SCOTUS Fast-Tracks TikTok Case; Trump Files Nonsense Amicus Brief

Transcript

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

0:00:58 Thomas: And welcome to Opening Arguments. This is episode 1107. The year is apparently 2025. I'm Thomas Smith. That over there is real life attorney Matt Cameron. How you doing, Matt?

0:01:07 Matt: I'm back to work and I'm feeling doing good. Happy new year.

0:01:10 Thomas: Year, same exact me. That's what I've... that's my New Year's approach. I was so busy I forgot about all the bullshit we do. We're like, oh, I'm gonna like eat better, I work out. I just... I save myself some time by forgetting to fail at that. Like I forget to even promise that. That's that way. Already failed ahead of time. I don't even need to. So I'm already done. I'm done with my New Year's resolutions, guys. I completed them.

0:01:11 Matt: Yeah. Yeah. I think you're doing just fine. Yeah.

0:01:35 Thomas: Boy. Excited to take on this new year. And we've got a great episode to start us off with. Lots to talk about. Got to take a quick stop on Chief Roberts. It's the way he he closes out every year. He decides I'm going to warn everyone about things that I did. Mostly, you know, like here's all these problems that I caused that you'd better all fix or something or, you Know, and we've got to talk about the TikTok case. That's our main story.

0:01:59 Thomas: That'S interesting. Was I under the impression that, this you had kind of come and gone in a way, but there's, there's updates here. There's a new filing on it. That is very very interesting that Matt's going to take us through.

0:01:59 Matt: We to and The whole thing's on a collision course right now, so we got to talk about it.

0:02:12 Thomas: So we got to talk about this like nonsense, the possibility that there's no house speaker on January 6th. Now, this is the kind of headline, Matt, where I don't have hope anymore.

Now maybe there are people, I'm realizing and I'm hoping, hopefully we unlock new generations of people tuning in and trying to take on Trump, you had this feeling the other day I was telling Lydia about where I'm like, well, we're all really tired, but hopefully people are aging into it or if not aging into it, maybe people who weren't political, maybe they became political. Maybe we get like some reinforcements, I guess I'm saying in terms of energy.

When it comes to me, when I see the headlines of like Trump might not be able to be sworn in, I I'm like, no, I'm not, I don't, it's this hopium is, is I'm wake me up when he actually has something bad happen, because I feel like I've just seen too many of the articles that are like, well, just wait, there's a chance that something could happen, but right. But I do want to hear what's going on with the speaker, because that is a curious situation. So we're at least

0:03:03 Matt: There, there are no one weird tricks. They just do not exist for Donald Trump. Sorry, that's

0:03:12 Thomas: Going to cover that.

0:03:12 Matt: An interesting question. Yeah.

0:03:13 Thomas: So all that's to come. And then, of course, thing he does. We got Matt's footnote fetish.

0:03:14 Matt: I'm gonna be, uh, for our footnote today, I'm gonna be consigning Jim Jordan to where he belongs, a, a footnote, if that.

0:03:23 Thomas: Another New Year's resolution. I want to make the Footnote Fetish even more... I want make it more awkward that Matt has a segment called the foot note Fetish. I'm doing my best. You all can do your part too.

0:03:34 Matt: All right. It. Let's do it.

0:03:36 Thomas: All right, that said, let's take our break. Uh, hey, patrons, gonna leave this in for patrons, apologies, because the lot of awful movies that I put out a preview to that is available for patrons at that second tier and above. So if you want to check that out, and you should, it was a lot of fun. I know I gave you a, a long teaser on Wednesday. Hopefully you enjoyed that. You did, go to patreon.com/law and pledge at that $2 level and above, and you can get your hands on those. We are going to make sure that actually real OA resolution this year, we're going to actually stick to our schedule of doing one of those a month. I'm committing us. We already have good ideas for January. So we're gonna do that. Hope you will tune in and grab those on patreon.com/law, and avoid the ads and get other perks. All right. After this break, we will get to it. But

0:03:37 Matt: Let's be as weird as we can.

0:04:26 Thomas: So Matt, you want to just quickly go over what Justice Roberts is warning us about? He's got four broad categories, you violence toward judges potentially, which what? Yeah, fine. I mean, that's okay. I'll give him that one, whatever. I don't know what, what am I going to do about it? Like, what's he warning me about? Know, like, is there, is someone who's potentially going to commit an act of violence against a judge that's reading this report and being like, oh, I I shouldn't do that. Okay, sure.

0:04:49 Matt: We do need to talk about the whole sort of context of the report, which is that this is his year -end report. You know, some families send out, you know, Christmas letters where they tell you how great their kids are, and John Roberts talks about how judges need raises. That's usually what he talks about in these things. Last year, he had some things to say about AI that I'd like to revisit another time, but this

0:04:52 Thomas: Sure.

0:05:05 Thomas: If his approach was, we need raises because Clarence Thomas just keeps having to resort to having billionaires buy him stuff, then I agree. Then I'll be like, all right, fine. Yeah, sure. Why not?

0:05:10 Matt: Yeah. Yeah. No. Yeah, in a year, actually a couple of years now, when we've had unprecedented ethical breaches and conflicts on the part of the court, there's no mention of that in these 15 pages.

0:05:22 Thomas: No mention.

0:05:23 Matt: Who knew? It's just not important.

0:05:24 Thomas: I'm going to do a control F for flag. Hold on. Just to make sure. Do mention, and not going to get back into that, however, I was listening to another podcast that played, um, that, remember there was that, you sort of weird undercover recording that that lady got of some of the justices and Alito's wife and played it and forgot that what Alito, Alita's wife is saying in that is, I've had to look at a pride, pride flag for, uh, for like a month. She's like, I've had, if I have to stare at this pride flag that someone has across the way, then they're going to look at my insurrection flags. Essentially. Forgot that it was that level of like obvious bigotry. Like you can't. So the presence of a piece of cloth that has rainbow on it, that signifies not hating a group of people is so offensive to you that it's like I have To, I have counter this. I Forgot how bad that was.

0:05:29 Matt: Flags. Yeah?

0:06:12 Matt: And all did. I mean, and even just the flag thing itself has just kind of flown over. It is still our banner picture on opening arguments, Twitter and Blue Sky, because I believe it still needs to get some attention, but just kind of came and went.

0:06:15 Thomas: Yeah. Yep. So no mention in his report, that's, that seems like an oversight to me. Yeah.

0:06:26 Matt: At all. Spends several pages talking about the history of judicial independence in the United States, which is kind of a funny thing to do in the year when you made the president a king. Talks about how the colonial judges revolted because they were instructed by the king in 1761 that they were to serve at the pleasure of the crown rather than during good behavior, which was the language that made it into the Constitution later. I'm not really sure what the purpose of this long history lesson is. I got to be honest, I don't really know what he's going for.

You know, of course, there's Federalist Papers, there're long references to history. There's generally sort of hearkening back to Justice Rehnquist's 2004 year-end report, where he's talking about how we're criticizing judges too much. Really, this whole thing. Now, again, as you said, this does touch on credible threats of violence in the last 10 years, and especially the last five years have increased against federal judges. That is a problem. People should not be doing that. The thing is that he conflates that in this report in a very disingenuous kind of way with the fact that people are criticizing the court generally.

0:06:35 Thomas: Yeah. Yeah. Yeah.

0:07:16 Matt: So, that's the part I don't like. The illegitimate activity that he's talking about, you know, obviously, violence, intimidation, don't do that. Don't threaten the federal judges. But disinformation and threats to defy lawfully entered judgments. Now, the disinformation, of course, is saying things like, hey, judges are political, and it looks like the Supreme Court might be following its political biases. That's exactly the kind of thing. Now he's not giving any specific examples, but he says, public officials too, regrettably, have engaged in recent and attempts to intimidate judges. For example, suggesting political bias in the judge's adverse rulings without a credible basis for such allegations.

0:07:32 Thomas: Oh, No, we do, oh, we do have one here. I can clear up this misunderstanding. There is a political bias. Cleared up. Oh.

