's media company. Along the way though, Nunes filed a bunch of garbage defamation suits, including one against a Twitter cow. I mean, not a literal cow, someone whose avatar was a Twitter cow. He also dragged his own family into this endless litigation against Esquire, which published a story suggesting that Nunes' family, Dairy Farmers in Iowa, might possibly use undocumented labor. It does not seem to have occurred to Nunes that this might mean that his family would have to let its employees be deposed and open up their employment records to the defense.

Speaker 1:
[19:26] You may infer from that that neither of those lawsuits were successful.

Speaker 2:
[19:30] No, they were not. But I think it was Nunes who kind of democratized the defamation troll suit as a means of raising money for Magga Grifters. Look, we talk about Trump, who has a shit ton of cash and can rely on PACs to pay his lawyers, using lawsuits to hurt his critics. That's something that he's done for decades before he had PACs. He talked about how happy he was. He once sued somebody and it cost him a few dollars. It was Tim O'Brien, a reporter who demonstrated that Trump was not nearly as rich as he said he was. He, Trump sued O'Brien and said like, even though he lost, it was worth it because he didn't spend that much money and he made O'Brien's life miserable. But Nunes has started this trend of delisters using defamation suits for publicity and as a means to discourage negative reporting about themselves. Anyway, after the Democrats took back Congress in 2019, Nunes wandered off to make some real money and Patel got hired at the White House where he immediately inserted himself into the Ukraine inquiry and he then spent a happy four years while Trump was out of office podcasting and hawking the search and claiming that he personally saw Trump declassify all the Mar-a-Lago documents via transubstantiation and laying out of hands or something like that.

Speaker 1:
[20:43] Which is hilarious and then the Senate confirmed him to be FBI director where Patel continued to be the deeply unserious dipshit that he was the previous four years. So there have been copious media reports about Patel's drinking and erratic behavior which was apparently confirmed when he got filmed partying and chugging beers in the locker room with the victorious US men's hockey team. He was at the Olympics on a work trip, of course, to Italy.

Speaker 2:
[21:11] Of course.

Speaker 1:
[21:12] And Trump, who is a lifelong teetotaler, was reportedly appalled.

Speaker 2:
[21:18] But then on Friday, the Atlantic's Sarah Fitzpatrick came out with this blockbuster story with more than two dozen witnesses who claim that Patel's drinking is a big problem and that it freaks out people inside the FBI. She says, meetings have to be rescheduled because he's hung over, and sometimes he can't be roused, and he gets drunk in public in DC and Nevada. Nevada is where he lives.

Speaker 1:
[21:38] Yeah. So on Friday afternoon, the Atlantic sends the FBI, the White House, and the Department of Justice a fact-checking inquiry with a two-hour response time, reasonably standard. The FBI sends a blanket denial, and Patel's lawyer Jesse Binnall sends a long letter denying each claim point by point and threatening to sue if the Atlantic publishes its story. Judging by that woo, Liz, we've met Jesse Binnall before in this podcast.

Speaker 2:
[22:06] Have we ever. So Binnall is a stop-the-steal lawyer who worked with Sidney Powell and then set up his own shop representing MAGA goobers. I mean, he did previously represent Donald Trump, but he was never Trump's main libel slander shakedown lawyer. That honor at the moment belongs to Alejandro Brito. Binnall represented Mike Flynn in his lawsuit against the government for malicious prosecution. You know, these are the warm up act for Trump settling with himself for billions of dollars. Mike Flynn, that's a case which the government won at the trial court. And then while it was on appeal decided it would just, it would rather lose. And so it decided to pay Mike Flynn $1.25 million in this ridiculous tort suit.

Speaker 1:
[22:49] Yeah, that decision was not made because of the well-pled meritorious claims advanced by Jesse Binnall.

Speaker 2:
[22:57] No. So Binnall also represented Mike Flynn in a lawsuit against the Lincoln Project's Rick Wilson. We've talked about that. Actually, we talked about it in a post that we published on the website today. We'll link to it in the show notes. That lawsuit did not go well. But Binnall is best known for representing former North Carolina Lieutenant Governor Mark Robinson in a defamation suit against CNN for revealing that he spent a lot of time commenting on pornography forms.

