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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Sarah Isgur: I don’t see how the pendulum can swing back with the runaway train we're on. Where it's Obama's pen and phone. It's Trump with more executive orders and more injunctions than any president in history. It's Biden saying he does not have the power to do an eviction moratorium, student loan debt forgiveness, the vaccine mandate. He tried to create a constitutional amendment by tweet.

Nico Perrino: You’re listening to So to Speak, the free speech podcast. Brought to you by ��ݮ��ƵAPP����, the foundation for individual rights and expression. All right, folks. Welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host, Nico Perrino.

Today, we are joined by Sarah Isgur, who is the host of The Dispatch’s popular legal podcast Advisory Opinions. As well as her permanent guest on that show, David French. We're gonna talk about our current media moment, the Trump administration, and the state of the modern conservative legal moment. Before we do, though, I have to ask. I think I read somewhere that your guy’s podcast is the top legal podcast in the world. Is that true? What's the secret sauce?

David French: I don’t know. The numbers are very – so, this is something that was told to us by somebody else that was a guest who they had done the research. So, I don’t know. I do know that depending on the Supreme Court’s releasing opinions, we’re right up there in the top political podcasts. Which is a lot of fun to see. Especially since we're so nerdy.

Nico Perrino: Do you guys not plan vacations for the end of the Supreme Court term?

Sarah Isgur: Oh yeah, absolutely. June is off limits. You can be somewhere else. We record remotely, but you have to be available.

David French: On call.

Sarah Isgur: Yeah.

David French: Absolutely.

Sarah Isgur: But it's getting worse. It's funny ‘cause I think we're echoing the justices themselves. You know, they used to have the summers off.

Nico Perrino: Yeah, not anymore.

Sarah Isgur: And not anymore, and kind of neither do we anymore. Because at least they know when they're interim or emergency dockets' decisions are gonna come down. We don’t.

David French: Yeah.

Nico Perrino: So, did you guys know each other before you started this podcast? I thought I heard somewhere that you didn’t.

Sarah Isgur: This is such a good story.

Nico Perrino: What’s the origin story of Advisory Opinions?

Sarah Isgur: Oh, I think David should have to tell this.

David French: So, the origin story begins in the mists of the distant past in the year 2016. Sarah, it still feels weird to say this out loud.

Sarah Isgur: I know, I know. Yeah.

David French: Okay, that’s why –

Nico Perrino: But do it.

Sarah Isgur: That’s why I’m making you do it.

Nico Perrino: This is uncensored.

David French: When I almost ran for president. So, that feels very –

Sarah Isgur: Just to clarify, of what?

David French: The United States, okay.

Sarah Isgur: Okay, okay.

David French: Not the local Kiwanis club where I would have been an undog there too. But the president of the United – so, the story is that –

Nico Perrino: Well, that’s the natural next step after becoming the president of ��ݮ��ƵAPP����, right?

David French: Oh yeah.

Nico Perrino: Yes.

David French: Well-trodden path, no question. So, after Mitt Romney had said no to a third run and other luminaries had said no or never even really considered it or whatever. Bill Crystal, who was at that time with The Weekly Standard and was trying to organize a third-party run. I went to dinner with him and he said, “Our profile now that mega names like Mitt Romney has said no, our profile is look, if you just run a random congressman, no one cares, it's an anti-establishment time they don’t want random congressmen. But what we think is a from-the-heartland, non-politician, post-9/11 veteran would be the right profile of a person.”

And I was like, “That makes a lot of sense. Yeah, totally get that.” “Okay, well, you're from the heartland, from Tennessee, post-9/11 veteran, non-politician. Why not you?” And this is going to sound insane, but I did briefly entertain it. And at the tail end of entertaining it, we brought in some folks who would be on a part of a campaign team if it ever got off of the ground.

And Sarah had just finished running Carly Fiorina’s campaign. And in comes Sarah, and I met Sarah for the first time. I really liked Sarah, and then in mid-2019, when I came to The Dispatch, Steve and Jonah said, “We’re bringing on Sarah Isgur.” And I was like, “Fantastic, I think we’d make great podcast partners. I just met her. I had only met her for just a few minutes, really. But I think we could make a good podcast.”

Nico Perrino: How many years now is it?

David French: Six years, yeah.

Nico Perrino: Six years, wow. What's your process like?

Sarah Isgur: Oh, there's supposed to be a process?

Nico Perrino: Well, you’ve done the research. We listen to the podcast in my household. Your voices have echoed throughout the house. I'm the one who works in the legal world, but my wife is the one who turned me on to the podcast.

Sarah Isgur: It's funny, we’ve heard that before. That the spouses of lawyers enjoy the pod, I think, more than the lawyers do. So, we have a running conversation over Slack or text or whatever, where we’ll put things in during the week. Of things that might be of interest to us. And then maybe 24 hours beforehand, we’ll set kind of an order or at least the topics, maybe not the order of topics. But depending on what season we’re in with the Supreme Court or how many circuit cases we’re covering, just by the number of opinions and briefs and the oral arguments and everything, we’re probably putting in many, many hours.

Nico Perrino: It's always more hours than you think it will be.

David French: Far more.

Sarah Isgur: Yeah.

David French: Because you have to read all of these circuit court opinions, ‘cause I think one of the value adds that we bring to the sort of the podcasting world is we're not just SCOTUS focused. I don’t think that the average American understands how much the circuit courts of appeals and, in some instances, district court decisions, but especially circuit court decisions, really do shape our lives. And especially in the lives and the circuits where you live.

And so, I feel like a big value-add is that we've brought a bunch more of the legal world and the judiciary to the public eye. We're gonna be reading from circuit court opinions. We have talked about specific court judges so much that our regular listeners know when to hear –

Nico Perrino: They’ve become celebrities.

David French: Okay, we've got Newsom concurring with himself again. Everyone's waiting for that moment. No, I do think that we were a little bit ahead of the curve in one way. I think one key to our success is that we’re a little bit ahead of the curve in the sense that all of a sudden, a lot of the media realized, wait, the legislature is not where things are happening.

Things are happening in the judiciary. That’s the functioning branch of government. That’s where the action is. That’s where real decisions are being made. And we were there. We were already there covering it right when sort of this demand started to grow for more legal coverage. And so, I think we’ve really – you know, right time, right place kind of thing.

Nico Perrino: And are you trying to write a book too? Amidst this all.

Sarah Isgur: Yes. It'll be called Last Branch Standing. It's not coming out until next year.

Nico Perrino: Okay.

Sarah Isgur: To echo David’s point, it's the last branch standing. The thesis is it's the only branch of government that the Founders would recognize right now.

Nico Perrino: What's the book about, necessarily?

Sarah Isgur: Oh, to be honest, it's sort of –

Nico Perrino: I think I read something online about how it's an insider’s look at the Supreme Court.

Sarah Isgur: It's sort of, yeah, it's “ayo the book.” No, it walks through there's little bios of each of the justices that we’ll have, insider fun stuff, what they're eating for lunch, and –

Nico Perrino: What they think of the TikTok case, perhaps? Do you have that countdown clock going in your head? Where are we at now?

Sarah Isgur: Yeah, we’re at about 220 days?

David French: Too many days. Too many days. Yeah, this is one of the, I can't believe you went there. One of the few areas where at least me and I and ��ݮ��ƵAPP���� disagree is on the TikTok –

Nico Perrino: Age verification there, too.

David French: Age verification. There are two big cases, yeah.

Sarah Isgur: Dave and I were talking last night. We usually have a slumber party before we do something in person. So he stays at the house and hangs out with my five-year-old, who calls him great-grandpa Steve.

