The Mifepristone Case Is an Insult to the Concept of Standing

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:52 Thomas: And welcome to Opening Arguments, this is episode 1018. I'm your host, Thomas Smith. That over there is Matt Cameron. How are you doing, Matt?

0:00:59 Matt: Thomas, I've got more good news than we can use today. I'm feeling it. Knew?

0:01:01 Thomas: Holy crap. Way.

0:01:04 Matt: Know. It's possible. There's still a lot of good news in the world.

0:01:05 Thomas: Wow. I've got some great news as well, because we just recorded our first Law'd Awful Movies together.

0:01:13 Matt: We ever?

0:01:14 Thomas: Law'd Awful Movies in the new era, and it is a fun one. It's kind of like a Law School awful movies, Law School awful movies, because Because we to, so when I put together some intro quotes, one of them was from a movie called Paper Chase, which I cannot believe I had never heard of. Like in the whole time of doing this show, because allegedly about the Harvard Law School experience in, you know, 1973 or whatever.

And so I was like, oh, now we have to do this as a lot of a movie. It's fantastic. And then was kind enough to join us and we got to hear, you accurate a depiction of law school it is and, you how know, accurate depiction of Harvard law might be versus, you guys's law school or other law schools that perhaps aren't as elitist. So it was a ton of fun. I am editing it now.

I'm 40 minutes edited in and there's still a lot to go. So, but I'm going to get it done. I don't know if I'll get it done before this, but I'll have it out tomorrow at the very latest because I'm really excited for people to hear it.

0:02:12 Matt: Gotta say, Thomas, I was worried that was gonna be a good movie. I actually had the impression it might be a good movie. Not a good movie. Really, just not.

0:02:19 Thomas: That who does that and also got off of movies over there on their show from time to time. I had that quote so many times. You know, I'm worried this is going to be a good movie, though, is the thing. And then no, it wasn't. It was extremely bad. Yeah. Can't wait for people to hear and be at patreon.com/law and Law'd Awful Movies is available at that second tier on Patreon, so make sure you uh join at that tier and you can get your hands on it. All right, well, uh, this short break that uh won't have to hear, let's get to all the good news that's fit to podcast, or whatever, so We're starting with good news because uh there also was the mifepristone case that I know a lot of people including myself want to hear about. Matt, I listened to oral arguments and it sounded insane, but let's not talk about, uh, things. Let's talk about the good news. What is it?

0:02:31 Matt: Yeah. Got it?

0:03:07 Matt: I'm including that in the good news. I actually think that argument went so well for anybody who cares about reproductive rights that I think that was good news. I wanted, you know, I was thinking about it. It's Friday. It's been a long month. Let's just do some good stuff. Let'S talk about things that are positive and fun and that, you KNOW, we can be happy about because they're out there. Now, they touch on all the stuff we usually talk about, and it just happens there's been A LOT of good news this week.

0:03:10 Thomas: Okay. Hmm.

0:03:27 Matt: So I wanted to start with some actual justice. It'S not often that you get to see actual justice anymore. And not in criminal proceedings, not in civil proceedings, but in disbarment proceedings for two lawyers who really have it coming.

0:03:37 Thomas: Saw this.

0:03:38 Matt: And great. And the spirit of the Ides of March, I want to tell you, I come not to praise John Eastman, but to bury him. Here we go. Talk about John Eastmin. We all know about John Westmin. I know that you certainly, we've been following him for a long time. But just to remind everybody, he is a longtime conservative activist lawyer. He's founding director of the Center for Constitutional Jurisprudence. Has been for a longtime affiliated with the Claremont Institute, conservative think tanks out there right now. It was actually one of the first institutions on the right to go full MAGA when Trump came up. And professor and dean at Chapman University School of Law, clerked for Clarence Thomas and was good friends with Joni Thomas. So, you know, great guy.

0:03:46 Thomas: Yeah.

0:04:12 Thomas: Who? Oh.

0:04:13 Matt: Joni, yeah, yeah.

0:04:13 Thomas: Ginny Thomas. I just said Joanie. I was like, geez, don't tell me there's another one of them.

0:04:17 Matt: Another Thomas, yeah? And of course, much worse than any of that, he was extremely involved in the 2020 coup plot and actually wrote a memo, a pretty chilling memo, and you really look at what he's doing, breaking down in just two pages how they could take over the government and very efficient. Got to give him credit.

0:04:29 Thomas: Just two pages. Wow. I bet his insurrection professor was relieved. Oh. I don't have to grade more than two pages, Single

0:04:37 Matt: It's true. Nice bullet points. Very straightforward. Scary in its own way.

0:04:40 Thomas: Space. Double space, what font? Oh, that's important, because that's going to determine the font. Is going to determin Matt's actual true feelings. They won't tell us about this because if it wasn't insurrection done in, uh, or whatever, I think you'd be okay with it. That's the, that's thing.

0:04:45 Matt: That's true that I something that looks a lot like an old century school book to me, but that's just a visual guess. I will post a link, because everybody should read this memo anyway. It's much more important than the content.

0:05:05 Matt: Eastman, just yesterday, a 126-page decision came down from the judge who was overseeing his disbarment trial. And when you have a really serious series of allegations in a disbarmer proceeding, it really does go to a full trial. And off from June to November before Judge Yvette Rowland. Witnesses, more than 400 pieces of evidence, and they went through in painstaking detail, very carefully, how Eastman and misled people, writing all these memos, arguing to Pence to throw out the votes, making false claims in court. This there were 11 counts before her of disbarment, of different things he could go down on. Got She to really lay out the record and make sure that is this ironclad because this is really important. And 10 of the 11 charges were sustained. The only one that she couldn't sustain was that he somehow incited violence on January 6th, which I think fair enough. He was very much a behind -the -scenes guy. He wasn't out there agitating in that way. I think he did speak at some point, but I don't think he was really inciting in the same way. But right.

0:05:56 Thomas: He wanted a peaceful not transfer of power, that's, you know, yeah.

0:06:01 Matt: Yeah, just a bloodless coup, the best kind. Yeah. For sure. Eastman, of course, has already raised $662,000 in 24 hours toward his defense, and he's working towards 750. this decision is not the official disbarment. We're very close. There's no way that this is not going to end a disbarament. But it's this judge who presided over the trial, the way it works is she refers it on to the California Supreme Court. But in the meantime, he is involuntarily disbarred. That's how serious they take this under the Business and Profession Code 6007, Part 4.

0:06:03 Thomas: Oh, Oh, He was California-based?

0:06:32 Matt: Yeah, he's Claremont.

0:06:32 Thomas: Oh, I didn't know that. Wow.

0:06:34 Matt: Yeah. He's very much a California law professor all that time. I don't know if he was practicing in California, but he's teaching there for most of his career. So the state bar court shall order the involuntary inactive enrollment of an attorney upon the filing of a recommendation of disbarment. So that's all it takes. These findings are, I obviously didn't read all 126 pages, but they looked very complete. She was very serious, really got to it. I can't see how the Supreme Court of California is going to find differently after she just went through this trial. He's promising to appeal it, of course, but this should be it. He should be done as a lawyer, which is very good way that another Trump term really works is if they have experienced counsel, is if they have people that can actually move them through these systems. And I know they've been training like mad to try to get new lawyers to rise up from the ranks, but you've got to have these people like him and Jeffrey Clark, the other lawyer I want to talk about.

0:06:34 Thomas: Oh.

0:07:22 Thomas: No, what if we have a new batch of listeners and it's people, they're like, we like this, Thomas takes the bar exam, don't agree with the politics, but, uh, you know, we got to learn how to be lawyers so we can take over the government, so you, you got to do what you got to do. Welcome, listeners.

0:07:34 Matt: If the other layer that I want to talk about is Jeffrey Clark, who this week they just got started on his disbarment hearing. Lot of it is focused around this letter that Clark put together. Now, Clark, just to remind everybody, was a DOJ official. He was in charge of the civil department, and he was very nearly Bill Barr's replacement. He was agitating to replace Barr after Barr stepped down. Fortunately, he did not do that.

But while he was at the head of the Civil Division after Barr step down, he put together this letterthat they were going to send to Georgia. And I will say, fortunately, that there were enough sane people left in the Department of Justice at that point that they didn't let him send it out. But It's pretty bad if they had sent this, because it's the official Department of Justice telling you that they're investigating irregularities in 2020 and that you should immediately call a special session to consider this important and urgent matter of the legislature. Legislature. If he declines to do so, we share with you our review that the Georgia General Assembly has implied authority under the Constitution of the United States to call itself into special session for the limited purpose of considering issues pertaining to the appointment of presidential electors. So this is about as direct as it gets, using the power of the government to try to illegally get new presidential electories appointed. This is bad. I don't think it got enough attention.

