 Hey, welcome to our last think tech rule of law in a new abnormal session. We have Jeff Fortnoy, an incisive and outspoken First Amendment attorney here in Hawaii, and Ben Davis, an equally outspoken law prof in Toledo, Ohio, as you can see from the sun and the snow and the Christmas decorations in the background. Hey, well, gentlemen. Hey, we have some attorneys general who are violating the old John's classic, ain't Mr. Haven. Well, I think what's going on is capped off by what happened yesterday, and it's a sad indictment of attorney generals and the Republican party. I mean, fortunately, 50 out of 51 lawsuits have already been disposed of against Trump and his cronies. But this last salvo filed just today by an indicted attorney general under investigation now by his own department for additional crimes, including alleged bribery, to file a completely frivolous by law and fact petition for original jurisdiction before the Supreme Court. I thought it couldn't get any worse. And then to find that 17 attorney generals have joined. I cannot tell you what it says negatively about our profession, about the Republican party, and about the Trumpers and the 40 percent of the country who believe that even now, Biden is not one. And such cowardice on the part of Republican legislators, these attorney generals. If you ever needed to have some institution, you could still have faith in it's the judiciary, state and federal. Thank goodness for that, you know. Yeah. So the thought that came to mind to me was I can remember being in places where there were people who were sort of like, you know, kind of domineering characters like Trump and watching people around me basically just enable what they were doing, really trying to avoid standing their own ground, so to speak, about whatever was who they are as a person, you know, they would just along with the domineering person. And the weird thing is sometimes the domineering person would have such contempt for them for being like that at the same time, right? You know, that they're getting their use for them, but they also have a lot of contempt. And so when I've looked at this, I've said, wow, you know, this is really interesting to watch just how far people are willing to go. Excuse me, in this charade, I mean, I was thinking that if you were in the NBA and you had a 50 and 0 start of the season, you would be, that would be the most incredible season as a national basketball association team, right? But if you were the coach of a team that was 0 and 50, you know, you would have been fired probably around 0 and 25 or 0 and 12 or so. But there is a thing that I think of that I, you know, there's the way I see this is that it's really not about getting any decisions, right, that are favorable. It's about just being built, a narrative, narrative, narrative built in the courts. And then everything I see about this last one from Texas and all that is that it's at the discretion of the Supreme Court to take it or not. And the hearing, I guess, the submission from the states that are being sued do it three o'clock today, Eastern Standard Time. So, but the predictions that I hear is that, you know, the courts basically says it has discretion to take these and this, and the court would decide not to have the case go forward fairly quickly because they don't want to get their hands of it. Although there are apparently two justices, I think it's Thomas and Alito who are of the view that states, you know, when states bring these things, you know, they're sort of a duty to hear them, right? So there's sort of like a discretion play that we took a look at it and we reject it. And then that would maybe be the way it would end at the Supreme Court. But then what it is, is it's to set up for what you were fifth or sixth, right? For and I speak to this only because I'm sitting in Ohio and I remember back in 2004 when there were concerns about voter suppression in the Kerry Bush case here. I was a poll watcher back then and I remember putting in notes about things that were fishy and all that. And if you remember when they came up for the, I guess, certification by Congress, they had all these House of Representatives types who brought forth complaints about this, that and the other, but they couldn't get a senator signed on too. So they would go farther. So the end result is that that all was kind of dismissed because it didn't have the requisite parts. Well, so recently that Ron Johnson in Wisconsin is saying that he's amenable to being a guy, be one on the senatorial side to try to throw all this into the, into Congress. And there is a theory that this is a whole strategy that's, that's being done. What I find appalling or saddening is just the fact of how many people will go along with this. Wasn't it a bit Romney who said that he was, he found this all insane, you know? Well, this isn't, look, first of all, this isn't a river that joins two states where one state has the right to petition the Supreme Court to hear a dispute. Yeah. There's no one, no one with a, with a one semester law degree that doesn't understand that voting is a state's rights issue, which is so ironic. Right. When you look at the Republicans talking now that voting is a federal issue, it's absurd. It's a joke that Texas, they get the Supreme Court to give Texas standing to challenge the way, you