Advisory Opinions

After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are charged with carrying out laws that have been passed by Congress.  “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.” Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument. Stick around for a deep dive into Lochner v. New York  its relation to coronavirus lockdown court order, as well as a discussion about whether Trump can win enough Electoral College votes without winning Florida. Sarah and David wrap up today’s episode with a reflection on their biggest career failures. Show Notes: -Bill Barr’s speech at Hillsdale College, Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate, Yates v. United States, Lochner v. New York, Morrison v. Olson, and William S. Stickman IV’s Pennsylvania District Court decision, The Dispatch30-day trial at . Learn more about your ad choices. Visit megaphone.fm/adchoices

For the month of August, the Biden campaign outraised the Trump campaign by a whopping $150 million. (Biden raked in $360 million last month compared to Trump’s $210 million). As stark as this fundraising difference may be, is there any reason to believe it will be meaningful in the long run?A lot of this money will go toward television ads at this point, but campaign money starts diminishing in value once people start voting by mail. In other words … now. Not to mention that the fundraising difference doesn’t matter so long as each candidate meets a certain threshold. On today’s campaign update episode, our podcast hosts discuss these fundraising efforts while dissecting Trump’s surprising lead with Hispanic voters as well as the usefulness of yard signs, door knocking, and phone banking to a campaign’s overall success. Rather than waste time putting up yard signs or trying to persuade voters to vote with ideologically charged Facebook posts, Sarah argues that the most important—and statistically effective—thing you can do to boost voter turnout is text your closest friends and remind them to vote. As David points out, “It fits in with the sort of general reality that we have a large amount of influence over a small amount of people and a small amount of influence over a large number of people.” Stick around for a discussion about the newest additions to Trump’s Supreme Court list—also known as Sarah’s close friends list—as well as David’s latest Sunday French Press newsletter on the use and abuse of critical race theory. Show Notes: -Sign up for a 30 day trial at The Dispatch here! -“The Sweep: Swing States and Voter Registration Trends” by Sarah Isgur and “Sorry campaign managers: Lawn signs are only 98.3 percent useless” by Philip Bump in the Washington Post, and three polls showing Trump winning Hispanic voters in Florida, The Emerging Democratic Majority by John B. Judis and Ruy Teixeira. -“The Most Tremendous Reelection Campaign in American History Ever” by Olivia Nuzzi in New York Magazine, the newest additions to Trump’s Supreme Court list, David’s latest French Press, “On the Use and Abuse of Critical Race Theory in American Christianity,” the New York Times’ 1619 Project, and “A pandemic, a motel without power and a potentially terrifying glimpse of Orlando’s future” in the Washington Post. Learn more about your ad choices. Visit megaphone.fm/adchoices

Last week, President Trump encouraged North Carolina voters to test their state's election security. David and Sarah discuss how, exactly, someone commits voter fraud, and what voters need to know as we close in on this November's election. But that's not all: Sarah gives us the latest on the state of the race and how the Trump campaign lost its cash advantage. Plus, David has some thoughts on Tenet. Show Notes: -The New York Times on “How Trump's Billion-Dollar Campaign Lost Its Cash Advantage” -Sign up for Sarah's newsletter The Sweep Learn more about your ad choices. Visit megaphone.fm/adchoices