0:08:04 Thomas: Yeah, that's right. Oh, wow.

0:08:41 Thomas: Like a miracle that they didn't do this. Don't know why. Why they

0:08:44 Matt: Well, there were enough people in DOJ at at that point that could tell him no.

0:08:48 Thomas: Disconnected the printer, and then he was like, oh, it's Windows. It's just so hard to print stuff, like, yeah. Oh, no, it is. Working for me, try again, yeah.

0:08:55 Matt: Yeah, totally. Like there were enough people around him that just refused, that would not participate in this. Richard Donahue sounds like one of the heroes of the story, actually. Again, that was Trump 2016 to 2020. Trump 2024 to 2029, who knows? Who knows what kind of jackals he can get into this administration. Not going to get Jeffrey Clark because Jeffrey Clark is almost is certainly going to be disbarred based on what I'm seeing from this hearing this week. Jeffrey Clark's main defense so far has been, well, you weren't supposed to read that letter.

0:09:00 Thomas: Yep.

0:09:23 Matt: It wasn't supposed to be public. It's pretty bad if that's your best defense.

0:09:24 Thomas: Was Yeah, like under, like, a deliberation privilege or something, was that the, so

0:09:32 Matt: D n't actually know how it was leaked, but I assume him. Somebody, some conscientious person in the department actually leaked it. Lawyer suggested that if he testifies, he'll be embarrassed on MSNBC, and nobody wants that, so he's not going to testify. He's already invoked the Fifth. Says that he gets not only Fifth Amendment privileges, but attorney -client, law enforcement, and executive privilege, a veritable phalanx of privileges, Clark added wryly as the exercise wore on. I don't think that's funny.

0:09:53 Thomas: That's interesting. Maybe to talk about, it seems weird to plead the fifth in a disbarment proceeding. Okay.

0:09:59 Matt: Says something, doesn't it? Well, he's also charged with crimes in Georgia right now, so there might might be things that could go to that.

0:10:03 Thomas: I See, right.

0:10:04 Matt: Did some things that I think should be considered criminal from what I understand about his conduct. So he part of the plot and he was at a pretty high level.

0:10:11 Thomas: But like, you, that, complete the fifth even though you're not, like, be found guilty of a crime potentially, like, pretend he wasn't, pretend it was just disbarment, you can still plead the fifth, or not, you know, not testify because of that, even though it's, there's no risk that you're gonna be put in jail or anything.

0:10:21 Matt: Yeah, in civil proceedings, you can do that. There's always a risk though. If you go on the record and on the stand and admit to something, prosecutors can use that against you later. It does happen a lot in bar proceedings meetings, because unfortunately, there are lawyers who are thieves. And you can't ask them directly how much money you stole, because he's implicated immediately.

0:10:29 Thomas: Oh, yeah. That's a good point, right. Yeah. Well, Famously, that's the only thing that gets you disbarred? I've done this, I'd rant too many times to bother doing it again, this was, I saw this news and I retweeted, and I was like, holy crap, you can get disbarred? I actually didn't know, even knew how to do that. Because the lawyers that have come out of this Trump thing have tried to take over the government, and it's only now that a couple of them are going to be maybe disbared. I guess you're telling me it's pretty certain on both of them or?

0:10:56 Matt: Yeah. Yeah, looks good to me. And trying to overthrow the government is up there. I think it should be up there, if anything. Oh, and I'll remind you, of course, that Giuliani was suspended, and he's facing disbarment. He's on his way. So he got some consequences there, too. I can't complain. Yeah, poor Eastman. On his GoFundMe page, he complained that they're doing this to me on Holy Week, no less. I don't know what that has to do with it, but he's being crucified, obviously. Here we are.

0:11:10 Thomas: Okay. Yeah.

0:11:31 Thomas: Yeah, that's a big week for lawyers. Holy week. Week. These nutjobs. Wow.

0:11:38 Matt: May he never rise again. End. Yeah. That's good news. Number one are these two disbarment proceedings that look like they're going somewhere because we need these people out of government. We need them out of public life. We needs them out practicing law and there need to be consequences.

0:11:47 Thomas: Yeah. I wonder if they would ever argue like, well, man, I can still do like divorces or something, right? Like, sure. I tried to take over the government and then, okay, that's on me. Like that was some bad law stuff, but you know, I could do, Do Wills, you know? Like come on.

0:12:02 Matt: Traffic tickets, come on, anything? No, he's out. More lawyering. Sure though, there's still going to be some idiot that will pay him to be a law professor somewhere. I mean, especially especially because he's a martyr now. I haven't been martyred in a whole week. But at you won't be able to advise clients. So that's worth something. Go on to more good news in New York. Proceedings of Donald Trump, there's been some good things that have come out of that.

0:12:03 Thomas: Yeah, they Has there? I've been worried because it's seen headlines that are like, well, Trump, they're letting him not do the money. He needed to come up with $11 gajillion, and now they're like, all right, fine, $50 gajillions. No, I know if that's less or more, but it was like half the amount. And that seemed like bad news. Not bad news, or are you talking about something different?

0:12:44 Matt: Was going to mention the bond reduction. I think that's kind of neutral news, honestly, because I just feel like that was what was going to happen. You're talking about the appellate division of New York, which is one of the busiest appellate courts in the country, and it's overseeing massive major corporate interests. And I think that they really were reluctant to let such a venerable and well -respected company fall apart, which is very likely would have happened at the Trump Organization. I do want to mention that order, though, because there's stuff in there that I didn't hear mentioned. And I did want to make sure that people know exactly what's in the order. Wasn't just the money. So as you know, there's a $464 million judgment with increasing interest every day. That was cut down to 175. Again, not the actual judgment. The judgment's fine. That's not going anywhere.

0:13:07 Thomas: Yeah. Oh, I was gonna clarify. So this was just the bond that he has to put up in order to appeal, right? It's one of the times where it feels like the system actually hasn't sucked. Like think a lot of people have been worried, oh, are you actually gonna ever get that money? And it seems like the legal system in some instances or maybe in some states or places is like, well, we're not gonna let you just appeal appeal that indefinitely and the person never gets their money because of how long stuff takes, you're going to have to put up the bond. And I think it would, would it still be earning interest for the victim or like if it was like Eugene Carroll, for example.

0:13:25 Matt: Right. Yeah.

0:13:55 Matt: Yeah." And it's somebody like that who you have a massive financial advantage over, they really want to move that along, and they do not want you to drag out the time it takes to pair off. This again, million, I'm led It's not $464 million, but this is just the bond he had to put up. As you said, the judgment itself still stands and the interest continues to run. But there were a number of other things. And again, I'm not saying this is great news. We have much other good news to talk about, but the rest of the order was also stayed.

And I just want to mention that because it essentially saves the company for the moment, because N 'Goran not only ordered that money, but permanently barred Weisselberg and McConaughey from serving in any financial control of any New York corporation, including the Trumps, obviously. It barred Trump, Weisselberg and McConaughey serving as any officer or director of any new York corporation for three years. So that pretty much does in their interests. Barbed Trump and the corporate defendants from applying for loans from New York financial institutions for three years. That's a huge blow, obviously. And barring, most importantly, Donald Trump Jr. and Eric Trump from serving as an officer or director of any New York corporation. So the kids would have been cut out. We can't have that. We've

0:14:04 Thomas: Yeah. Hmm. Yeah,

0:15:00 Matt: Got to have their little jobs.

0:15:01 Thomas: They're not even allowed to have one of those. I love New York mugs anymore. They can't do it. Not allowed.

0:15:05 Matt: Said, out of New York. So everything stays, status quo. But this is one of those things where, I mean, honestly, I don't give a shit. I know that nobody else listening to this probably cares if Donald Trump succeeds or or not. You know, he does have a lot of holdings and a lot of companies. And I think that the appeals court just recognized, I don't agree with this, but they're protecting the interest of capital. They're protecting the interest of these corporations.

0:15:27 Matt: And if there's any chance at all that this judgment is reversed, then, you're talking about bankrupting a lot Of the company, just

0:15:27 Thomas: Yeah yeah I got the principle of if you appeal you then Then it stays stuff in general. It seem to you to be like normal that they reduce the bond? That Is just a judgment call? Why you think that happens?