Speaker 1:
[23:23] We talked about that doomed lawsuit back in episode 74. It's the one in which Binnall held a press conference on the courthouse steps to announce his big $50 million demand only to be met with a motion to dismiss because North Carolina bans add damn them clauses in their complaint, right? Because allowing plaintiffs to put in a ridiculous number like $50 million encourages them to treat lawsuits like press releases. Anyway, Robinson dropped the complaint four months later. That kind of tells you the way Jesse Binnall approaches these lawsuits as press release. So the first thing that Binnall did was to tweet out the pre-publication letter he sent to The Atlantic, including refutations of multiple allegations that did not make it into the published article.

Speaker 2:
[24:14] Right, which kind of suggests that The Atlantic was doing some serious fact-checking. I want to actually fact-check you, because refutations makes it sound like The Atlantic said this thing happened, and he said, no, this thing couldn't have happened, because here are some evidence of some other. No, all he said was, this did not happen, the end, right?

Speaker 1:
[24:35] Yeah, they were denials would be a better word. And along those same lines, what the hell kind of lawyer publishes more unflattering allegations about their own client?

Speaker 2:
[24:46] Yeah, it's not. Well, you do, you do. Okay. So Patel tweets that he is very excited to sue, and he says that actual malice is what some would call a layup at this point.

Speaker 1:
[24:58] I'm some might. I'm some are complete idiots though.

Speaker 2:
[25:03] Wait for it. Okay. So then Patel goes on Maria Bartiromo show this weekend and says he's going to sue the pants off the Atlantic on Monday and also that he's about to arrest all the evil fraudsters who stole the 2020 election.

Speaker 1:
[25:15] Oh, sure. Yeah. The space laser. I mean, look, this jackass talks like he thinks that the bill is never going to come due. But he wasn't lying about filing a lawsuit on Monday. He really did. And it did not disappoint.

Speaker 2:
[25:31] I am not disappointed. I love this shit. So let's not bury the lead. This case is terrible. Just like deliciously terrible in every respect. Yeah.

Speaker 1:
[25:41] I mean, look, there's a lot of goofy shit in this. Kash Patel claims that he is entitled to $250 million in reputational damages. He points to not one single dollar in lost income. He says that the allegations are false, but points to no evidence to prove those claims.

Speaker 2:
[26:01] I mean, it is hard to prove a negative. Like, how do you prove you were sober on a Tuesday?

Speaker 1:
[26:05] Well, to some people, it's harder than others. Okay, so Patel points to a bunch of stats about the FBI, and basically says, could a drunk and dipshit have done all of that? So QED, your story is false, and you knew it. And look, we're laughing, but it really does get to one of the problems with this lawsuit, and frankly, much of Jesse Binnall's legal output, which is that he wants to conflate actual malice, the legal standard, with the colloquial definition of the term malice. We see it again and again, right? That is, a normal person suing for defamation has to prove publication, falsity, harm, and negligence. A public figure has to prove more than just negligence. They must prove that the statement was made with actual malice. That is either knowing falsity or reckless disregard for the truth. And I will reluctantly give Binnall some credit here. He does try to make this a more legitimately lawsuit-shaped object than he did in the Mark Robinson and Michael Flynn case. He says that Fitzpatrick did not check her sources in the way that a responsible journalist would.

Speaker 2:
[27:15] Yeah, I strongly suspect that that is not true. How could he possibly know it five minutes after the story was published? But more to the point, Fitzpatrick is a very good reporter, and she knew that Patel was going to sue her for this publication. She absolutely knew it. He's already suing Frank Figliuzzi, who's a former FBI official and current MSNOW commentator, for saying the same things with less specificity. I mean, I think Figliuzzi made an off-the-cuff comment about Patel being seen more at the club than in the FBI headquarters in the Hoover building. But Figliuzzi got sued, to which Binnall points to that as evidence that the allegations could not be true, which clearly isn't. But it's certainly evidence that The Atlantic and the reporter were on notice that they ran a high risk of getting sued, and they better dot all their eyes and cross their T's. And look, there's a lot of conclusory allegations in this report, like the complaint states as fact that Fitzpatrick didn't check with these clubs, the Poodle Room in Las Vegas or Ned's in DC, before reporting that Patel is occasionally or often drunk there. That seems, first of all, how would they know? And second of all, that seems completely unlikely in light of all of the above.

