Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

David Lat:

They wanted this to look easy and I think that’s why they gave us a 20-page opinion. The opinion is sort of a, “Nothing to see here. Please move on,” kind of opinion. If they had given us 100-page opinion with concurrences and dissents, that might’ve sent a different message. So while I was disappointed at the thinness of the opinion, I understand why they did it given their objectives.

Preet Bharara:

That’s lawyer turned writer David Lat. His Substack newsletter, “Original Jurisdiction,” covers legal news from politics to big law, and his Companion Podcast features interviews with prominent legal scholars and practitioners. In the early 2000s, while working as a prosecutor at the U.S. Attorney’s Office in New Jersey, Lat began publishing an anonymous gossip blog about the federal judiciary called “Underneath Their Robes.” In 2005, he revealed himself as the blog’s author in a New Yorker profile and left the law to pursue writing full-time. He then founded “Above the Law,” now one of the nation’s largest legal news platforms.

Lat is also a successful novelist. His fiction book, Supreme Ambitions, was published in 2014. In April 2020, David Lat joined me as a guest on Stay Tuned. We spoke about his harrowing experience as one of New York’s first COVID patients. This week he joins me to talk about the federal judiciary, Trump’s trials, and the free speech controversies unfolding at law schools across the country. That’s coming up, stay tuned.

Before I get to your questions, I want to remind you to check out the first episode of our three-part Stay Tuned miniseries on AI and the law. As you know, I believe AI is one of the biggest stories of our generation, and it’s bound to have huge consequences for our legal system. I speak with Nita Farahany, professor of law and philosophy at Duke University about what happens when an AI chatbot takes part in a crime. Who do we hold accountable? Listen to AI on Trial in the Stay Tuned feed.

Q&A

Now let’s get to your questions.

This question comes in a tweet from Florida Guy 2.0, I didn’t know there was a 2.0, who asks, “What does the justice system look like under a Trump administration this time around?”

Well, Florida Guy 2.0, Trump Justice Department 2.0 is a very, very scary thing for me to contemplate. You might ask the same question about other departments or about the administration as a whole. What will the State Department look like? What will the Treasury department look like? What will the West Wing look like? But obviously near and dear to my is one agency of the U.S. government where I served for many, many years, the U.S. Justice Department. One way to summarize the ways in which the Justice Department would be different and the justice system would be different, Trump will do everything in his power, and he has considerable powers, to take away any semblance of the norm of independence in making decisions about the enforcement of laws and against whom they are enforced and positions that are taken by the Justice Department.

As an initial matter, as we pointed out before in the podcast on a number of occasions, the very first thing Donald Trump will do through personnel, through his own actions and directives, is to end accountability for himself. As you know, and as we are anticipating, there are two federal cases against Donald Trump brought by the Justice Department that he will have some measure of control over if he becomes the president again. And either by directing an Attorney General to dismiss the cases or engaging in the self-pardon, those cases by every account will go away. So that’s the first thing that the justice system will look like. That properly brought cases by a special counsel after the convening of a grand jury in two different jurisdictions, they’ll go away and they don’t see any way to resurrect them during the time that Donald Trump is president if he gets reelected.

Second and more broadly, he’s going to remake the personnel of the Justice Department, not just at the top but throughout the rank and file as well, at least if he gets his way. As an initial matter, people like Jeffrey Clark, who we’ve talked about before in the podcast will be in. People like Chris Wray at the FBI will be out. And one thing for sure, Jack Smith, the Special Counsel, will be fired probably on day one. Now there’s some speculation about who might be the Attorney General. What we know about the personnel choices that Donald Trump will make throughout government, not just in the Justice Department, but particularly I think problematic at the Justice Department, is he’s going to find people more malleable, more pliable, more loyal to him than any of the people he had before.

Remember, Jeff Sessions and Bill Barr had their problems but they were not loyal enough for Donald Trump’s tastes. You can imagine that if he’s able to install his first choice as Attorney General and as Deputy Attorney General and down the line, they will do pretty much anything he asks them to, whether it violates norms or practices or traditions of the Justice Department that go back many, many, many decades. Now, what may mitigate this, and we’ll see how this turns out, is high-level people, including the Attorney General, the Deputy Attorney General and the US attorneys and various other assistant attorneys general, they have to be confirmed by the Senate. We don’t know who the Senate is going to be controlled by, but it’s a pretty good bet that in the universe in which Donald Trump wins the presidency is, and I hate to say it given where I stand, that’s a universe in which probably the Senate goes Republican too. And Mitch McConnell, we know, will no longer be the Senate majority leader.

As much as you may dislike Mitch McConnell, there’s an argument that the next majority leader if the Republicans take back the Senate will be more pliable himself or herself with respect to who Donald Trump wants in those positions. And we’ll see if the opposing in connection with Senate confirmation of some of these nominees will have any effect at all.

Now beyond the top leaders of the department who must be Senate confirmed, there are thousands and thousands and thousands of career-dedicated good-faith personnel at the Justice Department as there are at other departments. And Donald Trump and people loyal to him, including Steve Bannon and Steve Miller, have made it their mission as they have said many times to dismantle the administrative state. And part of what they mean by that is firing career staff en masse. Whether that’s permissible under the law, we’ll have to wait and see, but that is one of the goals.

Beyond that, beyond any accountability for himself, Donald Trump has made clear to many, many people and even publicly that he intends to use the Justice Department and our justice system as a weapon and a tool for political revenge. He’s literally planning to figure out ways to investigate, harass and potentially have people prosecute people who have crossed him in the past. Here’s a troubling paragraph from a Washington Post article from a few months ago. “In private, Trump has told advisors and friends in recent months that he wants the Justice Department to investigate one-time officials and allies will become critical of his time in office, including his former Chief of Staff John F. Kelly and former Attorney General William P. Barr, as well as his ex-Attorney, Ty Cobb, and former joint Chiefs of Staff Chairman General Mark A. Milley according to people who have talked to him.” The article also says, “Trump has also talked to prosecuting officials at the FBI and Justice Department, a person familiar with the matter said.”

And that’s not all. There’s other mischief that Trump can make too with respect to our justice department and justice system if he gets re-elected. This is from an article in The Atlantic by Barton Gellman from last December. “If he, Trump, managed to place sufficiently zealous allies in the office of legal counsel, Trump could obtain legal authority for any number of otherwise lawless transgressions.” Gellman goes on to say, “Trump’s history suggests that he might seek legal blessing for the use of lethal force at the southern border, deployment of federal troops against political demonstrators, federal seizure of state voting machines, or deferral of the next election in order to stay in power. He would be limited only by the willingness of the Congress, the Supreme Court, and the Career Civil Service to say no.”

So I could go on and on about all the ways in which the justice system would look terrible and different and unfortunate under a new Trump administration, but I think I’ve said enough. You get the point and you get the picture.

This question comes in an email from Dean who asks, “What does the SCOTUS decision to take up the immunity issue mean for the timing of the 1/6 trial pending in DC?”

Well, that’s a great question, one that I’ve been thinking about. You’re referring to the Supreme Court’s decision to take a case on that addresses the defense of Donald Trump and his team that a former president has absolute immunity. That case went up to the DC Circuit Court of Appeals and that claim was unanimously rejected by a three-judge panel. We talked a little bit about this timing question as you’ll hear in a few minutes with my guest David Lat, but here’s my 2 cents. And again, anything is possible, but my 2 cents are as follows.