0:07:50 Matt: Yes. It does appear that they are doing everything they can and have been to favor Donald Trump. Hard to miss. Even maybe takes a quick reference to it in canon, potentially. I'm not sure. I don't know. I mean, attempts to stimulate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions to others.

0:08:00 Thomas: Yeah, well, what is it?

0:08:15 Thomas: What? Huh?

0:08:16 Matt: Gardner suggested that might have something to do with that one, I'm not sure. But generally speaking, there's a lot of this kind of language.

0:08:19 Thomas: So, he's saying, like, if, if we get a little, little angry, then that's going to inspire, like, actual violent people to get more angry. So we, you know what, and, but here's the thing, if someone less violent than even me gets angry, then that'll inspire me, which then will inspire more violent. So you can't, there can be no criticism, because any criticism will lead to a cascade, a domino effect of criticism that then gets to the top, which is Luigi Mangione, and he will take on that's the, that's problem. So, uh, a great point. You know what? We can't criticize the court anymore.

0:08:24 Matt: Yes. Right. Yes, yep, going to get them all shot. Yep, that is the problem. He points out also that, unfortunately, not all actors engage in informed criticism or anything like it. Thank you, John Roberts. We're doing our best over here.

0:08:53 Thomas: Yeah. Yeah, like the ones who don't accept our revisionist version of what we're doing at all times. That's what he means, that don't accept their fake version of it, which

0:09:08 Matt: Yeah, right. He whines that they don't get to call press conferences, that all they can do is, you know, issue their decisions, and they never get to answer questions in the future, and they don'T get to tweet, you KNOW.

0:09:19 Thomas: Oh, darn.

0:09:19 Matt: So, I know. I know .

0:09:22 Thomas: Hey, tell you what, I'll trade you. Why don't I get to do all the things you get to doing, John Roberts? You can take the whole podcast. If you'll trade jobs right now, you can take the podcast, you can do any amount of media you want. You can write whatever you want, you say whatever you want, whatever you want. I'll do the thing where I get to decide, you women do with their bodies and all that. And you can do the the thing where you could have a press conference and we'll trade. We'll see if you like that trade.

0:09:45 Matt: . Does that mean I'm doing a podcast with John Roberts now?

0:09:46 Thomas: It might, it might, Matt, I'm committing you to it right now, here and now. It's, it's, you'll have to take one for the team.

0:09:49 Matt: Okay, all right. Okay.

0:09:52 Thomas: It's if that's what it takes.

0:09:52 Matt: It takes. I'm sure he's perfectly fine for an hour or two at a time. I wouldn't have a problem with that, but he also, just on the way out, he mentions the specter of open disregard for federal court rulings, and he's not really talking about anything in particular here, but I think he knows that Donald Trump intends to ignore the Supreme Court sometime in the near future, and, and he's just kind of letting him know that maybe you shouldn't do that.

0:10:10 Thomas: Oh, I think he's talking about us. I think it's talking about weird Yeah, there's gonna be some bullshit ruling about immigration that's you longer have the right to live or something, and then we'll, he'll be like, no. Or California will be like, hey, we're going to not follow that. Feel like that's what he's going for, but I could be wrong. Maybe your optimistic take that he's thinking about Trump is more accurate. I'm not sure.

0:10:12 Matt: He might be a, hmm, sure.

0:10:32 Matt: Could be looking about these leopards maybe in his face, you know, it could be happening. So, yeah, but that's basically, you Know, we'll link to the report. It's worth a quick skim.

0:10:35 Thomas: Yeah. No, it's not.

0:10:40 Matt: You you Now, nothing that actually, I in terms of what the court is actually facing right now. And in terms Of the crisis of confidence, publicly, that the court Is facing doesn't do much to address that. So, here we are.

0:10:40 Thomas: It's really not. Did. Do you not know how to read it? It said we shouldn't criticize it anymore. So as long as nobody criticizes them anymore, then they'll be fine.

0:10:52 Matt: That's right. Right. Right we should we should like them. That's what we should do. Okay.

0:10:56 Thomas: Yeah. That's that. That thing sucked.

0:10:59 Matt: No.

0:10:59 Thomas: I hate to argue with you on the show, show, Matt, but that is not worth a skim or a read or anything. It's worthless, but we had to read it to cover that for you and let you know how worthless it is.

0:11:04 Matt: Probably not. That's how it works. All

0:11:09 Thomas: Luck next year, Chief Justice. Okay, what's next?

0:11:12 Matt: We stories by request of patrons this week. Uh, runner-up is from Bernese Mountain Dog, who asks, what happens if Republicans can't elect a speaker by January 6th? And this is something we've been seeing kind of making the rounds right now, and it's worth a quick talk because, of course, as with so many things in this era, it's just completely unprecedented, nothing like this has ever happened before. But of course, we all remember how much work it was to elect Johnson Speaker of the House in October 2023. It took weeks and ultimately four straight days of voting. Yeah.

0:11:38 Thomas: First they had to invent him out of clear goo of generic republicanism and they put it in a mold, or maybe it's like when Saruman is just, you know, they're just fishing orcs out of the mountain. I don't know how that works. I think they went to generic generic white conservative mountain. And they're like, well, please, we need a speaker. We can't elect one. And I just pulled Mike Johnson, someone who didn't exist. I'm pretty sure. What people I say. Oh, you just hadn't heard of him. No, I don't think he existed before was speaker. I think that's he's a Mandela effect type thing where he didn't exist and now they're all just pretending that he did the whole time so that's my theory.

0:12:09 Matt: Just just pulled him out Golem and set him up. Uh, he is for the moment the Speaker of the House, but of course on the day that this episode is airing, January 3rd, there will be a new Congress being sworn in, allegedly, and that on January third they have to meet to establish their new rules and to elect a speaker, which has generally been pretty, uh, you know, straightforward, not too difficult. But of course, right now we're looking at a very unruly six-vote majority with the Republicans in the House, and we've got the House Freedom Caucus making the same kind of noise as they're making before.

They just had a very unpleasant fight with Mike Johnson over the budget where they tried to shut down the government. Trump, for reasons we'll discuss here, has come fully behind Mike Johnson in the last few days because he does not want to have the specter of what we're talking about here. Let's just talk about what happens because I think it's kind of interesting. O'clock p.m. on this coming Monday, January 6th, the Electoral Count Act requires that a joint session of Congress meet to count the electoral votes. And as we know all too well, Well, unfortunately, the vice president has to certify those votes. And the ECA does make it very clear that it is actually ceremonial and he can't change the outcome of the election.

0:12:09 Thomas: Yep. Yeah.

0:13:05 Matt: So we know that now.

0:13:05 Thomas: I was gonna say they did, they did fix that. Yeah. I

0:13:07 Matt: As it is, the House doesn't exist until it elects a speaker and votes on its rules. It doesn't actually exist as a body.

0:13:13 Thomas: Felt a little spring in my step recently. I was wondering, wow, that's nice. It just doesn't exist. Huh. Let's keep it that way.

0:13:18 Matt: Yeah, yeah, just not there. And so, you a normal day in Congress and a normal Congress, it would be no issue to elect a speaker of the House and pass the rules on the same day. But if they can't do it by Monday afternoon, then they don't have a speaker, which means they don't have a House, which means they can't convene a joint session. Technically, this is pretty gray. Yeah, there's no guidance here. So I mean, maybe the court could just convene the House without a speaker, and, or maybe they could just elect, like, a temporary speaker to just kind of handle the certification to make sure that Trump is, you know, the president. But there's kind of a weird fun outcome potentially. I mean, I don't think it's that fun, because Chuck Grassley's kind become the president on January 20th if they have not been able to get their stuff together by then. Uh, he is currently the senior member of the majority party in the Senate, and that makes him third in line for the presidency after

0:13:34 Thomas: That'd be cool.

0:14:02 Thomas: Wow. I'll take him over Trump, sure, man. President Grassley. Yeah.