Speaker 1:
[28:30] Yeah, I suspect that is right. The lawsuit also says that Fitzpatrick had reason to know that her sources were lying to her since they didn't want to speak on the record, which that's an inference. Binnall also points to all of his own denials as evidence that Fitzpatrick knew that the story was false and published it anyway in order to smear Kash Patel, which that does not work. I mean, it is what defamation plaintiffs always allege such that it is called mere denial in the voluminous amounts of case law, and it could not be more clear that that is not evidence of actual malice, and there is precedent directly on point in the DC Circuit. Yeah.

Speaker 2:
[29:17] Did we mention that Patel filed this case in DC? His choices were Nevada, where he lives and which has a very robust anti-SLAPP statute, and, by the way, the Ninth Circuit applies state anti-SLAPP law, so that would pertain, right? If he sued in Nevada and was in federal court, it wouldn't matter because he would still risk that fee-shifting, which is what anti-SLAPP laws do, or his other choice was to sue in DC where the Atlantic is domiciled. The DC Circuit does not apply DC's anti-SLAPP law?

Speaker 1:
[29:47] Yeah, and that's because when you're in federal court on diversity jurisdiction, the federal court applies the substantive law of the state in which it sits, but the procedural law under the federal rules of procedure. The Ninth Circuit has ruled that state anti-SLAPP laws are substantive law. The DC Circuit has said that DC's anti-SLAPP law is a procedural law, so it does not apply. That's a really interesting question, and maybe we'll ride the trail on it someday.

Speaker 2:
[30:12] Yeah, but for today, we just need to know that Binnall actually made a smart choice not filing in Nevada because that would have been worse, although it perhaps was made for him because maybe nobody in his office is barred in Nevada, and he said he was going to file as soon as the courthouse opened on Monday so he didn't have time to find local counsel, but whatever. Like more or less every other jurisdiction, the DC Circuit has long said telling a reporter, no, that is not true, does not prove that the reporter had actual malice if she goes ahead and publishes it anyway. So spending a third of this complaint saying, everyone told you it was false is interesting but not relevant. Like as he is saying, you, Sarah Fitzpatrick, were reckless because you did not interview Patel first. That does not establish actual malice in any court.

Speaker 1:
[30:59] And right before we went to record, we saw which judge in the US District Court for DC to this case got assigned to Liz, you have thoughts?

Speaker 2:
[31:09] Okay. So it's Judge Emmett Sullivan. And it's really funny that it's Judge Emmett Sullivan because I feel like this episode, like all episodes all the time were constantly like circling back, circling back, circling back to Trump's first term. But Emmett Sullivan presided over the prosecution of Michael Flynn in the first Trump administration, and Michael Flynn withdrew his guilty plea. He pled guilty twice in open court under oath. But then he hired Sidney Powell and he withdrew his guilty plea. And this pissed off Emmett Sullivan a lot. Sidney Powell anticipated that Judge Sullivan was going to be really receptive to this because Judge Sullivan had thrown out a previous prosecution of Alaska Senator Ted Stevens because of government failure to disclose evidence. But there was no such failure to disclose evidence in this case. There was no skullduggery. In any event, Sidney Powell then turned around, got Bill Barr to drop the case against Mike Flynn and that really, really, really made Judge Sullivan angry. And Sidney Powell, how does this relate besides the fact that Jesse Binnall now represents Mike Flynn? You ask him, Jesse Binnall worked with Sidney Powell, not on this case, but on some of the other Stop the Steal litigation. So I don't think this is going to go great. And Judge Sullivan, by the way, he's an old bull. He's not one of the Republican old bulls, but he's been there a long time. He does not have time for bullshit. This is going to be amazing. I'm so excited for this. I am so excited for you, Jesse Binnall. You're going to have an amazing summer. Big muzzle, all love from the Law and Chaos podcast family. Okay, we're going to take a quick break unless you are a subscriber at patreon.com/law and chaos pod or lawandchaospod.com, in which case we're going to talk about Alan Dershowitz's effort to overturn the New York Times v. Sullivan Actual Malice Standard at the Supreme Court. It's a... He's outdone himself. Outdone himself. For everyone else, we will be right back. And we're back. On Saturday, April 18th, New York Times reporters, Jody Cantor and Adam Liptak published a bombshell story titled The Shadow Papers, The Inside Story of Five Days that Remade the Supreme Court. We're gonna link to it in the show notes, along with 16 pages of secret internal memos that were leaked to the Times. This is a really huge story. It shows exactly what happened behind the scenes in 2016 when the Supreme Court blocked one of Obama's signature policies, which was an administrative rule that would have regulated carbon dioxide emissions at power plants. That case is West Virginia VEPA, and it was one of the first uses of the Shadow Docket to foreclose executive action before the case could proceed through the normal appeals process. And the court did it with basically no explanation and no record.

