We (Disrespectfully) Dissent.

Transcript

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

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:58 Thomas: Hello and welcome to Opening Arguments. This is the last episode. Before Trump 2.0, don't worry, not the last episode. It's OA 1114, but in some ways it kind of feels like the last episode of an era. Thomas, that over there is Matt Cameron. How are you doing, Matt?

0:01:13 Matt: That was a very dramatic pause. I'm feeling dissenty, very dissenty today. And we're going to get into some awesome dissents. Is also, I want to point out, Martin Luther King Jr. Day. And I think this might be the whitest MLK day that we're going to have in a very long time. So we're gonna make sure at the end to make sure that Dr. King's voice is in here too.

0:01:29 Thomas: Because of my weird brain, be Holidays are a surprise every time to me. There's a precisely two holidays that I know when they are. That's Thanksgiving roughly and Christmas. Every other holiday is a surprise. Is this really when they do this one? Has this always been when they Do This One?

0:01:45 Matt: Help that you're never not working, Thomas. You gotta look into that. But

0:01:47 Thomas: Yes, that's true. But I'm not joking. Lydia was like, well, it's a holiday. I was like what? What holiday? Martin Luther King Day. I'm like, no, that can't be when Trump's getting inaugurated. There's huh

0:01:57 Matt: Unfortunate. That's it. Yeah, that's what's happening. I did want to make sure that we, I've got an awesome speech from Dr. King at the end here, but I've been thinking a lot about something he said in that speech, which is that we are now faced, my friends, with the fact that tomorrow is today. That's where we're at. Tomorrow is today, so I want to talk about how we meet that moment, but got some help from one of the best people out there right now, Court Justice Sonia Sotomayor, so we'll talk about her, we'll talk about Dr. King and just dissent where we stand here.

0:02:11 Thomas: Interesting favorite mlk quote although I've modified it slightly um a little bit is the moral arc of the universe always bends toward the mother effing ground all the time but sometimes we can get it to bend a littlebit like accidentally up for a short period of time and I think that's the more accurate way to look at it I hope you won't mind that I modified his quote a little.

0:02:46 Matt: I'm sure he'd understand, especially looking at our current situation, but I think he'd also tell you that we're doing this for your kids and for their kids. We might not see it for a while, but the moral arc is there, and I remain positive, with even everything that's happening today.

0:02:59 Thomas: In seriousness, I do think that's an important insight be gained from, taking a more secular, non -religious view of the universe, which is that there's, no one's going to do it for us. And I think, I think MLK would have obviously agreed with that, but nobody, there's no inevitability though. There is no inevitabilty either way. And it's very important for us to take an active hand in that.

0:03:08 Matt: That's right, sure. That's right. To do it in joy and to do It Together in Love. I know that we can do do that.

0:03:24 Thomas: Have to have joy. Okay, we got to pause for a minute and I can... Okay, stop the recording. Let me see. Oh, yeah, I'm so happy today. I'm not so happy. What a good day. Very joyful.

0:03:36 Matt: You're still making me laugh.

0:03:37 Thomas: Does it sounds good? It sounded right? All right.

0:03:41 Matt: You're doing fine.

0:03:42 Thomas: All joking aside. We've got a really good episode planned for you. I'm excited. I hope it will provide a little sanity on an otherwise insane day. I did want to note that if you need something else to listen to for sanity today, just released a double-length episode over on Where There's Woke. That's me, Lydia, and No Illusions joined us, of my favorite podcasters, to talk about the fact that Elon Musk tried to pretend that he was a top gamer at a video game that he had barely played. And he did this on a live stream. It's best. It is, you have no idea how silly this was. Broke it down in more detail than one could even want. Uh I'd highly encourage you to check that out if you'd like to hear another dose of sanity um is boy that this is one of the stupidest things that's ever happened richest guy in the world he is now our president elon musk and he is pretending to Be Good at Video Games that he hasn't played very much of it's just it's so funny So so give that a listen if you'd like, Where There's Woke. So check, we'll take our usual break. Please support the show, patreon.com/law if you can. We've been putting out lots of goodies lately, so I hope the patrons enjoy that. And share the show. Very important. Please share the Show with someone. Seen some people do that on social media. So happy about that. Can't thank you enough. Right. After this, we'll get to it.

0:04:59 Thomas: Intrigued by the first item on the list here. It says Matt's Extremely Memorable January 20th, 2017.

0:05:06 Matt: 2017. you even remember the year 2017 at this point?

0:05:09 Thomas: I can but I don't remember that year did they decide to do mlk day around then or did they no

0:05:14 Matt: Fortunately, no, it was not the same day. On January 20th, 2017, of course, I was, as I am now, a practicing immigration lawyer. I was 36, 37 years old, and I had an interview scheduled in the John F. Kennedy Federal Building, downtown Boston, not far from where I'm sitting right now, for a marriage, an immigration marriage interview. Pretty normal thing that I've been doing for the last 18 years, nothing too unusual about it, but it was at 11 a.m. on the morning of Inauguration Day. And I thought it'd be good because obviously he's getting sworn in at noon. Maybe I'll just take my mind off things. I'll have something else to do. So I walk in, I'm going through the metal detector and up on the wall in every federal building, I don't know if you know this, but there's always a picture of the president and the vice president. So here's a wonderful portrait of Barack Obama and a big smiling Joe Biden looking down at me for the last time. And I'm starting to choke up a little bit because I'm trying to feel it. Walk in and we have the interview. It goes very strangely. There's just a very strange sort of thing in the air. The very first question that the interviewer asked my my client was, ma'am, why did you marry a man with HIV?

0:05:58 Thomas: What

0:06:10 Matt: That was the actual starting question. One of the most horrifying things, probably the most horrified thing I've ever heard a government official say. It's the second time in my entire career I've had to report an interviewer to the supervisor immediately. You don't want to go all Karen on USCIS when you don't have to, but every so often you do have to see a manager. It just happens.

0:06:10 Thomas: What

0:06:28 Matt: Yeah. I don't wanna talk about it.

0:06:27 Thomas: Where does that come from okay oh

0:06:32 Matt: Bigotry is where it comes from.