It’s clearly the case that the Supreme Court is taking up this immunity issue on a faster pace than an ordinary garden variety Supreme Court case. And by the way, I guess it’s odd to refer to any case that Supreme Court takes up as garden variety because they have the discretion and the time and the resources to take up only a very small percentage of cases that come before them. So I guess not garden variety, but the ordinary average Supreme Court case doesn’t proceed this fast. But as we know from other matters, they could proceed more quickly and there is this inflection point of the upcoming election for various reasons. And it’s clear that while the Supreme Court is moving with a little bit more alacrity, they’re not trying to break any land speed record for the deciding of this case.

As you may know, oral argument on the immunity issue has been set for April 22nd, so that’s a couple of months away. Then as you may also know, the Supreme Court term generally ends by the end of June, maybe sometimes the first week of July, a case of this magnitude and a case of this significance and given the pace they’ve already set, probably we’re not going to get a decision until the end of the term, which means, as I said, towards the end of June, beginning of July. It’s possible it could be a few weeks earlier, but the likelihood I think, and I’m not the only one who thinks this, a lot of experts who follow the Supreme Court think the same, probably a decision on this matter end of June, early July. Then the case goes back to Judge Chutkan, the trial court, the district court in DC.

There’s still a lot of work to be done before that case is trial ready. There are pre-trial motions that still have to be decided and all sorts of other matters as well, all of which have been stayed since the matter went to the DC Court of Appeals. The judge has already indicated that probably the parties need about three months. It could be longer, probably not going to be shorter, but probably about three months to get to the point where they can commence a trial or at least commence jury selection, which by itself may take some time.

So now if you get a decision in the Supreme Court by the end of June, you add three months, that’s July, August, September, we’re now talking about a trial-ready-date potentially at the beginning of October. That’s pretty late. And as David Lat and I discuss, and as Jack Smith has argued in court, the so-called 60-day rule whereby the Justice Department is not supposed to take a significant investigative step in a matter that might prejudice someone in an upcoming election or close in time to the election, this doesn’t apply here. I agree with the Jack Smith team that says that principle and that norm doesn’t apply here because this is a case that’s already indicted. Public is aware of the charges and the allegation.s and the decision about when the trial begins is not one up to prosecutors who they can advocate for something. It’s up to the judge.

Nonetheless, I think it’s not unreasonable to predict that Judge Chutkan and other reasonable judges as well might have qualms about starting a case so late and close to the election and you have a major party nominee who’s the defendant in the case, especially if there’s a likelihood and it seems that there would be here, there’s a likelihood that the trial would continue through the date of the election and beyond. I’m not saying it’s impossible. I’m not saying they’re not good legal and prudential reasons to put aside the fact of the election and treat this matter like any other matter. That’s a point that Joyce Vance made on the Insider Podcast and I understand all those arguments and they may be well-placed. I just think that there’s a considerable chance that that would seem to a judge to be too late in the season to begin.

And by the way, even that early October start requires pretty much everything to line up. And any other additional unforeseen delay that could happen and has happened in these cases could derail even an early October trial date, pushing the commencement of trial past the election. I don’t want to engage in a spoiler alert and tell you what David Lat thinks the likelihood of trial before the election might be, but I will just say for my own part, I think it’s very low.

This question comes in an email from John who was a listener to the first episode of our three-episode series, AI on Trial, which I’ll say again you should check out. So anyway, he’s listened to the first episode and he asks in part, “You, Preet, said one of the problems with AI bot testimony would be that the defense ordinarily has a right to discovery. And without knowing what the AI bot would say on the stand, the defense would have no notice, which is a no-no. I don’t see how this is any different than the testimony of any other human witness. People are equally unpredictable and prone to stray off-topic, fabricate, misremember misperceive, i.e. the well-documented problems with eyewitness testimony versus AI hallucinations, et cetera. Love your show. John.”

So to orient people a little bit, Nita Farahany and I discussed on the first episode this scenario in which a bot is participating in a crime with a human, whereas ostensibly, aiding and abetting the crime. Now, this raises all sorts of philosophical and existential and metaphysical issues including whether a bot can be prosecuted rather than the person or persons or company that created the bot. Probably the answer is no, but we’re indulging in the thought experiment.

What I was doing was making the point that in the ordinary case when there’s a witness who comes to trial, not always but often, and you’re totally correct, that witnesses fabricate, misremember, and misperceive and all of that, but generally speaking there is often a prior statement by that witness. Maybe that witness has been interviewed by the cops or the FBI. Maybe that witness has made a statement, maybe that witness has testified in the grand jury. And the defense in ordinary discovery prior to trial has a right to see that information so that when the witness comes and testifies at trial, if there’s a variation between the trial testimony and the prior statements, the defense lawyers can do what’s called impeach witness and show that the witness is not credible or not believable or was more credible on a prior occasion when that person did not inculpate the defendant. You can imagine many scenarios in which it is useful to have reliable prior testimony and statements from the witness.

Now, mostly I was trying to suggest I don’t understand how so many things including impeachment would work when you’re talking about a bot. As an initial matter, can a bot commit perjury? Can a bot make a false statement? If a bot is queried three times in a row with the same question or a version of the same question, will that bot provide the right answer? Or is a bot, by definition, impeachable based on prior statements every time that bot is queried? I mean it kind of starts to make your head spin.

Also, by the way, in the scenario that Nita and I were talking about, the bot itself is maybe a miscreant and maybe a co-conspirator. Can a bot take the Fifth Amendment? Can a bot cooperate? Can a bot flip? Your point’s Well taken. We were just trying to make the point that we are entering a strange and brave new world, putting aside the idea of ever prosecuting a bot, which I think is not something that will arise. If you have entities like bots who are, in the way we think about these things, percipient witnesses, how is that going to work? And what our series attempts to do in this context and in a future episode in the election campaign context is raise as many questions as we can so we can think about how we resolve those issues, and the law is probably the best way to do so.

I will be right back with my conversation with David Lat.

We are living through an unprecedented time in US history where a former president, who’s also a leading presidential candidate, faces four criminal cases on the eve of the election. Over the last several months, we’ve seen a flurry of indictments, legal briefs, and court decisions, including from the highest court in the land. Now on March 25th, the first ever criminal trial of a former President of the United States of America will begin in the people of the state of New York versus Donald J. Trump. We’ll be covering these landmark proceedings and making sense of it all on the Cafe Insider Podcast where each week I’m joined by former U.S. Attorney Joyce Vance. To listen, head to cafe.com/insider and try the membership for free. That’s cafe.com/insider.

THE INTERVIEW

And now onto my conversation with David Lat. He shares his thoughts on major cases and the judges who decide them.

David Lat, welcome back to the show.

David Lat:

It’s great to be here, Preet.

Preet Bharara:

So I got to say it’s been a while, a lot has happened. To remind folks as you and I were reminiscing before we hit the record button, we last had you on the show almost four years ago. It was at the start of the pandemic. You were one of the people who got one of the more serious cases, the most early on in the pandemic. Somewhat famously, you got very, very sick. You were hospitalized, intubated, you were on a ventilator. So my first question to you is, and we’ve talked a few times since, how is your health? How are you doing?

David Lat:

I am doing great. I’m very fortunate because as has been documented, people can have very serious cases of long COVID. For the most part, I feel back to normal. I can’t really run long distances like I used to, but I can-

Preet Bharara:

Yeah, you said that before. Do you think that’s a permanent feature of your recovery?