Speaker 1:
[34:20] Yeah. I think there are really two points here that deserve their own discussion. The first is that behind the scenes, Chief Justice John Roberts made this explicit overt appeal to the political outcome that he wanted, and that he assumed that the other right-wing justices on the courts wanted, even as he was publicly decrying that anyone would dare to challenge the integrity of the judiciary. And okay, that's a dog bites man kind of story. The second point is what I think makes this a bombshell. The title of the article, The Five Days That Remade the Supreme Court, that's not hyperbole, right? Those memos show unfolding in real time how Chief Justice John Roberts created the modern shadow docket, how he steamrollered his fellow justices to turn what was then unprecedented relief into commonplace relief.

Speaker 2:
[35:11] Yeah, so since Roberts was first nominated to the Supreme Court back in 2005, he has tried to make himself out to be this kind of apolitical middle of the road figure, right? I mean, he positions himself to the left of Sam Alito and Clarence Thomas, who are basically openly MAGA. But Roberts is invested in the institutional credibility of the Supreme Court, because it's his name that's going to be attached to the history books as like the Roberts Court or that time when the Supreme Court lost its goddamn mind. So he spends a lot of time trying to perform this dance of neutrality. In fact, here's the most famous moment from his confirmation hearing.

Speaker 3:
[35:52] I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Speaker 1:
[36:13] Okay. So, yes, on some level, we all knew at the time that that answer was bullshit. But Liz, you're right that Roberts has piously insisted that no, no, no, he really meant it, he still means it, right? And that balls and strikes comment came back into prominence in Trump's first term in 2018. So here's what happened. Trump issued one of his now typical stupid illegal executive orders. This one was about asylum rules. It got blocked by US District Court Judge for the Northern District of California, John Tygar. And Trump went on social media and whined, I'm going to put in a major complaint because you cannot win if you're us, a case in the Ninth Circuit. I think that's a disgrace. This was an Obama judge. And I'll tell you what, it's not going to happen like this anymore. Wow, does that last sentence hit a lot more ominously now.

Speaker 2:
[37:03] Right. So Chief Justice Roberts insisted that we do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should be thankful for. Balls and strikes. To which Trump responded, sorry Chief Justice John Roberts, but you do indeed have Obama judges and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the Ninth Circuit was indeed an independent judiciary. But if it is, why? And then dot, dot, dot, because he wandered off for coffee time, never finished, who cares? Whatever.

Speaker 1:
[37:38] Yeah. So the first point is not just that John Roberts is a hypocrite. I mean, he is. But the point is that John Roberts has tied the supposed political independence of the judiciary, and the Supreme Court in particular, to its legitimacy, right? Like he tells us, we're supposed to have confidence in the rulings that judges make, even when we don't like the outcome, because we trust the process. And that means by implication that if the converse is true, if the Supreme Court is not politically independent, then it is not a legitimate institution. Its decisions do not deserve our respect, and there is no reason that we should be timid about enacting political reforms to try and fix it.