There’s a bit of post-2016 election PTSD among American political strategists, where any slight uptick in Trump’s polling numbers is perceived as an emergency situation for the Biden campaign. But despite the almost constant news cycle turbulence in American politics that would have caused big swings in a normal presidential election, the polls have remained relatively stable over the past few months. Biden remains in a clear and comfortable lead over Trump on practically every policy issue except for the economy. Why? According to Sarah, “It’s because of the referendum effect, and it’s because of the wild partisanship moment we’re in right now.” How stable are these divisions that have emerged? Hyper-partisanship isn’t going anywhere as we approach the presidential election, and as David reminds us in today’s episode, “these identities are cementing at the state level as well.” After going deep into the weeds on the latest presidential polls, our podcast hosts delve into the temperamental differences between city life and suburbia, the president’s memorandum on combating lawlessness in America’s cities, and a primer on time, place, and manner restrictions on the First Amendment. Show Notes: -The Sweep: Midweek Mop-Up with Dave Kochel, Fox New polls in Arizona, North Carolina and Wisconsin, CNN poll, Suffolk University/USA Today poll. -David’s forthcoming book Divided We Fall: America's Secession Threat and How to Restore Our Nation and Trump’s memorandum on “Combating Lawlessness In America’s Cities,” a very important city council meeting speech about boneless chicken wings, and a documentary on the dreaded man cold. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ever since its humble beginnings in March 2016, The Babylon Bee—a Christian, conservative version of The Onion—has been a godsend for Americans who have become worn out by news outlets that take themselves too seriously. From its theological inside jokes about the prosperity gospel to its Snopeslong-standing feuds with and CNN, the Bee has made its mark in the world of satire. On today’s episode, David and Sarah are joined by the Babylon Bee’s editor-in-chief, Kyle Mann, who tells us about the challenges of satire writing in a cultural moment when it’s not always easy to determine fact from fiction. “There is an element where it’s not that our articles are too close to reality, it’s that reality is too close to satire,” Mann explains. “It’s what makes it so hard to write because you write something that you think is so goofy and over the top and then people believe it because reality is so crazy.” Listen to today’s episode for a conversation about C.S. Lewis’ best books, Kyle’s joke-writing process, and a tell-all about why Twitter’s decision to temporarily deplatform and demonetize the Babylon Bee was ironically “the best thing that could happen” to the team. Today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah discuss the never-ending saga with Michael Flynn, the McGahn case, and Sarah Palin’s defamation case against the New York Times. Show Notes: -Some of the Babylon Bee’s top headlines: “Nation's Cats Endorse Trump In Hopes Americans Will Go Back To Work And Leave Them Alone”, “Nation Shocked As Jerry Falwell Jr. Doesn't Turn Out To Be Man Of Upstanding Character,” “Lego Introduces New Sharper Bricks That Instantly Kill You When You Step On Them,” “Joel Osteen Sails Luxury Yacht Through Flooded Houston To Pass Out Copies Of 'Your Best Life Now,' ” “Inspiring: Celebrities Spell Out 'We're All In This Together' With Their Yachts.” Learn more about your ad choices. Visit megaphone.fm/adchoices

Violent riots escalated quicky in Kenosha, Wisconsin, after the police shooting of Jacob Blake. . On Wednesday, 17-year-old Kyle Rittenhouse was charged with first-degree homicide for the shooting deaths of two people in Kenosha on Tuesday evening. Sarah and David break down what we know and don’t know about the Jacob Blake shooting on today’s episode of Advisory Opinions and talk through the legality of vigilante justice during times of unrest. “These really traumatic events are playing out in front of all of us,” David says on today’s episode. In one sense they’re playing out in a way that’s quite transparent because you can see the actual shootings on tape. “But there’s still a disturbing amount of fog around all of the incidents,” he adds. As Sarah explains, “We’re never talking about black and white cases but then everyone treats them like they’re black and white cases.” From a legal standpoint, law enforcement officials will have to fill in those gaps before they can render a clear legal judgment in all of these shootings. Sarah and David also take a walk down memory lane by revisiting Bush v. Gore, while also diving into the recent TikTok lawsuit and a fun conversation about our podcast hosts’ favorite parts of adulthood. Show Notes: -Video of Jacob Blake shooting, Bush v. Gore. Learn more about your ad choices. Visit megaphone.fm/adchoices

Today our hosts are joined by Phill Drobnick, head coach of the Olympic curling team, for some hot takes about the sport that inspired Sarah’s new campaign newsletter The Sweep. Listeners who are unfamiliar with this sport, which gets even passing national coverage only during Winter Olympics years, might be wondering about curling’s origins. “It started in Scotland, like every goofy sport that involves beer,” explains Drobnick on today’s episode. The sport then took off in Canada and then around the world. When people watch curling during the Olympics, they become armchair referees who don’t realize how much strategy is at play behind the scenes. How similar is curling to golf and hockey? Do sweepers make or break the game? Is there a culture of collegiality or trash talk in the professional curling universe? Coach Drobnick has got answers. Tune in to today’s show to hear Sarah and David also discuss the partisan skew in absentee voting, the increasing likelihood of another Bush v. Gore-style debacle over mail-in voting, and the RNC’s nonexistent platform moving into this week’s convention. Show Notes: -Sarah’s campaign piece about curling and The Sweep. -“The Grand Old Meltdown” by Tim Alberta in Politico. Learn more about your ad choices. Visit megaphone.fm/adchoices