David Lat:

It’s funny. It’s also hard to tell what is just getting older. But I can do other forms of exercise. I can walk, I can jog. I can go for about a mile or two. I just am not doing any more half marathons.

Preet Bharara:

Well, you’re already ahead of me and I didn’t have that serious a case of COVID, but I’m a little bit older than you are.

David Lat:

Yes, that’s right. But no, I feel good.

Preet Bharara:

With the benefit of hindsight, sort of segueing from your experience as a patient but also as a lawyer and a public commentator on law and policy, do you think back and wondered could we have done things differently as a country or in New York and New Jersey specifically or not?

David Lat:

Oh goodness. There are a million things we could have done differently. I think there are even a couple of books about this, but you know, I don’t know.

Preet Bharara:

Not by you, though.

David Lat:

True. But I think we were just doing the best we knew how. So for example, I think hospitals turned out to be slower to use ventilators than they were in the early days because they found other ways of helping people’s airways. So maybe I wouldn’t have been intubated later on in the pandemic. But I went in before antivirals, before steroids, before vaccines. Hydroxychloroquine was the state-of-the-art treatment. My parents were begging me for me to get that and we later learned it wasn’t so great. So it was a different time, but they treated me the best they knew how and I’m so grateful to be here. So thanks again to the folks at NYU Langone.

Preet Bharara:

Do you think if we had another pandemic-style crisis in the medium term that we’ll do a better job? Do we learn something or will we do a worse job?

David Lat:

I think we have learned some things. I think we’ve learned that it is possible to get vaccines out that quickly. I think we learned how to work from home effectively. I think we learned a lot of things. So I tend to be an optimist, so maybe discount my opinion, but I think we would do better if we had another pandemic. Hopefully we won’t in our lifetime.

Preet Bharara:

Do you worry that people’s virulent opposition to what we all call a vaccine, it’s not quite a vaccine in the traditional sense of the word, has caused people to be more against more traditional vaccines and we have a rise in measles? I’m getting into a little bit of the medical area, but I still think it’s a legal policy issue. Do you worry about that?

David Lat:

Oh yes, absolutely. It’s just unfortunate that everything has now become political. I remember in the early days when I was sick, I was getting “Get well” tweets across the ideological spectrum from you, but also from Republican appointed US attorneys like my old boss, Chris Christie and Ted Cruz and Kathy Griffin. It was not a political thing. People were united. And then now we fight over vaccines and we fight over shutdowns and we fight over everything.

Preet Bharara:

Yeah. Well let’s turn to something less controversial. I was going to start differently, but we are recording this, I should note for the audience, on Tuesday afternoon, March 5th. On March 4th at 10, A.M. was issued an opinion by the Supreme Court of the United States of America, where we both live, relating to the challenge, to the Trump appearance on the ballot in Colorado. And just to remind folks, this has been a subject of discussion for a long time, that by the provision of section 3 of the 14th Amendment, which says something about insurrectionists and those who give aid in comfort to the enemies of the United States, they can be banned from federal office. And that case made its way to the Supreme Court after the Colorado Supreme Court ruled the Trump was in fact able to be barred from the ballot, 9-0 the other way. I have a number of questions about that for you, but as a keen observer of the court and that court in particular, any reaction?

David Lat:

So the opinion itself was a little underwhelming. The outcome was not surprising if you listen to-

Preet Bharara:

It was mercifully short.

David Lat:

Yes it was. I was prepared for 100-pages log. And counting the concurrences, it’s 20 pages.

Preet Bharara:

Okay, so underwhelming how?

David Lat:

Well, I think that a lot of us expected a kind of intellectual feast. Hundreds of pages of law review articles and newspaper op-eds have been written about section 3 by this point, and we got 20 pages. It was kind of like the judicial equivalent of the Fire Festival. We were expecting this epic event and we got nothing.

Preet Bharara:

All right, so fans of the Fire Festival, you can write to David Lat.

David Lat:

It was just the definition of anti climax. We expected-

Preet Bharara:

Well don’t you think… I don’t mean to represent or defend the Supreme Court, but didn’t they just want to have a simple as non-controversial as possible off ramp?

David Lat:

Yes.

Preet Bharara:

I mean they didn’t get into whether or not there was an insurrection or that Donald Trump engaged in or supported the insurrection. That’s not surprising. Is that surprising to you?

David Lat:

No, not at all. I thought they wouldn’t touch that with a 10-foot pole.

Preet Bharara:

Yeah. So they based their decision in large part on the lack of precedent for and the Constitution’s textual and structural lack of support for the idea that individual states among the 50 could do something to affect a national election, a federal election. Does that seem like a crazy argument to you?

David Lat:

No, no, not at all. Certainly, especially not as a policy matter.

Preet Bharara:

What about as a constitutional matter?

David Lat:

So I think that is where the opinion is on somewhat more shaky ground and there were a lot of arguments that it could have engaged with that it did not. But going to your point, Preet, they wanted this to look easy and I think that’s why they gave us a 20-page opinion. The opinion is sort of, “Nothing to see here. Please move on” kind of opinion. If they had given us a 100-page opinion with concurrences and dissents, that might’ve sent a different message. So while I was disappointed at the thinness of the opinion, I understand why they did it given their objectives.

Preet Bharara:

So Amy Coney Barrett, Justice Amy Coney Barrett had a one-page concurrence in which she says, further to this point you just made, “Particularly in this circumstance, writings on the court should turn the national temperature down, not up, for present purposes are differences are far less important than our unanimity. All nine justices agree on the outcome of this case. That is the message Americans should take home.” Is that an extraordinary passage or not?

David Lat:

No, I actually think it makes sense given the context. She’s trying to emphasize the unity of the Court, even though she was one of the four justices who did not join the per curiam opinion for the other five. It makes sense to me. I understand why she wrote that. It was a very self-aware comment that is acknowledging the elephant in the room, which is this ongoing presidential election.

Preet Bharara:

Do you think that to some extent, people in the public sphere overplayed the likelihood of success of this argument in the Supreme Court?

David Lat:

Oh, definitely. Definitely. I think people really gave this much more of a chance than, oh, I think a lot of people would’ve thought it would had. I know your colleague Elie did a segment on this for CAFE. I’m kind of with him on in terms of how obvious it was that they were not going to throw Donald Trump off the ballot.

Preet Bharara:

Yeah. I don’t know if you have a direct relationship with the former federal judge who’s very well respected, Judge Luttig, he kind of portrayed this as a slam dunk argument. What do you make of that?

David Lat:

So yes, I think he called the Colorado opinion quote…

Judge Luttig:

Unassailable under the objective law of the federal Constitution and Section 3 of the 14th Amendment.

Preet Bharara:

Except by the nine superior Supreme Court justices.

David Lat:

Look, I think Judge Luttig is brilliant, but I think he’s also very passionate. He feels very strongly about the country and the constitution. And I think he was so convinced of the rightness of this result that maybe he started to let normative considerations creep into his predictive ones. So I don’t fault him for that, but it was definitely a decisive win the other way.

