The Crime-Fraud Exception

David and Sarah dive back into the free speech controversy at Yale and parse the ...

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David and Sarah dive back into the free speech controversy at Yale and parse the difference between a statement being “disappointing,” “so disappointing,” and “bonkers town disappointing.” Then they talk about whether Trump committed a crime when he demanded that Mike Pence follow John Eastman’s legal advice. They end with a bit of fragrant Supreme Court potpourri that smells slightly like bacon.

Show Notes:

-A Message From Dean Gerken on the March 10 Protest

–Eastman v. Thompson

–Berger v. North Carolina State Conference of the NAACP

–Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith

–National Pork Producers Council v. Ross

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Comments (66)
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  1. Avatar photo
    Arron Powell

    Has ANYONE else noticed the “Easter egg” in the VERY last second of this episode? After the closing music ends…

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  2. Marilyn Olson

    Hey David and Sarah, I'm a devoted 2-year-plus member of The Dispatch community and loyal follower of AO, the French Press, The Sweep, and all of your excellent content. The continuing discussion about free speech at Yale Law was on my mind as I heard an excellent recent forum address at Brigham Young University (my alma mater) by Amy Chua about political tribalism. I know she's been a bit of a controversial character, but the speech was great; I liked her take on how things have come to such a bad place (she talked about past times in her Yale classes where it was actually possible to have rousing discussions between students on both ends of the conservative/liberal spectrum, and how these are no longer possible), and suggested ideas for healing our divides. https://youtu.be/QCwJqai5YFI

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      Sarah Isgur vertical-nib Author

      Much needed!

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  3. Patrick F

    I think it is hard to understate how profound revisiting the Dormant Commerce Clause would be in our country. The doctrine impacts so many areas of law that any change to the jurisprudence would be monumental and far-reaching.

    For example, our modern system of state taxation is constitutionally constrained, almost exclusively, by the Due Process Clause and Dormant Commerce Clause. And if you plan to argue a state tax statute violates due process, you should plan to lose. The vast majority of the existing constitutional law in this subject matter is based on the Dormant Commerce Clause.

    By the way, Justice Thomas hates the Dormant Commerce Clause and I would refer anyone to the first sentence of his dissent in the Wynne case if you want his position summed up nicely. The Dormant Commerce Clause has always resulted in strange bedfellows.

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  4. Paul

    I really enjoyed the discussion of the issue of whether Trump’s pressuring of Pence could constitute the crime of attempting to obstruct, influence or impede an official proceeding. I hope that in future podcasts David will say more about what might have been criminal about Trump’s raising the specter of criminal prosecution during his phone call to Raffensperger. Maybe I missed this in previous podcasts but what crime(s) specifically might be involved? And on the crime of attempt to influence, etc.: On the mental state required, I think I understood David and/or Sarah to say Trump would have to know that a major part of the factual basis for his pressure campaign (i.e., there was massive election fraud) was false. But how if Trump didn’t know for sure, but he just wanted to win, so his mind set is: fraud, no fraud, who cares? Just do what I want, Pence: throw out electoral votes or delay things. The factual support for this mind set would be (1) the great weight of advice he was getting was there was no massive fraud, with Eastman being a distinct minority, and (2) his “just find me the votes” statement. I realize that statement could support the inference that what he meant was, “I know there was fraud, just do the investigation which I’m certain will reveal it.” But it could also mean, “I don’t care if there was fraud, just make something up if you have to.” It’s obviously a very bad thing for a president to act with the sort of reckless intent I’m positing here, and it sounds to me like it would qualify as “corrupt” intent as that word is commonly used. And it’s corrupt intent that the statute specifies. So if Trump acted with that intent wouldn’t that be enough to make his behavior not just appalling, but criminal? And on Sarah’s point (I hope I’m not misrepresenting what she said) that just using words to influence a political actor is not different that what LBJ did all the time and can’t be the crime of obstruction: Do we really know that LBJ acted with this kind of reckless intent? When he tried to influence somebody (and the statute talks about the attempt to influence, as well as obstruct, with corrupt intent), did he do so representing certain things as facts when he had plenty of reason to believe that wasn’t true, but he didn’t care, just as long as he could get the desired result?