0:06:32 Thomas: I I thought that was the point of the story. I didn't know you could do that.

0:06:34 Matt: That was just an incidental part of the story. You can't. No, No, I don't think I ever saw that interviewer again. So I hope he was either fired or assigned to a back office.

0:06:41 Thomas: Thank God.

0:06:41 Matt: Because if you think that's how to start a marriage interview, is wrong. Do something about your soul.

0:06:45 Thomas: No, that's the secretary of the interior now. Is that?

0:06:48 Matt: Okay.

0:06:49 Thomas: Sorry.

0:06:50 Matt: True. The point of the story, though, is as I'm walking out, I hear coming from one of the USCIS officers' offices, the speech. I hear American carnage coming, blasting out in the federal building, in USCIS, as I I'm leaving. And then I walk out and there's no portrait on the wall. The wall is empty. They've taken Barack Obama off the wall at the federal building and they did not replace him. This is a really interesting metric of Trump efficiency. The portraits of Trump did not go up for another eight months. I kept count.

0:07:17 Thomas: Well, that is nice, at least.

0:07:18 Matt: Yeah, you didn't have to look at him for a long time. It was really disappointing when you did, especially if you've seen this portrait this time around. Going to be one to look in. It's bad.

0:07:25 Thomas: Should have just use the mugshot. It pretty crazy that's the first present ever ever where you could you could they had a mugshot you could have used their mugshot for just temporarily hey until we get this better one I found this one on the internet let's put this up everywhere and then you know for our vp who I really try hard not to think about we could do that one where he's dressed in drag for whatever holiday and then that's that's what I think they should put up do it yeah

0:07:33 Matt: And it really does capture him too. So anyway, you go, official portraits. Yeah, pretty good. Pretty good. No, today, the day this episode is coming out, of course, is Trump's second inauguration day. It's also the 40th birthday of one of my closest friends, Nicole Mischeroni, my sister in the law, who is that person that every ADHD person needs in their life who keeps me running.

0:08:03 Thomas: Find another one of that but for me please buddy

0:08:05 Matt: She's running our law office, So she can't really do that. Sorry.

0:08:09 Thomas: I bet that job sucks if you're listening terrible job here's a better one absolutely

0:08:15 Matt: I just want to be sure to wish her a happy birthday because it's her 40th birthday on Inauguration Day for Trump's second term. And she did the right thing and took off to Hawaii, as anybody should today. And I'll be happy to see her back. But as it is, I want to talk today about dissent, because I was listening to dissenting music all that day, as I will be on this day. And I'll try to put up my dissent playlist, because it's a lot of fun, multicultural, multilingual dissent playlists.

0:08:17 Thomas: Happy birthday oh wow yeah put put a link to that bad boy yeah

0:08:39 Matt: Do a lot OF listening before I go to court and before days like this. Was thinking about the dissent in the most important case last year, which was, of course, the Trump immunity case on July 1st, 2024. And there were two dissents in that case. They were both awesome. But we're going to focus on the one from Sonia Sotomayor. The reason that we've been holding off on this one is because we want to have her do it in her voice, because the way she reads it is so powerful. It's so much more inspiring than any reading we're gonna do.

0:09:04 Thomas: This was something that we wanted to do right away and we're like oh that's a great thing to do we'll we'll do Sotomayor's Descent and you were saying you said like oh yeah they they there should be audio of that and then we discovered oh they don't release it until what the next like term or something um the only reason I mention it is because uh amazing producer Lydia uh in touch with somebody and actually did get it a little early which I thought was, it was like a nice, like, yeah, it was just a nice little thing in the midst of hellscape, which is that this lovely government employee sent it to my wife early, like ahead of the schedule a little bit. It's out for everybody now, but it was, like – it was like a little bitter. It just was nice. You know, it's like, oh, that's nice that that happened because there's, you know, one thing that I really value, especially – and it's actually important, and we saw it in Trump 1.0, which is those folks that are still working in the government and doing a good job and doing what they can and underappreciated. And often, you most random people will come up up with like an important role under Trump because he's trying to break everything. He'll be like, well, we looked at the bylaws. Turns out the only person who can stop that is the parliamentarian. You know, some random person will be like that's not that random, but like stuff like that is really important. And as much as like in Trump 1 .0, we had that debate of should people stay or should they leave you know in protest and there was a lot of argument about that I thought that at that time anyone high profile I didn't think they should be working with trump and now I actually think we're so effed that it's like yeah if anyone is if

0:09:16 Matt: Weird. Got the early drop. Yeah? Yeah. Right. Sure. Nice little bonus. Yeah... Yeah.

0:10:33 Thomas: Anyone has any important government position please stay there and silently quietly do a good job and to try to

0:10:39 Matt: If you were a person of conscience, yes, please. And I want to be clear, when I was talking about USCIS, that experience was extremely unusual. The people at USCIS are not ICE. They are extremely professional, courteous, and I have a great experience with them almost always, which is why it was extra shocking to get a question like that. But no, the immigration deep state remains and I hope it remains for quite a long time. I actually did a little deep dive on oral dissents and sort of dissents in the Supreme Court in general. I wanted to point something out that I had no idea and actually kind of goes to what you're saying about Lydia's request. The record keeping on oral dissents is horrific. It's impossible to know how many oral dissent there have been. There's actually a law review article that went to extremely great lengths to try to figure out how many of them actually have been conducted. And here's a fact that I've learned that

0:10:40 Thomas: That's like please please. Right. Yeah.

0:11:20 Matt: I have been thinking about all day.

0:11:21 Thomas: They're in beta track. It or something

0:11:22 Matt: Worse. I'm sure they're real to real probably. The fact that will blow your mind because it really did mine. I'm still thinking about it. We don't know what happened in the Supreme Court on January 22nd, 1973, one of the most important dates in Supreme Court history, when Justice Blackmun read out Roe v. Wade. We don't know what happened in the courtroom. There is no good record of it. There's no recording. And it's to the point that we don't even know who read out oral dissents. We know that White did, that Byron White did. And we only know that because of an interview that Blackmun did in 1987, that he just mentioned it in passing. He's like, oh yeah, there was that time that Byron White, he was really fired up about Roe v. Wade, but sources say that Rehnquist gave an oral decision, but Blackmun didn't say that. And the historian that I saw said that he's not really sure at all that that happened. And that was 52 years ago. How do we not know?