0:14:06 Matt: The presidency, of the speaker, and of course there wouldn't be one. Uh, well, I mean, have you seen Chuck Grassley's weird tweets about dead animals in his yard? I

0:14:11 Thomas: He's weird. I, I'm not saying he'd be so confused. I think he would be less effective.

0:14:18 Matt: Mean, I don't think he knows where he is most of the time, to be honest. No.

0:14:19 Thomas: There's You know, there's a cult of the guy who's going to become president. There'S not really a cult Of Chuck Grassley. Not a lot of people flying Chuck Grassly flags.

0:14:26 Matt: Unless did you see that dead pigeon tweet where just like a series of numerals in the tweet? It was very strange, like some kind of code for his sleeper cell.

0:14:32 Thomas: Yeah, there'S something weird going on with that guy. Yeah.

0:14:36 Matt: Really bizarre person, yeah. Again, that's not going to happen. But then again, we can't say anything's not gonna happen categorically these days. That is what would happen: is if they could not actually get a Speaker, if they cannot certify the votes on January 6th, it just keeps kind of trolling along until they eventually get a Speaker or you hit January 20th. And of course, there's no President on January 20, because nobody's getting sworn in, so the, um, pro tem president of the Senate takes over, and that's Chuck Grassley in this case. So that's a pretty good motivation for everybody involved to get a Speaker elected I think, yes.

0:15:02 Thomas: I think that's perhaps part of the reason that Trump did. I was sad when Trump eventually backed Mike Johnson. It does actually make sense. It is the rational thing to do, which disappointed me because I was hoping that, you know, because sometimes it's like, well, MAGA is going to just eat itself. So dumb that they just do the same thing over and over. I say they it's it's the Marjorie Taylor Greene types. They think there's some way they can just not do the things that government needs to do. And then there's mainstream Republicans who are We're like, yeah, but we, that'll be bad. Like we can't just cancel, like stop all government. And then they have these stupid fights in broad terms. And that's why we've gone through several speakers. Johnson has figured out that he just has to do the, obviously the Trump, he's just Trump, you're my King. I love you. Everything you do is great.

0:15:49 Thomas: But then the problem comes when he has to make an actual budget or whatever, like they have to actually pass the ongoing thing. Then they complain about it. Trump complains about it and then it puts Mike Johnson in this position where he's like, hey, man, I'm just doing the things that we need to do. And I'm sad because I thought it was going to blow up again, but it seems like they wised up it and for now. We'll see.

0:15:49 Matt: What he's there for Yeah. Yeah.

0:16:06 Matt: We'll know pretty much, uh, you know, by the end of the day on the day this episode is airing, uh, it's all going. But I think we deserve a little Republican disorder on the first day, you know, it's a treat. See how it goes. All

0:16:14 Thomas: All put a final note on it. It is true that this weird stuff will happen if they can't elect a Speaker. That's not like that is like some BS. The thing where we shouldn't get our hopium going is they'll obviously, they'll through they're always find a way. Yeah.

0:16:19 Matt: Oh, yeah. Yeah. There's no version of this for Kamala Harris as the president. Sorry. It's just not going to happen.

0:16:28 Thomas: Yeah. Hillary can Hillary get in there still. Yeah.

0:16:30 Matt: Right. Right, yeah, more Biden. Yeah, all

0:16:30 Thomas: Uh, Uh, um, but no, I mean, it, it is interesting that if they, you know, if they ever lose their crap enough and it's possible with the thin margin they have, um. That they don't elect a speaker. I mean some weird stuff does happen. So it's interesting to, to go through that, but we'll take a break and we'll get to our main story about this.

0:16:51 Thomas: Right. So is TikTok, it's banned. It's not banned. It's the Schrodinger's banning. I don't know what's happening. Update us, where are we in this whole saga?

0:16:58 Matt: Right. First, I want to acknowledge superstar patron Shad Riley for giving us this one. This is the top vote in our patron request this week. Exactly the question, the question that Shad Riley asked us to consider whether or not the TikTok ban is a violation of the First Amendment, which as it happens, is Exactly the question that the Supreme Court will be taking up next Friday in its arguments. So this is a good time to get up to speed on those arguments. And then depending on how it goes, we might cover those arguments as well, because this case is a lot more important than I'd realized. I have to tell you, just straight up, just get my bias out of the way: I don't like TikTok. I think it's bad for humans generally. Not my medium. Just seems like something really uniquely dangerous about, about people on video saying things. Yes.

0:16:58 Thomas: Oh. Yeah. Sweet. Hold. You.

0:17:33 Thomas: Should follow us on TikTok, everybody. Go to, they would

0:17:34 Matt: Open args. Yes. Follow us on TikTok. Uh, I, I don't know, I don't like it. Uh, would prefer if TikTok disappeared, but there are 170 million Americans who probably disagree with me who are regular users. Uh, the average user of TikTok spends 58 minutes and 24 seconds a day on it, which means that if TikTok were actually to go away, which is very possible with where things are going right now, um, actual news. Who knows? But no, probably not.

0:17:55 Thomas: Just spend that on other social media apps. No. What are you talking about, old man? Get out of here. Yeah.

0:18:01 Matt: Yeah, what am I talking about? That's out of my mind. Yeah, no, it is actually, when it comes down to it, the most consequential Supreme Court case arguably in many years, next to Dobbs and Bruin, like it's up there because it affects so many people who rely on this thing and love to use it. So I hadn't really thought of it that way because I don't care and I don't like TikTok. So, I just have to make sure I say that up front. But it is a really unprecedented First Amendment question. There's all kinds of interesting procedural stuff going on here and they're fast tracking it in a way that, uh, don't usually do. So we'll talk about that too. Right.

0:18:30 Thomas: Well, Here's my question. Main I thing that I thought was a very legitimate problem with this was the, that term where it's like targeting someone that's of a tanner? Was

0:18:38 Matt: Was one of their arguments. Yeah. There was a taking.

0:18:39 Thomas: One of the, yeah, that actually made sense. Like when we dug through it, kind it of seemed like, yeah this is sort of a bill that says no to this one company. Seems a tanger adjacent. Um, but is this, this is a different challenge. This is a first amendment child, like a whole different thing from that.

0:18:40 Matt: Yeah.

0:18:53 Matt: Did, did bring that to the DC Circuit, and the decision below, DC Circle, did rule that it wasn't an attainder. And The Supreme Court made its position clear on that, because the only thing it wants briefing on an argument on is the first First Amendment question. So it clearly doesn't think the attainder thing is worth talking about.

0:18:57 Thomas: Oh, okay. Oh wow. Okay. Gotcha.

0:19:05 Matt: So I'm not going to talk about it now because it's not really where we're at.

0:19:06 Thomas: No, yeah. It's not worth it. Yeah. It'S dead. ItS a dead argument.

0:19:09 Matt: The end of the day, it's a Chinese company and they found that it's little different. So, all Trump, you'll not be surprised to learn, was for this ban before he was against it, and he issued an executive order on August 6, 2020, to ban TikTok. And let's hear him talk about that in

0:19:23 Clip: May be banning TikTok. We may be doing some other things. There are a couple of options. But a lot of things are happening. So we'll see what happens. But we are looking at a lot of alternatives with respect to TikTok.

0:19:37 Thomas: Matt, Matt, that's too much information. Wow. I don't even know what to do with all that incredibly specific and useful information. They're looking at it.

0:19:40 Matt: Just we could spend the rest of the episode analyzing

0:19:46 Thomas: There's things about it that they're looking at. We might. We might were considering.

0:19:46 Matt: That but some other things

0:19:52 Thomas: They're considering alternatives to those things that we previously talked about. So I don' t know, Matt. Do we have enough time to break down all the useful information in this interview?

0:19:52 Matt: Also right uh, put another Trump clip in a second where he goes the other way, but so often on those helicopter press conferences. Yeah, uh, so on August 6, 2020, he did issue an order, uh, an executive order, which is not what this is, to ban TikTok under the International Emergency Economic Powers Act of 1977, which gives the president some peacetime authority to deal with any unusual or extraordinary foreign threat to U.S. national security, as long as it's a national emergency.

