Ep 263 — SCOTUS Saves The Midterms … Eventually

Law and Chaos

This episode of Law & Chaos covers a range of legal developments, including the podcast's successful lawsuit against the Trump administration to obtain a key document used in

Key takeaways

• The DOJ's claim that a judicial document was 'unauthorized' and not subject to FOIA is legally unsound when the executive branch possesses and uses it.

Main topics

• FOIA lawsuit against DOJ over ethics complaint document
• Lowe's class action over voice print collection

Notable quotes

"If your grandma had wheels, she'd be a wagon. But she doesn't."

Conclusion

Despite political interference, judicial oversight, state-level regulation, and technological

Transcript preview

Speaker 7 (0:00) Hi, friends and fellow students. Americans living abroad can legally vote in the U.S. election. Register or get tailored support at VoteFromAbroad.org. Look, state deadlines are super close, so don't waste another second. Go to VoteFromAbroad.org now and click Request My Ballot and ask to receive it by email. All you got to do is fill it out and send Speaker 2 (0:20) it back in. Don't miss this chance to shape the future. Don't delay. VoteFromAbroad.org. Speaker 7 (0:25) I think. they were going to skip the D.C. Circuit anyway and just head back to SCOTUS. That's what they've done in all the other cases. But I do want to focus on another aspect of Judge Nichols' opinion, because I think it's a really good example of this phenomenon of judges kind of, if not writing their opinions in tandem, at least being cognizant of the interlocking legal landscape at the district court level that sort of... backstops the rule of law against an out-of-control Supreme Court, right? Even though, you know, Judge Nichols agrees with this Supreme Court more often than he disagrees with it, right? Welcome Speaker 2 (1:13) to Law & Chaos, where the grand conspiracy is suck and win, the Supreme Court is still saying nothing about Trump's plan to steal all the mail-in ballots, and your favorite podcast is kicking ass in court. We've got a lot to cover, so let's get after it. Speaker 2 (1:31) Hey guys, I'm Liz Dye, and with me as always is Andrew Torres. Andrew, how are you? Speaker 7 (1:35) I am great. I had a lovely weekend. I got to see my sister and my brother-in-law. We watched the Ravens win. It was very, very nice. And then things took a turn for the upward. We're going to get to that in a minute or two. But how are you doing? Speaker 2 (1:51) I'm doing very well. I had a lovely weekend. I indulged in the traditional Jewish pastime of... switching synagogues, synagogue hopping. I was back in the synagogue I grew up in and it was almost like I could see my grandparents around the corner, which was a little bittersweet. But Happy New Year, Lashana Tova, to all who are celebrating along with me. Okay, we have like 57 stories, so I think it is time to get to Speaker 7 (2:14) Ducket Alerts. Speaker 2 (2:16) All right, the first Ducket Alert is us, you and me, Andrew. Speaker 7 (2:21) Okay, so... Briefly, to remind the listeners, last year, the Trump administration filed this bogus ethics complaint against one of their major new enemies, Chief Judge James Boasberg in D.C. The basis of this complaint were statements that he supposedly made at a closed judicial conference in which they alleged that he smack-talked the Trump administration and, my favorite part, intimidated Supreme Court Chief Justice John Roberts. How that is supposed to work, I do not know. So the statements were reported by this loon, Margo Cleveland, who writes for this rag called the Federalist. It's not a production of the Federalist Society. It's like crazier than that. It's Speaker 2 (3:04) worse. Speaker 7 (3:04) It's just nuts, right? And so that circulated through right-wing media. And because this administration takes all of its policy cues from... garbage right-wing media, they became the basis for an ethics complaint that Pam Bondi's henchman Chad Mizell hand-delivered to the D.C. Circuit. The only evidence that was supposed to be the connective tissue tying this together, identifying the incriminating statements, were quoted verbatim in the complaint, and the citation was a footnote that said, Attachment A at page 16. Speaker 2 (3:38) Now, Attachment A... was never attached to this complaint, which is why it was dismissed when it was handed off to, I think it was the Sixth Circuit, because the D.C. Circuit is not going to sit in, you know, in ethics judgment on one of its own, you know, subjudges. But we asked for this attachment. We filed a FOIA request and the administration kind of jerked us around. And they first they put us on a complex track, even though we had asked for it. one single document that the AG was tweeting about and said she had on her desk. Speaker 7 (4:07) It's the opposite of complex. Right, right, right. Speaker 2 (4:10) Eventually they said, no, we're not going to give this to you because this is a document created by the judiciary and the judiciary is not subject to FOIA. And, you know, the first part of Speaker 7 (4:19) that sentence is true, right? Judicial records are not subject to FOIA. But if the judiciary... gives it to the executive branch or gives it to Margo Cleveland over at the Federalist, and then the executive branch has this document, they have control over it, and they use it in executive branch business, then it does become an agency record. So, and the law is really, really clear on