0:12:06 Thomas: It Yeah, it wasn't like Abraham Lincoln times.

0:12:08 Matt: Right, right. There are plenty of people alive.

0:12:09 Thomas: Yeah but you're saying they should now are you saying there should have been an oral record but somebody effed up or they didn't start recording these things until later?

0:12:16 Matt: They just didn't. Yeah. They didn't think it was that important. Also, January 22nd, 1973 happened to be the day that LBJ died. So there was actually bigger news on Roe v. Wade day.

0:12:24 Thomas: That's not not bigger news but yeah that's

0:12:26 Matt: Well, it was considered to be actually at time.

0:12:27 Thomas: Really bad that's not yeah

0:12:29 Matt: It goes to show, though, doesn't it? And you also might note that was a decision in January. They weren't doing the thing they do now where they get everybody hyped up for blockbuster Supreme Court season, right? The announcement days weren't the same kind of thing that they are now. And so, from what I've read, that much coverage of the actual announcement days. They would just cover the opinions when they came out. That's an interesting thing to consider today. But oral oral dissents are a big deal. Dissents are big deal generally. I mean, in the early history of the the Supreme Court. They didn't have them. They all just kind of sat there and read their own opinions out. And they didn't even, there's just somebody writing down what they said. They became a lot more common after the New Deal when the justices started considering more individual rights, when there's less consensus in the court generally. And there began to develop this culture about respectful dissents versus not respectful dissents. I'm sure you know about the thing about whether you put where

0:12:31 Thomas: Hey yeah wow yeah

0:13:11 Matt: Other, I respect. Well, actually, honestly, after reading this, I went on this deep dive, I'll link to a couple of them. I do kind of see how this evolved, and there's a bunch of interesting sort of game theory about how you keep people on your side or when you want to offend people, when you think it's appropriate to know oral dissent. Remember, yeah, yeah.

0:13:24 Thomas: Fair enough. But there have been some ones that I'm like, that shouldn't be respectfully. Can we drop the... I

0:13:29 Matt: And certainly the one we're hearing today is not a respectfully dissent for good reason. Kinds of really interesting stuff that I found.

0:13:34 Thomas: Problem with it is, okay, disscent is already respectfully dissenting. Not respectfully dissending is Luigi Mangione. It's like, we need something more like, okay. I guess you won this one or no, you're ruining the country. That's how I dissent. Like more shades of dissent or at least a broader vocabulary of dissenting.

0:13:55 Matt: That's true. That's just not binary, like

0:13:56 Thomas: It comes across like I dissented or I dissente and I used the wrong salad fork in your direction.

0:14:01 Matt: Exactly. Want to read from this Law Review article. This is a really interesting sentence. Dissent, an impressive eight, invoke the rhetoric of respect approximately 70% or more of the time. Of the two outliers, Justices Ginsburg and Scalia, only Justice Ginsburg refuses entirely to engage the rhetoric of respect.

0:14:20 Thomas: Always?

0:14:20 Matt: Apparently according as of the time of this article. A footnote here that if one were to replace Justice Ginsburg with a justice predisposed to dissent respectfully in 75 % of her cases, the Roberts Court's cumulative average for principal dissents would rise over six percentage points to 73.7, nearly three-fourths of all principal dissents. It's a really weird statistic, but yeah, for being disrespectful. But she had some points one of the great dissenters of our times, as of course is Sonia Sotomayor, who we'll be hearing from. And of course, Sotomaya is probably one of The Realist people ever to serve on the Supreme Court.

0:14:36 Thomas: Well, good for her. She's my favorite justice I I think the best of all time like really I you could grade on a curve to relative to the time uh of course I'm sure there's you know there's many many a great justice but just in absolute terms in terms of progress I'd put her at the top of my list but

0:14:52 Matt: Believe that. Sure. No, I've read a lot of Supreme Court biographies. As you know, I have an oil painting of Justice SotomAYor on my wall that I'm looking at right now.

0:15:06 Thomas: I love her oh that's right and you can just do that I forgot that that that's a thing you can just do.

0:15:10 Matt: Can just commission that. That's right. If you know Pablo Manriquez, then look him up. As it is, Sonia Sotomayor was raised by a single mother after her father died at seven in a housing project in the Bronx, both of her parents are Puerto Rican. She had the opportunity to go to Princeton and Yale and had a distinguished legal career. But that is not a typical background for Supreme Court justice.

0:15:28 Thomas: Yeah. Did she do that? That's incredible.

0:15:30 Matt: Is incredible.

0:15:30 Thomas: It's amazing.

0:15:31 Matt: And I'm working on her biography right now. Maybe I'll report back.

0:15:33 Thomas: A second, I thought you were writing one. I was like, man, man. I don't think you have time for that. That's cool. But yeah.

0:15:37 Matt: Just all of my free time. Yeah. Just calling up Sonia.

0:15:42 Thomas: Need Nicole. Nicole, keep him on task. Back from Hawaii. I'm glad you're having a good birthday. He's starting to write an autobiography. I don'T even think you can, You can't write an autobiography for someone else, Matt. I don't think that's how it works.

0:15:53 Matt: She is used to pulling me back from these things. So just to remind everybody what we're listening to today though, of course this decision was authored by Roberts and joined by everyone. And only removed herself from one part of the decision, for the most part, you which is honestly one of my favorites that we've done since we've been doing this together. It was recorded on July 4th, and I had a lot to say about immunity. This that she's dissenting from, just in case you don't have a chance to listen or didn't, is, as was going to say consequential, but yes, absolutely. I'll go with both, worse and consequential." Roberts, I think, is still confused by our response to this decision, our collective response, which was not happy. Generally speaking, the legal establishment thought this was really bad because it was. Anything that the president does in what they consider to be his core powers is absolutely immune from criminal prosecution. Execution and much worse than that you cannot speculate on his motives you cannot introduce evidence that has anything to do with him doing his official duties in order to prove

0:16:17 Thomas: Of the worst decisions in history, right? I mean, yeah. Yep.