David French: Yeah, great-grandpa Steve. Yep.

Nico Perrino: Where’s Steve come from?

Sarah Isgur: We have no idea.

David French: No clue. But we know where great-grandpa comes from. It's Sarah’s relentless propaganda that I'm old.

Nico Perrino: I have a six-week-old, a two-year-old, and a four-year-old. So I know that words just come out.

Sarah Isgur: That’s right.

David French: Words come out.

Nico Perrino: They don’t always make sense.

David French: Yes, words come out.

Sarah Isgur: Yeah, so, we were hanging out last night and part of what we were talking about was – wait, sorry, I just totally forgot.

Nico Perrino: We were talking about TikTok.

Sarah Isgur: Yeah, TikTok. And what we were talking about was how incredible ��ݮ��ƵAPP����’s work has become and how important it's become, and yada yada, all the nice things.

Nico Perrino: Make me blush.

Sarah Isgur: But part of, I think, why we know that ��ݮ��ƵAPP���� is staying true to principle and true to its mission when so many other organizations have had mission creep to follow where the donors are going or follow where the social media is going or whatever else.

Nico Perrino: Yeah, if we were following where the donors were going, we'd be doing somewhere entirely different.

Sarah Isgur: Something entirely different.

David French: No question. Oh, I know that from my early ��ݮ��ƵAPP���� days for sure.

Sarah Isgur: That’s right, because we know where several other organizations have gone, and part of it is we do disagree on a few things, not many, but we’re not totally aligned with you guys on every case. And I think it speaks to just how independent you're making some of these decisions. Now, like we could have a really fun debate over why we think you're wrong about some of those cases.

Nico Perrino: We could.

Sarah Isgur: Because what I think is fun about the ones we disagree on is that there's a First Amendment interest on both sides. Now the TikTok case is a little different because it's more of a national security risk.

Nico Perrino: Yeah, I was gonna say.

Sarah Isgur: But like age verification or some of the social media cases about whose First Amendment right is it? The person who's getting to post on social media or the social media companies and things like that. I find those arguments almost more fun.

Nico Perrino: Well, the thing that's most frustrating about this TikTok case is I saw our legal team working on the brief over Christmas on that, and what was it for? Nothing apparently.

David French: I know, well, you lost and you won.

Nico Perrino: Well, yeah, I guess in a certain sense.

David French: So, because you lost in the Supreme Court case.

Nico Perrino: But the precedent is still there.

David French: But the precedent is there.

Nico Perrino: I mean, the thing we always said is that this is the first time in American history, I think actually Erwin Chemerinsky said this first, that the federal government has outright banned a communications platform. That’s a pretty big hole in the First Amendment for nothing.

David French: Well, yeah. I don’t think it's all in the First Amendment because it's the People’s Republic of China’s platform.

Nico Perrino: But that was the first time, actually, I believe that the Supreme Court ever struck down a federal speech restriction on First Amendment grounds was 1965 in the Lamont v. Postmaster General case. Which was banning or placing a burden or restriction on receiving, what was it, The Peking Review from China. So, I mean, the first time the Supreme Court ever strikes down a federal speech restriction relates to a media outlet from China.

David French: Yeah, yeah, that is interesting. That is interesting, yeah.

Nico Perrino: Trust me, I get it. I get the security stuff. And I wish they would’ve focused the rationale more on that rather than some of the content concerns that you saw a lot in the record. But, nevertheless, here we are.

David French: That’s what I was gonna say. The Peking Review, or whatever it was, was the condition of me getting The Peking Review. I was not providing my physical location to The Peking Review. Not provided the history of my purchasing. All of the information that TikTok accumulates, which is one of the reasons that service members, for a long time, were told no TikTok.

Nico Perrino: Sure.

David French: Because you were literally trackable as an individual, which is obvious national security concerns in those kinds of situations. But yeah, back to the sort of the ��ݮ��ƵAPP���� picture, broadly, what you say about donors. So, as a former president of ��ݮ��ƵAPP����, I was front-line talking to donors all the time, and we had from the inception, we had a donor education issue. Because sometimes they would come in because they saw you taking on their ideological enemy. So, we’re defending free speech for a conservative group or a Christian group, and a conservative or Christian donor’s like, “Here’s my check, great work.”

Nico Perrino: Yes, please, yeah.

David French: Then they're on the mailing list, and then all of a sudden they saw back to early ��ݮ��ƵAPP���� lore, just to show you how there's nothing new under the sun. One of the first things that ��ݮ��ƵAPP���� really got in people's crosshairs over was the Sami Al-Arian case. And Sami Al-Arian was a guy who had ties to gosh, was it Hamas? I can't remember.

Nico Perrino: Yeah, I don’t know if it was Hamas, but it was one of those anti-Israel terrorist organizations.

David French: Yeah, he had legitimate ties to foreign organizations. But he was being punished for his speech. And this was immediately post-9/11. And I remember we stood, and Greg could tell this story chapter and verse.

Nico Perrino: I think he has, yeah.

David French: And stood squarely. And I remember being on the phone even in ’04, ’05, when I was president, on the phone with donors. “Tell me about Sami Al-Arian.” And then the thing that we dealt with when I was president was Ward Churchill. This was the professor who compared the people who died in the World Trade Center to little Adolf Eichmanns. And so, the cry to censor him was overwhelming. And the donor issue, but interesting to ��ݮ��ƵAPP���� lore, you may not know this, that issue was when we decided we’re not gonna do the thing that a lot of people do, which is “I hate his speech, but I'm defending his right to speak.”

Because then we realized that we’d be constantly told and asked, “Well, condemn the speech before you defend it.” And so we put both feet on the brakes on the “Well, he was horrible, but” we just left it with the First Amendment.

Nico Perrino: Well, you kind of have to if you're going to do non-partisan free speech work because otherwise you are taking a position on the content of the speech that’s separate from their free expression rights. And this is something that David Goldberger, who was the lead attorney in the Skokie case for the ACLU in the 1970s, disagrees with me on. He thought it was essential for him to bring people on to the ACLU’s position by first repudiating the speakers that he was representing.

Now the ACLU’s a little bit different because they have 19 different issue areas. ��ݮ��ƵAPP���� has one. I don’t think you could find ��ݮ��ƵAPP���� staff consensus on many issues politically. Maybe some of these more controversial issues you could. But we just can't do that. And so, we don’t. And it's dissatisfying to a lot of people who want to see that you're on their team even as you defend their First Amendment rights.

David French: The ��ݮ��ƵAPP���� staff when I was there was probably 50/50 split red/blue.

Nico Perrino: I’d say we’re probably about that now.

David French: So, you could not do that. You could not say, “Well, this is horrible, but.” Because then you're ticking off half your staff. Not with Ward Churchill, but on a lot of – so, I thought that was a very sound decision way back then. And in my columnist role, I'm a little more free to say, “Well, I really hate that, but it should be protected.” And I think in the columnist role that can be very important. In the impact litigation advocacy role, it is different. I think it's different.

Nico Perrino: Well, to put a bow on the TikTok thing, Sarah. How do you think that’s all gonna end up?

Sarah Isgur: I mean, here we are –

Nico Perrino: He’s on the platform now, President Trump, right?

Sarah Isgur: That’s right. They’ve opened a White House TikTok account. It feels to me like nobody cares, and fewer and fewer people care per day. I think that if the white house wants to win this issue overall, they're going to have to have TikTok sold before the Trump administration runs out. Or else the next president will get asked whether they're going to enforce the TikTok ban. And not to be super catastrophizing about this, but we have a law that was passed by both houses of Congress, signed by a president, the Supreme Court upheld it as constitutional. Crickets.