that, right? So to get around that and to say, oh, no, no, we never, the DOJ decided to argue, not making this up, that the judiciary never exactly gave it attachment to A, that it just sort of happened to get that? And they describe it very carefully in their pleadings as improper and unauthorized. And our lawyer, the fabulous Kel McClanahan, said, does that mean that... You're saying that the executive branch, that the attorney general stole it from the judiciary? And no, they're just kind of trying to keep it in this limbo land that, you know, just kind of happened to wander across Chad Mizell's desk. It wasn't illegal, but it was unauthorized. It was never under control. And therefore, you, Recipes of Media, the Law and Chaos podcast, cannot have it. Speaker 2 (5:29) Yeah. When we were in court last week, the AUSA arguing against our buddy Kel kept saying, well, like if it was left on a bus and the attorney general picked it up or if it was stolen out of a bag and like, no, if your grandma had wheels, she'd be a wagon. But she doesn't. And she is not like obviously Chad Mizell didn't steal this document or find it on a bus. Someone gave it. to the Justice Department. Speaker 7 (5:53) Right. And the Justice Department will not tell us, and more importantly, they will not tell Judge Abelson, the presiding judge, how that happened. Instead, what they did is they put in this declaration from somebody at the DOJ's Office of Information Policy, and she in turn put in a bunch of hearsay about how she talked to this unnamed lawyer over at the administrative offices of the U.S. courts, and that that person said that this was totally a judicial document. Speaker 2 (6:18) Yeah. And Judge Abelson said, no, you're going to have to do better than that. So he denied the government's motion to dismiss the case. And he granted us discovery on how this thing spontaneously appeared in the possession of the Trump administration, which not for nothing, the Trump administration runs entirely on disappearing signal messages. Yeah. Right. So the fact that you can't find it in the official email server to figure out how it got there is not really all that surprising. Right. Okay, let us move on to Chicago, where the hardware store Lowe's is facing a consumer class action suit, alleging that it routinely violates the Illinois Biometric Information Privacy Act by collecting customers' voice prints. Yeah, this Speaker 7 (7:01) is one of the many, many instances where it would be awesome if we had a functioning Congress to, you know, make laws and decide how we'd like to regulate technology before said technology actively steals all of our private data, including our biometric data. But... In the absence of that, what we have are states making their own patchwork of laws, and Illinois is one of them. So there are several of these proposed class actions in the Circuit Court of... Cook County, Chicago, including one against Apple for capturing your Hey Siri voice print and conveying it without consent. And oh, I think I just triggered a whole bunch of people who are listening to this on their phone. No, because it's not Speaker 2 (7:39) trained on your voice, Speaker 7 (7:40) right? Speaker 2 (7:40) There Speaker 7 (7:40) you Speaker 2 (7:40) go. Right. Yeah, yeah, yeah. But there's a similar case against Meta in California. California also is on the forefront of state-level tech regulation for obvious reasons. But it strikes me that these two, the Apple and the Meta case, are fundamentally different from the case against Lowe's. or there's also a similar one pending against Walmart. Like fundamentally, you know that you're sharing your voice with Apple when you record yourself saying, hey Siri. So, you know, your phone is going to know that you're asking it to add eggs to the grocery list or whatever. I Speaker 7 (8:11) feel seen. I Speaker 2 (8:13) mean, I'm not on Facebook, but I assume that the data collection there falls into the same kind of knowing voluntary. disclosure, right? I think fundamentally we all know social media is making money by collecting our data and selling it. I mean, and probably up to and including our biometric data. Speaker 7 (8:30) Yeah. If you can't identify the product, you are the product. Right. And to your point, I think there is a distinction between however knowing and voluntary that is and An automated voice telling you this call may be recorded for quality control purposes. Like, I don't think the average person understands that and is thereby consenting to having their voice data expropriated. Right. Which is what is alleged to have happened here. Speaker 2 (8:57) Yeah, I agree totally. And hey, Congress, maybe get on the stick here. It's this actually seems like something that. we could get bipartisan agreement on, right? Speaker 7 (9:06) Like maybe banning data centers in everyone's backyards, but we will see. Speaker 2 (9:11) Okay, next up, we have seen quite a few stories about lawyers using AI and winding up with fake case sites. I think this may be the first time we have seen a lawyer relying on chat GPT and getting a brief with fake witnesses. I Speaker 7 (9:26) mean, this is, I love all of these stories, but this one. is new even to me. Like, okay, I can see if you're a lawyer, you suck at your job, you're skimming a brief, maybe a fake case citation is not going to jump off the page to you right away. Although some of these are very amusing, like a Westlaw site that's like 2021 Westlaw, 1, 2, 3, 4, 5, 6, 