0:15:44 Matt: Trying to make it feasible that he could actually pay because he came to them and pled poverty and said, I can't do this. I'm gonna have to sell off these buildings and, you change the way we do business. And, I mean, I'm not defending it in the the least, obviously. I mean, I think that, but I guess at this point, I'm very cynical about courts and the system, as you know, in many ways. And this is what they're for. This is why they're there, is to protect the interests of capital and protect major corporations and make sure things stay the way they are. And it doesn't mean that they necessarily like Trump any better than any other company, I don't think. But I'm not even sure it means they think that he has a chance of winning. I think it just means they want to maintain the status quo and let this go.

0:16:04 Thomas: Yeah.

0:16:19 Thomas: Yeah. And that's the thing. I mean, the appeal, who knows how long it could take, but that could just fail. And then he's got to come up with it anyway. Right. It's not like it reduced the judgment.

0:16:20 Matt: Yeah. Not at all.

0:16:28 Thomas: All right. Well, neutral. With you on the neutral news. Okay.

0:16:28 Matt: It's all still there. Yeah. I'm trying to stay positive here because we've got lots of good news to get through.

0:16:34 Thomas: And you know what? In this era adjusted for news deflation, that's good news. Neutral news is actually good news No news is good news

0:16:39 Matt: Yeah, let's take it. That's fine. But we don't have that option. The news hose is slamming us right in the face every day, just drinking from the news hose.

0:16:47 Thomas: Yeah. All right. Well, I'm glad we got that breakdown though. Thank you.

0:16:57 Matt: Let's talk about some actual good news. First of all, in New York, we have a trial date, like an actual trial date that will not change. Judge Marchand was extremely clear. This is happening on April 15th. That's not too far from now. Going to be good times. Happy birthday.

0:17:09 Thomas: That's Arlo's birthday. I wonder if it's for him. I'm going to go tell him. Hey buddy, buddy. Got you something.

0:17:13 Matt: Yeah, no, that's it.

0:17:16 Thomas: I I, if did I forget to buy him a gift between now and then I can tell him, Hey, got your trial date. I know that's what you wanted. It's it's not star Wars Legos. I agree, but it's the next best thing. Trust me. All the other five -year -olds are going to be so of you.

0:17:23 Matt: Got a big, big, box of the rule of law. Enjoy.

0:17:32 Thomas: And you think this will happen this

0:17:43 Matt: Misconduct, because the Southern District of New York, as we talked about before, turned over all these documents. We still don't really know why they were so late, and there doesn't seem to be an understanding of what happened there. But they turned over, I don't know, thousands and thousands of documents within the last few weeks. And so, of course, the Trump team, very reasonably, as I would be, asked for a delay, saying they have to look through these documents, and then they accused the Manhattan DA's office of prosecutorial misconduct for not, I guess, producing these federal documents earlier doesn't make any sense at all. And the judge called them on this. And they're just jumping up and down about this when it's, you know, and the judge said, can you give me a case, like give me any citation for the idea that somehow local authorities are responsible for obtaining evidence that the feds have, right? And of course he couldn't, there's no precedent for that. I'll just read what Marchand said, because I just, I like this guy.

If you don't have a case right now, that is really disconcerting, Marchand says, his voice rising. You are literally literally accusing the Manhattan district attorney's office of engaging in prosecutorial misconduct and trying to make me complicit in it. And he describes this whole thing as odd, and there's a pattern of misinterpretation of information. And he said, basically, I'm not listening to this. We're we're doingthis on April 15th. That's it. They kept saying we're going to file other motions. He's like, yep, nope, April 15, see you then. So that's what we'redoing.

0:18:12 Thomas: Was this The one I saw something about him saying, uh, now needs my permission to even file another bullshit thing. Like, I'm tired of This was that him. Wow.

0:18:59 Matt: Yeah, no, you've had your motions. We're setting these dates. That's what's happening. Happening. Then, just to really cap it off, he issued a pretty great gag order. So Donald Trump can't, well, I shouldn't say can't. He's going to, but there's a lot of stuff he can't talk about now. And of course, we know there was a gag order during the civil case that Angoran issued, and there's some interesting parallels here, but it's a pretty scathing order. It says very directly that, you all of this, the defendant's statements have been threatening, inflammatory, denigrating. The targets of his statements range from local and federal officials, court and court staff, prosecutors and staff assigned to the cases, and private individuals, including grand jurors, performing their civic duties.

0:19:03 Thomas: Yeah.

0:19:32 Thomas: And Windmills. For some reason, he's Really not Not As critical to the rule of law, but he's really going after those windmilles, and we think he should stop. Yeah.

0:19:34 Matt: Right. It's just, yeah. There's a lot to say about this. You know, I know you've been through some litigation yourself recently, and you might remember the part where the judge had to tell you not to talk about the family members of any staff on his, you,

0:19:41 Thomas: Yeah.

0:19:51 Thomas: Not To like go after his like family. No, I wasn't, I uh, didn't need to be told that. I couldn't even imagine thinking such a thing. Wow.

0:19:57 Matt: You you didn't get that order. All right. Well, good for for you.

0:19:59 Thomas: No, didn't. He didn't mean to, weirdly.

0:20:01 Matt: Really behaving yourself. Yeah. So he broke this down as an ABC in the order, but very clearly telling them, the Trump team and Trump himself, of course, who he can't talk about. It's counsel in the case other than district attorney, because he does have First Amendment rights to talk about the district attorney. Members of the court staff and the district attorney staff, or the family members of any counsel or staff member. Now, of coarse, the judge is not including himself, because I would if I were him, but I guess it just feels like he can't for whatever reason.

0:20:02 Thomas: Yeah. It's been difficult. Let me tell you.

0:20:30 Thomas: Yeah.

0:20:30 Matt: Jurors, of course, can't talk about jurors. So this is also not just Trump, but agents of Trump, people that Trump talks to, trying to do these things.

0:20:36 Thomas: Can talk about Bruno, though, which is weird. That's you don't have kids. I don't know if you get that.

0:20:39 Matt: I don't get that. I'm sorry. Sorry.

0:20:42 Thomas: OK, well, I'll leave it in for everybody else.

0:20:44 Matt: All right. The judge did not include his own family. So you know what happened within a few hours of that. Have to say that being the spokesman for the New York courts can't be that exciting. But Al Baker of the Newark courts has had had a lot to do these days.

0:20:53 Thomas: I Didn't Know they had spokespeople. Oh.

0:20:58 Matt: Yeah. Well, Al's out there. He's he's working pretty hard these days because in November he had to deny that Judge Angoran's wife had attacked Trump online. This is the civil judge, obviously, because Trump made this whole thing about and started yelling about Judge Angora's wife. It wasn't included in the gag order. Al Baker had to say, N. Gorin's wife has sent no social media posts regarding the former president. They are not hers. So somebody was making a fake account, presumably from the Trump team or some friend of Trump's, just making a vague thing. So this repeated itself, I it was the other day, and there were some posts that allegedly came from Judge Marchand's daughter that Al Baker had to get out back in public the other day and say, no, that did not happen. Marchant's daughter is not out there tweeting about Trump.

0:21:22 Thomas: Probably Yeah, yeah.

0:21:37 Matt: Mean, it's just, why exactly?

0:21:37 Thomas: Why Would she? It's Absurd. I didn't notice that until this time around, that there are these like fake account. He always has some bullshit fake account to point to, and it's, again, this is disturbing stuff, because his rabid followers just eat this up. It's just the most, most blatantly obvious lying, and it's putting people in danger. And it is really, what a weird thing that like single every time there's one of these gag orders, it's like, okay, so who's not on that list? Oh, the second nephew of the niece's roommate of the whatever. Okay, I guess they're now the ones who are the big conspirator in this. And then they've like blast their social media. Yeah. It's just like, what the, what a world.

0:21:56 Matt: Yeah. Yeah. Yeah.

0:22:17 Matt: No. But honestly, we all know this is how fascism works. They have to be victims somehow, right? One of the most powerful people in the world has to be a victim. And so he's going to have somebody... I mean, Al Baker came out and said at the New York courts directly that there was a manipulation of an account that his daughter, that the judge's daughter had abandoned years ago. And he had to come out and clarify this had nothing to do with her. She didn't do this. And it's scary that somebody out there, and I no doubt associated the Trump team, just making up these accounts so that they can tweet things about him so he can respond to them and get people worked up. And this is all part of the plan. Yep.

0:22:24 Thomas: Yeah.

0:22:46 Thomas: Crazy. Absolutely crazy. There's been so many people throughout this whole mess of whatever, gosh, eight years who all of a sudden overnight, night their jobs changed. You know, like this is some guy who is a spokesperson for the court who probably puts out like once a quarter, a memo that's like, Hey, make sure to join our zoom to be, it's nothing, probably a nothing job. No, maybe there's a big profile case or something, but yeah, yeah.