Speaker 2:
[38:19] And Chief Justice Roberts really makes that his moniker, right? He is constantly putting forward this, we are legitimate because we are apolitical. So you can take his end of the year reports on the judiciary. Here he is in 2019, when he was still like getting balls and strikes treatment from places like CNN and the New York Times. I think that the second Trump administration has put paid to that. But here's what he said in 2019. I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevitable. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity and dispatch. As the New Year begins and we turn to the tasks before us, we should each resolve to do our best to maintain the public's trust that we are faithfully discharging our solemn obligation to equal justice under the law.

Speaker 1:
[39:14] Right. And as you point out, Liz, by 2024, that public trust was gone, right? And so Roberts took a rather sharper tone in the 2024 end of your report criticizing those of us, and that includes you and me, Liz, for unfairly criticizing the judiciary. Here's what he said. Unfortunately, not all actors engage in informed criticism or anything remotely resembling it. Disappointed litigants rage at judicial decisions on the internet, urging readers to send a message to the judge. They falsely claim that the judge had it in for them because of the judge's race, gender, or ethnicity, or the political party of the president who appointed the judge.

Speaker 2:
[39:59] Yeah. He was talking about Judge Aileen Cannon there, right? I mean, he doesn't name her, but that's what he was mad about. That people were saying, you know, Judge Cannon is a hack and her ruling is in the Stolen Documents case are political and not legal. And, you know, so many people moved that for her impeachment or wrote letters complaining about her to the 11th Circuit. That, you know, it was terrible. And how could we treat a sitting federal judge as if she was a political actor? He said, public officials to regrettably have engaged in recent attempts to intimidate judges, intimidate them yet. For example, suggesting political bias in the judge's adverse rulings without a credible basis for such allegations. Within the past year, we have also seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment.

Speaker 1:
[40:46] A lot there. So, to be clear, Aileen Cannon absolutely 100% should be impeached. We said that I went looking for the Democratic elected official, and I'm sure there might have been a, you know, city council member somewhere. I mean, a lot of people were mad about it.

Speaker 2:
[41:04] I care if it was Adam Schiff. I do not give a shit.

Speaker 1:
[41:07] Neither do I. But to be clear, no national Democratic elected official called for her impeachment. Unlike, say, Texas Senator Ted Cruz, who just a few months ago convened a Senate judiciary hearing called Impeachment Holding Rogue Judges Accountable to demand that his colleagues impeach Judge James Boasberg in DC. In fact, the Department of Justice has a task force to pick out judges it wants to impeach, or at least to put on blast so that they can come in for major harassment by Trump's mega minions. But okay, those are the stakes. Chief Justice John Roberts insists that the judiciary is an impartial arbitrator and that suggesting political bias without a credible basis is not just unfair, but as you imply, he said, on a par with encouraging violence against judges, right? So now let's talk about those leaked memos which suggest overt political bias.

Speaker 2:
[42:00] Right. So the memos show John Roberts scrambling to block EPA rules on carbon emissions that were enacted by President Obama in 2015. Colloquially, this was known as the Clean Power Plan, and it was a significant aspect of Obama's second term agenda. The EPA set state-by-state targets for reducing carbon dioxide emissions from existing power plants, and each state was then free to develop the best system of emission reduction, or BSER, as it saw fit. So carbon sequestration, more efficient scrubbers, cap and trade, they had a lot of flexibility. And ultimately, the EPA estimated that the plan would have reduced CO2 emissions nationwide by one-third by 2030. And because that was a big lift, the Obama plan gave states seven years to develop these best processes. There were no hard targets until 2022. And so as long as the state hit the target numbers, it was free to do whatever it wanted, do it however it wanted to get there. Right.

Speaker 1:
[42:58] And that is an important segue to what makes these memoranda so damning. Because, okay, maybe we shouldn't be that surprised that eventually a conservative court would rule against a major progressive initiative. Right, like in 2016, the Supreme Court had four liberal justices for very conservative justices and right-leaning Anthony Kennedy in the middle. But what makes these memos such a bombshell is that they show John Roberts mobilizing his right-wing colleagues not just to vote a certain way on the merits, for openly political reasons, but to enjoin that clean action plan right now before any ruling from the DC. Circuit. And before 2016, the Supreme Court just did not do that.