0:16:48 Matt: Uh tomorrow we'll talk about how bad that can get yep

0:16:50 Thomas: Was the one that I yelled about a lot because it made no sense, Matt, it made no sense to not even be able to use as evidence something insane.

0:16:52 Matt: It's pretty bad it yeah

0:16:58 Thomas: Well, I'm sure Sotomayor will say it better than I could ever say it. So hold

0:17:01 Matt: Footnote three. And of course, he sticks this in a footnote. He's responding directly to Barrett's concerns because that was the one piece that she disagreed with was about this evidence thing because it makes it so much worse than it was. Prosecutor may admit evidence of what the president allegedly demanded, handed, received, accepted, or agreed to receive or accept return for being influenced in the performance of a bribe. He's giving her example of a gripe, and he cites the relevant statutory provision there. What the prosecutor may not do, however, is admit testimony or private records of the president or his advisors probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the president's motivations for his official actions and to second -guess their propriety. That makes as little sense as anything I've ever seen in a Supreme court decision. And I've heard a lot of Supreme Court decisions that I disagree with. But he's saying the prosecutor can admit evidence, but they can't admit evidence. He says that within the space of three sentences.

0:17:46 Thomas: Like, like he genuinely might be confused on this. Like I, it seems like, and not that that explains all of it, but like in this particular thing, I agree with your comment there. Like, it does seem like he's confused about why everyone is like, Hey, this is real, real, real, really, really bad. Real, real bad. What explains it? So he can admit evidence, but not evidence though.

0:18:05 Matt: Right. Not real evidence.

0:18:06 Thomas: Yeah. Can admit it, but you can't look at it or something. I don't know. Even know what he's saying I

0:18:11 Matt: The OA that we did about this, I really think that maybe you can admit the New York Times article about something like the public record. It seems to be what he's saying, but not any actual thing that you could could investigate and receive.

0:18:17 Thomas: Guess yeah oh not like any actual like primary first source or

0:18:24 Matt: From anybody who was there because of course they're all immunized. Yeah. I mean, the people aren't immunized, but the testimony is. So

0:18:29 Thomas: Do want to say something I'm sorry I want I meant to say this at the outset I'm you know how what we do is we have an election that's a binary decision essentially a binary outcome did this this person win or did this person when it comes to the president? Then depending on how that went, we'd reconfigure the entire whole view of how the world works and what everyone in the country wants. So both, When you look at the actual marginal votes based on the electoral college, it it was almost nothing in 2016, almost nothing. And the popular vote win by Hillary Clinton was millions and millions. Now after we had that popular vote, win by did we talk about how that's a huge mandate for, you know, the Democrats or anything? Was there talk about, nope, it was Trump's world. He owns the world. Now when Biden won in 2020, um, one, as much as it was a massive popular victory, record margin still wasn't very much. When you look at the electoral college for Was minuscule. I mean, it was, 40 ,000. It was, almost nothing like shocking. I remember being stunned by how little it was. Now Now, this election was not as close as those ones. It wasn't as close to those ones, but it was still only a couple hundred thousand votes. That's Like the difference. Now, that might sound like a lot, but like as a percentage, what's a couple hundred thousand volts out of the hundred and sixty million or whatever? You know, like that's not talking a percentage point. We're not taking half a percentage. We're we're talking.

0:19:45 Matt: Not talking a mandate. That's not a mandate.

0:19:46 Thomas: It's nothing. Thing. And then everybody's like, well, but he won the popular victory. Yeah. Okay. But that didn't seem to matter when Hillary won it. Like we, we just have done this thing on this election. I think more than any that I can remember where we've decided this is a mandate. It's rewritten the whole book on what America wants. We, we talk, God, I'm so sorry, Matt, but but I the still hate listen to the daily by the new york times and they talk like it's a huge mandate and you are making mistake if they don't feed you into this uh um discovered mandate from the country that all this happened and it's just a couple hundred thousand votes in three states it's three states a couple hundred thousand votes that means by the way if a hundred thousand people change their mind that's even less you know like if they flip their vote and I just want to keep that in mind as we are swearing in you the next president who everyone has decided has the largest mandate you can do whatever he wants ever they've given up on trans issues the the feels like a lot of liberals have given up ON Trans Rights and I I hope

0:20:41 Matt: Does.

0:20:41 Thomas: That's not true but it really feels like they're like like, well, this election decided it. No one cares about that. Really? Or did 200 ,000 people, if 100 ,000 People woke up on a different side of the bed now and, we're talking a whole different thing.

0:20:52 Matt: Now, as we're going to have to talk about on Friday, they've done the same thing with mass deportation already, even before Trump took office. They're already giving up on that as well. So there's only one thing to do. There's only a one moral response in the face of all of this, and that is to dissent. And that's what we're gonna be doing as long as we possibly can. And I think this is a very inspirational place to start.

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0:23:07 Thomas: Shall we get to the real dissent?

0:23:10 Matt: Hear it.

0:23:10 Thomas: Let's do it. Let's start. This This is care of a delightful government employee who sent this to my wife early.

0:23:15 Matt: Appreciated.

0:23:16 Thomas: Here we go.

0:23:16 Clip: Saying it so doesn't make it so. Today's decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle possible, foundation to our Constitution and system of government that no man is above the law. Relying on little more than its own misguided wisdom about the need for presidents to act fearlessly and with bold and unhesitating action, the Court gives former President Trump all the immunity he asked for, and more. Because our Constitution does not shield the former president from answering for criminal and treasonous acts, I, with Justice Kagan and Jackson, dissent.