0:23:12 Matt: I'm guessing before this, he was probably just announcing snow closures, right? I mean, that's mostly what you have to do.

0:23:19 Thomas: Court's closed today. Yeah. And it's like all of a sudden it's It's like, I have to do, I have to go check the daughter of the judge's Snapchat to see if like, it's a different one. Wow. Okay. Yeah. That's my job now.

0:23:21 Matt: Basically, that's my life now. Yep, so keep at it, Al Baker. You're doing the good work. More good news out of Fulton County real quick. We We can't stay away from Fulton County, obviously. We've hit the New York part there, but I'm going to say this is good news because this is just more idiocy out of the Trump team and our favorite Trump lawyer, Steve Sadow.

0:23:37 Thomas: Yeah. No. Oh God.

0:23:50 Matt: So there was this motion everybody had forgotten about back in December to dismiss, applied, to dismiss the indictment on First Amendment grounds. So he's really going to the bottom of the barrel here to the First Amendment grants. I just wanted to point out just how stupid this motion is because I hadn't heard anybody talking about it. They just got around to arguing it, I think, yesterday. Yesterday as record this. And it's It's real bad. I just wanted to mention just how stupid it is very quickly, because it's essentially based on the idea that Donald Trump has the First Amendment right to lie his ass off anywhere he wants to, which is true.

We do absolutely have the First Amendment right to lie anytime you want to, but maybe not a great look to put an entire motion into the court about how much of a liar you are in public and how the case should be dismissed because you're relying on purpose. So this is kind of like we were talking about the other day about how, like, well, I'm just driving a car and I'm also drinking a handle of Jack. Those things aren't illegal, right? Very much like that.

0:24:19 Thomas: Okay.

0:24:40 Thomas: Yeah, I, you know, it does have some amount of like plausibility, like, oh, was he just, you know, exercising his First Amendment to spout bullshit. What is kind of the distinction? I mean, you mentioned this is so such a terrible argument that it's not, it's even worthy of consideration. It that like obviously what he did was was not just lie in some sort of public fashion, because he's not being charged for like the bullshit he said to us, really? I think he's being charged based on, you Know, we've done in depth on this, you Now, trying to get people to steal an election for him kind of behind the scenes.

0:25:05 Matt: No. And again, as we've talked about, just as part of a conspiracy, going around and talking to people can be a crime. It's an overt act toward getting that conspiracy done, a criminal conspiracy. And that's something that these people just don't seem to want to get through their heads. But I will just read in in one sentence, this is basically what the motion comes down to, every single alleged overt act listed in count charged against President Trump seeks to criminalize content -based core political speech and expressive conduct.

0:25:20 Thomas: Yeah.

0:25:38 Matt: Yep. Yep, good luck with that.

0:25:39 Thomas: Yeah. Content. Basically. So it's like if you went around and said, like, hey, should we, uh, should we murder that guy, should we murder this guy, okay, this guy's got a lot of money, what if we murdered him, took his money, oh, you're policing the content of my speech, if I had said let's not murder him, yeah, I wouldn't be in trouble. So it was a content problem, yeah, First Amendment, man.

0:26:02 Matt: Literally says that at one point, that you're not, well, you're telling people they can't say that the election was fine. He says that in here. So you're not even wrong. That's a great example. Yeah.

0:26:12 Thomas: Yeah, and that's funny because even if I called elected officials were like, hey, can you find me zero additional votes, we're like, yeah, that's still fine too. It's not even, it is the part, it is content -based like, actually, yeah, no, I I agree it is content - based if the content of your speech is crime, then yeah, if

0:26:31 Matt: But it's also viewpoint -based. And I'm going to read the sentence because I don't think listeners are going to believe me. I guess it does what he says. Criminalizing President Trump's speech and advocacy disputing the outcome of the election while speech endorsing the election's outcome is viewed as unimpeachable is thus blatant viewpoint discrimination.

0:26:34 Thomas: You point based Yeah.

0:26:51 Thomas: Oh, all the people who said they were gonna murder someone, I don't see you going, going after them. Double standard. Curious that sounds

0:26:56 Matt: Yep. Yep. We're there, handcuffs. Yep, yep, Yep. And then there's just the absolute cherry in the shit sundae here. The thing I love the most about this motion is the case they're relying on for most of the motion is a U.S. v. Alvarez from 2012, which I remember pretty well because I'm pretty into First Amendment litigation. So Alvarez actually was the case in which the Supreme Court struck down the Stolen Valor Act. Interesting case because you had a guy going around lying to people about his service. I think it was in Vietnam. And, you know, obviously that's a shitty thing to do. That's immoral.

0:27:11 Thomas: Familiar to me. Yeah, you Yeah.

0:27:25 Matt: Right. And you shouldn't be telling people. But the point was for the majority, court was that it's not a crime and you can't criminalize people lying about themselves and their backgrounds, right? It's pretty borderline to do that. And agree.

0:27:36 Thomas: Oh, Oh, okay. That's interesting because there are parts of that that are punishable, I'm sure. But like, I guess it's only if you try to use it to get some sort of, you know, benefits or something fraudulently.

0:27:37 Matt: Right.

0:27:46 Matt: Yeah. And I think he was telling people he'd gotten a Medal of Honor or something in his service. So, you know, it's kind of above the usual. But I just think it's great that the main case they're relying on is a case where this guy was defending his right to lie about his military service, like very reputable, you you know, upstanding man. They long excerpt from Alito's dissent in that case. Alito would not have struck down the Stolen Valor Act. "These contexts, even a false statement may be deemed to make a valuable contribution to public debate, since it brings about the clearer perception and livelier impression of truth produced by its collision" Collision with error. It's collision with error, I love that, it's great, like, yeah,

0:27:47 Thomas: Yeah, Yeah!

0:28:23 Thomas: So stupid. Stupid. God, it's so stupid. It's even dumber than the like sunlight is the best disinfectant. Like it's kind of that, oh, sunlight's the best infected, but it's even worse. Cause this argument is like, well, without all the lies, how will we even know what the truth is?

0:28:39 Matt: We need lies, they're a very important part of, yeah.

0:28:42 Thomas: Yeah. Otherwise you're just like, what's the truth? I can't even recognize it anymore. Cause I don't have lies to contrast it with.

0:28:48 Matt: It weren't like the actual president lying, where would we be, right? So, you know, it is very important, we got to protect his right to do that.

0:28:50 Thomas: Yeah. Alito is a very dumb man. I just want to say that he's a very dumb person.

0:28:57 Matt: That's what we're going to be talking about for quite a lot of the rest of the episode, so we'll get there, yeah? I think, let that was the extent of our Trump updates. So we can actually go on to talk about what an idiot Samuel Alito is.

0:29:07 Thomas: That's Matt. You've got it open, just free ticket. Anytime, anytime you want to do a whole episode of any amount of time, personally to personal phone calls of how dumb Alito is. I'm here for it because the more you learn about it, the more You learn, you know, that it's been part of this show is like learning more about the law. I don't think your average person has a grasp of just how frustratingly, you or bad I think it's more dumb. I think he's like, honestly, I think some of them I'll be willing to grant you your you know, your even your Clarence Thomas's is a little bit smart here and there. Your your other conservatives, your Gorsuch is, you know. I think Alito's just not smart. It really seems to be.

0:29:47 Matt: No, the phrase phrase dime story Scalia comes to mind. Just that is really what he is. He really wants to be a Scalia, but he just doesn't have the acuity. That's saying something. So yeah, the scholarship and rigor. Yeah.

0:29:56 Thomas: Yeah, he's got the terrible bad, outcomes part, but he doesn't have the good good arguments part down, I guess. Yeah yeah

0:30:07 Matt: Let's talk about Tuesday. Arguments that were held in the Supreme Court in one of the most, well, it's hard to rank these things anymore, but it is one of most ridiculous and fake cases I've seen in a while. And I know that every term we're just getting lots of ridiculous and fate cases, but this is particularly ridiculous and fake. And, I just want to assure people upfront that I don't see how they could possibly, even these people, and like you can tell from the way they're responding to this thing, I don't see how their going to find standing. I don t see that there's actually any injury whatsoever to the people who say they're injured. I do think this is going anywhere. I think that going to be safe, as it should be, as it actually literally is for people to take. So I think that works. Let's just talk for a second, just to catch up and make sure everybody understands what we're doing here. This point in this country, from what I saw, about 63% of abortions are done through pills. And these pills in particular, so it's mifepristone and misoprostol.