For so many reasons, we're in interesting constitutional territory these days, but I think a lot of people would be surprised to hear that the president has that power or that the next president has that power with laws they may like. So, the best thing that could happen at this point is that the president somehow pressures TikTok to get sold. Which he keeps publicly saying it's about to happen or whatever, and then at least they could say this was for a limited period of time. We passed any definition of limited, my definitions, but it was temporary. What are we gonna say, four years from now is still temporary?

Nico Perrino: How would you even compel this even, right? What is standing here? To faithfully execute the laws as the Constitution requires? Would that require –

Sarah Isgur: Well, you need a cause of action. You need someone with standing. And the problem right now is that, again, the Trump administration has done so brilliantly to discourage people from picking fights with them unless it's existential to your company. Because they do have quite a few levers of power that they have no problem pulling. And again, even if you love some of the stuff that they're doing, the power that you are now agreeing by the norm a president has is going to get used by President AOC or President Gavin Newsom. And that seems crazy to me.

David French: You know, I've come to the conclusion that when you talk about this with people now, the response is no longer, “Oh, okay, well if this is a power that my political opponent could wield against me, maybe I shouldn’t have the power.” And it's become, “Well, I just have to win all the time then.” And this is what is making the rhetoric around our elections so super-heated because if you have a situation where every four years you have a president who’s accumulated more power, peacetime president who's accumulated more power than maybe any peacetime president before. I'm not comparing Trump to say Lincoln at the height of his powers in the Civil War or FDR in WW2, but as far as peacetime presidents, these guys are grabbing more power every four years. And that is raising the stakes of every presidential election. And every election, you are electing a more powerful person. And that is breaking our brains, it's breaking our country.

And so, it's creating this atmosphere of hysterics around every presidential election because you're gonna have a lot of MAGA people looking at all of that power that they have exercised, and they are going to look at whoever the democratic nominee is, and it's gonna dawn on them. And they're gonna realize and understand, and their reaction is not gonna be, “Let's claw back presidential powers.” It's gonna be, “We have to win or all is lost.”

And that’s one of the things that’s fueling this ever-escalating rhetorical war that we're in. Where every election, the stakes are existential. And we can kind of laugh at that and say, “No, okay, not every election is not the most important of our lifetime.” True. But if every election were electing a more powerful person than the one who existed four years ago, that does raise the stakes. And it's creating this huge problem.

Sarah Isgur: And add in to that, the court. And the role of the court. The proper role of the court. The realistic role of the court. We had a time in America’s founding, for instance, where the states were supposed to be the main drivers of law. Post-Civil War, it became the federal government. Post-FDR, it became the president. And even in the 90s, if you remember, post-Wickard v Filburn, right? The commerce clause covers everything that Congress wants to do.

You have the Supreme Court in two cases in the 90s, at least sort of trying to tap the brakes on commerce clause power for Congress. This idea that maybe the federal government has grown too large, too powerful. Congress has sort of a blank checkbook to write any laws that they want. But as they have those two cases, you never see another commerce clause case again. Not really.

You can say the Obamacare case, where they say that that’s not in Congress's commerce clause powers, but it is in their taxing powers. Like maybe that’s a commerce clause case, maybe it's not. But almost as soon as those cases happen where you start to see the court put some limits on Congress, is when you see Congress stop being a player on the map at all. I don’t think those two are related. I think that the court came in too late on the commerce clause stuff. And so, all of a sudden, Congress stops doing anything, and so the president basically fills in.

Like I had knee surgery, I'm sure many people have, and my leg totally atrophied on the one side, and then on the other side, that leg had to get stronger. So, the president, at first at least, feels like it was compensation, but now we're into something else entirely. It's not just compensation, and as a result, you see the Supreme Court, I think now in kind of a delayed fashion. But that’s the court's role, right?

Nico Perrino: This is where I was going next, yeah.

Sarah Isgur: They're supposed to be delayed. They can only take the cases that were brought to them. Yada yada. But you see the court suddenly now, I think, reining in presidential power in almost every chance that they get vis-à-vis the other branches or the States. So, when it comes to the administrative state, whether they have court power, reading statutes or the way to define their own power, the presidency is losing. Within the presidency, the president is winning. But as a friend of the pod conservative lawyer once said to me, “They're trying to make the president a more accountable president and a less accountable legislature.” Right?

David French: Yeah, that’s a great way of putting it. And I would say one way to think of the court is that the court is majority originalist now. And so, where a lot of people are conflating right and left with originalism. Or right with originalists. They're not the same thing. The Trump Right, the Trump MAGA Populist Right, there's some Venn diagram overlap with originalism, but it's not complete in any way, shape, or form.

So, where you do have some of the Venn diagram overlap, such as where the MAGA legal movement is putting forward a version of the unitary executive theory that meshes with traditional originalist scholarship. They're winning. They're winning those cases. Where they're putting forward positions that conflict, they're losing those. And losing again and again. And so in the first Trump term, he had the worst record of the Supreme Court of any modern president.

Sarah Isgur: The first president ever to be under 50% for wins. It's wild.

David French: Right. And so, anybody's gonna look at the Supreme Court and say they rubber-stamped Trump. But because people are not familiar with the underlying legal theories and arguments, whenever they see a unitary executive case winning, which is a way to describe a unitary executive, the president is the executive branch. So, that means that anytime the Congress is trying to limit the president's authority over the executive branch –

Nico Perrino: Including its agencies, and here we’re having that dispute over the Federal Reserve and the FCC and all these other agencies that were set up to be semi-independent.

David French: Right. So, the Supreme Court is essentially moving in the direction of saying, “Okay, if you're talking about an 'independent’”– and The Fed’s different, as the Supreme Court has said. The Fed’s different.

Nico Perrino: We’ll see.

David French: We’ll see. But if you're talking about an “independent” agency, that is not a thing that the Constitution contemplates. There’s an article on –

Sarah Isgur: Because where did the power come from?

David French: Where’s it come from?

Nico Perrino: Well, that’s the thing I never understood about the Corporation for Public Broadcasting, right? It was a private, independent corporation set up by Congress, but received appropriations from Congress. It didn’t really make any sense to me. Now it doesn’t exist, right?

David French: Yeah, TikTok lives and PBS dies. Wow, yeah.

Nico Perrino: Interesting First Amendment questions on that whole kerfuffle as well, but –

Sarah Isgur: There's a spectrum here. So, I think the easiest example is the President caused some waves recently when he said he was the chief law enforcement officer in the country. And people were like, “Well, no, that’s the attorney general.” Where did the attorney general get those powers from? Oh, the president. Therefore, the president must originally be the chief law enforcement officer of the country, and then he delegates that power down to the attorney general, and the attorney general can then delegate that power down to US attorneys, for instance, who are also officers of the United States as contemplated by the Constitution. It's one of the few positions that existed there at the Founding. The US marshal, etc., and so, all of that power though to, for instance, go arrest someone for violating a federal law still derives from the power originally delegated by the President of the United States; therefore, it was contained within the office. There, the person who holds that office during that tenure.

Where it gets then hard is again in this post-FDR time, where Congress is saying, “We now create by statute a federal communications commission. Or a securities exchange commission.” And by creating this and appropriating money to it, we put all these limitations on it for-cause removal and things like that.

And this is like the Humphries Executer problem, where the original creation of the Federal Trade Commission, at least according to the Supreme Court, said, “Well, it didn’t exercise executive power. It was doing something else, so it was okay. Congress created it that way and put these strings basically on its creation.” But the Supreme Court, in a case called Selia Law, even though nobody else pronounces it that way and I keep pronouncing it wrong.

Nico Perrino: When you read things and you don’t hear them.