Former Trump advisor Steve Bannon was arrested Thursday—along with Brian Kolfage, Andrew Badolato, and Timothy Shea—after federal prosecutors discovered they defrauded donors involved with the “We Build the Wall” campaign, a GoFundMe that shored up $25 million in donations since its inception in 2018. The unsealed federal indictment is damning, and even shows evidence of the grifters’ amusement with scamming their donors and misappropriating the funds for personal use. The grift looks a lot like what happened recently with the NRA with Wayne LaPierre, and reminds us that scamming donors is an ever-present problem on the Right. As David says on today’s pod, “Right-wing institutions are bilking from angry grandpas and grandmas—their extra dollars—to fight for the people, when they’re really conning the people.” Catch the latest episode for some highlights (and lowlights) of the Democratic Convention, a primer on employment law in relation to the Goodyear diversity slideshow, Facebook’s strike against QAnon and Antifa, and an answer to a listener question from about the citizenship of a tv show character. Show Notes: -Trump embracing QAnon in front of reporters, Sarah’s “Mid Week Mop-Up With Mo Elleithee”, parody Orrin Hatch tweet, and the indictment against Steve Bannon, Brian Kolfage, Andrew Badolato, and Timothy Shea. Learn more about your ad choices. Visit megaphone.fm/adchoices

The 9th Circuit recently heard an appeal from a challenge to the state of California’s ban on large capacity magazines (in this case, any magazine that holds 10 or more rounds). California didn’t just ban the sale of these magazines, it banned their transfer, importation, and outright possession in the state. The 9th Circuit ended up striking down this law and departing from its sister circuits on the question of scrutiny. The precise contours of the Second Amendment remain up in the air in the post-D.C. v. Heller era, but our podcast hosts are armed with a war chest of constitutional history that helps break down gun rights precedent for our listeners. In today’s episode,  Sarah and David also dive into the John Durham probe into former FBI lawyer Kevin Clinesmith’s falsified surveillance warrants against Trump campaign adviser Carter Page. In keeping with August’s Monday nerdery trend, our hosts are joined today by Rob Daviau, a professional legacy board game creator. Daviau has worked on more than 80 published games—including Risk 2210 AD, Axis & Allies Pacific, Star Wars Epic Duels, and Clue Harry Potter—and has been a professor of game design at Hampshire College and NYU. Tune in to today’s episode to learn the ins and outs behind legacy board game creation and to learn why a game with bad math doesn’t work. Show Notes: -United States v. Carolene Products Company and Harlan Fiske Stone’s famous Footnote Four. Learn more about your ad choices. Visit megaphone.fm/adchoices

In 2017, an anonymous individual named “Q” began posting on a public messaging board called 4chan about “Pizzagate,” a conspiracy theory alleging that a restaurant called Comet Ping Pong was really an underground child sex trafficking ring run by deep state political elites. Q quickly gained acclaim online after he continued posting unsubstantiated clues—what QAnon followers call “bread crumbs”—about a prophetic “Great Awakening” that is in store, when deep state Democrats will supposedly be held accountable for their “crimes.” On Tuesday, avowed QAnon sympathizer Marjorie Taylor Greene won a Republican congressional primary in Georgia. Beyond her avowal of QAnon, she is a 9/11 truther, has called black people “slaves” to the Democratic Party, and has characterized the 2018 House midterms “an Islamic invasion of our government.” What’s worse, the president congratulated her win on Twitter after her victory. Given Georgia’s 14th District is a reliably red district, she’s almost certainly headed toward Congress. What does this mean for the future of the GOP? David and Sarah have some thoughts. Be sure to listen to today’s episode to hear our podcast hosts discuss the new police officer body camera footage leading up to George Floyd’s killing, as well as the constitutional underpinnings of John Eastman’s Newsweek piece questioning Kamala Harris’ eligibility for office on birtherist grounds. Show Notes: -John Eastman’s Newsweek piece on Kamala Harris, U.S. v. Wong Kim Ark, Thomas v. Lynch 5th circuit case, D.C. circuit case, statutory citizenship rights explainer. -Police officer body camera footage leading up to George Floyd’s murder. -Professor Ted Sampsell-Jones on the charges in the George Floyd case. -Pew Research Center polling on QAnon. Learn more about your ad choices. Visit megaphone.fm/adchoices