Preet Bharara:

Do you think now that we’re going to get into some more further speculation as Joyce Vance and I did earlier today when we recorded our weekly Insider Podcast, putting aside this ballot question which I think was foregone conclusion, the Supreme Court has also agreed to hear the immunity claim in the DC District Court case relating to January 6th? Oral argument is set for April 22nd. You, like me, used to be an Assistant U.S. Attorney, worked in the Department of Justice, and you observed these issues and you’ve been writing about them far longer than I have from the outside. What’s the likelihood we’re going to see a DC trial on January 6th before the election?

David Lat:

Very, very low.

Preet Bharara:

I agree with that.

David Lat:

And even lower because we might have the documents trial first. Donald Trump’s lawyers in the Mar-a-Lago documents case said, “Okay, we’d rather have a trial after the election, but if you really, really force us, we’ll settle for August. If there’s a documents trial-”

Preet Bharara:

August 12th.

David Lat:

Yep, exactly. “So if there isn’t a documents trial, then we’re definitely not.” If the Supreme Court hands down its decision in June at some point, there’s not going to be time to prepare this case, the January 6th DC case, before the documents case. So I would say 5% or less.

Preet Bharara:

5% or less. Yeah, I’m sort of there. But then once again, I don’t mean to cast aspersions on anyone else who’s in the public square talking about these issues, but I feel that there are a lot of people talking much more optimistically with much higher probabilities that the trial will begin and conclude before the election. Are we missing something?

David Lat:

No, no. I mean you’ve worked on these complex cases. This is actually in some ways pretty fast by the standards of a case of its complexity and scope.

Preet Bharara:

Yeah. I mean, do you think that the people who argue that the Trump folks are engaged in a gambit by trying to clog the calendar in August and September, at least at this moment with the Florida case, are doing that so that the scheduling of the DC cases just can’t happen? And then at some point when they’re safe from the prospect and specter of trial on the DC case, they then attack the calendar in the Florida case? Or is that too cynical?

David Lat:

I would not put that past them. They have definitely been playing games with the calendar. And look, I get it. They have a client and it’s in their client’s interest to delay and they have to serve their client’s interests. I get it, but I would not rule that out.

Preet Bharara:

Okay. We’re going to come back to some of these current issues because I think it would be malpractice not to ask you about them given how much you talk about them and write about them. But I want to take a step back and talk about what has been a central theme of your career, and that’s sort of demystifying the law and demystifying the bench. So you started even while you were, I don’t know if people know or remember this, while you were a federal prosecutor, you anonymously published what then I guess we call a blog called Under Their Robes, which I take it was a website devoted to judicial pornography. Am I right?

David Lat:

I called it Underneath Their Robes: News, Gossip, and Colorful Commentary about the Federal Judiciary.

Preet Bharara:

Underneath Their Robes.

David Lat:

Yes.

Preet Bharara:

So I remember this back in the day, explain to people what that was about and why people were so attracted to the site. And I was kidding about the porn thing.

David Lat:

It was sort of like a People Magazine or an Us Weekly meets the federal judiciary. I think people were attracted to it because it was unique and kind of bizarre. I was taking this very serious institution, the federal judiciary. I was mostly worshipful and positive, but I was occasionally snarky and irreverent. But I was trying to humanize, I was trying to humanize the judges.

Preet Bharara:

Just occasionally? Just occasionally?

David Lat:

Yes, I did a hairstyle retrospective for Harriet Miers, for instance, during her confirmation process. It was really looking at the judges and justices not from the perspective of their jurisprudence, but as people. And I have to say, I think that journalism has somewhat drifted in that direction. I feel that there have been many more profiles and personal looks at judges since the time I was writing. I think it’s not unusual now.

Preet Bharara:

I guess this is an odd question to ask, and maybe you didn’t think about the consequences, but did you think of your enterprise as debasing the bench or uplifting the bench or neither of those things?

David Lat:

I would probably say uplifting. If you read the-

Preet Bharara:

Because you humanize them?

David Lat:

Yes, and also because so much of it was actually kind of sycophantic, to be honest. A lot of it was about how these brilliant federal judges are safeguarding our rights. It was a very positive kind of website. There was sort of dashes of snark, but it was actually very laudatory. I did interviews of a couple of federal judges. I published my correspondence with some judges. It was very much a… Well, so my pseudonym for doing this was Article III Groupie. Groupie being a fangirl. And I regarded federal judges as these intellectual and jurisprudential rock stars. So it was from that perspective. I would say it was from a loving perspective. And even pointing out flaws was done from a place of love, I would say.

Preet Bharara:

Do you still have that same idealistic and positive view of judges?

David Lat:

Interesting. That is a complicated question. I guess my short answer would be not to that degree. We’ve learned a lot.

Preet Bharara:

Yeah. Well, what happened? What happened?

David Lat:

Yeah. Well, I don’t know. We learned a lot. I think the judiciary has become more political. We’ve also had a couple of personal controversies and scandals. I mean, look, I have a mea culpa here. One of the judges that I most lauded, Judge Alex Kozinski, I didn’t know about this, but he was accused of sexual harassment and left the bench. He was one of the icons of underneath the robes because he wrote very smart, funny opinions, he was extremely interesting, but his personal conduct was very problematic and harmful to a lot of people.

So I think I do have a different view. Even Judge Reinhardt on the other side of the spectrum, a very liberal Ninth Circuit judge, we later learned that he also mistreated his clerks, including female clerks whom he sexually harassed or allegedly sexually harassed. So I don’t know. I think the scales have fallen from my eyes somewhat, but I still believe in the importance of the judiciary. And I still believe that most federal judges are trying to do the right thing, I do believe that. So I still have a lot of respect and enthusiasm for the judiciary, but I am much more realistic than I was back then.

Preet Bharara:

Do you think, just going back to the case we discussed earlier, that was 9-0. Are you in the group of people who believe that Clarence Thomas should have recused himself?

David Lat:

Not in this case. I just don’t see the nexus there as being tight enough. But a case involving whether or not communications of Ginny might be publicly exposed, I think that’s the case where I think a reasonable observer could question his objectivity. So-

Preet Bharara:

Interesting. What about the immunity case?

David Lat:

I think that also is not close enough. I don’t think that… Because he’s not going to recuse from anything that could have an impact upon Trump, that I think is probably too broad.

Preet Bharara:

Sure.

David Lat:

In their new ethics code, which they released a couple of months ago, they pointed out that with the Supreme Court, you have a higher standard for recusal because you don’t want an eight-person Court. You don’t want an eight-justice Court. So given that higher standard, maybe it’ll be different if he was a lower court judge. My answer is probably no on a lot of them, but yes, on something that could have direct impact on his wife Ginny.

Preet Bharara:

How should the public, the lay public, and we’ll come back to lawyers in a moment, think about the bench? Should they presume judges to be doing the right thing? As you’ve said, most do, and I agree with that. Should they be individually skeptical but overall deferential or something different?

David Lat:

I guess I would say that there should be a presumption of regularity, a presumption of fairness that most of the time judges are trying to do the right thing. But the presumption can be rebutted. If a judge rules repeatedly in ways that seem to show a bias or that flout the law, then I think in that case you are entitled to view future rulings by that same judge differently, so yeah.

Preet Bharara:

Well, so in that vein, you’ve teed it up perfectly. Let’s have you judge some of the judges, David. Judge Aileen Cannon, who’s overseeing the documents case in Florida which we’ve mentioned already, seems to arguably fall within the category of judge that you just mentioned who’s ruled unduly favorably on one or two matters with respect to Donald Trump. How should a thoughtful but non-attorney listenership feel about her and her rulings?