0:30:18 Thomas: Yeah.

0:31:01 Thomas: And the proportion went up a lot after Rofel, too.

0:31:05 Matt: Exactly. And thanks to places like Massachusetts, actually, where because the FDA authorized telemedicine and Massachusetts had shield laws that kept us safe here, kept doctors safe, we were able to prescribe to states where they couldn't get it. And 12,000 people living in 14 states with abortion bans have already been able to get access through the six states that do have shield laws, including mine. I'm very proud of that. So, you Mifepristone is

0:31:25 Thomas: I think the R is getting put in a weird place.

0:31:28 Matt: Oh yeah, you're right. Yeah. I'm not always so good with the medication pronunciation, but you're correct. I'm not a biologist. I am not, obviously, neither of we specialists in reproductive health, but it's pretty straightforward from what I can tell that the mifepristone interferes with progesterone and the misoprostol induces the contractions that are necessary to have a medical abortion. See that even, I think at some point one of the justices used the phrase "chemical abortion." That is not appropriate. It is a medical abortion through pills. So these are safe, 99% safe, safer than Tylenol, safer than Viagra. They're much safer than childbirth itself. So for what that's worth. Yeah. So 5 million people have taken these successfully since it was authorized and it it has only been authorized in the U.S. since 2000. It's been authorized around the world about 12 years before that. It was invented in France. I'm sure you remember this, too, growing up. We always heard about the French pill. It Was the Way They Talked About It.

0:32:01 Thomas: God, yeah.

0:32:19 Thomas: I don't remember that. Maybe I just missed that cutoff. I don't know.

0:32:23 Matt: Was a biochemist that came up with a safer, easier way because he was seeing issues with DIY pregnancy terminations not going well. Obviously, there was international backlash. There was just all all kinds of back and forth about this, but it was proven over and over again, more than a hundred studies. No question that this is a safe thing to take. And it's very helpful for a lot of people. The which is trying to stop things like this, has dozens of people and bombed 42 clinics and committed 200 acts of arson. You decide where the safety is, I guess. But is brought by, I'm to think of a polite for them, who

0:32:29 Thomas: Yeah. Yeah. Um. Yeah, some people who don't like that this exists and therefore that gives them standing, I think, is how really

0:32:59 Matt: Claim to be both doctors and dentists for some reason. There are dentists involved in this suit. They really don't like the idea that at some point somebody might come to get their teeth cleaned who has just had a medical abortion, I don't know. No, it's really that attenuated. It's like they don't want to even have to be around. The Alliance for Hippocratic Medicine is the Leonard Leo dark money project behind this. It is directly, we know, a Leonard Leo joint. He's brought this to us the through Marble Freedom Trust. Lot of dark money behind this, it's and just one of those things where they cobble together jokers. Literally, one of them is named Dr. Jester, which I think is fantastic. Fantastic.

0:33:04 Thomas: Oh. Oh my God. Really? Yeah. Yeah. Yeah.

0:33:35 Matt: These jokers who are willing to sign off and say that somehow they've suffered some kind of injury, even though none of them have ever actually had anything resembling or even really observed injury, because, you know, they're the ones that are allegedly the most harmed by this are in states where you can't even do abortions at this point of any kind. Right. Right. So that comes up. Yeah.

0:33:52 Thomas: In the The oral arguments, there was a lot of questions on this and they're like, well, one of them has a roommate who, you know, they're literally like the best they can come up with was one of them knows a doctor. They did say, say they know a doctor who had to, like, you know, do some emergency services on a failed abortion patient or something. They couldn't even like get a person who'd actually done anything.

0:34:13 Matt: Didn't it's so the broader conscience injury, broader conscience. And I don't even know what that means. And there's also like this idea that they're complicit somehow in the entire system because they have to perform emergency procedures for people that may or may not come in after having medical abortions, which is incredibly rare. You know, they won't know till they get in the operating room if it's somebody who has just had an ectopic pregnancy or a miscarriage or has actually a medical and they want to, I, I don't know. They want the drug to just not be available because they're so worried about having to be in the room. This is obviously all completely manufactured horseshit. There's just no question. I mean, it's not worth taking seriously. I think the justices are barely taking it seriously, if they are at all. Obviously, most of them aren't. We'll talk very quickly about Matthew Kacsmaryk, the Texas judge that they purposely put this in front of. He is one of the most activist judges I've ever heard of, literally an anti-abortion activist, hard right, Christian, Christian nationalist kind of guy.

0:35:01 Thomas: He literally was that before becoming a judge. I think I heard that, right?

0:35:04 Matt: Yeah, he was. He was. And yeah, so he's the guy for this. And he puts together this absurd theory of standing that is just... Let

0:35:06 Thomas: Wow. He did, or he accepted it from the, oh

0:35:15 Matt: Oh, yeah, he cobbled it together from what he had in front of him. But he has to accept and synthesize something that the courts are going to accept, the higher courts. So I didn't read the briefs before him, so I don't I haven't gone that deep on it. At the point at which we have a decision, I know Casey wants to jump in on this too, because it's very important to her she can be here today. But at the point at which you have a position, I want to go a little deeper on this because I really want to put the nail in all of this and I hope it doesn't happen again.

There's also a companion case we're not going to talk about today, challenging the EMTALA, the Emergency Medical Treatment and Labor Act, which was actually the bane of my existence my first year of law school because it was our legal writing assignment for the whole year. We had to write about EMTALI endlessly. I do know something about it just from that. But the EMTALA argument is a whole other thing. We don't have time to talk about it today, but it does kind of dovetail with this.

It's going to be argued next month. And I'd like to get into that too. But, uh, point is with this, uh... decision, I really is like a complete joke to the whole idea of standing. It really... the idea that this kind of broad moral injury could be suffered... hold two particularly egregious findings in this. Of them is that we don't have people in front of us bringing harm because people who have aborted a child often experience shame, regret, anxiety, depression, drug abuse, and suicidal thoughts. Thoughts. And because of that, they're so deeply traumatized.

0:35:17 Thomas: The judge have to come up with a theory of standing? Oh, okay. So, who will

0:36:26 Matt: They're not going to file the suit and the doctors are going to do it instead. I mean, there's not a single person identified in anything in the record who's ever been harmed by this drug. And they have doctors like giving secondhand stories about things they think they saw, but it is really telling that you don't even have one person who's able to come out and say this, this hurt me somehow. There's this idea that he's making upstanding out of nowhere by saying, well, there are these invisible plaintiffs, these people that would be before me if only abortion weren't so terrible.

0:36:54 Thomas: System is doing so well that it's like, we've served justice to everybody else. Let's we got nothing else to do. Let's sure we serve justice to invisible people that don't even exist. That's amazing. We're doing that well, Matt. This system is that that good. Hey.

0:37:08 Matt: We're looking for plaintiffs that don't exist, literally. And so insulting. It's demeaning. It's misogynist. Obviously, it's patronizing. I mean, I have multiple friends who have had abortion procedures who have never looked back, and it was better for their lives. And I don't think that it's just awful to talk about people as if they're all out there are experiencing shame, regret, and anxiety because they engage in a fairly common reproductive procedure.

0:37:31 Thomas: And even if you did, that's sorry, I feel bad for you, you don't get to take away everyone else's right to have an abortion that they may want for other reasons

0:37:36 Matt: Of course. No, and I don't mean to discount people who really have had a hard time with it.

0:37:40 Thomas: Oh, no, yeah, That wasn't directed at you, I was just talking Yeah, So,

0:37:42 Matt: No of course, No, but I should say that. I want to be sure to be clear to everybody listening that we support you no matter what, but it's just thinking about the people I know personally who are very open about and fact that it was something they needed to do in their lives, and just what it would have been like if they couldn't. Other theory of standing, though, the one that they're kind of harping on for the purpose of this hearing, is basically the idea that there's physicians out there who might have to treat patients who are going to experience some kind of, I don't know, like vague thing that happens from a medical abortion, even though they didn't prescribe it, that somebody's going to walk in and have some complaints about what happened with their medical abortion.

0:38:16 Thomas: Stupid.

0:38:17 Matt: And doctors just won't be able to take it when they hear these stories or see these people, I guess, um,

0:38:18 Thomas: I got bad news, um, take drugs that like won't, like, all the time. I mean, what if someone is pregnant. Unfortunately, I'm sure this happens. What if someone is pregnant and is on heroin and goes into the emergency room? Yeah.