0:24:12 Clip: Remember the indictment. It paints a stark portrait of a president desperate to stay in power. In the weeks leading up to January 6, 2021, then President Trump allegedly, quote, spread lies that there had been outcome determinative fraud in the election and that he had actually won, close quote, despite being notified repeatedly by his own closest advisors that his claims were untrue. When dozens of courts swiftly rejected those claims, Trump allegedly quote, pushed officials in certain states to ignore the popular vote, disenfranchise millions of voters, and dismiss legitimate electors, close quote. When state officials repeatedly declined to act outside their legal authority and alter their state election processes, Trump and his co -conspirators purportedly developed a plan to disrupt and displace the legitimate election certification process by organizing fraudulent slates of electors. As the date of the certification proceeding neared, Trump allegedly sought to, quote, use the power and authority of the Justice Department, close quote, to bolster his knowingly false claims of election fraud through sham election crime investigations and official letters, falsely presenting the fraudulent electors as a valid alternative to the legitimate electors. When the department refused to do as he asked, Trump turned to the Vice President. After he tried and failed to persuade the Vice president, quote, to use his ceremonial role at the January 6th certification proceedings to fraudulently alter the election results, close quote, he allegedly, quote, attempted to use a crowd of supporters that he had gathered in Washington, D .C. to pressure the vice president to fraudulently alter the election results, again, close quote. Speaking to that crowd on January 6th, Trump, quote falsely claimed that based on fraud, the vice -president could alter the outcome of the election result, close When the crowd then violently attacked the Capitol and halted the proceedings, Trump allegedly delayed in taking any step to rein in the chaos he had unleashed. Instead, it is enraged in the indictment that he attempted to exploit the violence and chaos at the Capitol by pressuring lawmakers to delay the certification of the election and ultimately declare him the winner. This is the backdrop against which this case comes to the court.

0:27:16 Matt: Want to note, I went back and reread everything before this recording, and I was really struck by the way that she is completely owning John Roberts with this introduction, because John Roberts does not mention the facts. He really doesn't want to. Why would he want to? Facts certainly can't be important in this case.

0:27:32 Thomas: Because they're crafting a decision for the ages.

0:27:34 Matt: Right. It's just for the agent. And he actually makes clear in his announcement that this is not about any given president, it's about the presidency, right? But that Trump happens to, yep, got his name on him. But recitation his of the facts, it was barely even a recitation, the facts he's really just kind of going through the indictment and just talking about the charges and sort of the very basic summary, but it hardly explains it the way that she does. And she's doing this in just clear, straightforward, novelistic language, which I appreciate so much to let you know why this This opinion especially matters. It's not just any criminality. It's criminality that goes directly to the heart of democracy, and I just really appreciate her clarity on this and everything.

0:27:41 Thomas: About any, just total that it came up, you now. Just Just happened to. Yeah.

0:28:09 Thomas: Yeah. Yeah. What I love the beginning when she said relying on little more than its own misguided wisdom about the need for, quote, bold and unhesitating action by the president. I mean, it's so true. And it's like, I've made up a thing about how the president needs to have a bold and unflinching, unhesitating. That's not like in the Constitution, man. I mean am I wrong?

0:28:31 Matt: Right. And it's also worth remembering what you reminded us a little earlier, that Neil Gorsuch kind of looked up at the ceiling and opined about how this needs to be a decision for the ages, a ruling for the edges.

0:28:42 Thomas: Yeah. I sort of judicial constraint or modesty or, or judicial conservatism, you know, which is something a small C conservatismo, which has a very important principle. It's just, it's this whole thing is outrageous for the ages.

0:28:56 Matt: Turns out we need this decision right now, not in 300 years. So So here we are. Let's keep count.

0:29:02 Clip: Majority notes that this criminal prosecution of a former president for his conduct in office is unprecedented. That's true. But it fails to recognize in any way that the events alleged in the indictment are also unprecedented. It is only because of those events that now this court from prompts a question it has never had to answer in the nation's history. Whether a former president enjoys immunity from federal criminal prosecution. The majority thinks he should, and so it invents an atypical, ahistorical, and unjustifiable immunity that puts the president above the law. The majority makes three moves that, in effect, completely insulate presidents from criminal liability. First, the majority creates absolute immunity for the president's exercise of, quote, core constitutional powers, close quote, as defined by the majority, not by anybody else, despite that Trump has never sought this narrow immunity, and despite the fact that it rightly has no application in this case. Second, the majority eclipses that concept of core immunity with a much broader presumptive or absolute immunity for all of a president's official acts. The upshot is that a president's use of any official power for any purpose, even the most corrupt purpose, is now almost certain to be immune from prosecution. Third and finally, out of whole cloth, and it doesn't mention it today, the majority declares that evidence concerning acts for which the president is immune cannot be used against him in a criminal proceeding, even in a prosecution for private acts.

0:31:14 Matt: So Sotomayor is freestyling here. She is not reading from her descent, which

0:31:16 Thomas: That's I could tell that sounded like she said something.

0:31:20 Matt: Awesome.

0:31:20 Thomas: Love that.

0:31:20 Matt: This is the director's cut. Yeah, this is what you're getting. And it's worth going back and reading her descent because she is skipping some parts. She's bringing out what she thinks is most important. And, you know, no, it's

0:31:22 Thomas: Fantastic. Is great. And people haven't really heard this really. I mean, like, unless there's another show that decided to get it and play it like it it wasn't a bit they don't wasn't there news inside of the court you know like you can't go right I mean you can'T go record it right and

0:31:32 Matt: So good. No, right. And it is so important to hear her say it. It just means so much more to me.

0:31:46 Thomas: While we you know obviously we all read the dissent at the time we're getting some extra we're giving bonus tracks here this is fantastic even better than I hoped

0:31:53 Clip: Argument by argument, the minority invents immunity. Under its scrutiny, its arguments crumble. Indeed, all of the standard grounds for constitutional decision-making cut against the immunity that the majority creates today. Start with the text of the Constitution. It contains no provision for immunity from criminal prosecution for former presidents. That omission is not dispositive, but it is notable. The framers clearly knew how to provide for immunity from prosecution. They provided a narrow immunity for legislators in the speech or debate clause.

0:32:38 Clip: And they knew that some state constitutions at the time specifically provided express criminal immunities to governors. Yet they noted no immunity for the president. And insofar as the constitution's text speaks to the question at hand, it actually contemplates some form of criminal liability for former presidents by noting that a president who violates the law can, quote, be liable and subject to indictment, trial, judgment, and punishment according to law. Those are the words of the Constitution. The

0:33:18 Thomas: Her background noise sounded like a dog yeah is Is there a dog in the court? Is there court dog?