David Lat:

So I would kind of put Judge Cannon in the probation category. I don’t think the 11th Circuit would remove her just yet from this case, but I think she’s on thin ice. And if she made another error like she did in the pre-indictment phase of this case where she basically was telling the executive, the US attorney’s office, that they couldn’t investigate something, which is really not her province to do, then I think she could get booted. But appeals courts, I think you discussed this with Joyce, they generally kind of have a three strikes in your route sort of approach. A judge has to repeatedly mess up before they’ll remove the judge from a case that’s kind of seen as an extreme remedy. So I think-

Preet Bharara:

It happens very rarely.

David Lat:

Yes, exactly. Very, very rarely.

Preet Bharara:

I talk about this a little bit in my book, but I’m interested in hearing your perspective, again to explain to people at this moment, which I think is a very important inflection point where we’re on the eve of at least one, and perhaps four criminal trials, after having seen the judicial process play out in a couple of very big deals, civil cases, the New York Attorney General case and the E. Jean Carroll defamation case. Everyone’s getting a crash course in how the law works, at least in these peculiar circumstances. And they’re about to get that more specific lesson in criminal matters. There’s a tendency for the press at some point and the public at some point to turn their attention to the identity and personality of the judge. Very famously, in a previous trial of this century, we had Judge Ito in the O.J Simpson case.

I guess two questions. One, is it right for there to be so much focus on the personality style and rulings of the judge? And I guess the second question implies my answer to that question, which is, explain how important an individual judge is to the unfolding and outcome of a case.

David Lat:

So on your first question, I think for better or worse, it is very important to pay attention to the identity of the individual judge. In a perfect world, honestly, it would not be. There was a debate recently online about whether or not news organizations should note the party of the president who appointed a judge.

Preet Bharara:

Yeah. I was going to ask about it.

David Lat:

Yeah, and I think they should, because unfortunately, I would probably say unfortunately, that information has relevance. You can often predict how a judge will rule in a high sort of high profile, hot button case. The president who appointed them, that’ll often correlate with something.

Preet Bharara:

Right. But it correlates more readily. I mean, I don’t disagree with you, but it correlates a lot more readily at the level of the Supreme Court, somewhat less at the appellate court, and in my view, in my experience, quite a bit less at the district court level. Fair?

David Lat:

Yes, totally agree with that. Yep. But going to your second question, I think individual judges can have a big effect because the district judge who’s solo in overseeing the trial proceedings, that person has a huge amount of influence over that case. They have a lot of discretion over matters like scheduling, which an appeals court isn’t necessarily going to muck around with. So a judge like Judge Cannon or Judge Chutkan in the DC case, they have huge, huge influence. Appeals court judges, you could argue in a way, you could say an individual appeals court judge has less influence because in the federal system they sit in panels of three. So if the appeals court’s going to do anything, you need at least two out of three. But a district judge who has all this discretion, evidentiary rulings and trials, scheduling, evidence, there’s a lot that they have control over.

Preet Bharara:

In your experience, beyond those formal powers that a judge has on scheduling, admissions, admissibility of evidence and those kinds of things, which obviously speak for themselves in terms of how they can alter the course of a trial and the outcome, what about just the personality of the judge and their facial expressions and how they treat the parties and the lawyers in the courtroom and in front of the jury? Does that make a difference?

David Lat:

Oh, absolutely. I would say for a good example of that, compare Judge Lewis Kaplan of the Southern District, the federal judge, and Justice Arthur Engoron of New York Supreme Court and how they ran the trials before them, civil trials for Donald J. Trump, I think that the way a judge handles their courtroom can be hugely impactful, especially if there’s a jury there.

Preet Bharara:

Wait, so I’m going to ask you to explain more about that and elaborate. So what was the difference in your mind between… I don’t know Judge Engoron. I know Judge Kaplan quite well from my time at the Southern District. What was different about their approaches and what do you make of that?

David Lat:

I think Justice Engoron let Trump and his team have a lot more leash. He allowed more bombast. He allowed more speechifying. Now, look, I will point out in his defense, there was no jury in that case. That was a bench trial, and so he could screen out what he viewed as irrelevant. When a jury is there, the judge needs to be more proactive. So I do think the trial ended up being a little bit more of a circus, but I understand that in the sense that he doesn’t want to get reversed. And if he just lets it all in, that’s fine, and he can make his findings as he did in his opinion about the credibility of witnesses. But if he lets it all in, he’s less likely to be reversed than if he excludes large swaths of evidence.

Preet Bharara:

By the way, we talk about judges sometimes as if there’s some kind of different species. But as you point out, and as I’ve often said, and I would talk to my AUSAs, assistant US attorneys, in this way like, they’re human beings. And obviously they’re at the pinnacle of their profession, right? They’re at the height of the profession. It takes a lot of accomplishment, not always, but generally speaking. Every once in a while, some not so experienced person squeaks through because it’s a political process. But generally speaking, they’re very accomplished legal practitioners, but they’re just people. We talk about the pressure that witnesses feel and a defendant might feel or a target might feel, but these judges who are becoming household names, federal and state, and who are getting attacked and supported, depending on your perspective, that’s a lot to take.

I think we should pause for a moment and tell me if this is appropriate and right, and realize that unlike some of the other players, because the judge told me this once in the Southern District where I respect a lot, and she said she had been the subject of a series of adverse negative editorials in one of the city’s papers. And she’s like, “All I can do is go home and have a glass of wine and just suck it up. I have life tenure, but I’m also not in a position to write a letter to the editor or go on MSNBC or Fox News or whatever the case may be, and defend myself other than in the opinions that I write and the rulings that I make.” So should we tip our hats to judges for having to suffer through all that?

David Lat:

Oh, absolutely. And I would also say look at the sacrifices that they and their families make in terms of their personal security. A number of years ago, a federal judge in New Jersey asked their solace, a crazed litigant went to attack her and her family and murdered her son. So they make a lot of sacrifices. There was the attempted assassination attempt against Justice Kavanaugh. So judges have had, like Judge Chutkan have, I think, been the victims of these swaddings where people call in a false emergency or 911 situation. So judges make a lot of sacrifices and their families do. These are people who could be making a lot more money in private practice. Many of them, not all of them, but many of them. And so I think we-

Preet Bharara:

Almost every federal judge could be making a lot more money, particularly if you’re in New York. But life tenure is not a bad thing, right?

David Lat:

No, no. And in fact, judges have told me that when they have left the bench before their senior status happened, which means their pension vests, you do have to kind of give them a liquidated sum to kind of compensate them for what they’re losing because once they’re age 65 and they have 15 or more years of service, they can get their salary for the rest of their life without having to do anything. So that is a nice perk of being a federal judge. They have an old-fashioned pension, which most people don’t anymore.

Preet Bharara:

I can ask you about a couple of the other cases while I have you and have this privilege, David?

David Lat:

Mm-hmm.

Preet Bharara:

Judge Chutkan, and we mentioned a couple of times who is presiding over the January 6th case in DC, do you have any observations about her or how she’s presiding?

David Lat:

I think she’s doing a good job. She is trying to keep the trains moving. She’s trying to be pretty fair, I think. Look, personally, if I had to guess, I think she may be inclined towards the prosecution, but I think her rulings have been down the line and well-supported. So I think she’s doing a good job with what is, I would say, the most sensitive and high-profile and potentially politically consequential of the four Trump cases.