Sarah Isgur: I know, right?

David French: We have that problem all the time. I remember one time, one of my most embarrassing moments, the word chutzpah. I was talking to a professor of mine in college, and he said, “Chutzpah,” and I corrected him, and I said, “Don’t you mean ‘chuts-pa’?” That’s the danger. I didn’t know how to pronounce inevitable until I’d heard somebody say it. I spent years as a young kid talking about “in-eve-itable”.

Sarah Isgur: Oh yeah, that’s a good one, yeah. Well, so the idea, again, Selia law, whatever. I do remember the other pronunciations, “sel-e-uh”, “see-leah”.

David French: I just know that I've been doing it wrong.

Sarah Isgur: It's S-E-L-I-A, and I'm doing it wrong. Whatever the right one is, this isn’t it. So there. There’s your disclaimer. Basically, they said if the agency in question is exercising executive power, meaning they are making policy decisions, then it has to be up to the president who holds that power. Because where else is the power coming from except from the executive? It's not coming from Congress, it's coming from the president. And how are voters supposed to hold anyone accountable in a representative government if it's – they can't hold Congress accountable because Congress can't remove them at all.

But the president can only remove them for-cause, and we've never fully litigated what for-cause even means. So, therefore, if you're taking your power from the president, it's executive power, then the president has to be held accountable for that use of executive power at the end of the day, and therefore, he has to be able to remove people. I didn’t vote for this current president, and that just has to be correct to me.

So you should be careful who you vote for, basically, and we should all want to shrink the power of the presidency. And maybe Congress shouldn’t be so quick to create all of these alphabet agencies that are given more and more people, money, power for that executive power to be delegated to. But once you’ve done it, yes, I think it all derived from the presidency. The Fed is such an interesting counterexample because we're all searching for ways that maybe that’s not executive power.

David French: I know, it's like, it can't be The Fed too.

Sarah Isgur: It can't be The Fed.

David French: It can't be The Fed.

Nico Perrino: Well, why can't it be The Fed? Is it just understanding the policy implications from it?

David French: No, I think it's the consequences, yes.

Nico Perrino: You’ve seen all these other countries where the political branches have bullied monetary policy?

Sarah Isgur: Oh yeah, the consequences are terrible.

David French: There are differences.

Sarah Isgur: But I also think that the history of the Fed derives from the First and Second Banks of the United States. And so the question is –

Nico Perrino: So that’s where the originalist arguments are gonna come in.

Sarah Isgur: That’s where it's gonna come if it's gonna come.

David French: So, I wrote a column last week, and the title was one sentence that’s really basically causing us a ton of headaches. And I was going back to the Anti-Federalist Cato IV. “Every kid should read Cato IV,” And also, “And Old Wig Five,” which is going to be the name of our bourbon brand when we launch our Advisory Opinions bourbon.

SARAH ISGUR: Old Wig No. 5. Doesn’t it just sound like something you should have on your shelf?

David French: Yeah.

Nico Perrino: Yeah, put it on the bourbon trail, right?

Sarah Isgur: I mean, David has been saying this, but it's just true. The Anti-Federalists are becoming indispensable reading if you care about our constitutional order because they're concerns weren’t crazy.

David French: Yes.

Nico Perrino: Well, I actually tried to go on Amazon or somewhere and find the Federalist and Anti-Federalist Papers in conversation with each other, ‘cause I wanted to see what the arguments were in response to the other arguments. I couldn’t really find a book like that.

David French: Well, they weren’t really in conversation with each other. It's interesting because you had the Federalist Papers that were Hamilton, J. Madison papers that were mostly Hamilton. And the Anti-Federalists were actually hundreds of letters to the editor of this, that sort of spread out around the country. So it was so much Publius Vs Cato. Cato was sort of speaking to his –

Nico Perrino: But they were talking about shared issues.

David French: Very much so, but there was –

Sarah Isgur: But it definitely shows you how you want to get your war room in order beforehand. The Federalists had a war room, and Hamilton was running it, and the Anti-Federalists weren’t. It's sort of funny because they were the Anti-Federalists, and it was very much part of their vibe.

David French: Were decentralized.

Nico Perrino: They were farming during the day.

David French: It's like trying to organize a libertarian convention.

Sarah Isgur: But they were kind of proving the point about the Articles of Confederation not working by their very method of communicating their concerns with the new constitution.

David French: But Cato and No.4 says that the first sentence of Article Two, the quote is, “Vague and inexplicit.” So, what is the executive power? Now, there's a lot of good scholarship that says, wait, the executive power, really, really under the originalist meaning, is the power to execute the law passed by Congress. That’s what the executive power is. But that’s not self-evidently true from that sentence. That sentence refers to something. The executive that it doesn’t define, okay?

And so that has left courts for generations saying, “What is the executive power?” What I've talked about is okay if you wanted to make it so the president had less discretion or the president was more in line with the originalist vision. Which I'm convinced by. The originalist vision is that the executive power is the power to execute the laws. That we need to make explicit what is implicit. And make it explicit by an amendment that says, “A president of the United States shall execute the laws passed by Congress.” That's the president's executive authority. It's to execute laws.

It is not a freestanding executive authority that exists in the ether that is then left to courts to define. And I think Sarah's right if you're gonna say there is the executive power that is out there, well then the executive power doesn't include, at least to some degree, we can argue about whether this includes non-policy making officials too. But shouldn’t it also include an inherent authority over the personnel if you have the executive power?

So I do think that that sentence, as Cato said, is vague and inexplicit, and I'm very persuaded by originalist scholarship that says that it should be read in a very limited way. But the sentence itself is not that limited. And so I think that is something that is causing an enormous amount of confusion and consternation.

Nico Perrino: But isn’t that all over the Constitution? Just thinking about our line of work. The freedom of speech. Congress shall make no law abridging the freedom of speech. What is freedom of speech?

Sarah Isgur: What is abridging?

Nico Perrino: Sure.

Sarah Isgur: I think abridging is actually the more interesting word there. We fight over what speech is all the time, and I think everyone can grasp that, but abridging itself contains multitudes.

David French: Well, the difference is, though, if you can talk about, alright, freedom of speech is a very broad term. And interpreting that broadly, I would argue, is consistent with a liberty-oriented ethos of the Constitution and the American founding, okay? Right in the opening, we have unalienable rights. So broadly interpreting the freedom of speech is entirely consistent with the American experiment and American project.

I think the reverse is true on broadly interpreting Article Two. Because if you look at the prime purpose of the original founding was to establish a republican form of government. That’s where you get to, “Mr. Franklin, what form of government do we have?” “A republic if you can keep it.” So what was the purpose? The purpose was to establish a republican form of government. What is antithetical to republicanism? Monarchy.

So if you have a reading of a vague constitutional provision that enhances and counters the smaller republican ethos of the constitution, that’s when we should be testing. That’s when we should be looking at it with some serious side eye.

Nico Perrino: There is some affinity within conservative movements at the moment, maybe fringe, I don’t know. You guys are more tied in than probably I am. Of monarchy, right? Like Curtis Yarvin?

Sarah Isgur: Yes.

David French: That’s postliberals. Yeah, yeah. Not all the postliberals would want an actual monarch. But they would want a far less republican republic. Smaller, less republican republic.

Sarah Isgur: We could spend the whole time on the debates, but the debates over what the executive, you know, they knew the Articles of Confederation hadn’t worked. It didn’t really have an executive. It didn’t really have a judiciary. Nobody was paying their taxes, yada yada yada.

David French: Other than that, it was fine.

Nico Perrino: I do have a question about this.

Sarah Isgur: Yeah.