0:33:23 Matt: There's not a dog in my office. It's a backstory.

0:33:27 Clip: Historical evidence also cuts against the majority. In the Federalist Papers, Alexander Hamilton promised that former presidents, unlike the kings that the framers had rejected, would be quote, liable to prosecution and punishment in the ordinary course of law, close quote. At the constitutional convention, James Madison's proposal, quote, to consider what privileges ought to be allowed to the executive, was met with silence and the delegates to the ratification debates made clear that the president would be fully punishable by the laws of his country, close quote. Interesting. History matters, right? Except here.

0:34:13 Thomas: Freestyling, baby.

0:34:13 Matt: How about it? Yep. Yep.

0:34:15 Clip: In the same manner, the majority ignores overwhelming evidence that both presidents and the Justice Department have long understood former presidents to be answerable to the criminal law for their official acts. Take Washington, for example. After the Watergate tapes revealed President Nixon's misuse of official power to obstruct the FBI's investigation of the Watergate burglary. President Ford pardoned President Nixon. Both Ford's pardon and Nixon's

0:34:47 Thomas: Weird. Why did he need to do that?

0:34:48 Clip: Acceptance of it necessarily rested on the understanding that the former president faced potential criminal liability.

0:34:56 Thomas: One would think, Matt.

0:34:57 Clip: Subsequent special counsel and independent counsel investigations, such as the investigation of the Iran-Contra affair, have also operated on the assumption that the government can criminally prosecute former presidents for their official acts. Indeed, even Trump's own lawyers during his second impeachment trial were sure that a former president, in their words, is, quote, like any other citizen and can be tried in a court of law, close quote. They promised senators that declining to convict Trump for his conduct related to January 6th would not leave him, quote, in any way above the law, closed quote.

0:35:41 Clip: Those are the words of Trump's own lawyers.

0:35:41 Matt: Such an important point. Love it.

0:35:42 Thomas: Forgot about that.

0:35:46 Clip: In other words, the notion that a former president would be immune from a federal criminal prosecution had never occurred to the framers, to any sitting president, to the Justice Department, or until this case, to Trump's lawyers, and to this court.

0:35:59 Thomas: To Richard effing Nixon.

0:36:06 Clip: Undeterred, the majority insists that the Constitution requires criminal immunity for former presidents. Never mind that Congress has a constitutional interest in enacting criminal laws that apply to everyone, and never mind that the judiciary has a constitutional duty to do justice in criminal prosecutions. According to the majority, separation of power principles demand criminal immunity for former presidents. The majority says that if a particular prosecution for a president's official acts poses, quote, no dangers of intrusion on the authority and functions of the executive branch, close quote, listen to the words, none at all, then maybe, just maybe, it could move forward. But if this prosecution, for allegedly attempting to subvert the results of a presidential election, does not easily and obviously clear that bar, and according to the majority, it does not, then it is hard to imagine what prosecution ever will. So how does this majority get to its rule? Apart from its varied invocations of separation of power principles, the majority points to the balancing test this court employed in Nixon v. Fitzgerald. There, the court balanced the constitutional right of the interest to be served against the dangers of intrusion on the authority and functions of the executive branch to determine whether former presidents were entitled to civil immunity from private damage suits based on their official acts. The court determined that legitimate concerns about countless civil suits stemming from the difficult decisions a president must make risked distracting the president from his public duties, while the public interest in such suits was comparatively weak. In that context, the balancing test came out in favor of civil immunity.

0:38:28 Clip: Tellingly, none of the nine justices in Fitzgerald thought that the balancing test would come out the same way for a criminal prosecution. And yet today, the majority insists that it does. That conclusion is utterly indefensible. Consider first the danger of intrusion on the executive branch. Or, as the majority puts it, the danger, quote, that the president would be chilled from taking the bold and unhesitating action required of an independent executive, close quote. The majority says that danger is greater in the context of a criminal prosecution than it was in the Fitzgerald context of civil damages liability. Think about that. That makes no sense. A former president must face at most one federal criminal prosecution for each criminal offense allegedly committed while in office, as opposed to countless, if not thousands, perhaps millions of civil suits brought by private litigants. More importantly, federal criminal prosecutions have robust procedural safeguards not found in civil suits. Justice Department policy limits the prosecutions that can be brought in the first place against former presidents, and then the grand jury, the public jury, and judges provide additional checks. The government will have the burden to prove every element of the alleged crimes beyond a reasonable doubt, and a former president may well have legal arguments in defense that would be unavailable to the average criminal defendant. Finally, every former president will have the right to appeal. And if past practice and likely future practice is any indication, presidents will be assured final review in this court. Despite these safeguards, the majority insists that the threat of criminal sanctions is, quote, more likely to distort presidential decision making than the potential payment of civil damages, close quote. If that is right — and every president until today thought they had no immunity — then that distortion has been shaping presidential decision making since the earliest days of the republic. And we should be wary of dispensing with it now. Now, it does not seem too much to ask that the person who must, according to the dictates of the Constitution, quote, take care that the laws be faithfully executed, also take care to comply with those laws.

0:41:23 Clip: Ironic, isn't it? The man in charge of enforcing laws can now just break them. A

0:41:30 Matt: Yeah, right there. So I just want to point out a couple of things that she's done here as we're going off script. And again, this is a very long script. There is no way — it would have taken forever to read the entire dissent, but there's that moment there where she's like, think about it. It doesn't make any sense.

0:41:42 Matt: And then this other thing of like, It's ironic, isn't it? Very conversational, just speaking directly to us. And that's why it's so important to play it today, I think. But certainly, we could do a full reading of The Actual Descent. It is very good. It's a beautiful piece of legal writing.

0:41:52 Thomas: So she's skipping stuff you're

0:41:53 Matt: She's skipping quite a lot.

0:41:53 Thomas: Saying. Oh.

0:41:54 Matt: Yeah. And she's also freestyling. Like I said, she's just kind of interpolating her thoughts and sentences in here. That's why It's so much more interesting than just hearing her read it.