So he basically declared TikTok to be a national emergency and banned anybody from doing any kind of business with it, which is what this is going to come down to. Was stopped by the courts because it turns out there's actually an exception to the IEEPA that he was is using, which has to do with private communications. That is a pre -internet exception. An interesting issue to talk about another time.

This effort that Trump made did not work out, like a lot of the things that we've now forgotten about that were stopped by courts that Trump tried to do. A couple of things happened since then. One of those is that Trump won another presidential election, might have noticed, and he won that with the help of what he calls the youth.

And he also was working closely with the richest man in Pennsylvania, Jeff Yass, who gave 100 million dollars to the Trump campaign and has met with him about this, apparently. So that might have changed his mind just a little bit, because the richest man in Pennsylvania is a major investor in TikTok.

0:20:05 Thomas: Learned more from the helicopter rotor than I did from Trump.

0:21:11 Thomas: Oh,

0:21:11 Matt: So It's got that going, uh, but let's hear what he has to say about it now. We played some of this, uh, interview with Kristen Welker back when we were talking about his immigration plans. But he also mentioned tiktak in this interview, so let's hear what has to stay about it recently. Some funny stuff in here, why

0:21:11 Thomas: Really? Oh, yeah. Okay.

0:21:25 Clip: Week, a federal court upheld a law that could result in TikTok being banned. You said you're going to rescue TikTok when you get into office. Are you going to you take steps to protect it? As you know, I use TikTok very successfully in my campaign. I have a man named TikTok Jackie who's very effective obviously because I run youth by 30%.

0:21:44 Thomas: Very effective. I've never freaking heard of him in my life.

0:21:45 Clip: All Republicans lose youth. I don't know why. Maybe it's changing. And last time we were down 30 % with youth. This time we're up 35 % with youth. And I use Tik Tok so I can't really, you know.

0:21:49 Matt: Is that

0:21:50 Thomas: Yeah. Just a graph that says youth up

0:21:58 Clip: I can totally hate it. It was very effective. But I will say this. If you do do that that something else is going to come along and take its place.

0:21:58 Thomas: 30. Yeah.

0:22:06 Clip: And maybe that's not fair. What they do, and really what the judge actually said, was that you can't have Chinese companies in the Elizabethan right to ban it if you can prove that the Chinese companies own it. That's what the judges said. So are you going to try to protect TikTok just very quickly, once you're in office? I'm going to trying to make it so that other companies don't become an even bigger monopoly. Okay. With

0:22:18 Thomas: Hmm.

0:22:28 Thomas: You bring on the helicopter to answer some questions better about this? I don't know. I got nothing from that.

0:22:32 Matt: Yeah, no, I once again, uh, that was a little more coherent, but not by much. So yeah, is a real political advantage, obviously, to Donald Trump being the one who saves TikTok, given that 170 million Americans are using it, uh, you know, like 25 of those are teens, um, you know, he certainly sees where the political winds are on this one. But uh, what, what he's talking about here is the actual law that was passed back in April 24th, 2024, and at the time when that was pass.

Now, this was passed about a month after Congress received a security briefing from multiple agencies talking about the potential dangers. Most of that briefing is classified. There was a redacted version, which we'll link to, of that security briefing that was introduced with this lawsuit.

Generally speaking, the arguments that they're making in favor of this bill, which was signed by Biden and was passed with broad bipartisan support in both the House and the Senate, uh, the arguments are that there's a serious data issue and having a company that is essentially controlled or at least is under the purview of the Chinese government, uh, and then there's also potentially issues with our opinion, public opinion being manipulated, TikTok and its algorithm, and will say up front that I don't think people on the left are giving that argument quite enough credit.

0:23:35 Thomas: Yeah, Yeah, okay. I've heard a lot of conflicting things about this and like things worth considering. Like on one hand, you can paint very a dismal picture of what they do in terms of data, in terms of algorithm. And then it's, you can step back and say, wait a minute, the other social media companies also do all of that stuff, like, and worse. We don't care. So is it just about it being Chinese?

The other hand, you politicians who aren't crazy saying, yeah, well, in China, they could be accessing our data because of the way the law works there and they don't even have to tell anybody. In fact, the companies, I think the company is forbidden from even telling us that they are accessing our data. So I think when we do these hearings and they're like, hey, we promise, we super promise that, you know, we're not giving all of your data to the Chinese government.

I think it's been hard for any of the people who actually care about this issue in a real way to take that very seriously. So, but it's also left us where we don't have any of the, well, I don't know if we have any of the information that matters most because it's, as you say, it's redacted, it's a secret or whatever. And all we keep hearing is that the Chinese government could be accessing this. So it's hard. It's a hard issue.

And I've been surprised that been pretty bipartisan because in this day and age, it feels like a thing that Republicans could just do because it might make some amount amount of people happy and they don't care about the consequences of anything. I don't know. I'm not sure entirely what to think there.

0:23:38 Matt: It's We Don't have enough information, as you said, and that was one of AOC's main arguments, was that let's put it in front of of the people, let's declassify as much as we can and not rush this through, because this bill was rushed through very quickly after that briefing. And Elizabeth Warren and others have taken the stance that essentially what you said, that data is being shared all over the place by all kinds of companies. But this is the only one that is not based in the United States, the only major platform that anybody uses.

And not only not based on the United States, we're not talking about Canada or France, we are talking about China, a a country in which they aren't private companies, in which by law, they still have to work closely with the government. They have something like 138 people working with the Chinese, uh, a basically committee, like a political committee inside TikTok. I really clear on exactly how all this works, but my understanding is that the way that we think about private companies and separation of corporations and government is just not really the same with China, and it is very concerning that if China wanted to steer the course of a news story in the United States, they have the ability to do that because so many people do actually look at this thing. So I just want to acknowledge that there is something to this, and I'm also going to try in the new year to do better at presenting both sides of every argument when, when there are both

0:24:57 Thomas: Yeah.

0:25:51 Matt: Sides, there are two sides. Yeah.

0:25:50 Thomas: Well, yeah. And this is genuinely a two -sided argument, I Think. I still, I'll go back and forth. I don'T know what to think on this one.

0:25:56 Matt: No, this isn't trans healthcare. There's definitely an argument to be had here. I to make sure to look deeply at that and sort of see what the actual arguments are, because it's too easy just to say, I think that this is a joke and it's just anti -Chinese or whatever else, because you are talking about a country that has a lot of adverse interests to our own, and that potentially, especially as things go forward with places like Taiwan, and all the investment and influence that they're doing in Africa and other places. It's very much in our interest, maybe not to have our teenagers looking at this thing with a mysterious algorithm that is controlled and potentially accessible by the Chinese government. We do know that ByteDance, the owner of TikTok, did use this data at one point to track some journalists in the US who were anti-TikTok.

0:25:59 Thomas: Yeah, really? Oh,

0:26:32 Matt: Yeah, that's in the record. But I will say on the other side of that, that all the way through this, and I kept looking for anything at all, there's just a lot of talk from the federal government about how they could use it this way and how it's potential and how it might be a weapon in the wrong hands. But they don't have any proof, as you said, that it's been used this way. And by definition, maybe we wouldn't have that proof. Maybe there's no way for us to get it. But I think it is noteworthy because the argument that the government is making in front of the D .C. Circuit and now in front the Supreme Court is that this is a national security issue. And it is very hard for courts to argue when the government says that. They don't want

0:26:32 Thomas: Oh. Wow. Yeah. Do

0:27:04 Matt: To argue. And

0:27:04 Thomas: They get to see stuff? Do they get to peel it back?

0:27:07 Matt: So they actually, the D。C. Circuit got to look at some classified information. They did say that they were not relying on that information. That they had enough to be able to work from, you know, to be able to make this decision. So let's, let's talk about how this came down. Bill in itself, very quickly, the was Foreign Adversory Controlled Application Act, and it passed by wide bipartisan vote. On the same date, also, they passed the Protecting Americans Data from Foreign Advertisers Act, which prevents presents, any companies that are considered data brokers under the law from selling that information that they have to China, Russia, I think Iran, North Korea, I think that's about it, countries that we consider to be foreign adversaries. We are more or less in a Cold War with China at this point, it seems. So

0:27:42 Thomas: Are you rootin' for in that one? I haven't really decided yet. Mean, I don't think China's great. I don - I mean it's kinda like I don' really like either team, you know, but we'll see. Okay.