Speaker 2:
[43:40] Yeah, a couple of months ago, Steve Vladeck, the legal commentator, called this case, West Virginia v. EPA, the birth of the Shadow Docket. And that was before these memos leaked. Vladeck was just describing objectively that before 2016, the Supreme Court never issued this sort of emergency relief. The Shadow Docket, the emergency docket was for actual emergencies, like executions. So while legal analysts might have thought that a right-leaning court was more likely to rule against the EPA, eventually, we would not, ten years ago, have expected it to block the policy from going into effect at all without allowing the case to make its way through the trial court and the circuit court in normal process.

Speaker 1:
[44:22] Yeah. Well, we were wrong. So let's talk about what happened here that changed everything. After the EPA released that plan, a consortium of 27 states led by West Virginia plus industry groups that were representing coal plants filed a lawsuit seeking an immediate injunction. They lost at the trial court. They lost on that request at the DC circuit. So then the plaintiffs petitioned the Supreme Court to reverse the DC circuit, stay the plan from going into effect at all, which as you've said, Liz, is something the Supreme Court had never done before. So the first memo that we got to see was Chief Justice Roberts writing to his colleagues to convince them that they should do that anyway. And the remarkable thing about this opening salvo is just how nakedly political and appealative. And Roberts says, you know, we don't stay this rule, states are going to have to build solar power plants and we can't have that. And lest you think I'm being facetious, let me quote from Chief Justice Roberts himself. He says, it is possible that this court will not rule on the merits until 2017. Though the rule does not require emissions reductions until 2022, its impact is being felt now. The EPA's own models show that the rule will cause immediate shifts in power generation as the industry must make changes to business plans today to meet the 2022 requirements. The agency's models show that the impact of the rule will reduce coal production for power sector use by 2% in 2016 and 2017 and 4.3% in 2018. That harm once incurred is irreversible. Solar plants are not built in a day. End actual quote.

Speaker 2:
[46:02] Yeah. I worry that for non-lawyers, the judge speak kind of hides just how clearly this is an attack on the process of the court. Remember that the Clean Power Plan was this administrative rule enacted by the EPA. Not a law passed by Congress, which means that if the coal industry wanted to stop it, the thing that they would most likely do would be to vote for a Republican president, to lobby, to donate to Republican presidents, since that's a thing that we do now thanks to Citizens United. A Republican president would then undo this requirement with the stroke of a pen, which is of course what happened. Trump went in 2016, one of the first things he did was to order the EPA to repeal the Clean Power Rule. Fine, that's normal political process. What makes these memos remarkable is that Roberts was saying, we're not going to wait for the political process and risk maybe that people will vote for Hillary Clinton. They'll have to unwind it through our own court initiatives. We need to stop this right now before crazy leftists burn down the coal industry.

Speaker 1:
[47:00] Again, you are not exaggerating. The first person to write back to Roberts' memorandum is Justice Stephen Breyer. He responds the same day. Now, Justice Breyer was 78 at the time. He'd been on the Supreme Court for over 20 years. He'd been on the First Circuit for 15 years before that. So, he knows the political realities of being on the Court. He can do the math. He senses that this increasingly right-wing, increasingly political Court is probably going to strike down the Clean Power Plan. Then he reads Roberts' memo and says, I infer, holy shit, this guy wants us to enter or stay right now. That's not what we do here. And we will break down how he decided to respond to that after our last ad break.

Speaker 2:
[48:01] And we're back. So Justice Breyer, sensing that the Chief Justice was trying to change the rules in the middle of the game, offered up a compromise. He said, look, the Clean Power Plan does not require anybody to do anything until 2022, and the plan lets the states apply for a two-year postponement. So there is no imminent harm here. Breyer says, let's deny this stay, but put in a qualification that says if any state applies for a postponement and doesn't get it, they can come back to us and we will reconsider our decision not to take the case if that happens. But right now, nobody's suffering any harm, let alone irreparable harm, which is the standard first day. So let's not do this crazy drastic thing that would change the rules forever in perpetuity.