Nico Perrino: So I think you do need the constitutional convention and our current constitution to get the country stood up again, right? It just wasn’t working. But after it was working, would the more dispersed, I guess you could say, ineffective Articles of Confederation be better if you're worried about the super-strong executive? Let's say for the first hundred years of our country, you have the constitution, and then you see power accumulate to the executive –

Sarah Isgur: No. In a modern society, in the world we live in now, there's a reason you don’t see any countries that are set up like the Articles of Confederation. The EU is the closest you're gonna get, and I'm not sure that’s been a raging success.

David French: It struggles. There's struggles there, yeah.

Sarah Isgur: And the EU model is sort of weird because the states didn’t have hundreds of years of existing with their own executive authority. But what they were debating at the time, remember, they believed it's gonna be Washington. They know it's gonna be Washington. And so their concerns are sort of vaguely of monarchy, but also Washington could have served for life. They didn't put any limits on that. In fact, I think several of them would have wanted him to serve for life.

David French: According to the musical Hamilton. Alexander Hamilton, absolutely.

Sarah Isgur: Right. There was talk of splitting up the executive power into multiple people. I think triumvirates have an interesting history.

Nico Perrino: They don’t always end with the triumvirate alive. Usually one of them.

Sarah Isgur: We’ve had bouts of strong executives followed by bouts of relatively weak executives. You know, after Lincoln came decades of, I don’t want to be rude to Garfield, and Hayes, and Cleveland, but irrelevant presidents.

David French: Mediocrities. We had a bunch of mediocrities.

Sarah Isgur: Garfield wouldn’t have been a mediocrity. He was wonderful. He was cut down months into his tenure. But the powers of the presidency swung back after Lincoln and after the threat was gone. I think even after FDR. Eisenhower, Kennedy, LBJ, Nixon, even, they are not FDR levels of president. What I think is uniquely bad that’s happening right now is we seem to be on a bit of a runaway train of presidential power. Where it's not that there's a specific crisis that the president is addressing. And so that even maybe you could see strong presidents in a row as long as it's the same crisis.

I've argued we're in sort of a post-2008 financial collapse world. And that's the sort of populist moment that was created. It's why Trump is not an American phenomenon; it's an international phenomenon. Populism has been an international phenomenon. But I don’t see how the pendulum can swing back with the runaway train we're on. Where it's Obama's pen and phone. It's Trump with more executive orders and more injunctions than any president in history. It's Biden saying he does not have the power to do an eviction moratorium, student loan debt forgiveness, the vaccine mandate. He tried to create a constitutional amendment by tweet.

Nico Perrino: I forgot about that. The Equal Rights Amendment, right?

Sarah Isgur: Yes.

David French: It's a sign of our weird era that we've largely forgotten that a president tried to unilaterally ratify constitution –

Sarah Isgur: Amend the constitution.

David French: Yeah.

Sarah Isgur: And he just was like, “I hereby recognize the Equal Rights Amendment as the 28th amendment.” And you're just like, ha ha ha. And we all just laughed it off. But again, that’s not hard to imagine a future president doing and then we struggle over, well, wait, it is? And so I'm far more concerned about what comes next than I am even about now, because of the pattern we've seen for the last 10 years has been bad? Bad. Bad.

David French: So think about it like this, and I'm going back to our Anti-Federalist – the original job of the presidency was like a George Washington job. A job description for George Washington. And then you go and you read some of the Anti-Federalist and an old wig – an old wig, No. 5, 120 proof, double oaked barrel – says they're not all gonna be George Washington. And he even goes to say that there's just a one in a million shot that a president’s given this much power is going to, over time, exercise it virtuously. And he was right. He was right about that.

And I think that that is something that if you were to talk to Hamilton right now about all these executive orders, Congress being inert, the way in which the presidents are trying to modify the 14th amendment by executive order, like all that’s going on, he would say, “How did this happen?” Because he would be thinking there's two firewalls against it. One is the electoral college. ‘Cause their vision of the electoral college is this is a committee meeting of the wisest people in America selecting from the American public, the most wise and gifted leaders. They didn’t imagine the electoral college is, oh, well, you won Tennessee, you get your nine votes. That’s not how they envisioned it at all, okay?

Sarah Isgur: And don’t forget the Supreme Court has recently said that also, if the state says so, there's no such thing as faithless electors.

David French: Right, you can't have faithless electors.

Sarah Isgur: So, a person who even is picked by their state to vote in the electoral college if there's a state law that says they must vote the way that the popular vote went in their state, they have no authority to even depart from that. Which is kind of incredible when you consider the original purpose of the electoral college.

David French: I know, exactly. It's incredible. So you have no electoral college firewall. Instead, the electoral college has now become basically just a quirk of our federalist system. But the original meaning and intent of the electoral college is gone. So that doesn’t exist. And then he would’ve said, “Ah, but impeachment.” Because this was the way in the Virginia Ratification debates, George Mason stands up and he lambasts the vastness of the pardon power. Which is again something that right now we’re like, “Whoa, that pardon power, that’s big.” He's blasting the vastness of the pardon power, and Madison rises up to defend the 1787 Constitution and says, “Impeach him! If he surrounds himself with bad people, impeach him.” And then the Madisonian view, that was a very viable option because he had not locked in yet on the – even though he wrote Federalist 10 about how to deal with faction and everything – he had not really locked in on how power partisan politics was gonna be.

So powerful that it wasn’t until the year of our lord 2020 when the first senator voted to impeach or convict a president of their own party in American history. And that was Mitt Romney. So impeachment isn’t a live option. The electoral college doesn’t exist in any sort of form. So two of the prime checks on executive abuse are just dead letters right now. And so, where does that leave us? That leaves us with a president with us having to depend on the character of the president more than the Founders intended. And I think that’s a problem.

Nico Perrino: Well, where do you go from this? Do you have to be in a constitutional convention to rebalance the checks and balances?

Sarah Isgur: Let's just make one quick point that hopefully is obvious to people listening, which is that all of these problems we were talking about with the presidency are upstream than are problems with speech, right? Because once you have a presidency that is as powerful as the one that we’re contemplating heading towards, however you want to think about that.

David French: Enduring.

Sarah Isgur: Yeah. Speech gets stifled. Wilson, don’t need to remind ��ݮ��ƵAPP���� listeners about Woodrow Wilson.

Nico Perrino: We did a whole podcast on him.

Sarah Isgur: So even if you don’t care that much about whether the president has for-cause removal power or not over these independent agencies, which can seem like a relatively esoteric question. Everything else is downstream of this.

Nico Perrino: Well, it's interesting because I wanted to talk with you guys about this. You both work in the media. He's mixing his recourse as a private citizen in these private courts with his role as the chief executive. So you just look at that settlement with Paramount over the 60 Minutes broadcast that stemmed from a lawsuit he filed in Texas, I believe, under the Deceptive Trade Practices Act. But at the same time he's filing that lawsuit, he's tweeting at the federal communications commission chairman, Brendan Carr, to levy maximum fines and penalties on 60 Minutes.

Sarah Isgur: And you're wondering why no one is suing yet over the TikTok ban.

Nico Perrino: Exactly, the list goes on.

David French: Oh, I know.

Nico Perrino: The Wall Street Journal with the Epstein case. AP got banned from the press pool because they didn’t use Gulf of America. ABC, you work for ABC now. What's up with your broadcast licenses? I don’t know. Brendan Carr wears a lapel pin with Donald Trump's face on it to government meetings. And we’re right now in court representing Ann Seltzer, who ran that poll for the Des Moines Register. He's suing her under some sort of Deceptive Trades Practices Act in that state.