know, Georgia holds its elections. I mean, the whole thing is, it's, it's, I don't even know what to say. I know we're on cable, but you know, if I really could say what I wanted to say, it would be a string of expletives that would last for the remaining 20 minutes. And, and it's got no chance. It never has a chance, but what it's done is continue to poison the cult. You know, I've been, I've been adverse to cults in my career because I represent the media. I know a little bit about cults, including ones that are very, very well known. Yeah. It's become, I won't say 70 million person cult because I don't think all 70 million belong, but there are millions of people belonging to this Trump cult. Normally, you know, there are people that have some serious issues in their lives, and you can understand they're looking for some demagogue to lead them. We're talking about elected officials, whether they be attorney generals or members of Congress or state legislatures. It is an absolute pathetic indictment of where this country is at the moment. Hey, you know, you've got where are the heroes? You know, I heard a great line last night watching television by what's his name, who was Obama's campaign guy early on and is now on CNN all the time. Oh, it's on a tip of my tongue. Anyway, Axelrod quoted someone else whose name I can't remember to say, look at the size of the book profiles and courage, because it's so slim of volume. And we're seeing it right now in spades. Yeah. Yeah, that was JFK's book. You know, and it's interesting, you've got 18 attorneys general. Thank God, by the way, Ohio's AG, as of today, didn't join in. So 18 attorneys general trying to set aside an election that has been certified by their state and every other state. Right. And the timetable for that was December 4th. That's now done. By the 14th, the house will vote on the electoral votes. And so unless the supreme stopped that, the house is going to vote Monday and certify the election for Biden inheritance. By the way, for this particular petition, you need five justices. Yeah. If you thought the chances were slim to none to begin with, they are whatever lesser slim to none is. There's no way they're getting five votes, even if the two crazies on the right were to maybe talk their other two colleagues into going forward with this. I mean, you know, there's no way it's not going to happen. Yeah. Look, that's what I, that's what I hear. But all I'm going to say is we'll see. You'll see everything that I've been seeing on the con law profs discussion of people. One thing I heard that was really interesting is that, for example, the emotion to intervene by Trump in his personal capacity with the violation of the 11th amendment because apparently an individual, you know, an individual can't sue. It's a state to state thing to get to original jurisdiction and all that. Ben, Ben, Ben. Yeah. You think Trump cares? How many, how many constitutional and statutory provisions has he violated since it's been president, starting with the emulmin clause and going through everything you can think of? Oh, my brother, my brother. I mean, it is. Another thing that tells you, though, Ben, is that he couldn't get Barr to have the DOJ do it for him. Right. He has to do it individually. For some reason, Bill Barr has, looks like he's gotten religion in the last four weeks, not totally. He's still a little agnostic, but. Well, he just, he knows he's not going to get pardon. And he knows he's way on the wrong side of just barman, so to speak. But there could be criminal charges for his interference in the election. And so that's where he's drawn his mind in the sand. Yeah. Well, one of the interesting points was when they, he said, you know, we're going to do these investigations. And what was it? All the 16 lawyers in the elections division wrote him and said, we don't see anything. Okay. So you're on a limb, brother, all only want to do anything. But, you know, there is a voting rights case that's out there that's been filed in about Michigan and other place by the NAACP legal defense fund against Trump in his first for all this, you know, all this contacting of state leaders and all this effort to, to overturn the vote in particularly states that have, you know, significant minority in black populations. And the NAACP is, I've got which was the group that's the actual name on it, but the legal defense fund has brought a case. It's been on, it's on the dockets somewhere in US district court in Detroit, I think now. So that's also an interesting thing to see is to have the Voting Rights Act case brought against the president of the United States in his personal capacity for the things that he's doing. The fact that they brought it in the Supreme Court rather than the district court of the District of Columbia, they simply reflected they no way they're going to put it in front of Emmett Sullivan. He already stuffed them on Flynn. Oh, yeah, that whole 43 page dismissal, huh? That the Flynn thing, that was pretty amazing. Nothing's changing, nothing's changing. Nothing is changing. Georgia has decided to cut back. I understand by a third, it's voting locations for the upcoming Senate race. Interestingly, I was listening to someone again last night who's watching this who says at first glance, it's going to hurt the Democrats. But if you look closely, they're