0:38:26 Matt: Yeah, like You, you don't get to check out. You do your job, like, that's that's You're

0:38:36 Thomas: You do your job and actually, no, it's worse than that, Matt, they don't have to, they actually can. So, I heard the part of the oral arguments, I haven't read all the briefs, but, like, just listening to that, the point was made many times, it's like, you can actually, we have this federal, you're going to talk about, I'm sure, but there's federal, like, I'm pro-life, asshole, that doesn't have to, like, I don't know what the actual act is called. Matters federal, I'm a Christian, so don't make me do anything I don't want to do, act, that actually lets them not do any abortion stuff if they don't want to. They already have that and they're like, no, we need no one to have access to this, like, life-saving drug that has, uh, made abortion even more accessible, uh, in very important ways. Yeah.

0:38:41 Matt: Oh Yeah, yeah.

0:38:51 Matt: Do my job Yeah, and Yeah, no, and they don't have a good answer for why they can't just use the safe harbor, which we'll get to in a sec. Is an insult to the concept of standing, which I know everybody listening has some idea about what standing is, but I just want to remind you. This is a real problem with environmental litigation, right? Who will speak for the animals and the trees, right?"

0:39:33 Thomas: Yeah.

0:39:33 Matt: You can't have trees and squirrels come in and sue for their rights, unfortunately. So there have been a lot of different cases with environmental law.

0:39:33 Thomas: And

0:39:45 Matt: Lujan's as a Scalia joint, of course, and it really did a lot of injury to environmental litigation for a while. It applies here because you're talking about, you're essentially, because you believe that you're bringing suit on behalf of what Kaczmarek, very annoyingly, all the way through his decision, Kaczmarek calls fetuses unborn humans and refers to doctors as abortionists, right? This very hard, right, activist language. But, you know, if you believe that you are acting on behalf somebody that can't come to court, you have to show that you suffered an injury in fact that is concrete, particularized, and actual or imminent, that the injury was likely caused by the defendant, and that the inquiry would likely be redressed by judicial relief. So you have to prove all those things to have standing, and I don't see the beginnings of any of these things.

0:40:24 Thomas: And I apologies to try to play the the role of lawyer, but I did a little bit, but it's even worse than all that because they're the thing that's caused the injury allegedly is not the existence of mifepristone even, it's the adjustments they made in, like, 2016, the FDA made some adjustments to how they, um, know, is it, was it just, what what were those now?

0:40:44 Matt: They had the most restrictive set of rules around Mifepristone I've ever heard of for a drug. The doctor had to have it on the premises. They had to dispense it personally. You had to have, I think it was three doctor visits before you could get it. And this was all done by the FDA because they were so concerned about the terrorists who were after them, you

0:40:59 Thomas: Yeah, because they already are bending over backwards to accommodate pro -life Christian nationalist assholes. Then in 2016, I think it is, they make some adjustments to that to make it slightly less annoying. And that's the thing that's allegedly causing it. So it's even worse than all that. It's everything you just said. Plus, you would have to prove that the difference in that Treatment in the 2016 rules is what has led to these new injuries, which is absurd.

0:41:03 Matt: Yeah, right, mm -hmm, right. They can't. And then the thing that has really put them over the top, though, was the 2021 changes because that's during COVID, and they relaxed the restrictions so that you could do telemedicine. And everybody liked telemedICINE, obviously, and this is the kind of thing, like, from what I understand, I'm not an expert, but it seems like mifepristone could really just safe.

0:41:34 Thomas: Yeah. Yeah.

0:41:42 Matt: And if you need it, you should get it. And, you so it's not that much of a stretch to have you talk to a nurse practitioner who says, okay, well, here you are. It looks like you're in the right stage and let's do it. That telemedicine really sent them over the top of, as I said, though, because now you have just in time for Dobbs, You've right? Got, suddenly people are going to be able to get it all over the country and you're going to undermine Dobbs. We can't have that. So the, in 2023, they really got sent over the topic though, because the FDA made it permanent. They decided this is working so well with telemedICINE and there had been no complications. And again, the FDA does not mess around with this stuff. They don't just make rash decisions. This is all backed up with thousands of pages of records and studies and actual understanding of what's going on.

0:41:59 Thomas: They actually bend over backwards again to accommodate these assholes if

0:42:23 Matt: Because they know. I mean, they know what they're facing.

0:42:24 Thomas: It was any other drug for something else that it wouldn't have been this restricted at all. Yeah.

0:42:27 Matt: Yeah? Yeah. I read up a little on the history and they were so careful about this. This was not a rush at all. Wanted to be sure that they had every answer to these people. And of course, they still just make things up anyway. And that's how it goes.

0:42:33 Thomas: Yep. Which is why, uh, screw them, stop doing that. I don't know, to some degree it makes sense to, like, well, gonna bulletproof something that's gonna get complained about, I get that, but we should not do the thing where we take you a four steps back into into our arguments because they're going to make such a fuss. Like, I hope we stop doing that a little bit, you

0:42:42 Matt: Yeah. Yeah, would really be great if we could do that. Because, I coddle these people and they end up going all the way to the Supreme Court with this nonsense, with just this absolute garbage. And I mean it just seemed like even the people, obviously Scully and Thomas are in, and Barrett is kind of into a degree.

0:43:05 Thomas: Yeah. Said Scalia Alito. Yeah.

0:43:13 Matt: Oh, sorry, I'll say that again. Alito and Thomas are in, and Coney Barrett's into a degree, but you know, everybody else just seems kind of bored, honestly.

0:43:20 Thomas: And I would say Comey Barrett sounded more skeptical than I thought, you know, like even she is like, this is pretty dumb.

0:43:21 Matt: Yeah. Yeah. She did, yeah. I don't know, yeah. Yeah, no.

0:43:30 Thomas: But, But, you, I don't want to rain on your parade of possible good news, just had that stupid case that I always reference where someone might conceivably make a website someday that might someday have to have a gay wedding or something. Like, we just had standing is getting ruined for for right wing purposes. And are you that confident that this won't happen in this case?

0:43:30 Matt: It really, yeah, yeah.

0:43:53 Matt: Mean, if they can find a way to do it where you still don't get to protect the animals, maybe I'm sure, but uh, I, I honestly though, I mean, just listening and reading the transcript, I, I just don't see that they're going to find a to get to the votes on this, just on even, maybe I, I don't, I just can't see how, don't think it's possible. Just from What, just the questions they had and the way they were going at it and just the law as it happens to get to Article III standing, like you just need a lot more than this.

0:44:09 Thomas: Yeah. Facts of reality Yeah.

0:44:17 Matt: Because there's this idea of associational standing, right? They're talking about Summers, the 2009 case a lot, where you have to show, even if you're talking about an organization, have show there's a statistical probability that some of your members are threatened with some kind of concrete injury, right. It can't just be this, know, and like, and I went back and read the Fifth Circuit decision and famously, you don't judge how he's He's one of the worst. He's down there with Kacsmaryk. Had this whole thing about how, just out of nowhere in his decision near the end, writing separately. I think even the people that wanted this to happen couldn't stand him. And he has this whole think about how people like looking at babies. So we should get to look at babies and pregnant people.

0:44:17 Thomas: Yeah. Oh, my god, it

0:44:51 Matt: Yeah, we don't want to be deprived of the chance to look a baby. I'm like, you're still going to get to looking at baby. There's plenty of babies.

0:44:56 Thomas: Is crazy. I gotta say, if folks, if you haven't been exposed to any of that, like, it just like, like they're, it's it's that level, you know. It's one thing, they used to disguise it a little bit, but specifically that circuit, it seems to be art they're writing like, like they're religious, you know, like they're delivering sermons, but it's a legal document. Like, what are you talking about? Well, we love looking at babies. It's good for our soul and it's good. Like, it's, it's just, it just, I don't know. A bunch of weird crap like that, that just does not belong anywhere near a court.

0:45:05 Matt: Yeah, yeah, yeah. Yeah. And could be the future of the law if we keep this going. Yeah. But let's not.

0:45:28 Thomas: Yeah, it really could. If we give Trump another four years, which will turn into another eight years, at least if he survives that long. I mean, it Really is. This people are on the bench. It doesn't matter if they, yeah, maybe they'll lose this one case if Matt's right about this. They're still there. These judges who okayed it in the Fifth Circuit.

0:45:32 Matt: Yeah, sure.

0:45:48 Matt: Yeah? No, I'd love to do like a month on the Fifth Circuit. Obviously, they do a lot with immigration, so I'm pretty familiar with a lot of these people. But it's really a disgrace. And they don't care. They just don't care, obviously, because they're doing what they want to do. So a few other things that came up, though. So Kacsmaryk, out of nowhere, in his decision, brought up the Comstock Act.