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  5. Ted

    I would like to respectfully suggest that you left out a critical caveat on your critique of the Eastman case. That caveat is “based on what we know at present.” Eastman was interacting extensively with Bannon and others involved with January 6 and there may very well be emails and documents that link Eastman (and Trump) more directly to efforts to ramp up intimidation of Pence via the rally. This could be the very reason Eastman has fought release of the emails.

    Also, I know that Eastman may have been serving as Trump’s lawyer but Trump’s professional lawyer, the Attorney General, told Trump there was not fraud that would result in the election being overturned and told him this in December

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  6. Avatar photo
    Jeffrey B.

    Absolutely the courts should be kicking a lot of cases back to the Legislative branch to actually do the work they have been elected to do. Unfortunately, as has been clear for a while, Congress has defenestrated itself and will continue to rely on the courts to do their jobs. Until we elect a majority of serious people who care more about the country than themselves or their party we are stuck in this cycle of absurdity.

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    JP Ferreira

    California did something similar with lead-free plumbing products and upended the entire industry.

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  8. Avatar photo
    Kevin M. James

    I suppose David's super-low expectations of Yale make sense...but I remain a little surprised by how blasé he sounds about the whole business. Maybe I'm misreading him. "Bonkers town disappointing" seems a much sounder judgment of this statement to me at any rate.

    Not least because Dean Gerken was--if I'm understanding David Lat and others correctly--obfuscating by describing a sequence of events that doesn't quite line up with what actually happened (which she actually witnessed), and relating that to a fanciful free-speech "policy" she seems to have just made up rather than the established, published policies that actually exist.

    In other words, she was *lying*.

    Such fundamental dishonesty should matter, shouldn't it? (Yes, even among those of us with law degrees. Insert obligatory lawyer jokes here.)

    Or have we all just gotten so used to everything being spin, to the relentless conscience-optional PR-ification of our society, that we're no longer capable of being shocked by authority figures brazenly trying to Baghdad Bob their way out of problems?

    Because from all I've gathered, that's what seems to be going on here. In a less comical, more sophisticated-seeming way to be sure...but that's a difference of degree rather than kind. In describing an alternate reality that is not real, for self-serving and damage-control motives, Dean Gerken is engaging in deeply dishonorable (as well as cowardly) behavior, and I have trouble seeing how any institution with a functioning standard of decency or sense of virtue would tolerate having her continue in their employ even one minute longer.

    But that's not the world we live in, is it.

    (Maybe it never was; I dunno. I'm barely half a century old myself; there's only so much I've seen with my own eyes, and I've learned not to put much trust in second-hand nostalgia depicting more-virtuous times.)

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  9. Mrjsfisher

    Crime-Fraud Exception comment -

    I think you downplay the 2nd part of the court’s analysis on the “conspiracy to defraud the United States” issue, and focused mostly on the first subsection, the “obstruction of an official proceeding” part, which necessarily focuses specifically on the exercise union of the plan to disrupt congress Specifically on January 6.

    The other portion does require that level of specificity or narrowness of inquiry, which I agree relate (potentially) to legitimate political pressure tactics.

    What you appear to be doing, taking the “fact” of Eastman’s attorney-client relationship as an accepted given, and in particular his actions as legitimate legal advice. It seems to be what the court is expressly rejecting in the other subsection. The court states that “ Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election…”. The court concludes with calling the Eastman legal “strategy” a “coup in search of a legal theory.” This is a refutation of your point that his advice was defensible but fringe legal advice. The court basically characterizes Eastman as a co-conspirator.

    Given that the standard here is probable cause and not beyond a reasonable doubt, and that this is a discovery issue and not a criminal prosecution of either Eastman or Trump, I’m not sure that your view on the court’s analysis, particularly on the idea that Eastman and Trump weren’t minimally engaged in a conspiracy, is going to carry the day on appeal. Though it would not surprise me if you end up being right.

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    Alexander

    I get the hesitation to use the dormant commerce clause. It would be much better to strike down the law on liberty of contract grounds.

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