Preet Bharara:

I’ll be right back with David Lat after this.

Have you ever come across a judge who you have thought, and I think there are people like this, but I’m just wondering how you’d answer, who was truly, truly down the middle in the criminal context, and neither the prosecution or the defense could really say, I’m not talking about a particular case, but over the course of a career, really can’t say that that judge even a little bit favors the prosecution or a little bit favors the defense? Is that a rare breed? Is that a common thing you might characterize judges as being in? How do you think about that?

David Lat:

I would say it’s rare but not unheard of. I think there are a lot of judges out there who do try to call them as they see them. One thing I should also point out is there may be an issue of unconscious bias in the sense that a lot of judges who are inclined one way or the other, they’re not necessarily trying to be. They think they’re being objective. So it’s rare, but I don’t think it’s unheard of.

Preet Bharara:

Yeah. What about this drama spectacle unfolding in Georgia where you have the sitting district attorney testifying, the special counsel that she appointed with whom she has admitted to having a romantic relationship also testifying? One of the issues in question is when the relationship began, whether she benefited financially. I think good experts and commentators are trying to separate out sort of spurious scandal from what the legal standard is, right? Whether the judge is going to decide this based on the appearance of a conflict or actual conflict or something else. Do you have an observation about that whole thing?

David Lat:

So if I were to be predictive, and I should offer the caveat that I have not watched all of the televised proceedings because this is in state court and there are cameras in the courtroom, predictively, I think Judge McAfee is going to require some kind of disqualification. I don’t know if it’ll be of Fani Willis entire office or whether it will be of Ms. Willis or whether it will be of Nathan Wade, but I think he will order some change to that lineup. He has said, I believe, and I don’t think he’s reversed himself, that he’s going to be applying an appearance of impropriety standard. I think he may have some skepticism towards some of the witnesses from the district attorney’s office. And so I think he may order some changes.

Preet Bharara:

And what would be the legal basis?

David Lat:

I think he would say that there is an appearance of impropriety here. There is evidence suggesting. And again, there’s evidence going the other way too, but there’s evidence suggesting that the romantic relationship between Willis and Wade began before she retained him to serve as special prosecutor. She retained him. He’s been paid more than $700,000. They have taken some trips together. People have wondered why there’s no documentation of this argument that they split everything evenly. Maybe they didn’t split everything perfectly evenly. Even if they split the vacation expenses, it’s still in your interest to have your romantic partner do better financially. We know that Nathan Wade has had some financial problems in the past. He’s going through or went through this messy divorce. Again, and if the standard is appearance rather than actual conflict and any actual impact on the case, I think that he could rule against the Fulton County DA’s office. But again, this is just predictive and it is coming from someone who has not watched every minute of those proceedings.

Preet Bharara:

Even people who watch every minute of those proceedings might not necessarily be in a good position to predict because these things are inherently unpredictable. If any of what you have predicted speculatively comes to pass, what are the odds that that trial can happen before the election?

David Lat:

A pretty much zero because there is a body that has to appoint a new… Well, it depends. If they remove Fani Willis and not her whole office-

Preet Bharara:

And not the whole office, it can proceed.

David Lat:

Yes. Now, if he removes Nathan Wade or something, then fine. But even then, I think the odds are very low because it’s going to start bumping up against the other cases. It is a large case, something like 19 defendants. It’s the most sprawling and unwieldy in some ways of the cases. I think the chances whether or not Judge McAfee disqualifies anybody, the chances of that going to trial before the election are, I mean, what did I say before? Under 5%. I mean, this is under 1%. I don’t know.

Preet Bharara:

I’m going to ask you a question I asked Joyce Vance this morning. Say you’re the judge in one of these cases. It can be Judge Chutkan or any one of them, and the legal wrangling has finally come to an end and discovery has been completed and the pretrial motions have been concluded, and now you find yourself, it’s October 1, right? You’re now free and clear to commence the trial, or you know it will be free and clear on October 1. The election is November 5. There’s no legal bar to proceeding with the trial. There’s not necessarily any sort of practice or norm of the DOJ notwithstanding arguments about this that prevents proceeding to trial. Do you think a judge, and you can answer this either way, predictive about any one of these judges, or pretend you’re the judge in the case, would you expect there to be qualms about commencing a trial while voting is taking place with respect to one of the major party nominees and knowing that probably the trial will be continuing through and beyond election day? How would you think about that as a judge?

David Lat:

I have to confess, I would have qualms, even though intellectually I kind of wish I would not have qualms in the sense that I think we are not supposed… Judges are not supposed to take into account things like this election, and Judge Chutkan has declared that she wants to treat Donald Trump just like any other defendant. But look, he’s-

Preet Bharara:

There’s not any other defendant.

David Lat:

Yeah, that’s the reality of it.

Preet Bharara:

We treat these people different and people don’t like it. But we already have a rule which a lot of people don’t like, and I have suggested publicly should be revisited by lawyers in the office of legal counsel. We already have a rule, which is why this clock is so important, which is why we’re talking about it, which is why the inflection point of all this is the election because we don’t treat presidents the same. We have a rule adopted by presidential administrations of both parties over the last half decade or more that sitting presidents are too busy and occupied with the national security and other business of the country that they can’t be prosecuted while in office if there’s anything that comes close to that level of a double standard for a particular individual in the country, I’m not aware of it. So we’ve already made the decision in high-minded fashion that a person, that status gets treated differently. Is it really crazy to have a concentric circle of concern outside of that core of impunity?

David Lat:

No, I don’t think it’s crazy, but I’ll be honest with you, what I would do if I were a judge is I would try to find some reason not related to the election to justify my decision even if-

Preet Bharara:

Oh, that’s totally… Yes. Yes.

David Lat:

I mean, I’m just being honest. I think the train driving my thinking would be the election, but for the sake of propriety, I would try to find some other reason.

Preet Bharara:

So you think some judges sometimes engage in pretext, David?

David Lat:

Oh, human beings engage in pretext. I mean, I think there’s an argument that it could be good for the system because I think you could argue, “Look, they’re going to do certain things regardless, but isn’t it better to at least have a fig leaf?” I don’t know. Now, some people might say no. Better for them to be honest, but I don’t know. I think there is a value to the public thinking or believing that the judiciary is impartial or trying to be impartial.

Preet Bharara:

That’s so interesting, right? But in a pretextual way, you’re speaking very candidly here, David. Look, there’s a parallel to that in Jack Smith’s office, and I understand the arguments both ways. Jack Smith keeps arguing that the public has an interest, not just the defendant, but the public has an interest in a speedy trial. “We got to go. We got to go. We got to go.” The reason he’s saying that after, by the way, the Department of Justice arguably slept on this matter for a year or more is because of the election. And not because he’s trying to affect… I don’t think he’s trying to affect the election or necessarily trying to influence the vote, but the reason the election is important is because of the fact that I mentioned a couple of minutes ago, and that is because of the system we have and because of the rule we have. The likelihood of a trial after the election is close to zero. I mean, it probably is zero.

So it is not inappropriate to want to beat that inflection point, to want to beat that clock, and yet they never say that. I’ve had this discussion with people on the podcast before and with Joyce. And I understand on the one hand, you don’t want to look like you’re being explicitly tied to the electoral clock or paying attention to politics, but that’s the world we’re I. And maybe it’s the case you don’t have to say it, everyone knows that’s what you mean. Do you have a view on that?