Speaker 1:
[48:44] Yeah. I think Breyer was really sounding the alarm back then about the danger of letting Chief Justice Roberts abuse the shadow docket in the way that he did and has continued to do so. So Breyer knows that he is appealing. His memo is directed to one person, right? That is Justice Anthony Kennedy, the swing vote. So here really try to persuade Justice Kennedy to vote for the Clean Power Plan. Instead, here's what he says. First, it is unusual for this court to issue a stay of an agency's order during the time that the Court of Appeals is considering its lawfulness. Second, issuance of the order may prematurely suggest a view on the merit of questions that now seem difficult. We do not yet have the DC. Circuit's Court of Appeals view of the matter. That is a very modest ask, right? And I think Justice Breyer anticipated that that would put the nascent shadow docket to rest.

Speaker 2:
[49:42] It did not. Chief Justice Roberts wrote back the next day to answer Justice Breyer's points, and he said, as to the first point, I recognize that the posture of this stay request is not typical, but review is sought of what has been described as the most expensive regulation ever imposed on the power sector. And that's just Chief Justice Roberts saying, this would be really bad for the coal industry and I don't like it, right? And what he cites as proof is a Washington Post article and an interview the EPA Administrator gave to the BBC in which she suggested that this kind of this long run way would future proof this plan for during any future Republican administration, which is what you think the EPA Administrator is going to say. And it's pretty funny considering how Roberts has steadfastly refused to consider anything that Donald Trump said out of court as evidence, but this way madness lies. Anyway, Roberts uses this quote from the interview to say that the plan would become functionally irreversible if the Supreme Court didn't act right away. And he says, I am of the mind that a rule designed to transform a substantial swath of the nation's economy should be tested by this court before it is presented as a fait accompli.

Speaker 1:
[50:55] Okay, so that's bad. But Roberts' answer to Justice Breyer's second point is worse, right? So Breyer essentially said, how can we be so sure of the merits, right, that we know which way the court is going to rule without an administrative record? We don't have that yet, without a decision on the merits from the DC Circuit. Let's just wait, give it time. That's what we do. And here's how Roberts answers that objection. He says, true, we do not have the Court of Appeals view on the matter. But while a reasoned decision from a Court of Appeals is generally helpful in evaluating the merits of a stay application, the merits of the legal positions taken by both sides seem clear. In my view, it is highly doubtful that this court will bless the EPA's expansive definition of the phrase, system of emission reduction. And I mean, that really presaged where we are today, right? That is Chief Justice Roberts saying, come on, you know how we're going to rule on it. Who gives a shit what these lower courts have to say anyway? I mean, Brett Kavanaugh was so impressed with that, that he has now said that in print in a concurrence.

Speaker 2:
[51:58] Yeah. So Robert's response prompted this fourth memo from Justice Kagan. And this one reads to me as her being a little bit blindsided, right? I think Breyer realized that Chief Justice Roberts was shifting power because they had the power, that he was changing the rules. Kagan says, the unique nature of the relief sought in these applications gives me pause. The applicants ask us to enjoin a regulation pending initial review in the Court of Appeals. As we often say, we are a court of review, not a first view. And that quotation shows up in a lot of her dissents. She continues by saying, as far as I can tell, it would be unprecedented for us to second guess the DC. Circuit's decision that a stay is not warranted without the benefit of full briefing or a prior judicial decision.

Speaker 1:
[52:41] Yeah, and I read that without the benefit of full briefing caveat in there as a further retreat, right? Like I think this is Justice Kagan saying, Dear God, you are not going to take Justice Breyer's eminently reasonable compromise. Okay, how about what we do instead is grant certiorari before judgment and issue an expedited briefing schedule, right? That would be rare and stupid and nakedly political and bad. But at least then we would get that full briefing, right? We wouldn't just take this up and make a decision right now with no record, nothing whatsoever. And so as part of that inducement, Justice Kagan suggests to Roberts that, you know, you won't have to lie about the law either, right? Because the Supreme Court can grant certiorari before judgment just in its discretion, but in order to stay agency action, in order to grant to stay here, there has to be some form of irreparable injury. And she says the notion that there's any irreparable harm is, this is her word, implausible. Okay, so that's Justice Kagan. She offers a further kind of potential retreat. It's followed by memoranda from Sotomayor, who's outraged, Alito, who's outraged in the other direction.