David French: I keep going back, and this is going to be music to – ��ݮ��ƵAPP���� listeners, no doubt, are aware of this. I keep going back to the single best short argument for free speech ever put on paper in American history. Frederick Douglass, a plea for free speech in Boston. And he says, “Free speech is the dread of tyrants. It is the first thing that they wish to extinguish.” And so, to me, free speech is the temperature check. It is the canary in the coal mine.

So if somebody does have tyrannical aspirations, if somebody does have authoritarian goals and visions, they're coming for speech. They are coming for speech. And Trump has come for speech. He has come for it in the mass media. He has come for it at the university level. He has come for it in the law firm world. He is coming for speech. Now, what's also interesting about this is that look, after the guy has won two elections, and after he won the second, after being indicted and everything. The guy’s got some political shrewdness to him.

Nico Perrino: Oh, absolutely.

David French: You’ve got to say he's got some political shrewdness. And he chooses his targets well. And free speech activists and free speech attorneys are very familiar with this conception. Like in the McCarthy era, taking on communists, you're choosing your target well. In the 1950s, there’s not going to be a huge groundswell of people in the streets for suspected Soviet spies. You're not gonna get a million people in the streets chanting, “Hands off Harvard,” right?

Nico Perrino: Oh, we know.

David French: That’s just not happening. Why? Because Harvard's been a pile of crap in a lot of ways.

Nico Perrino: Oh yeah, they were at the bottom of our college free speech ranking.

David French: The bottom of the list. So what he's doing is taking on institutions that have earned their public animosity. But he's taking them on in an unconstitutional way. And so you're put in this position of like, yeah, I agree Harvard needs reform, but not like this, you know?

Nico Perrino: Yeah.

David French: It's sort of like saying, okay, I'm against robbery, but I also don’t think we should torture robbers to death without a trial. Making that argument doesn’t make me pro-robbery any more than saying depriving Harvard of its free speech, free association rights, arguing against that makes me pro the censorialist atmosphere they established on campus.

Nico Perrino: Yeah, his targets don’t have clean hands, and so he's able to go after them and for anyone –

Sarah Isgur: And don’t forget also, there’s the smartness of how he's picking targets. There's also the knowledge that whatever he says, the opposition party will gleefully do the opposite. No matter what he says. So, take the flag-burning executive order. Where he's like, “I'm gonna criminalize flag burning again. Don’t read the details where I don’t criminalize flag burning.” And you watch, I bet there will be an uptick in flag burning because the left wants to show if he says that flag burning is bad, we're for it. And it's like, nope, that’s a really unpopular thing to do.

And speaking of the difference between the debate over what is speech over what is abridging. Flag burning is perfect for this because the dissenters in that 5-4 Supreme Court case there was an argument over whether burning a flag was speech or was it conduct. And that’s always “Is it speech? Is it conduct?” We have lots of fun fights about that. But there was also the question of whether it was abridged. Because the argument was, whatever your beef is, you have a multitude of other ways to say it.

Nico Perrino: Yeah, other vehicles.

Sarah Isgur: And other vehicles. So, isn’t it okay to just not allow you to do this version? Is that really abridging your free speech? Even if burning a flag is speech, if your point is you hate Ronald Regean, which was Johnson's point in that case, you can scream that at the top of your lungs, paint your chest for the football game, whatever. They're not abridging your ability to say you hate Ronald Regean.

Nico Perrino: That’s a slippery slope argument.

Sarah Isgur: Oh, it's the most slippery slope, of course.

David French: But when you're talking about what's happening here. Sarah's exactly right. The worst thing that you can do is take a troubled institution that Trump is targeting and wrap both arms around it. And so you see this pattern play out again and again. I was on a TV program not long ago where the host was saying, “We need to stand for Harvard. Who's gonna stand with Harvard?”

Let's be super careful about that because I'm standing for free speech. And if Harvard's rights of free speech and its academic freedom are being unlawfully assaulted, then I'm going to stand for free speech. But I'm turning around at the same time and I'm saying, “Harvard, get your freaking act together.”

Nico Perrino: But how much of this is also just a problem of the scale of the federal government? Harvey Silverglate, a cofounder of ��ݮ��ƵAPP����, who you know very well, David, wrote a book called Three Felonies a Day.

David French: Oh, great book.

Nico Perrino: Which you can find something to go after anyone for.

Sarah Isgur: Show me the man, I'll show you the crime. And this is the restraint that –

Nico Perrino: And Harvard has, what, six, seven investigations going on right now? They tried to go after their foreign students as well. And those investigations came after it decided to stand up for itself in court.

Sarah Isgur: So the point was that you were supposed to – and this has been happening. The Department of Justice, when it moves from president to president, changes its priorities. So I always give the example, you move from George W. Bush really prioritizing terrorism and national security prosecutions, to the beginning of the Obama administration, with their move is to prioritize financial crime prosecutions. Makes perfect sense. You want that set by the president.

That is the accountability that we were talking about in the Unitarian executive conversation. But it's a fine line, right? The exact opposite. On the opposite end of that spectrum, Nico is my wife’s paramour. So, go find a crime Nico’s committed so I can throw him in jail.

David French: Right.

Sarah Isgur: But there's a whole bunch of things in between, right? We start an investigation because we think you might’ve done this, but we just found you did this other thing, and we don’t like you. What about that? Where does that fall in the spectrum of we’re looking at this type of crime versus we’re trying to punish my wife's adulterous boyfriend?

David French: Just to rip from the headlines, are we actually looking at all public officials who have committed mortgage fraud, or are you looking at democrats who have allegedly committed mortgage fraud? If it's we’re looking at all public officials who have committed mortgage fraud, more power to you.

Sarah Isgur: And in the classified –

Nico Perrino: Well, now you have the Paxton allegations, right? As well.

Sarah Isgur: Yeah.

Nico Perrino: I don’t know where those came from. I haven’t followed the headlines close enough.

Sarah Isgur: Oh, Nico.

David French: Don’t get Sarah started on this one.

Sarah Isgur: We’re not even gonna do it. But mortgage fraud vs classified documents is a really good example. We basically have been always trying to find people who have taken classified documents home. You can find cases about that at a pretty good clip going back for a long time.

David French: And high-profile people, too.

Sarah Isgur: High profile, low profile, and everything in between. We can talk about whether the punishments are equalized over all of those, and maybe the president has some special powers to do funny things. Like declassifying documents in his brain. But whatever. The point is, the classified documents actually are something where there is an entire section at the Department of Justice that does those types of prosecutions. Individual mortgage fraud is not one of those. It's kind of coming out of nowhere.

The one exception to this, and by the way, David’s talking about Senator Adam Schiff, Federal Reserve Governor Cook, and New York Attorney General Letitia James, who were all being investigated by this administration for saying that they're basically having multiple primary residences for the purpose of lowering their mortgage rates.

Marilyn Mosby was prosecuted. She was a democratic – she basically was the district attorney for Baltimore. She was prosecuted for mortgage fraud. And so again, you're like, well, it's not out of nowhere, but this isn’t really the type of case that the DOJ does unless they are investigating you for something else and stumble upon it. And are they going to investigate Paxton?

David French: Right. That was an AP report that they had three primary residences. But only he and his wife can't have three primary residences.

Nico Perrino: Yeah, sure.

David French: And is the Trump administration, is the Trump DOJ gonna go after Ken Paxton the same way it would go after – and that’s where the rule of law issue – so prosecute mortgage fraud? Fine. Prosecute only democrats' mortgage fraud? Not fine.

Nico Perrino: Does that become then, a First Amendment violation if you can allege that the president is going after just democrats?

Sarah Isgur: Sure.