0:27:45 Matt: Yeah. Well, I mean, the United States doesn't have a million people in concentration camps right now.

0:27:53 Thomas: That's - that's true. That is a

0:27:55 Matt: Do have that going.

0:27:55 Thomas: Plus, and us.

0:27:56 Matt: Yeah. For all of the problems that we have right now and all of our concerns about incipient fascism, China's way ahead of us on all of that. So it's worth acknowledging. We can't treat them like any other country necessarily. But at the same time, as we're talking about Professor Huck a couple of weeks ago, there is also sort of a shorthand sort xenophobia that is used in a lot of this stuff. And I don't want to do that here.

0:28:14 Matt: I want to make sure that we're talking about facts. And the government couldn't produce a lot of facts. I will also note that the The Senate jammed these things into an aid bill for Israel. That's one of the reasons that it passed so well in the Senate. It was something that, if you you look at the coverage from after the security briefings, you did have a pretty broad bipartisan range of people saying this is pretty serious and we have to look at it.

0:28:14 Thomas: For now. Mm -hmm. Great.

0:28:33 Matt: You also have less serious people like Mike Gallagher, who's the chair of the Special Republican Committee about how bad China is. And let's just play what he had to say.

0:28:33 Thomas: Yeah, they have that that committee? That seems like a weird one to have.

0:28:42 Matt: Yeah, that's the thing.

0:28:45 Clip: TikTok, you call it digital fentanyl TikTok, TikTok, which is owned by a company named ByteDance, which is based in China, essentially reporting to and or owned by the Chinese government, however you want to look at it. But explain to why you call it digital fentanyl. It was FCC Commissioner Brennan Carr who originally called it digital fenal. I think the comparison is apt for at least two reasons. One, it's highly addictive

0:29:11 Thomas: Can I just say, as much as I'm not a huge fan of Chuck, Todd, at least he said fentanyl. People decided it's fentanyll. I don't know why. It's not alcohol.

0:29:19 Matt: There's no A there.

0:29:19 Thomas: There's no O. Yeah, or whatever. Like it's not, it's fentanyL. And so people have decided it'S fentanyLL. And it's like, chemically speaking, I think that would make it a different thing. Okay.

0:29:20 Matt: No arrow That's true Yeah. Yeah, that's true. So

0:29:30 Clip: And destructive, and we're seeing troubling data about the corrosive impact of of constant social media use, particularly on young men and women here in America. It's also digital phenomena in the sense that, as you allude to, it ultimately goes back to the Chinese Communist Party. TikTok is owned by ByteDance. Bytedance is effectively controlled by the CCP. So we have to ask whether we want the CCP to control what is on the cusp of becoming the most powerful media company in America? That is very troubling. And so I was glad to see my colleagues in the Senate pass in unanimous fashion a ban of TikTok on government devices. I think we should do the same in the House and expand that ban nationally.

0:30:08 Thomas: Well, That might make sense, by the way, for government that might be a different story, but

0:30:13 Matt: I think, I mean, digital fentanyl is obviously, that's a little much, but it is, I mean, it has a strange effect on people's brains, I will say. But the important thing is that I wanted to quite to cite that specifically because it was cited by the TikTok and the petitioners, uh, in their arguments to say, well, look, this is why you're actually doing it because you know, we've got the the head of this China committee saying that they want to do it because they just don't like China, they don't like the fact that they're controlling it. Uh, there's a bit more going on than that, and I want to point out.

So the act itself, it keeps getting called a TikTok ban, and I think I might use that as shorthand, but that's not actually what it is. I'm going to be very, very, uh, here and just point out, in much the same way that there's not a travel ban to Cuba, you just can't spend money in Cuba as an American. Uh, ban here is actually preventing, uh, from distributing or supporting the app, so it mostly is targeting Google and Apple and keeping them from putting on the marketplace. That would mean that if they actually continue to carry it after January 19th, which is when this is going to become effective, that they would be fined $5,000 per user, which was

0:30:28 Thomas: Okay.

0:31:08 Matt: Quite a lot. That's a lot of money. So even if Trump is out there saying, I'm not going to enforce it, you still have to really think for a minute if you want to be going into that kind of violation, because presumably Trump won't be president for the Specifically, it names TikTok as one of the foreign adversaries, and then it also leaves open the possibility the president can designate another foreign adversary-controlled company through a whole series of things that aren't really important here. It does become somewhat relevant, and that it would no longer apply if the company were to do a qualified divestiture, if it were to sell the company, which is the entire point of this is not to ban TikTok in the United States, it is to get it to change ownership so that China is no longer behind TikTok. That is why they passed this. And that is why this is a very unusual case, because otherwise this would be a serious First Amendment issue. I'd argue there still are serious First amendment issues. The ACLU certainly agrees

0:31:08 Thomas: But that's a lot, yeah.

0:32:00 Thomas: Yeah,

0:32:00 Matt: With that. It is a little different, the angle they're coming at, and arguably is much more narrowly tailored, which is going to become relevant, obviously. So the question here is if this really is a First Amendment problem to eliminate effectively one of the most popular forms of speech in the United States right now. And now, if you think about traditional FCC licensing, right, we already understand that somebody like Rupert Murdoch had to become a U.S. citizen so that he could bring himself into line ownership requirements, because you can't have foreign nationals owning more than a certain percentage of media in every market, traditional media, right? That's something we already accept, that we don't want foreign nationals buying a bunch of media and pumping it into our country. Social media, there's no regulation like that, and there's No FCC Control. So this is the closest thing they can do.

0:32:33 Thomas: Boy, we really blew it by letting Rupert Murdoch become a citizen. Who who did that, Matt? Want answers.

0:32:45 Matt: Yeah, I think I'm like 85, yeah, and everything downhill from there. But I just want to point out that we do already regulate other kinds of media, and a government can own them or control them. So it's not completely out of nowhere. The timing, but is really pressing here, so I'll just talk about that for a moment. Uh, was signed April 24th, and it had 270 days before the company had to divest, and even 270 days as of April 24th would be a really difficult thing to turn around, this battleship, and to get this thing divested, sold off, do a complete merger, do all the due diligence that's required. Like, even if they started pretty much that week, I don't think they could have pulled it off, and they certainly can't do it now. But the president can grant a one-time 90-day extension if it looks like this divestiture is on its way or there's some other conditions that are met. Biden has not done that. He's being asked to do that now. I'm not sure how that's going to go, because it doesn't seem like there's really a legal qualification for that right here.

0:32:46 Thomas: Yeah. Yeah.

0:33:09 Thomas: Sounds Like something Trump would just probably do though, right? Oh,

0:33:32 Matt: Think that's one of the things he might try to do because he could just say that the divestature provision has been met. There's not really any way to challenge that, and it's not unclear who would be able to challenge this. One of the many lawless ways he might be able to deal with this. Just in sort of ironic timing, January 19th is the magic day here when TikTok might go dark.

0:33:46 Thomas: That's right. I thought I remembered that, so that Trump actually can't do it because he's not going to be in in time to say to at least grant that 90-day extension. Was that what it was, or was it another thing too? Yeah.

0:33:51 Matt: Exactly. That's why Trump filed a brief a couple of days ago that I want to talk about, a very, very weird brief. Let's take this through one thing at a time. I just want to point out about the expediency, basis here, because as we know, the Supreme Court took its sweet time on getting getting around to things like, you know, presidential immunity.

They were asked to expedite that, and they saved that to be one of the last arguments and one of the last decisions of the term, all the way into July 1st. And yet, when they're asked to save TikTok, or potentially to review the law that may or may not save TikTok, seem to be able to pull this out pretty quickly, because the D .C. Circuit decision was on the 14th of December. Supreme Court took it up on the 18th.