7 actual chat GPT sanctions. But so, okay, like if you miss that, clearly you've failed in your duty to your client, you haven't done the work. But presumably, even if you don't know 1, 2, 3, 4, 5, 6, 7, like, you know the witnesses in your own case, right? If you see multiple people and quotes from testimony that you, as the lawyer, have never seen before, you think you might pause for a minute. But this guy, Stephen Ahrens, just filed it in. I've waited to the end. A murder case. Speaker 2 (10:24) Right. This is an appeal of a murder conviction in Santa Fe, New Mexico. And obviously, the appeals court caught him immediately. Did Speaker 7 (10:30) you not think an appeals court wasn't going to check? I mean, I honestly cannot get my mind around this. Speaker 2 (10:36) Yeah. So this lawyer told Reuters, I am remorseful, but hopeful that the disciplinary board takes into account that it was an honest mistake. It is a lesson learned for all professionals who rely upon this powerful but sometimes unstable technology. Is it a lesson Speaker 7 (10:49) learned for all professionals? I don't know. I mean, what's he going to say here? Although I will say I did look at this guy's web page and he has been practicing law since 1980. Speaker 7 (11:00) Maybe that's enough. Speaker 2 (11:01) Maybe that's enough practicing law. Well, he's been barred from practicing before the appeals court, fined $5,000 because they said that he did not show remorse and referred to the local disciplinary tribunal. Speaker 7 (11:14) And most importantly, his client got a public defender, which is, I Speaker 2 (11:19) think, Speaker 7 (11:20) undoubtedly a good thing. Speaker 2 (11:21) Yeah, big stuff up there. Okay, we're going to take a quick break, and then we will come back to talk about the law and chaos. doofus of the day. Okay, let's talk about our law and chaos doofus of the day. John Eastman, who somehow managed to appear in two stories that came across the transom today. Why are you still here, John? I mean, the dude is only 66. I guess he's got to keep on keeping on for a little while longer. That guy? Speaker 7 (12:05) That guy is 66? I mean, he does not look a day over 200. Speaker 2 (12:10) Yeah, I mean, the white hair is not the problem, though. Let's assume for the record that our listeners are probably familiar with Eastman's game. He's the lawyer responsible for operationalizing the plan to disrupt the electoral certification of Biden's win by having Mike Pence reject the swing state election. thereby disenfranchising 20 million people. Okay, so John Eastman, story number one of the day. Eastman has entered his appearance in the Third Circuit as part of the legal team representing University of Pennsylvania law professor Amy. Wax. Speaker 7 (12:44) Gross. Speaker 2 (12:45) Yeah, so gross. Wax was sanctioned by the school for this series of extraordinarily racist remarks that she made over a period of years. Like she said, I don't think I've ever seen a black student graduate in the top quarter of the class and rarely, rarely in the top half, which is not acceptable. Or she says, as long as most Asians support Democrats and help to advance their positions, I think the United States is better off with fewer Asians and less Asian immigration. Or, my personal favorite, there were some very smart Jews, but Ashkenazi Jews are diluting their brand like crazy because they are intermarrying. Speaker 7 (13:21) Right. So, UPenn has been trying to get rid of Wax for years, but she's got tenure and she keeps suing them. In 2025, she filed a discrimination lawsuit against the school, alleging that she'd been discriminated against because the school punished her. differently because she's a white Jewish woman than they would have if she were a black Christian or Arab man. And then she claimed that the school had discriminated against her and violated her First Amendment rights. And then a year ago, the trial judge in Pennsylvania, a white guy named Timothy Savage, appointed by George W. Bush, essentially told her to quit being such a weirdo and get out of his courtroom. Speaker 2 (14:02) Yeah, I mean. There's an alternate universe where Kamala Harris is president and you and I get to talk about Amy Wax all the time. She is a regular topic of discussion at Above the Law where I work because, you know, she's constantly behaving in such an embarrassing way for the entire profession. Speaker 7 (14:20) Man, can we, you know, cross-dimensionally travel to that universe? Oh, OK. So just to give you a flavor of the. That shittery of Wax's suit in this universe. Here is a paragraph from Judge Savage's order dismissing it. Wax now asserts an associational discrimination claim when she asks us to read her comments disparaging black students as a statement on behalf of a protected class, racial groups harmed by Penn's affirmative action policies for which she is being discriminated against. This is not a plausible interpretation of her comments. Nothing in the disciplinary process or her comments leads to the conclusion that she was penalized for associating with a protected class. Her comments were not advocacy for protected classes. They were negative and directed at protected classes. Criticizing minorities does not equate to advocacy for them or for white people. Her claim that criticism of minorities was a form of advocating for them is implausible. Wax has not stated a plausible cause of action that she was discriminated against based on her race. Therefore, we