David Lat:

Yeah, I don’t think it’s great, but it’s understandable in the sense that his entire case could go away if Trump is re-elected. So it’s not just there’s not going to be a trial that he could order his attorney general to dismiss the case. He could self-pardon. We’ve never seen that, but we’ve never seen a lot of things when it comes to Trump. So I think from Smith’s perspective, his case, the viability and existence of his case hinges on getting it done before the election quite possibly. But, as I think you and Elie and others have discussed, to say so explicitly would violate these Justice Department guidelines about not tying events in a case to an election. And that’s even separate from the 60-day rule about indicting someone, et cetera. So if he’s trying to time events like a trial to events of a political nature, that’s a big no-no. So that’s why his filings were always very elliptical and he never says, “Hey guys, we got to get this done before November and election day.” He never says that explicitly, but you just read between the lines of these filings.

Preet Bharara:

Do you have a view or have you seen enough to form a view of the judge in the Manhattan DA case, which trial may be commencing in a couple of weeks?

David Lat:

No, I have not formed a view on Judge Merchan. I don’t know enough about that case. That’s kind of been the sleeper case. We all were ignoring it and then suddenly-

Preet Bharara:

How’s that the sleeper case when it’s starting in two weeks?

David Lat:

Yeah, but it was the first filed, but we kind of all lost track of it. Then suddenly it’s like, “Whoa. It came out of nowhere.” It was the horse on the outside track that just kind of this-

Preet Bharara:

Although it was the first one.

David Lat:

Yeah, but we all just kind of forgot about it. I mean, look, partly because the stakes are not as high, the offenses are fairly low level. It’s about something that we have heard a million times regarding Stormy Daniels. So I understand why it’s been sort of an afterthought, but here it is.

Preet Bharara:

Are there any other Supreme Court cases you think that we should be focusing on more than we are?

David Lat:

No. I mean, I think it’s funny. Before these Trump cases came along, my husband and I were working on an op-ed saying something like, “The Supreme Court term is sleepy.” And that’s a good thing. And then of course all these Trump cases happened. I’m glad we never placed that op-ed because it would’ve been the most embarrassing op-ed ever. But other than the Trump cases, there’s not that much going on. You have Loper-Brite and Relentless and these cases about the Chevron Doctrine, which are of great interest to lawyers raising technical issues of administrative law. And they have a lot of practical implications for everyday Americans-

Preet Bharara:

But they’re hard to explain.

David Lat:

They’re hard to explain.

Preet Bharara:

It’s hard to explain.

David Lat:

Exactly. Hard to explain-

Preet Bharara:

I mean, I remember studying the Chevron case in law school. I came out a few years before I went to law school, so it was all the rage in classes that talked about the administrative state. And I had a hard time as a young law student understanding the import meaning and an effect of Chevron. I don’t know how you explain this to the public in a way that is understanding. We try and I know you try and that’s part of our ambition and our goal and yours as well, but it’s difficult.

David Lat:

Yeah, mm-hmm. No, it’s tough basically. And it’s very easy to sacrifice correctness when you try to sort of give a short summary of something. And trying to balance those two is so hard. This is why I admire people like one of your former guests, I think Adam Liptak. I mean, it’s so hard to get something simplified while not losing any accuracy.

Preet Bharara:

You said something about a case that we’ve talked about on the podcast, this case out of Alabama regarding frozen embryos and the ability of parents who wanted to sue for wrongful death when another person got access to frozen embryos, burned their hand, and then dropped and destroyed a number of frozen embryos. And you have written, David, I believe, that case “isn’t as apocalyptic for IVF as some are making it out to be.” Explain yourself.

David Lat:

Well, I kind of have already been vindicated, I think, because Alabama is about to pass, it seems, laws that are going to give IVF providers and clinics very broad immunity. And interestingly enough, under the current version that’s under consideration by the House and Senate of Alabama, they could actually enjoy greater immunity than they do in many other states where IVF is protected. So at the end of the day, IVF in Alabama could end up being more protected than in most other states because the statute they’re considering now says, “No suit shall be filed.”

In many other states, you can sue an IVF provider for negligence or gross negligence. Under this current language, now this is only going to be in place, I think, until some date in 2025. I think it’s sort of a placeholder while they figure out what they really want to do. But in the short term, you can’t file any civil or criminal lawsuit related to the loss of embryos in Alabama once this has passed. And the two chambers of the Alabama legislature have very, very similar versions. They just need to be reconciled and the governor said she’s going to sign it. So I’m very happy to report that I think IVF in Alabama is going to be safe for now.

Preet Bharara:

Could someone argue, based on what you just described, the arc of this case that, “Look, this is exactly how our system of separated powers and democracy is supposed to work,” right? You have a hot button issue. People feel one way. Courts may feel a different way because courts may not reflect the will of the people because that’s how conservative our courts are. I don’t mean big C conservative, but they’re incremental. And so what you have here is you have a judicial decision that got a lot of attention, focus the minds of a lot of people, including the people in Alabama that have a legislature that has to be responsive to the people. That’s how the system of representative democracy works. And because of this judicial decision, they are now taking matters into their own hands and passing laws that better reflect the will of the people and the interest of the people they represent. And isn’t that a good and fine process in equilibrium, all of which was prompted by a controversial court decision?

David Lat:

Absolutely. I think that what you described as the way the system should work. And-

Preet Bharara:

But what I described, it’s a little bit of the way. I mean, am I going to get in trouble with progressives for saying that? Because that’s the argument that conservatives have been making about Roe V. Wade for a long time. Look, it’s a controversial decision. Let the people decide, the legislatures decide. Is it a good argument from the liberal perspective too sometimes?

David Lat:

Look at how, when it’s been on the ballot, abortion access has prevailed pretty much every time, including in a bunch of red states. So I know some of your listeners, I’m probably compared to your listenership and your average guest may be a little more to the right, but just look at how it’s fared. It is one I think every time it’s been on the ballot. In other words, I think we can trust to the people in state legislatures maybe more than we think we can. As of our taping on Tuesday afternoon, it looks like tomorrow they’re going to finalize the text of these bills. And then by the end of this week, I think they’re going to be on the governor’s desk in Alabama.

Preet Bharara:

We spent some time talking about judges and trying to demystify them. Is there anything that you’ve learned over the years that it’s useful for people to understand, not judges in particular, but lawyers generally, how they do their jobs and why they do their jobs the way they do them? What should we demystify about the practice of law?

David Lat:

Well, this is not unique to law, but the longer I’ve covered the profession, the more I have learned that connections matter, and it’s not necessarily what you know, but who you know. Whether that has to do with a law firm landing a major engagement or whether it has to do with a law student or young lawyer landing a coveted Supreme Court clerkship, connections are so, so important, and I would argue probably too important. And I’m not trying to advance any kind of conspiracy theory. I think it’s just, we are human beings and we like to be nice to people who are nice to us and we are maybe hardwired to help out our next of kin and our relatives and people we consider to be like family. That’s part of being human. We’re not AI creatures, but I think it does mean that the legal profession… And I focus a lot on the legal profession as opposed to doctrine or substantive law, the legal profession, which is what I focus a lot of my writing on, it’s not as meritocratic as many people might think.