0:42:02 Thomas: I thought the point about the civil liability — I didn't even remember that component, which is argued there. It's like you think the president needs more protection from criminal stuff than civil stuff. Like there's an infinite set of civil lawsuits that hypothetically one could file against the president. It makes sense that especially while in office, that's not OK. Like I would just imagine, any Democrat in office, and then you got any number of MAGA just filing civil lawsuits all day. That makes sense. Protect him from that. When it's criminal, there's one at most, as she said, one charge per like crime commit, you know, like per thing. I forget how she phrased it, but it's like there's not an infinite set of that. There's one and there's already protections and there're like safeguards against even doing this to begin with when the, when it's a sitting president and the president has all these resources, including obviously the Supreme Court will step in and fight and review it, do a final review. View it's it's so so obvious the president doesn't need more protection on this like it's fine he's fine

0:42:55 Matt: As she says. Yeah. She's really putting it out there.

0:43:02 Clip: A well-founded federal criminal prosecution simply does not pose a serious danger to the functioning of the executive branch. It hasn't for over 200 and close to 250 years. On the other side of the ledger, the public interest in a federal criminal persecution of a former president is much greater than the public interests in civil suits. Every member of the Nixon v. Fitzgerald Court explicitly recognized this. Unlike a civil suit, a criminal prosecution seeks to redress wrong to the public as a whole. The public interest is particularly strong with regard to officials like judges and prosecutors who are granted some degree of civil immunity because of their duties. This court has recognized time and time again in all these other cases that the possibility of criminal liability serves the important function of ensuring that officials exercising power under public trust remain on equal footing with their fellow citizens. Indeed, the public interest in the federal criminal prosecution of the former president alleged to have abused the power of his office, powers given to him by the people, may be greater still. Not to mention the question of federal criminal immunity for a former president involves a countervailing Article II consideration absent in Fitzgerald. Because the executive branch itself has an interest in enforcement of the criminal law, Despite an obsessive focus on the independence of the executive, the majority in fact diminishes that independence by exalting occupants of the office over the office itself.

0:45:05 Clip: In short, Fitzgerald does not support the breathtakingly broad criminal immunity that the majority announces today. Eager to make its project seem more modest than it is, the majority offers two concessions. First, it concedes that Trump's impeachment judgment clause argument was wrong. That clause does not require that impeachment and Senate conviction precede a president's criminal prosecution. But rejecting that argument does not make the majority's immunity doctrine any narrower than Trump's. Only the majority's immunity doctrine will continue to protect the former president's official acts from prosecution, even after impeachment in the House and conviction in the Senate. Imagine that, even though the Constitution says a president can be criminally prosecuted. Even when a president's conduct is so egregious that he is impeached in the House and convicted by a two -thirds majority in the Senate, he still will be entitled to, quote, at least presumptive, close quote, criminal immunity for those acts.

0:46:28 Clip: The second concession it claims to be making is that a former president still can be prosecuted for his unofficial or private acts, but that was never disputed by anyone. The majority's only contribution in that regard is profoundly unhelpful. It cuts back the private acts prosecutions that can move forward both by taking the broadest possible view of official acts, defined without regard to motive or intent, and by insisting that official acts cannot even be admitted and examined as evidence in a prosecution for private acts. The majority creates yet again, out of whole cloth, a rule barring the use of official acts evidence. Make no mistake, the majority has embraced the broadest view of presidential immunity on offer by anyone, any place, except the petitioner in this matter.

0:47:34 Clip: When the majority applies its new criminal immunity doctrine, it proves to be a one -way ratchet. The only thing we could deem to be clear is that although it's claiming judicial restraint and sending much of the indictment back to the lower courts for parsing, the majority seems to have no trouble saying that Trump is entitled to absolute immunity for any conduct involving his communications with the Justice Department. And it has no trouble say that all of the conduct involving the Vice President is official conduct. Thus, it is decisive in the direction of ensuring some immunity. Yet, when it comes to the most obviously private conduct, such as relying on private attorneys to organize fraudulent slates of electors, the majority is shockingly indecisive. It can't make up its mind.

0:48:35 Clip: Even in the face of concessions in court to this court quote, that were explicitly to the contrary from Trump's attorneys. Too hard a question, the majority says. Why is it a hard question? I don't know. Do you?

0:48:34 Thomas: Who

0:49:00 Clip: Looking beyond the fate of this particular prosecution, the long -term consequences of today's decisions are stark. The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding. This new official acts immunity now lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain above the interests of the nation. Orders

0:48:59 Thomas: Would

0:49:39 Clip: The Navy SEAL Team 6 to assassinate a political rival?

0:49:44 Clip: Immune. He's commander-in-chief. Organizes a military coup to hold on to power? Immune. He's commander-in-chief. Read the majority's opinion, and you will find that it offers no response on this score, except to say that the possibility of presidents getting into the habit of prosecuting their predecessor poses a greater, clearer, and more present danger to the nation than a president who rules as a king above the law. I, like the framers of the Constitution, disagree.

0:50:25 Thomas: Yeah

0:50:26 Clip: I end with this. Never in the history of our republic has a president had reason to believe that he would be immune from criminal prosecution. If he used the trappings of his office to violate the criminal law. Moving forward, however, all former presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I, along with Justices Kagan and Jackson, dissent.

0:51:12 Matt: There you go. It's really too bad you're not allowed to applaud at the Supreme Court, but that would have been the time. And I just really appreciate that she took the time to be so human about it and to kind of deviate from her own script, as beautifully written as it was, and just talk to us. It's just a really, really unique moment. And I think a good place to start the next four years of dissent that we are setting out on. Is a time for dissent. Don't want to burn ourselves out doing it. But there's a way that we can all dissent, every one of us and every part of our lives. And I wanted to close out, of course, with Martin Luther King Jr. And this is a speech that doesn't get a lot of attention, because usually today, you'll hear people talking about I Have a Dream or Letter from a Birmingham Jail, more comfortable Martin Luther King statements. These are things that most people can hear and more or less agree with from both sides. I hope. But this is a speech that should get a lot more attention. This is given exactly one year before he died. I will submit to you it is the reason that he died, the reason he was killed, was the speech and the turn that he took at this point to become a revolutionary. And that is the MLK that we need today. This is the speech given in Manhattan on April 4th, 1967, in which he came out against Vietnam. This cost him a lot of white support. It cost him the support of LBJ, it cost him support of the Washington Post among other places, because he was openly saying that Vietnam was immoral, that it was bad, that we need to get out of it, and that it was disproportionately killing Black people. That's not the part of the speech we're going to play. I'm going to place something that's more directly relevant to our time, something that I think is pretty timeless and but I think it'd be best if we just listen for the most part without comment because it really deserves to stand alone.