0:45:54 Thomas: Unreal.

0:46:06 Thomas: Yeah.

0:46:07 Matt: And I Anthony Comstock, of course, famously vice crusader in the 19th century, hated everything to do with sex and fun. And there are a number of laws that were sort of passed in his name, but

0:46:17 Thomas: He banned lawn darts. He was that guy. No, just kidding. He said sex and fun. So I was like, you know all the porn stuff, but also he was the one who did the lawn dards. You're not allowed to send them through the mail. No, that's a joke. I just

0:46:18 Matt: Really? Okay. I'd believe it.

0:46:30 Matt: It was a big inspiration for young J. Edgar Hoover, so that tells you a lot. Only reason I'd heard of the Comstock laws before is people like Henry Miller and and other authors that ended up facing obscenity charges because their works were being distributed through the mail. So this is about the mail, about how you can't mail things that are obscene. It's a 100-year-old law, more than 100 years old, I think, even the reformulation of it. And it is a total violation of the First Amendment. It comes from a long time ago. Go. It's incredibly vague. Let me, 18 U.S.C. 1461, just to give you an idea of how bad this law is and the reason it really hasn't been used since the 70s at all, is talking about things that can't go in the mail, the federal mail.

0:47:09 Thomas: Yeah.

0:47:09 Matt: OK, so every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance. Every one of them.

0:47:18 Thomas: Yeah. Now do we need to remind our audience what male is, because I'm sure some of them are my age and younger.

0:47:19 Matt: OK. Yeah. I actually routinely have to teach my staff about how postage works. I'm constantly amazed at how much it costs because I can remember when it was 20 cents or whatever. So this is just, again, regulating what's in the mail. Now, the USPS General Counsel's Office got to have a big moment. I don't think they get to do much for the public very often. I mean, again. Love you, USPS Counsel's office. But they're not out there in public very often. But they wrote an entire memo about not apply to sending Mifepristone and other abortive fashions through the mail.

This has already been settled. As far as USPS is concerned, they're not concerned about it. Because again, it does just include obscene and filthy things. Arguably, honestly, the Comstock Act, from my read of it, could cover things like a dirty letter to your girlfriend in 1890, right? I mean, mean, it's like literally a letter. It could cover that. But it also includes anything to do. Article So or thing designed, adapted, or intended for producing abortion or for any indecent or immoral use.

So basically all marital aids, as you might say. And then any printed cards, letters, circulars, books, pamphlets, advertisements, and notices of any kind giving information. So anything to deal with abortion.

0:47:29 Thomas: God, so relatable.

0:48:33 Thomas: Yeah.

0:48:35 Matt: That's plainly unconstitutional. There's no no question that would not survive if you actually brought it up. But these people, you may not be surprised to learn, think this is their ticket. They think this Is the way that they're going to get a national abortion ban without having to have Congress pass a law. And I know that because Jonathan Mitchell, you might remember him from such arguments as, you know, immunity.

Last month, he was the guy who argued that Trump should be immune from everything in front of the Supreme Supreme Court. Was also responsible for the 2021 SB8 Texas law, the famous bounty law. And has been a force in abortion litigation and legislation for a while. He told The New York Times pretty candidly, we don't need a federal ban when we have Comstock on the books. There's a smorgasbord of options. And then he actually said this about Donald Trump in print.

Hope he doesn't know know about the existence of Comstock because I just don't want him to shoot off his mouth, Mr. Mitchell said of Mr. Trump. A lot of people want that, Mr. Mitchel. I think the pro -life groups should keep their mouths shut as much as possible until the election. Yeah.

0:49:27 Thomas: Wow. Said to what?

0:49:34 Matt: The New York Times.

0:49:35 Thomas: He said to not his pillow at night. I don't know. I seem to be hearing these words right now. So I know he said it to somebody.

0:49:41 Matt: Yeah, it was in print.

0:49:42 Thomas: Weird.

0:49:42 Matt: I mean, it's literally the the Bond villain just telling you what he's going to do? Because, yeah,

0:49:46 Thomas: But I also kind of get it because every Every time there's been times where like on this show, it's been like, now, I don't think the fascists know this yet, but this legal argument would actually be better for them. It's real. I'm real conflicted because it's like, ah, should we even, maybe I should cut that, you know? So I do kind of understand where he's like. I need to get this out to a limited audience that, hey, don't tell Trump about this. He doesn't read the paper. So that's fine.

0:49:54 Matt: Right. Yeah, sure. He'll never read the New York Times. It's fine. This came up. So Kaczmarek puts it in his decision, basically, that he thinks that this new telemedicine thing is in violation of the Comstock Act, which is not something the FDA considers when it's taking care of these drugs. It really just doesn't care about the Comstock Acts. It doesn't look at every possible statute it might violate that some other agency might be in violation. Cares about is if it's, it's going to kill or hurt people, as was pointed out in the argument. That's the only thing that matters when it's putting these regulations together. But you got Thomas and Alito, especially, got really interested in this whole Comstock angle.

And they asked several different directions about why we're not considering the Comstock Act in ways that I found concerning, because, you guess to me, it's like birthright citizenship, right? You know, Trump keeps talking about how he's going to end birthright citizenship as the president, which, which he can't really do and no court is going to let him do, but he can try. He can certainly try to stop issuing Social Security numbers and passports to kids that are born here that, if you don't like their parents.

And you can try to enforce the Comstock Act. I guess if you get like a real nut as your postmaster general, you know, you can dry this stuff. We still have courts.

0:50:14 Thomas: Yeah, yeah, yeah.

0:51:12 Thomas: don'T

0:51:13 Matt: That are going to stop you even.

0:51:13 Thomas: We have a real nut as our postman?

0:51:15 Matt: I don't know if he's that nuts.

0:51:15 Thomas: Isn't DeJoy, is he still the,

0:51:17 Matt: Yeah, I think he's still there actually. Yeah. But not that crazy. Because again, this is still the the USPS interpretation is still that the Comstock is not an issue for sending these things. So,

0:51:24 Thomas: Yeah, that is interesting, I, pin in that for later, he is still in, power in there, even though I thought the plan was to try to get rid of him, but it's almost like, it's Almost like he was like, well, Trump's gone, can I just be like a normal guy, can I Just, do you mind if I just like keep doing this job, like, okay, I guess, you're gonna be a normal Guy,

0:51:32 Matt: Yeah. Yeah, I like delivering the mail. Yeah, sure. Yeah. So Alito asked several different times, but what about Comstock? Like, seriously, tell me about that. And she actually even points out, and this is Elizabeth Probeer for the government, very good solicitor general.

0:51:50 Thomas: Yep. Yeah, I think it's pre -logger, We've gone back and forth on this It seems like it should be like Prelagar or something But like I think she pronounces it Prelager She's fantastic Every single time I hear her I like Oh that's what being smart is I'm not that at all Because she is so quick on her feet And able to just handle these idiots arguments Just so quickly I can't imagine being able to do that It's like a superpower

0:52:01 Matt: Oh, yeah, yeah it is. No, it's top of the game. It really is. And I think Eleni Kagan was Solicitor General for a while, right? So she could go the same path, I hope. Could happen. She points out immediately, as soon as he asked again, like, what about Comstock? FDA was advised through its legal counsel on the application of Comstock, and it was already in the record when they made that decision in 2023 to make it permanent. Like, they're familiar. They know about it. Don't worry about it, Sam. It's fine. It.

0:52:28 Thomas: Yeah

0:52:43 Matt: Again, just bringing this thing up, and it does give me concern about where things are going. I do think we need to keep a close watch on the EMTALA case next month to see what other arguments they're going to be making about that. I want to get into the details of it right now. But again, this is just a waste of everybody's time. And Erin Hawley, the wife of Josh Hawley, argued for the idiots and did not cover herself with glory. I didn't think she did well at all. About 20, 30 seconds of her opening argument, she talked about, did you catch this? Me read the quote. It's pretty great. Respondent's talking about the that got to sign these affidavits. Treated women suffering from abortion drug harms tens of thousands of times. Oh, excuse me, dozens of times."

0:52:42 Thomas: Ridiculous All right Yeah Yeah. That was weird. Even for them. Like I, I heard that and I was like tens of millions of, oh, sorry. Checks notes. Uh, one time. Okay. That's weird. I don't know how I made that mistake.

0:53:20 Matt: Yeah, it's that arrested development There are literally dozens of us. And to save it, and she's like, women have suffered tens of thousands of times. Yeah, that's what I meant.