cutting voting locations in some very significant Republican counties as well. Really? Yes. So I don't know what the impetus is. Maybe they didn't realize that or maybe, I don't know. But those two Senate races now take on such importance. And I think it's going to be an uphill battle for the Democrats to win either one, let alone two. And you see the amount of money the Republicans are pouring into Georgia. Yeah. So I wouldn't want to be President-elect Biden right now. I mean, I just, I don't know how he's going to govern in the first six months. Yeah, it is, you know, that's the seat, right? You get the hot seat, right? And then you get to have what you want. But I mean, you do it with your role. I, one of the things that Biden has been around the block 47 years of this stuff. So you've seen variations of this in various forms for a long time, right? So we'll see how that goes. I'd like to speak to another aspect of all this that's getting lost in the sauce, which is what, was it 3,000 dead yesterday in COVID? Yeah. And we're up around what, 285,000 dead. And we've zipped through millions. It seems like week by week, this last three or four days. And I was listening to a presentation by some health loss persons who were raising all kinds of interesting issues about the process of getting people to take the vaccines when they are available. I mean, there's the logistics of the vaccine moving around. But there's also, as part of the campaigns, there has to be this effort to get, to recognize the extreme skepticism in, particularly in minority and black communities, towards all of this coming from a really awful history. I mean, Tuskegee may seem like ancient history, but it is right there in people's minds. They'll be the last ones to get it, absolutely. And so the ones who are getting it the worst, at the same time being sort of hesitant about all of this because of this bad history and the need to consciously take that into account in the rollout of whatever is done. You don't have to worry about the minorities. I can't tell you how many friends of mine say they're not taking it. I'm amazed. I'm shocked. You know, this conversation comes up all the time now. And I've told people, I'll be the first one in line once they get to my group. And I get much more than half for telling me, we're not taking this vaccine, no way in hell. And then you look at the statistics in the polling, what's it? 55, 60% of the people say they're not taking the vaccine. You can thank Trump until they name the vaccine after him. Then maybe they'll take it. That's what he wants. Yeah. Yeah. You know, it's deep. It's deep. Well, and look at the timetable because what you just said then, 3000 a day, even Azar says they're not going to get it to everybody until maybe by the end of June 2nd quarter, 180 days times three, that's 540,000. Yeah, I mean, we will double our deaths from the current at the current rate under the policy. The good news, if there is any good news at all is that the Biden-Harris medical team is one that the medical community is just ecstatic about. Yeah. They're basically saying you could not have picked better, stronger people. The problem is they won't even get started until January 21. Exactly. And here it is December 10. So how many, another 200,000 or 100,000 will die between now and then? Yep. Trump has done nothing since the election to deal with COVID. Zero. Yeah. Zero. Yeah, I know. It's just... Hey, he didn't do squad before that either. Well, at least he may believe. He may believe before that. He did. Now he's not even pretending. Yeah. I mean, you know, what a nightmare year for federal public health seriousness. I mean, it's a joke. There's been some people who've been serious, but the messaging has been so, so inconsistent. And you just watch all these people getting sick and dying, and you watch the people getting more infected. I have conversations with people where I said, you know, like last week, I think it was, we went up by a million infections within five days. That's an incredible number. And the comments that I got from people, oh yes, but the death rate has gone down. Yeah, I hear that all the time from the Trump. You know, and I'm like, you know, the death rate has gone down. Yeah, but that's 3,000 a day. Look, look, you know, we could, it would take us a month. It would take us, the death rate can't keep up. It would take us a month to list all the despicable things that Trump has done and said just yesterday. I mean, I always think, can he do anything more despicable? And he outdoes himself every single day. Yesterday, you know about this emergency facility in Reno where they've actually taken a floor of their parking garage at the hospital, largest hospital in Reno, and they've made it into an additional hospital facility to take care of COVID. Trump said it's a fraud. It's not for COVID. He said it was just made up. They just did it. I mean, how can you say that as a human being, regardless of your politics, just as a person that feels for people, the man is an absolute a-hole and there's no way of getting around it. I hope he gets indicted the second he's out of office. And if he can't get indicted, maybe the state civil cases and the criminal cases will go forward because he is, he is Joseph McCarthy times 10. Yeah. You know, you see, the thing about federal