Nico Perrino: It'd be an ideological prosecution, right?

David French: Yeah.

Sarah Isgur: No problem. And those cases always lose, to be clear. Like when you're bringing the motion of basically a targeted prosecution, you will always lose that motion. Except maybe now we're getting to the point where you might win it. And those cases in particular are certainly the best case I've seen in a long time. Whereas for instance John Bolton, who is being investigated for having classified documents in an unclassified setting. Nope, he's gonna lose that prosecution even though Donald Trump – sorry, he’s gonna lose that claim of prosecutorial targeting or misconduct – he's gonna lose that claim because there have been so many of those.

David French: A long history, yeah.

Sarah Isgur: It's actually a thing the DOJ does. Maybe you came to their attention for some other, not great reasons, but that’s fine. Versus the three crimes a day, or show me the man, I'll show you the crime. And to your point, are there too many federal crimes? I don’t think anyone at this point can argue that there aren’t too many crimes.

David French: There's so many, yeah. But you raise a really good point about the classified documents. Just in the last 10 years, you’ve had a Clinton investigation, you’ve had a Petraeus prosecution, you’ve had a Biden investigation, you’ve had a Trump indictment, you have a brief Pence investigation. So this sort of idea that prominent people in politics are not investigated for classified document mishandling. No, no, no, that is very common. That’s a very normal thing to have a criminal investigation for mishandling classified documents. This mortgage fraud thing –

Nico Perrino: It's novel.

David French: It's novel. It's kind of transparent what's happening.

Nico Perrino: I don’t know why anyone would want to go into politics right now. It just seems like you're putting a target on your back. Like, if you're a good person, why would you want to go into politics?

Sarah Isgur: It actually goes even beyond that. Imagine you're a person who's sort of a Mr. Smith Goes to Washington type who has some really legislative goals. Why would you go to Congress? They're not doing legislation. So what you're seeing is, is lots of members of Congress who are sort of those more legislatively focused folks are leaving Congress, and who's replacing them? The influencer Congress. We have like 535 or were heading to have 535 cable news pundits and influencers who aren’t hiring legislative staff. Why would they? That’d be a waste of resources. They're hiring bookers and people to follow them around and make social media clips of them.

Nico Perrino: People who are good at TikTok.

Sarah Isgur: So there's that part. There's the good person you don’t want to put your family through this. That would be an insane thing to do at this point. And I think that cost, again, we can sort of say, “Oh, criticism, have thicker skin, that’s just representative government.” I agree with that on the one hand. And I do think it can be really rough, and really rough is still okay.

But we're getting to the point where people who think about their family's safety and well-being have to really think twice. And it's not just running for office, though it is. But it's being willing to be a federal judge. How close did Justice Kavanaugh come to having him and his family potentially killed by an assassin who was outside their home? Fully armed and capable of doing it.

Nico Perrino: Or even just a journalist. David, I see the vitriol hurled at you online all the time.

David French: Wait, wait. People get mad at me? What? I wasn’t aware of this.

Nico Perrino: Chris Rufo was just going after you this past weekend.

David French: Oh, super mad, yeah. Oh yeah, no.

Nico Perrino: He will go to the mat for Cracker Barrel. Or against Cracker Barrel, I should say.

David French: The great social menace of our time.

Sarah Isgur: How blessed are our lives that our most important people in the country are spending their energy on the logo for a restaurant that you go to when driving long distances?

David French: And most of them have never set foot in by the way. I've got real Cracker Barrel street cred. I took my first –

Nico Perrino: Oh, I love Cracker Barrel. I got a Cracker Barrel gift card for Christmas last year.

David French: Look, this is the kind of Casanova I was in high school. My first date, Cracker Barrel. Nicest restaurant in like a 20-mile radius. Oh yeah.

Nico Perrino: If you try to go on a weekend, it's packed. I don’t know what type of business it does during the week, but.

Sarah Isgur: It's hard to imagine on December 8th, 1941, a lot of conversations about the logo of the local roller skating –

David French: General store.

Sarah Isgur: Yeah.

Nico Perrino: Well, can I ask you guys as we close up here, just what is the state of the conservative legal movement? We're talking here about all this concern about the power of the federal government, whether it's the executive branch or not. The power of the federal government to shape business, to shape universities, to shape the media. Right now, we're talking about a 15% export tax on the video chips, which I think is explicitly precluded by the Constitution.

Or taken a stake in Intel. One of the things we've seen at ��ݮ��ƵAPP���� in the First Amendment space is that the conservative legal movement, where it was with us on Title IX under the Obama administration, has just totally abandoned us on Title VI with the Trump administration. The same issues. Or with Harvard, you have the federal government essentially trying to federalize the core components of a university that’s hiring who they hire, who they admit, and what they teach. And we’re alone.

We would receive a reward from the Heritage Foundation, and now they're on the other side of us on these issues, so we feel a little bit of whiplash. ��ݮ��ƵAPP����’s leadership is the exact same as it was 10 years ago, plus a few members of the executive team, but –

David French: The whiplash has been extreme. Think of it this way, 10, 15 years ago, the red state response to university excess was passing free speech laws. So, you had in the early 2000s and building up in the 20-teens, I remember writing at the National Review, look how many states have passed free speech laws protecting free speech on college campuses. And then by 2021, it had flipped around to the Stop Woke Act. And the anti-CRT push that’s really censorialist. It's saying “Oh okay, no, what we're gonna do is we're gonna say the probably with the Left's speech codes is that it's the Left's speech codes. Now we've got the Right’s speech codes, and this time we're gonna do it right.”

And so I think the best way to describe it is I think the conservative legal movement’s at a pivot point. It is not the same. Whatever is left of the conservative political project is now completely a wholly owned subsidiary of MAGA. Not the case in law. The law, thanks to the existence of the Federalist Society and a legal culture that is, I think, in large part a tone set by the most important people in the legal culture, judges. Your republican nominated and confirmed judges, by and large, are classical liberals. And so –

Nico Perrino: But is that gonna change? President Trump went after Leonard Leo and had the rift with the Federalist Society.

David French: That’s the pivot point. So what's happening now is you're beginning to see a full-on infrastructure of sort of common good constitutionalism, populist –

Nico Perrino: What's common good constitutionalism for our listeners?

David French: Common good constitutionalism would be –

Sarah Isgur: Living constitutionalism for the right.

David French: Yeah, it's social justice for the right.

Nico Perrino: Well, it's great branding. Who doesn’t like the common good?

David French: Who doesn’t like social justice? It's a similar kind of language. So you're at this pivot point, and I think that the legal movement had a few more antibodies in it to resist MAGA than the political movement did. But it cannot endure in any recognizable form if the political movement remains almost entirely in this MAGA populist mindset.

Nico Perrino: Well, what about the law students?

David French: Very divided.

Sarah Isgur: So, becoming more divided. Remember, you're talking about a minority within a minority. So the minority of law students are conservative, and then within that conservative brand, part of the strength of groups like the Federalist Society were that there were so few conservatives that they were never going to agree on stuff. And so this bonded them in some ways. There wasn’t going to be a statement from the Federalist Society on literally anything. They’ve never filed a brief at the court. They really don’t take positions. And that starts in 1982.

You have kind of 1.0. This is the Ed Meese era, where they're just beginning to push back on the Warren court. And it's like, they're making stuff up. What if we actually look at the text of the Constitution? And everyone's like, cool idea. And so they do that, and then it's like, okay, now I'm gonna have the Scalia era, if you will. And in the Scalia era, they're really developing what this means. Apply it to all sorts of things. And what if the constitution is a little ambiguous? And what does it mean to be an originalist?