Now, they were being asked to stay it, but instead of doing that, they took full cert on the case, and And they did not stay it because this is a very weird procedural moment that they're in. Usually when you're talking about staying a case for something like this, you're taking about a law that has been suspended, that is not in place. But of course, the DC Circuit upheld this law and found that it was completely constitutional and there was no First Amendment issue.

I'll talk about how in a second, but I just think the timing is interesting here and the stay issue is particularly interesting here because it's very unusual. Would have to actually find that it's unconstitutional to stay the law. They can't just stay the law for no reason. But Trump wants him to stay the law for their reason, no better reason than the fact that he's going to be president on January 20th. But at this point, it's not much different than if Thomas Smith filed an amicus brief asking the court to stay in.

0:35:12 Thomas: He's just saying, like, hey, could you hold that door for a sec? Let's sell, I don't know, that's a good he's

0:35:15 Matt: Right, exactly. President coming through in a few weeks. Yeah, yeah. It is pretty much, yeah, just hold on to this. And he cites no persuasive authority whatsoever. It is a very political brief that he filed to ask for the stay. It was filed on behalf of neither party, and it doesn't even really take a position on the bill itself or what should be done. All he's saying is he's going to craft some kind of magical solution. Doesn't he even say what that's going to be

0:35:35 Thomas: Like because quote, "traffic was a little heavier than I thought. Like, can you just hold delay for a second?" And then he's gonna come in with a Starbucks cuff and be like, all right, let's go, TikTok. I

0:35:41 Matt: That's right, yeah, exactly. Right Right. Brief is really something that was filed by John Sauer, who we've talked about a few weeks ago, because he's gonna be the next Solicitor General of the United States.

0:35:51 Thomas: Was gonna say we're not talking you kraken in territory. This should be, hypothetically, this should be real lawyers. This should be people who are going to go into the next administration and work for the you call it? The executive branch. So this should be real employers. This is a real lawyers, right?

0:35:52 Matt: Uh, Yep. This is the kind of work that John Sauer is going to be doing a Solicitor General. We should be worried.

0:36:08 Thomas: Great.

0:36:08 Matt: Uh, he was the one, of course, Eric, at the immunity case and won that. Uh, this is just, okay, let me just read you a couple of choice clips here from this brief. Uh, "Trump is one of the most powerful, prolific, and influential users of social media in history." True, but why is that in in the brief? "Trump alone possesses the consummate deal-making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the government." Okay.

0:36:20 Thomas: Okay.

0:36:34 Thomas: That's their legal argument for why they should delay something for no reason?

0:36:34 Matt: All right. Yep. Has a secret plan to defeat ISIS. That's just the usual kind of thing, right? Has the concept A plan. He has concept of plan for brief is ridiculous. We'll link to it. It is worth actually looking at because it is so ridiculous and it really doesn't say anything persuasive. It just says hold this for me, let me do it, uh

0:36:44 Thomas: Concepts of the plan? Yeah. Be, be fair, there isn't really a good argument, right? So is this a question of, like, what else are they going to say? Or do you think there's some way they could have done some brief they could file that would have made sense? Yeah.

0:37:04 Matt: They should have said nothing. I mean, he's not the president. He's the president-elect. He has no rights, like he just He's not, let him deal with it when he gets to be president. Um, it is, though, the talk very quickly about the DC Circuit, uh, because it's really important, it's what's being reviewed here. It was a unanimous decision and from, uh, Obama appointee, uh, Shabrashna, who, who filed the concurrence, by the famous Douglas Ginsburg, the one who was denied a Supreme Court seat because he once smoked weed, you might remember.

0:37:06 Thomas: Yeah. Yeah. Naomi.

0:37:28 Thomas: Wow.

0:37:29 Matt: Reagan appointed, yeah, poor guy. This is a long opinion. With with the concurrence, it comes out to about 92 pages. It's worth a look because it lays out the entire history of this thing. It is a very unusual opinion for a lot of different reasons, but the gist of it, what it comes down to is, first of all, that national security really trumps everything here. They want to defer to the political branches because Congress has done its own investigation. The executive has done his own investigation.

There were years of negotiation with TikTok trying to craft a solution that just never worked out. There was nothing the executive could accept that ultimately before they pass this law that would allow them to maintain service in the United States, that would allowed them to have the U.S. subsidiary control everything in a way that we could be confident that China was not involved, and they never reached that level of confidence.

So the main argument here from the majority is that this is potentially a Amendment issue, potentially, and we can't say it's not, but because it's potentially a First Amendment issue, it is subject to strict scrutiny, and very unusually for a First Amendment case, the law actually passes strict scrutiny, which, of

0:37:29 Thomas: Oh. Wow.

0:38:25 Matt: Course, requires that we show there's a compelling governmental interest in this case, national security, and, uh, that it is narrowly tailored. And in this case they're saying, well, the narrow tailoring is that all you're doing is saying they have to sell it. They can keep doing everything they're doing right now as long as that changes ownership and So it's not necessarily a First Amendment issue as long as you are able to maintain the ownership and pass it on

0:38:25 Thomas: Right. Yeah. Yeah. It kind of makes sense to me. I mean, especially if it's because of a different country. Like it'd be one thing if it was like, no, we don't like Matt. You got to sell your company to Thomas. It'd be like, well, doesn't Matt have a right to own a company? But if it'S like, yeah, but China doesn't have a Right necessarily to own. And let me know if I'm getting anything wrong. This is just kind of how I'm understanding it as a lay person.

0:38:45 Matt: Uh, Does Right.

0:38:58 Matt: Yeah. It, yeah.

0:39:05 Thomas: You isolate it down to there, it's like, Well, does China have some sort of First Amendment right? Or would that violate someone's First Amendment if they can't own it versus another company? You know, it seems like a compelling argument to me.

0:39:17 Matt: The court found that you can't necessarily say they don't have First Amendment rights just because they're a Chinese company, but they, they also find that it overcomes strict scrutiny. And it is different, obviously, because it's a Chinese country. It's just, it's going to have to be different. It's the only major platform of its kind that is not controlled by American interests. And, you know, obviously I would, we'd all of it if there was some kind of law that could explicitly bar Elon Musk from owning a social media company That'd be amazing. It would be completely unconstitutional. He's a U.S. citizen. It's illegal. There's no way to do it because

0:39:35 Thomas: Oh, that'd be great. God, God, again, how did we F that up? Who's in charge of this?

0:39:42 Matt: And you know, I kept trying to think about this when thinking about what, how would I feel about all this if it were targeting Elon Busk directly, because he's I don't know, South Africa, even as U.S. citizen. Right um it would and he is like an actual direct national security threat at this point. The way he's using Twitter is dangerous. That's beyond our purview. We're not able to do anything about it, but we can do something about this. Two arguments that the government are making go to the fact that there is this data, that we just don't know what they're doing with it and what exactly they might be collecting, and then the factthat they might be able to manipulate public opinion.

And that's an interesting one, because there was a case called of Lamont from the 60s, where USPS was actually allowed to incoming Chinese propaganda. So almost directly, you know, sort of 60s version of this. But that was overt propaganda. That was just, you know—and they said that you have to have a First Amendment constitutional right to allow this to come through. They have the right to spread this if they want to.

What they're saying here is that it's covert, and it's different, because we don't know exactly what they're doing, and there's a lot more mystery to it. And I gather that's kind of the main argument there. When it comes down to it, it does actually survive strict scrutiny, which is a big deal.

0:39:49 Thomas: I'd feel great. I'd feel amazing. Good. Oh

0:40:43 Matt: They find that it is content neutral, that they're not discriminating against any given speaker, even though TikTok's ...trying to say that we are a speaker, we deserve to be heard or whatever. They're just saying, "No, we're discriminating against this ownership, this company. The company's fine, we don't have a problem with the company. And we don' have a problem with Americans using this platform. That's not what we're saying. We're just saying it shouldn't be owned by these people." That is what is up for review right now, is is whether or not there is a violation of the First Amendment in this case. There's an interesting side argument I don't really want to get into right now, but the concurrence says that intermediate scrutiny would actually be the better standard to use here, but also acknowledges it doesn't matter because it doesn' t survive strict scrutiny and agrees to that. Right. The court did a very very thorough review of what was called Project Texas, which was the security measures that they tried to work out with the government. They just find it's not enough.