Speaker 2:
[53:51] Right.

Speaker 1:
[53:51] Yeah. And then everyone who wants to weigh in has now weighed in. Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas. They don't say anything, or at least we don't have any memos from them. So it's up to the decisive vote, Justice Anthony Kennedy. And he writes a one paragraph long response and says, the memoranda from the conference have been very helpful. In my view, a stay would be granted in four to six months in any event, and fairness to the parties counsels that we should grant it now.

Speaker 2:
[54:24] Right. And by fairness to the parties, Kennedy means fairness to the red states and the coal industry that does not want to regulate carbon emissions. And that's why these memos remade the Supreme Court, because he said, we all know how this is going to turn out, and making the litigants wait to have to have their claims wade through this process. Like he said basically, no, no, I agree. We should just be the court of first review functionally on these cases. And that really is how we got here in so many ways. What we talk about on this show every week are lawsuits filed by litigants who want the Trump administration to not break the law. And in the normal course of events, before all of this shit went down, the litigants would get their favorable decision, almost always favorable decision from the trial court, and that would bind the Trump administration, and the Trump administration would have to move through the appeals court, and there would be a whole deliberative review. And what happened for the first time in West Virginia versus EPA was that Justice Roberts said, look, we know how we're going to do this, and so we're just going to short-circuit all of that and take these cases because we're the ones in charge, and now we conservatives have the power. And that has become so totally routine now that it happened 16 times in the first year that Trump was back in office, that they have now said the president not being able to do something that he wants, even if that thing is illegal, is an harm, an irreparable harm. It is an irreparable harm to restrain the president no matter what happens. That is why USAID does not exist anymore functionally as an institution. That is why a million people are dead because the Roberts Court said not allowing Trump to shut down USAID today because he wants to, even though Congress funded USAID and set it up with a mission, not allowing Trump to break the law is a harm and we're just going to reach down short-circuit this whole process, make sure that the Trump administration never has to dispense all of this money allocated by Congress and that's the new normal here. We have the power, there are six of us and there are three of you and we can make the law and that is exactly what they've done. And this article shows the origin of this was 10 years ago under Obama.

Speaker 1:
[56:49] And I want to add the previous four years, right? It is both a shield for Donald Trump and it was a sword that destroyed the entire Biden presidency, right? Every single time, President Biden promulgated major questions, which is the phrasing that came out of the written opinion in West Virginia versus EPA. The Supreme Court struck those down on the Shadow Dock, immediately enjoined all of those administrative agency actions from going into effect. That was the Student Loan Forgiveness Program, the new overtime rules, various COVID restrictions, including not just restrictions on gatherings, but also a rule preventing landlords from evicting people during COVID, rules prohibiting non-compete, you name it. If Biden did it, the Supreme Court blocked it. When people looked at in the 2024 election and said, I'm dissatisfied that President Biden hasn't accomplished what he set out to do. He didn't accomplish what he set out to do, largely because the Supreme Court used the shadow docket to block the things that he did do.

Speaker 2:
[57:55] And as a hilarious coda, conservative legal scholars are now proposing that Adam Liptak, one of the journalists who published these leaked memoranda, should be disbarred for reporting this as true. He's a member of the New York Bar and apparently he shouldn't be.

Speaker 1:
[58:13] Wow.

Speaker 2:
[58:13] Amazing. Okay. That is going to do it for us. I hope we got to do some fun stuff in addition to this hefty dose of outrage. We will have more for you on Thursday with written post on the blog and on Friday with another pod. Thank you guys so much. You know how to support us at patreon.com/law and chaos pod or lawandchaospod.com and by giving us a five-star review on your podcast platform of choice. Thanks guys. See you.

Speaker 1:
[58:41] Law and Chaos podcast is a production of Raise Up to Media LLC. It is intended solely as entertainment, does not constitute legal advice, and does not form an attorney-client relationship. This show is researched and written by Liz Dye and produced by Bryce Blankenegel. Law and Chaos podcast, copyright Raise Up to Media LLC, all rights reserved.