We are now in the post-Scalia, that third era, of the conservative legal movement, where they're winning. And it's really hard to win. It's in the musical Hamilton. Welcome to the present, we’re running a real nation. That’s the conservative legal movement. So now you're in charge, which means that you're not just sitting in dissent and being like, “I wish it had been this way”. It's much easier to be in dissent, by the way. And it means that the whole team can sort of be like, “Yeah, we should’ve won that one.”

Now, when you're winning, they expect to win everything, and they expect to like the outcomes of everything. Whereas the conservative legal movement as an answer to the Warren court, the genius of it was it wasn’t about just getting the outcome you wanted. It was about instituting a whole new process so you'd never have another Warren court. Because if the conservative legal movement won the 1982 conservative legal movement, they would win, that you had to follow this process.

And that process is going to favor separation of powers and federalism and things that are again, not necessarily conservative outcomes, sort of by definition in the Burkean sense, or in a classical liberal sense, conservative. Because that’s what the Constitution is. But then, when the conservative broke from republican, and remembered in 1982 Reagan had just sort of married the two together. It was sort of the apotheosis of the Goldwater vision. Conservative didn’t mean republican up until really that point. So 1982 corresponds with when conservative meets republican.

Forty years later, republicans breaking from conservative, conservative breaking from republican, however you want to call it. But the republicans are like, “But we’re the ones who fought this fight for you. We’re the ones who won the presidential elections, who allowed you to get these Supreme Court seats, and by god, we want these outcomes. That does not happen to be conservative. That happens not to be Burkean.

And so that’s causing a lot of frustration within that conservative legal movement family, and when you're looking at the law schools. What’s interesting is it felt like the highwater mark of the common good monarchy splinter groups kind of had its high water mark maybe a couple years ago.

David French: Before Dobbs.

Nico Perrino: Oh, that’s interesting.

Sarah Isgur: Which is really not what I expected. In Bostock, where the court, with Gorsuch writing, Title VII of the Civil Rights Act applied because of sex, employment discrimination to gender identity and sexual orientation, that was really the creation myth for these splinter groups. And then you have Dobbs coming out, where it's like, oh, okay. And that puts a lot of damp cloth on the embers. We’ll see where it goes from here. Maybe they will come back.

There's certainly reason to think that when a group has become powerful enough and stratified enough that you have to kind of wait your turn and wait in line. We often see the groups fall apart because the people at the very end of the line are like, well, what if I don’t want to wait in line? What if I just start my own thing or burn it all down? I'm better off than waiting in line.

So there's those sort of institutional concerns that I have. But it's really interesting that it doesn’t look like it's taking off the way that we would’ve expected it to if you just looked at Adrian Vermuele's writings from a few years ago. Even Adrian Vermuele himself, this is the Harvard Law professor that gave the name to common good constitutionalism, even he is starting to back off of it a little bit. Or its most intemperate forms.

David French: Well, and also, I think there's a difficulty right now that you have if you're what you might call a MAGA legal theorist, is that the ultimate reality of MAGA is that it is not an ideological project. It is a personal project. It is the advancement of a man, Donald Trump. And so if the core fundamental fixed north star of MAGA interest is Donald Trump's interests, it's very difficult to form a legal theory around that's a legal theory. If the theory is that, well, Trump has to win. That's political theory. That’s not so much of a legal theory.

And so it's very difficult to articulate legal principles which are supposed to endure each given individual dispute. If the ultimate decision maker is a person who's nonideological and often highly erratic, and so there's a sort of dispositional disadvantage if you're a MAGA legal theorist because you don’t necessarily know six months from now which position you're gonna be taking, right?

Nico Perrino: Sure.

David French: So that creates a difficult – ‘cause think about TikTok, for example. The original TikTok ban idea was one of the good ideas in my view from the first Trump administration. So you're sitting there, and let's say you’ve been a loyal Trump person, and so in late 2019, early 2020, you're like, TikTok, national security problem, TikTok, location, data, all of this stuff, look at what the PRC is vacuuming up out of American citizens. We need to do something about it.

Sarah Isgur: And in fact, such a threat that we can take care of it by executive order.

David French: By executive order, we can do this. And then by 2023, 2024, no, no, TikTok it's unconstitutional to ban. So what's the underlying theory here?

Nico Perrino: Yeah, yeah. Well, so much is different from the first Trump administration. We were putting together what the plan of attack would be for the various free speech threats that would exist under a Kamala Harris administration or a Donald Trump administration. And we had something to look at for Donald Trump, right? We had the previous Trump administration, where we were often aligned with the Trump administration, going after Title IX of the Civil Rights Act, where we were rolling back some of the due process and free speech abridgments that we had seen on college campuses. And then fast forward, now you don’t even get the process of violating Title VI when you, after all these different universities, were seeing every week a new speech threat. And so it's kind of whiplash for us. Kamala Harris administration, we kind of knew what to expect as well. We thought it'd be a continuation of the Biden administration, some jaw boning, some social media stuff, an effort to go after misinformation, disinformation, hate speech. But the Trump administration, we were surprised.

David French: And going back to bring our conversation full circle back to we started at the very beginning, talking about donors. There is an issue. One of the things I wish people understood about sort of the right more broadly. The category of person that is enthusiastic about Trump, No. 1, obviously is your rally Trumpist. Is the people, your front row joes, who've been there. No.2 behind your rally Trumpist is the GOP donor class.

The GOP donor class and especially like your people who write the $5,000 check or the $10,000 check. They love Donald Trump. And especially in Christian circles, in evangelical circles. So if you're a nonprofit in these social conservative circles, taking on Donald Trump, or taking on his administration, good luck selling that to your donors. Good luck with that.

Nico Perrino: Yeah. Well, I don’t want to overstate the challenges we also have brought in a lot of new donors and foundations from the principled stand that we've been trying to take as well.

Sarah Isgur: That’s where I think Trump won, and Trump too helps out groups like ��ݮ��ƵAPP����, because if there is gonna be whiplash, everyone kind of sees that. And it's like, oh, what would help if someone can change their mind abruptly on what we’re allowed to say and who can say it? Ah, what about the First Amendment?

David French: Isn't this a great idea?

Nico Perrino: Well, I love a line that you had in a previous podcast, Sarah. You said, “I'm a process girl living in an outcomes world.”

David French: Yeah, I love that.

Nico Perrino: And I was like, that pretty much summarizes what we’re doing here. I think you said it around the time we were fighting the Harvard thing, too, because so much of what's problematic there is that process the Trump administration used to go after Harvard. I was like, yes, yes, yes. The whole Constitution framework is based on process. And if you just throw that out the door for outcomes that you like, well, the whole constitutional deal goes out the door with it. So I appreciate both of you for what you're doing with Advisory Opinions. Sarah as host and David as permanent guest.

Sarah Isgur: Great Grandpa Steve.

David French: Great Grandpa Steve.

Nico Perrino: Great Grandpa Steve.

Sarah Isgur: Permanent guest.

David French: Bringing my trick knee into the podcast twice a week.

Nico Perrino: Alright, folks. I'm Nico Perrino, and this podcast is recorded and edited by a rotating roster of my ��ݮ��ƵAPP���� colleagues, including Sam Li and Chris Maltby. This podcast is produced by Sam Li. You can learn more about So to Speak by subscribing to our YouTube channel or our Substack page. Both of which feature video versions of this conversation.

We’re also on X by searching for the handle @Freespeechtalk. If you have feedback, it can be sent to Sotospeak@thefire.org. Again, Sotospeak@thefire.org, and if you enjoyed this episode, please consider leaving us a review. They help us attract new listeners to the show. And until next time, I thank you all again for listening.