0:51:23 Thomas: Interesting yeah so

0:52:41 Clip: And gentlemen, against our failure to make democracy real and to follow through on the recommendations that we initiate, I want to update lives and our ability to recapture Master, though I went through a sometimes hostile world, declaring eternal hostility to part of the races in the military, with this powerful commitment, we shall hold the challenge of status quo and unjust morals, thereby sweet the day when every valley shall be exalted and every mountain and hill shall be made low. And quickly shall be made straight, and the rough faces plain, genuine evidence of the value of things in the final analysis, that our knowledge must become ecumenical or other than sectional. Every nation must now develop an overriding knowledge of mankind as a whole, of the people who serve the best in their individual societies. This call for worldwide fellowship, amidst majorly concerned beyond one's time, race, class, and nation, is in reality a call for all embracing, embracing an unconditional love for mankind. This all misunderstood.

0:54:10 Clip: This all misinterpreted concept so readily dismissed by the creatures of the world that the weak and powerful become an absolute necessity for the survival of man. When I speak of love I am not speaking of some sentimental and weak response. I am speaking of that force which is just emotional thought. I am speaking with you because the great religions have stated that the supreme unifying principle of life, love is somehow the key. And I'm not supposed to lead you to ultimate reality. This is the modern Christian Jewish belief about ultimate reality, ultimate reality is beautiful. Let us start with the first epistle of St. John, let us love one another, love God, let everyone that loves is born of God and knoweth God, he that loveth not knoweth not God, for God is love, we love one Another, God is well with us, His love is effective in us, let us hope that this spirit will come to all of us today, we can no longer afford to worship of God's name. A mile before the altar of the Holy, fortune to this day may be cut by the devilizing eyes of the enemy. The spirit is cut with the record of nations and individuals and suits itself to the path of the beast. Muhammad said, Love is the ultimate force that makes up the saving charge of life and good. And that is the bane and charge of death

0:56:09 Clip: We are now faced with the fact, my friends, that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding momentum of life and history, there is such a thing as being too late. Procrastination is still the thief of time, and often leaves us standing there, naked and protected, with a lost opportunity. Tired of their lives, men does not remain but flood heirs. We may try desperately at the time of the cause, but that time is a pattern of dread that we can rest on. Over the beach, bones, and jungle rescues of numerous civilizations, to put the best words to make, that an invisible book of life, the fate of the record for our vigilance, are ours now. Oh my friends, you have to move within the rights of having with you, Tom. We still have a choice today, non -violent coexistence, a violent coordination. We must move past indecision to action. We must find new ways to speak peace and Vietnam justice throughout the developing world that borders on our doors. We do not act. We shall surely drive down the long, dark and shameful corridors There are those who possess power without compassion, might without power, and strength without sight. Now let us begin. We must put ourselves in the long and bitter but beautiful struggle for our new birth. This is the calling of the Son into God. Now let's just pray eagerly for our response. Shall we say the odds are too great? Shall we tell them the struggle is too hard? But I must be that the forces of American life, military, and many -star rivaled strongmen, and we send our peace with it. And will there be another message of normal, of hope, of solidarity with our enemies, of commitment to thy cause, but ever, of course, the choice is ours, and though we might be afraid otherwise, we must choose in this crucial moment in the history, because I know that God yesterday came just a little earlier than this day, once where man and nation comes comes along to the side, in the strife of truth and falsehood, of good and evil side. Some great cause, dark new messiah, often eats the dream of light, and the charts go by the earth, twixt the darkness and the dark, though the cause be evil power. Yet this truth alone is strong. Though her portion be the scaffold, and the coming the throne be long, yet that scaffold sways the future. Behind the thin unknown standeth God within the shadow, keeping watch above His own. If we would only make the right choice, we would be able to transform this pending cosmobility into a creative song of peace we will make the right choice. We will be able to transform the tending discourse in our world into the vehicle of symphony of poverty. We will but make the RIGHT choice. We will able to speed up the way all over America and all over the world and justice will roll down like walls and righteousness like a night stream.

1:00:29 Matt: Without compassion, might without morality, and strength without sight is a pretty solid summary of the Trump administration, past and future. I think this is a very good response to it. One more passage way back that I'm going to have to just read in very quickly because talking in this speech about a revolution of values. He says, a true revolution of values will soon cause us to question the fairness and injustice of many of our past and present policies. The one hand, we are called to play the good Samaritan on life's roadside, but that will only be an initial act. One day, we must come to see that the whole road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life'S highway. True compassion is more than flinging a coin to a beggar. Comes to see than an edifice which produces beggars needs restructuring. It's

1:00:36 Thomas: Hold yeah

1:01:07 Matt: A great place to end today, I think. Is the world that we're working for. And it's just because today is what it is, it doesn't mean that we are not getting there.

1:01:13 Thomas: Right, Matt. Well, lots to think about. Was, uh, nice to, to hear some great dissenters today. That was fantastic. So I think that's a, helps us power through, uh, not, uh, great day. So thanks so much, man.

1:01:23 Matt: I'm going to go listen to some Rage Against the Machine now. I'll see you later.

1:01:26 Thomas: All right. Take care, everyone. What can be said? See you soon.

1:01:29 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.

1:01:47 Thomas: A good day. On, Mattie. Get on, get on Matt or on my, get on Matt.

1:01:48 Matt: Just one piece before we get yep sorry yeah sorry Sorry.