0:40:47 Thomas: I've Right? Yeah, Yeah. They'd win even harder. Yeah.

0:41:25 Matt: TikTok data security has already had some breaches, like I said, this thing with the journalists being tracked. And the government said explicitly they don't have the resources to even monitor to make sure they're in compliance of all of this. So it's just not, there's too much danger. There's too much risk. So simultaneously, simultaneously asking the court to do two things that courts hate doing they are being asked to overrule the government on a national security decision not just the executive but also congress and they're being asked a strike down a law passed by congress in its entirety and they really don't want to do either of those things so I shouldn't say it doesn't care but uh

0:41:53 Thomas: But that's the, courts don't like doing. The Supreme Court doesn't care about any of those things, does it? Sometimes would love to do those very things.

0:42:00 Matt: No I mean I was talking about the dc circuit specifically like that's that's how I like that so I see how they got there and I think the supreme court gives lip service to those ideas that they don't do those things but of course they do what they want to do at the end of the day um I don't think just based on everything I've read in the last couple of OF DAYS days THAT THERE ARE GOING TO BE FIVE VOTES TO STRIKE THIS LAW DOWN TO OVERTURN THE DC CIRCUIT I THINK THAT IT'S GOING To SURVIVE AND I THINK THAT WE'RE GOING going to hit january 19th and it's not really sure what at that point what's going to happen because obviously google and apple are not going to want to continue to carry an app that is going to give them all the stress uh really are very limited, though, at this point, especially if you're talking about some magical solution from Donald Trump, because this is a law passed by Congress, and Trump can just say he's not going to enforce it, which is not always a great outcome, you know, when a president just says, I'm not going follow the law.

But that doesn't matter, because he's just one president, and you're still talking about leaving a law in the books that has this $5 ,000 per day penalty. He could put in that 90-day extension and just say that they're looking into trying to get this divestiture, um, law professor Alan Rosenstein has suggested that he could just say unilaterally that the law no longer applies because there has been a qualified divesture because whatever the steps they've taken are good enough and nobody can challenge that. So that could be one of his first lawless acts. Um, he still could try to broker some kind of, of actual deal, but he spent a lot of time trying that in 2020. The Biden administration picked up the baton in 21, and they were not able to work anything out. There was briefly a deal to try to get it sold to Oracle competing. Walmart was involved at one point, I think, in trying

0:42:01 Thomas: Yeah, yeah. Mm -hmm. Oh, okay.

0:43:17 Thomas: Jesus.

0:43:17 Matt: To take over tech. I know. Yeah, yeah, just diversifying. So, you know, maybe they could still work something out, but China does not seem to want to let go of this, and they certainly don't want to let go of the golden goose of the algorithm, which is the most valuable part of the whole thing, obviously. So they want to keep all that, and, you know, certainly they have their own reasons. Um, I want to follow this one because this is unprecedented in so many different directions, and it's developing quickly, so we'll have a pretty good idea, I think, after these oral arguments and the 10th, so it's next Friday, and then potentially

0:43:18 Thomas: Yeah. Oh. Are oral arguments? Oh. Wow, okay. We're gonna have to do something with that. Yeah.

0:43:44 Matt: Nine days after that, we don't have TikTok anymore, depending on how they do things. So, uh, they were to make a sort of a preliminary finding, this is unconstitutional, they could grant to stay, but uh, know, for now this is the expedited schedule that we're working on. Uh,

0:43:55 Thomas: We'll have to tune into that. We'll see, uh, if there's anything interesting enough, you know, how we want to cover that, but I will certainly be tuning into that. Wait, hold, still get to hear pre-logger? When do I no longer get to hear someone I actually like in the court? That's going to be sad.

0:44:08 Matt: Elizabeth did file this brief, and presumably she'll be arguing it on Friday. And

0:44:12 Thomas: So one more at least. Oral arguments with, again, I've said it before, might be the sharpest person in the world. She's so good. I what she's goingto be doing after this. Hopefully she'll probably just go make a bunch of money at a corporation or some crap. She should be a Supreme Court Justice or something. Thing, I don't know. Yeah.

0:44:15 Matt: Sure. I I really, I found her brief to be pretty good once again in this case, and I will link to it. Um, you know, again, this is worth talking about, it's worth debating. Uh, we talked about it, is more of an open question, I think, than maybe it's been presented. Uh, at the end of the day, I'm still very, very concerned about Americans, even if it's something I don't like very much, losing a where they communicate, where a lot of people communicate. There should be some kind of solution here that doesn't just have us lose this entire thing all at once, but we'll see what happens.

0:44:51 Thomas: All right, well, we'll follow along and Just enough time for Matt's weirdness. Uh, all right, all right, dude, what font-related nonsense is, uh, your fetish this week? Okay.

0:45:04 Matt: Well, today's nonsense is pretty traditional nonsense. Actually, we're talking about Jim Jordan, one of the most nonsensical people in politics. Wanted to talk about the upcoming anniversary of January 6th on Monday. I would like to talk some more on January 6 in our show on Monday about January 6th. But just a little preview here. Wanted to talk about something I think about a lot, which is a text that Jim Jordan sent to Mark Meadows on January 6. And I don't know if you caught this text, but I'm going to read it to you in its entirety.

We're going to talk About what an actual idiot Jim Jordan is just to remind you that this man runs things. Jim Jordan, I will point out, and again, not that this is an indicator of intelligence, but he's a law school dropout. He's kind of a wannabe lawyer. He never actually made it to practicing law. He sent this very legal text to Mark Medow. It's a very strange text because his colleagues confirmed, for the most part, that Jim Jordan's texts are mostly one or two words, which fits. That's what I would expect. Let me just read how dumb this text is. Now, Mark Meadows received quite

0:45:07 Thomas: Uh. Oh.

0:45:29 Thomas: He's So dumb. Yeah.

0:45:55 Matt: A few different...

0:45:49 Thomas: He sent one That was like, I don't authorize Facebook to use my photos, I hear, like one of those, like, stupid legal things that go around viral for bad

0:46:00 Matt: This sent on January 5th to Mark Meadow, so they are definitely in the process of planning January 6th. He's trying to lay the groundwork here. Mark Meadows, we know from sources that was very concerned about January 6th. He knew that something was coming. He didn't know how bad it was going to be, but he actually warned people not to be there on January 6. He knew it was gonna be that bad. So, you of these people should be in government ever again, obviously, but I just wanted to point out this one in particular.

0:46:24 Thomas: News, Matt.

0:46:24 Matt: Yeah, I know.

0:46:24 Thomas: Got bad news for you. I don't know if you've been following things lately.

0:46:26 Matt: Well, I can keep saying it. Jordan has said that he did not actually write this text, which I believe, um, but the fact that he thought it was worth sending, I think, is certainly worth talking about. So here's the text to Mark Meadows on January 5th, on Januar 6, 2021: "Vice President Mike Pence, as president of the Senate, should call out all electoral votes that he believes are unconstitutional as no electoral votes at all, in accordance with guidance from founding father Alexander Hamilton and judicial precedents. 'Legislative act,' wrote Alexander Hamilton in Federalist No. 78, 'contrary to the Constitution, can be valid.'" Imagine quoting the

0:46:28 Thomas: I This is a text.

0:46:59 Matt: Federalist Papers in a text. What a nerd.

0:47:01 Thomas: Yeah, did it was it first like you up and then the rest of this happened?

0:47:04 Matt: The in Hubbard v. Lowe reinforced this truth, that an unconstitutional statute, we're not talking about statutes, is not a law at all, is a proposition no longer open to discussion. Thank you. An unconstitutional statute is not a law. Great work, guys. 226F135 ,137, SDNY, 1915, appeal dismissed, 242US, 654, 1916. Do not put legal citations in your texts. That is terrible. Terrible.