0:53:38 Thomas: Yeah. That that was unreal. Right. There are at least 10 ,000 women. I think, uh, in the world.

0:53:50 Matt: Sure. And dann right out the gate, she's answering her first question from Thomas, who's trying to help her out a little bit. And she totally misunderstands the question that she's asked, the first question, and answers it completely wrong. And he's like, no, actually, I was talking about associational standing. Can you tell me about that? You know, again, I don't know what her background or experience is besides being Josh Hawley's wife. Is apparently also a lawyer who works in front of the Supreme Court at least once. But, you she had a terrible case. Don' I t think anybody could have made this thing, you anything tasty. But I yeah, dunno. I was not impressed with her performance all around.

0:53:57 Thomas: Yeah. Yeah. Yeah. I But It but it worries me because I think it was Alito brought up, oh, you well, this is no different than the citizenship question, Matt, because the standing there was that, you know, someone might be harmed. And he tried to make it you out to be like that was insane that anyone could possibly sue over the, the citizenship question on the census, which, you no time to go into that, but I think hopefully people will be familiar with that. That similar? I guess that is a weird kind of standing, but, what's um, the difference between that and this?

0:54:38 Matt: Mm -hmm. He's talking about associational harm and probabilistic determinations and trying to figure out, you when you can find standing and a chain of probabilities, right? So in the citizenship question, he's saying that it was probable that there was some risk that New York State would risk losing a representative in the House or would risk Losing money under some federal program. And you put together this chain of probabilities and that was sufficient to establish standing. Then she goes on to talk about something to do with the pollination of seed farms. I'm not familiar with that case. Um, he's trying to get her basically to link this up to some sort of concrete harm, and she talks about women going to the emergency room, which is kind of a red herring because, as is pointed out, I think, by the Solicitor General, those emergency room visits aren't necessarily life-threatening or even necessarily harmful. It's often just, I shouldn't Say just bleeding, but it's, it's oftentimes things that are, can be dealt with quickly in the emergency room. Um, she's making it sound like they're, you know, they need serious life-saving help.

0:54:59 Thomas: Yeah, Yeah. Yeah. We I think have gone through this. I don't remember specifically if it was this drug, but for a miscarriage we had. And it is the kind of thing where it's like, well, you're on alert. You know, if something if there's some bleeding, you'RE on alert that maybe you'd go. And again, totally not to minimize any of this. It can be a there can be health scares related to this. But it also, a lot of that might be, well, to be extra cautious here. And then you go in and it's like, no, it's pretty much going as planned. No big deal. It's not like someone has to perform life -saving surgery on you or something.

0:55:57 Matt: Yeah. Sure. But I'm sure it's scary. I mean, it's no doubt. And again, I guess we should have acknowledged this up front in case anybody missed it. Neither of us do have a uterus. I do want to put that on the record. Think I'm going to be having one by the end of my life. So do want to acknowledge that we have no personal experience with any of this. And Casey was planning to join on this one, but she'll be back to talk about it another time. Completely support reproductive rights in every sense, but I don't want to pretend that we necessarily understand this in the way that someone with the uterus would.

0:56:03 Thomas: Sure. Yeah, yeah. No.

0:56:26 Thomas: Yeah. But it's just, yeah, when the Christians are trying to use this idea of, well this is a scary thing, super dangerous pill, you know, it is going to kill you, you are going to to be in the hospital. Any of it, but to say that they are overstating that and it's not really that dangerous at all.

0:56:37 Matt: No. Purpose. Yeah. Right. And if there were actual life -threatening harm, then they would have produced it, but they just can't seem to do that. Yeah. So, yeah, it says a lot. So I, like I said, I consider this to be good news. Wasn't fun to read, but it's, you know, at the end of the day, I was expecting, honestly, when I started reading this transcript that I was going to see a little more interest or support from the conservative justices, but they don't seem to be interested in doing anything but kind of maybe poking around at that CompStack issue.

0:56:47 Thomas: Yeah.

0:57:05 Thomas: Do you think the difference is between the, citizenship question, I You think the comparison is there? Was standing there, right?

0:57:11 Matt: Yeah, there was us that the census is directly related to things like federal funding and, you know, your representation in Congress. And he's basically inviting her to give him something that looks like that. And, you Know, she can't do it.

0:57:18 Thomas: Right. Right. It's already the fact that it's like it's so many chain, like you say, the chain of causation. I guess it's just a question of more steps, which is important. You know, it's one thing to be like, well, there's a 30 percent chance. OK, that's you know, that'S pretty significant. Well, there'S a point three percent chance of a point one percent chance of a 0 .01 percent. It's like that multiplies out to zero. I'm sorry. That's like virtually nothing.

0:57:46 Matt: Yeah.

0:57:46 Thomas: So I guess IT really does matter mathematically what you're talking about there.

0:57:50 Matt: And I thought the Solicitor General and her conclusion really brought it home. They I have said that they fear that there might be some emergency room doctor somewhere, someday, who might be presented with some woman who is suffering an incredibly rare complication and that the doctor might have to provide treatment, notwithstanding the conscious protections. We don't think that harm has materialized.

0:58:09 Matt: That's a very nice way to put it.

0:58:06 Thomas: Yeah. Yeah. It's a good point it really is a question of just many more steps, you know, like it's, it's even more than I remembered because it's the it's also the fact that these doctors, as you said early on, but it's easy to forget, they're in states where abortion isn't even allowed, so it's like they can't even, yeah, it's so many steps

0:58:15 Matt: Yeah, yeah, yeah.

0:58:25 Matt: Best That they can do on that is they say, well, people might get treatment out of state. They might have medical abortion out of the state and then come back because they didn't have a follow-up and then they have complications because this thing is so dangerous. And that's the best they could come up with. But, you know, and I love how she throws in, too, that notwithstanding the conscience protections, which, you know, kills the whole thing for them, right?

0:58:26 Thomas: Oh. I see yeah sure yeah okay Yeah. Yeah. Yeah.

0:58:42 Matt: Because you already have this safe harbor. You have this outlet.

0:58:44 Thomas: And what kind of asshole would you have to be to be like, well, I'm is in medical danger. And, but because I don't like that they did an abortion, I can't help them not die. Like, I don'T even think that should be allowed, but whatever. Again, bending over backwards for these Christians.

0:58:49 Matt: Yeah. Yeah. No, I mean, I mean the name of this organization is the Hippocratic whatever, right? I mean it's Like they have their own little version of the Hippocratic oath that it involves their responsibility to create or whatever on website. But yeah, that's bad. They also, their Hippocratic Oath includes not having sex with their patients, which I thought kind of came with the territory, but I don't know. Yeah, kind of a weird oath.

0:59:02 Thomas: Yeah. Really? Oh, my God. Matt's on the record that this is good news. I know. I'm still worried. This Like, isn't some shadow jock at BS where we don't get to know who makes what decision, right? Do we get to get an actual, like, you know, 7 -2 out of this?

0:59:28 Matt: Yeah, well, 7 -2 might very well be what it is. And I assume that we'll have it by June, end of June, as usual. Accused of being insanely optimistic throughout my entire life, but I think this is a reasonable one to be optimistic about.

0:59:38 Thomas: Right. Well, that was a good news show. How fun.

0:59:41 Matt: Yeah. More of those.

0:59:42 Thomas: A reminder, if you want more fun and good times, patreon.com/law. Grab that Law'd Awful Movies. Paper Chase. It's so great. Plus, Matt, you had a little announcement.

0:59:52 Matt: Yes. Thank you very much. So my law office needs a summer intern in Boston. So we're conveniently located in downtown Boston. And I mentioned before we do deportation, defense, asylum law, family visas, pretty much the whole gamut of immigration cases. And if you are a law student or know a law student in Boston who would like to work with us, especially if that person speaks some Spanish that's not required, but it sure would be great, would love to talk to you about working this summer. So you can find me on at Matt Matt underscore Cam, or you can just email me at Matt, M -A -T -T at MassImmigrationLaw .com. Happy to talk with you. And yeah, maybe we can have the if somebody comes through the podcast, I'm happy to bring them on. Maybe they can talk about what they learned.

1:00:24 Thomas: It. Excellent. Well, this was great news. This was a lot of fun and good week. Thanks so much, Matt. Looking forward to Deep Dive Monday. Thanks so mucho for listening, everybody. We'll see you next time.

1:00:38 Matt: All right.

1:00:39 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission. Like, you're still going to get to looking at baby. There's And indeed, treated women suffering from abortion drug harms tens of thousands of times, excuse me, dozens of times. Women have suffered tens of thousand of times that