indictments, at least from what I've heard, is like in DC, there's basically this kind of norm. If we can say one norm that hasn't been broken, it's this one, which is that to go against the policy, but not against the person, right? So you get on the policy, policy, policy. So then what happens is when you have the change of administration, right? It's basically, you don't, you don't criminally charge people for anything. You just move on or what does it look forward? Not backward is what was Obama's line, you know? And, and so this, it's like across the, that whole Democrat or Republican, this is sort of the background norm they have. And so I don't, you know, I don't see that there would be any federal indictments. I'm, I'm, well, it's interesting to see what the state of New York does at this point, because they seem to be hot to trot on various things about the Trump organization and all that. Oh, let me take him down. Huh? She may take him down. He's too busy with Facebook right now. Yeah, there's that one too. But, you know, there's also the, the idea of, what is it, post the election, Trump has raised something like $210 million, right? And then most of that money he can essentially use as he wants in one of his super PACs or something like that. And then some people saying that's to pay off the $420 million bill he's got coming due once he comes out of office, right? So that's another aspect of this. It's just a money raiser. You know, somebody was telling me, please send money to the food bank, right? You know, as opposed to him. But people are sending him incredible for, for all this. You know, if it was just, if it was just Trump, it would be bad enough. It's the complicity of, of the Republicans in Congress. It's mind boggling. Other than a couple that have had the guts to at least talk about the election, if not other things. It's, it's unbelievable because all they care about is getting reelected. And they know there are Republican districts where Trump controls the majority of the votes. If Trump said to jump, they would say, how high? Regardless of, of how illegal that the conduct might be or undemocratic. I mean, that's the sad thing that I think these last six months of doing these shows have demonstrated to us, or at least to me. And I don't see much optimism. I'm sorry. At one point I thought, yeah, we got Biden in, thank God. But every day I go, I don't know. I don't know where this country is going. Thank God I live in Hawaii. Well, I lived in Ohio or one of those 17 states that have joined in this litigation. I think I'd be, I get the movers to my house tomorrow. As far as we move into our last couple of minutes. Yeah. What might Georgia do that might make a difference? What do you think is possible? Well, having predicted that Ohio would go for Biden and gotten that wrong, I really hesitate to say anything. But I will say that I think that notwithstanding all the shenanigans and reducing the voting places and all that stuff, there's to be a determination among voters in Georgia to do something. And maybe that's part of this effort that Stacey Abrams has pulled together with community organizing and all that. I saw something where like the number of mail-in ballot requests was like tremendous 850,000 or something. They're all illegal. Yeah, no, they're all illegal. But I, you know, the fact that these, you know, by the deadline there were these huge numbers. It's just, I'm saying that there may be a surprise. I don't, you know, I understand, you know, when I look at it and I say, okay, these two Republicans, okay, they could be Democrats too, but these two, you know, sold stock, right? Right. On insider information, you know, about how bad this was going to be and didn't tell their people. I was in Georgia and I'm like, I got family in Georgia now, you know, I rubbed me the wrong way. Now maybe, and there's in a world like, well, yeah, you got inside information, that's even better. You're my kind of person, right? But the guy doesn't even show up for the debate. Hey, Ben. Ben. So in our last minute or so. We got to keep the socialists and the communists from taking over. There you go. I'm going to say, I think Warnock can beat Lethler. She's light enough weight and he's a Reverend and he's conducted himself very much like Biden did in his campaign with class, with dignity. He hasn't done the negative stuff. If Ossoff beats Purdue, that would truly be the most David Goliath victory in this entire election. Jeff, what's your column? Well, you know, for the latest polls have him even and he came pretty close to first time and, you know, who knows what the turnout is going to be as Ben says. I mean, you know, the Republicans are basically telling people don't vote because your vote's not going to get counted or the whole thing is fraudulent. Hopefully, this is the one message that these Trumpers will accept this true and will stay home. That's my hope. Gentlemen, as we end our last session of the year, I want to thank you for your time, for your thoughts, for the heart and soul that you put into this. And may we all hope for the blessing of more choice, better choice, and better directions. Nicely put. You're here. Nicely put. And happy holidays to everybody. Stay safe. Much love. See you all in 2021. There we go. Come back. Be good, everybody. Happy holidays. Happy Hanukkah.