0:47:21 Thomas: What? What's the reply? Hey, I think this is the wrong number or something. Did you get hacked?

0:47:32 Matt: I looked this up, yeah. Following this rationale, an unconstitutionally appointed elector, like an uncastitutionally enacted statute, is no elector at all. So let's break that down for just a second, Mark.

0:47:43 Thomas: I'm sorry. Who's he sending this to again? I already forgot, Mark.

0:47:46 Matt: Meadows, chief of staff.

0:47:46 Thomas: Meadows, okay. But was it like, "You, hey, here's my draft of, like, the bullshit I'm gonna say, you know"? Like, what was the context for this text? I'll

0:47:47 Matt: Donald Trump, who Jordan claims that it was apparent from the context that he was actually forwarding a text from someone else, but there is no apparent content. January 6th Committee released this text, and of course they were up in arms about the fact the January 6th Committee excerpted part of the text, the first part, where it doesn't have the citations, where it just says that they should throw out the electoral votes. Uh, but I thought it was worth reading the whole thing, because it's very stupid. Uh straight up, yeah. Uh

0:48:14 Thomas: Be honest, he, he very much could have been forwarding a text from Jenny Thomas, like, for not we were to bet on who that would be, I would put her as the leader right now, unless someone suggests a better alternative. That's my, that's who I think it is. I

0:48:28 Matt: According to Jordan, and I believe him on this, this was written by Joseph Schmitz, who's a very well-known conservative attorney. I didn't know he was this stupid, but apparently he's a real idiot. Uh, he was a former Blackwater executive, he was an Department of Defense lawyer under, uh, he was inspector general for DOD, and he's in talks apparently, uh, to be in the Trump administration. He's at least been named as a potential DOD lawyer for Trump as, as well. So that is concerning because this is stupid. This is a dumb guy's idea, a very dumb guy's argument about why you should throw out electoral votes. And I'll just point out that what he's saying is that all the fancy citations to this Federalist paper and to law from 1915, the SDNY, from the Mother Court, all he's saying here is that unconstitutional statutes are not laws, so therefore unconstitutionally appointed electors are not electors. So he, we could just say that. Of course, he doesn't have any actual argument for why these are unconstitutionally appointed electorates.

0:49:18 Thomas: Was gonna say, why do you even need that first part? If they're unconstitutional, it seems like that would do it. Yeah.

0:49:18 Matt: He just doesn't like is what it is. Now, Jordan was very angry because he claims that he also appended or forwarded otherwise a four -page Word document, which I've taken a look at, it's also stupid. It's also just complete idiocy. And we're going to talk a little bit more about the complete idiocity of January 6th and what the plan actually was. And just because it was a stupid plan doesn't mean it couldn't have maybe possibly worked. A lot of stupid plans in history have worked, but it's just a depressing reminder of just how idiotic our overlords are, and how the fact that they think that doing things like citing the full citation of a 1915 appeal that was dismissed by the Supreme Court in 1916 is somehow persuasive on the issue of whether or not we should allow a democratic election. It's just nonsense, all of it. Are the people who are in charge, and I think it's just worth remembering.

0:49:42 Thomas: Yeah.

0:50:05 Thomas: So That was almost kind of a literal footnote, so that was just in the report somewhere that they released this text, huh?

0:50:09 Matt: Just something I've thought about ever since I've read it, that Jim Jordan thought that this was worth sending, that paragraph.

0:50:10 Thomas: Yeah. Just like, "Hey, is this, could this work?" Or something, like that. Yeah, weird.

0:50:17 Matt: Exactly, can you just show this to the president I guess and you know here's some words that he might like?

0:50:18 Thomas: Yeah. Oh, boy. Yeah, it really is true that they, I mean, they, man, they weren't that far away from pulling this off, Matt, and all they needed, with this kind of bullshit, they just need something they can point to, and this is that exact thing. It's the cargo cult kind of of law, where it's like, "Well, according to statute blah blah, the decision of the federal," like, if you put enough of those words in that some people can just be like, "Yeah, that seems like law stuff," then, okay, we can do a coup.

0:50:23 Matt: Yeah sure, exactly, yep.

0:50:46 Matt: So stupid. Very much their one weird trick except their one weird trick seemed to work because they don't care about the actual law. Is the difference. But I mean, just the actual logic of this, of saying, well, here's a case that says that unconstitutional statutes aren't the law, so clearly, and if we say an appoint an elector is an unconstitional elector, then they're also not electors. That's, that's what they're saying that's it comes down to

0:50:46 Thomas: Yeah. Yeah. You just you gotta prove that thing though, that seems like the important thing you would have to prove.

0:51:08 Matt: The big question for me. Yeah, why are they unconstitutionally appointed? Uh It really comes down, we don't like the elections that appointed them. So right.

0:51:08 Thomas: Yeah. Yeah. So it's, it's like, don't look at all of that because that would be a bad thing to look. It'd just be like, we don't like it. That's not a good argument. Let's do this overcomplicated thing about the second step that actually nobody would really disagree with. Like if they were unconstitutional, then yeah, that wouldn't work. So stupid.

0:51:17 Matt: Right. Right. Exactly. Right. Right. If, bought an elector spot, then obviously that would not be a proper elector. No question. Sure. Okay. Yeah.

0:51:34 Thomas: Yeah. All right. Trump should be president. That wasn't weird at all, Matt. I'm failing in my.

0:51:38 Matt: Yeah, you go. Uh I think it's pretty weird. I think it's an abuse of the law, which is, but you know, not as much fun as our usual footnotes, but we are coming up with January 6th, and I want to be sure that we talk about January six. So, John

0:51:45 Thomas: That's fair. Different kind of weird. Yeah. Yeah. Yeah. That's our show. Thanks so much, Matt. A lot of really interesting information there. A Lot of stuff to track going forward. Looking forward to those oral arguments. Gosh, I'm going to. Is there anyone look dorks unite? I we have a little like part some sort sort of party, something about whenever Elizabeth Prelogger's final case in front of the Supreme Court is, I mean, we don't know that it's final, final, but in her current position as Solicitor General, because man, I'm going to miss it.

It's just one of those things where it's, especially as a non -lawyer, where I know I'm gonna hear just mounds of bullshit, just like piles of bullshit. But I'm not a lawyer, so I don't always know exactly which things are bullshit. And it was very nice for the past, gosh, four years or whatever she's been. I I don't know if she was the full term, but to be able to be like, oh, I know that voice.

OK, so this will all be pretty much the truth, like, it will be well argued and she have not forgotten anything. She'll dance circles around these clowns. And now, you Know, in a few short weeks or whatever, it'll be that that one clown who won. Yeah.

0:52:47 Matt: Sarah who wrote this brief. And I gotta say, it was actually reading the, the Prologue, Pre-logger brief that really got me thinking that there's something worth looking at here, at least, because she is so persuasive and because the Biden administration clearly, clearly feels very strongly about this, as do a lot of Democratic senators and House members. So I, I said it's worth talking about. I certainly understand people of other opinions, and I think maybe in the end this really is a First Amendment problem, but I'm interested to see how this all plays out.

0:52:47 Thomas: Yeah. Yeah. She want to do podcasting after?

0:53:08 Matt: I'd love to have her on. We should get her. Yeah.

0:53:09 Thomas: Yeah, she anyone know her. Anyone have, if anyone knows anyone who knows her, let me know and get her on the podcast. All right. Well, that's, well, first episode of 2025 done here. We go, here's to a gajillion more. All right, thanks So much, Matt. Thanks, listeners. Thanks, patrons. Got to answer some patron questions there. It's always fun. Another perk of that is being able to do the rapid response thread every Wednesday that we post, where you can suggest what you want us to cover. So thanks so much. We'll see you next time.

0:53:15 Matt: 2025 goals, you got it. Always.

0:53:36 Matt: Look forward to it. Okay.

0:53:38 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.