Preet Bharara:

That’s interesting. You’ve written about this subject and I want to ask about it in a particular way. So there is a raging debate about a lot of issues, hot button issues including wars and other things at university campuses, and everyone is aware of those controversies. But I want to ask you more specifically when it comes to law school. Do law schools at universities have a higher responsibility and duty to be devoted to principles of free speech because of the nature of the educational enterprise of teaching people about law and the rule of law than universities generally? Or am I overly exalting law school over the university?

David Lat:

No, I agree with you. I think law schools do have a higher commitment because that’s how law unfolds argument and counter-argument. You need to be able to look at all sides of a debate. So I do think that law schools have a higher responsibility because if they’re going to train competent lawyers, lawyers need to be able to hear out all sides.

Preet Bharara:

And so how are you grading law schools? I have an affiliation with a few. I think you do as well. How do you think the law schools are faring in their duty and obligation to be repositories of free speech?

David Lat:

They’re getting better, I have to say. We haven’t had anything quite like the shout downs or disruptive protests at Stanford and Yale Law School that I wrote about last year and the year before. Things are moving in the right direction. And the American Bar Association has implemented a standard which is going to tie law school accreditation, which is very important for law schools because it basically means that if you graduate, you can practice law. It’s going to tie law school accreditation to academic freedom and free speech. So I see the glass here as half full. I think things are getting better.

Preet Bharara:

Somebody might be listening to this and say, “Well, that’s a little bit dangerous because neutrality and commitment to free expression is sometimes in the eye of the beholder and is content specific and is subjective.” Is there any reason anybody should worry that that is being brought into the… It sounds good the way you said it, but is there any danger or risk there?

David Lat:

I’m not advocating saying things that are true when they’re not true, or vice versa. If Trump says something false, I think it’s fine for news organizations to say he falsely claimed X or Y. but I would actually argue that some news organizations are a little too loose with that designation even. But regardless, I do think that we have to try our best to set aside our biases and try to be a content or viewpoint neutral when it comes to these issues. I’ve been troubled by things I’ve seen since October 7 in terms of stifling both pro-Israeli and pro-Palestinian speech. I think that there have been bad things on both sides. And that doesn’t really… I don’t think my views on the underlying merits of Israel-Palestine are relevant to say that it’s been unfortunate and wrong that some young associates have lost their jobs for speaking out in favor of Palestine, for example. Or I would say the same thing about people who speak out in favor of Israel.

Preet Bharara:

Is there a reasonable prospect or should there be a reasonable prospect of universities who are now thinking about this to embrace the notion of and a posture of neutrality?

David Lat:

I think weirdly enough, the turbulence of the past few years has actually been good in a way. Look what happened to the university presidents who lost their jobs after their unfortunate testimony on Capitol Hill. I think universities realize that they have to respect a wide range of viewpoints, including ones that some members of their community might find offensive or oppressive. And I think one thing that’s been weirdly positive for free speech about recent Middle East controversies is for folks on the left who are trying to deny that cancel culture exists, how can you say cancel culture doesn’t exist when young lawyers, just to cite what I know, are losing their jobs for speaking out in favor of Palestine or the rights of Gazan? So I think that we’re learning. I mean, anything coming out of Ron DeSantis, Florida should have already reminded us, but the conservatives can be bad for free speech and so can progressives and liberals.

Preet Bharara:

I have to ask this question of every guest, particularly during the pendency of a special three-part series that we have at Stay Tuned about artificial intelligence, it’s called AI on Trial. You’ve written about this a little bit, I’ve noted. And being the optimist that you are, you wrote an article in Bloomberg Law that’s entitled AI Use in Law Practice needs Common Sense, Not More Court Rules. Everyone’s talking about how we need regulations and rules and principles. You think that’s overblown?

David Lat:

I think that existing rules can apply fairly well to the AI context. My specific point in that column was relating to court rules, because individual judges are having their own rules. And that’s very confusing for practicing lawyers to have to say, “Well, what are the rules of this individual judge?” I think things should be done at least at a court level, if not at a sort of judiciary-wide level. It’s very confusing to have to say, “”Okay, I have to disclose this AI use or that AI use.” I think that existing rules, for example, Rule 11, which requires lawyers to have factual or legal basis for what they represent to the court, that covers citing fake cases generated by ChatGPT.

Preet Bharara:

It does.

David Lat:

You don’t need a ChatGPT rule, you just need Rule 11, which is what Judge Castel used to sanction the lawyers who were involved in that infamous case of the ChatGPT case.

Preet Bharara:

The Avainca case, right?

David Lat:

Yeah, mm-hmm. The Avianca. Mata v. Avianca.

Preet Bharara:

You think law firms and law schools need more rules and codes of conduct when it comes to use of AI?

David Lat:

Well, I think that, again, you could take old-fashioned rules against cheating or, well, plagiarism. You may have to clarify how the rules apply, but I don’t know that you necessarily need new rules. There’s an ABA rule, an American Bar Association rule, requiring lawyers to be competent. They issued commentary explaining that competence includes using technology. So similarly here, maybe we need to have some commentary or some background to flesh out how these rules apply, but copyright laws apply to AI. Plagiarism rules apply to AI. We just need to flesh out a little bit how they apply, but I don’t know that we need to have tons and tons of these new rules. I think the other reason I’m a little cautious about new rules is we need to figure out where the chips are going to fall. This technology is so new, we don’t even know how it’s going to affect our lives yet, and we’re already making rules. And I get the fear of being behind, but sometimes you can act too rashly.

Preet Bharara:

Yeah, look, it’s all the rage to talk about AI. Everywhere and law practice is no difference. I sometimes feel that we are at a moment where there’re competing impulses that are in dramatic perpendicular tension with each other. The one impulse being, “Do not use AI. Do not use AI” because you remember the Avianca case that you just mentioned. On the other one, “You must use AI. You must use AI” because it’s cost-effective. And both of those impulses can’t prevail, right?

David Lat:

Well, yeah. And I feel bad for the lawyers at law firms because they’re caught in between exactly that. The courts with all of these new rules are sending a message of, “Watch out for AI. It’s scary.” But the clients, corporate America is embracing AI much more quickly than big law. The clients are saying, “Why is our bill not 20% lower when I know that I can do my in-house legal work 20% faster thanks to AI?” So the law firm lawyers are caught in between this push and pull.

Preet Bharara:

Is there something that you can promote?

David Lat:

No. Nothing other than people-

Preet Bharara:

Do you have another novel coming?

David Lat:

I was working on a sequel to Supreme Ambitions based on the Dobbs term with a leak and an assassination temp, but I’ve gotten a little stymied on that. So in the meantime, people can check out my Substack newsletter, Original Jurisdiction.

Preet Bharara:

David Lat, it’s a pleasure and a treat to have you on the show. Thank you so much.

David Lat:

Thank you, Preet. This was great.

Preet Bharara:

My conversation with David Lat continues for members of the CAFE Insider community. In the bonus for Insiders, we discuss his experience working for Chris Christie at the U.S. Attorney’s Office and the art of giving a great speech.

David Lat:

He had a really good sense of humor as a U.S. Attorney. And I think people generally liked him. There was a certain percentage of the office that didn’t, and they didn’t last very long. But most people, I would say, I think he was a pretty well-liked U.S. Attorney.

Preet Bharara:

Head to cafe.com/insider and try the membership for free. That’s cafe.com/insider.

BUTTON

As you know, there’s been a lot of bad news in the realm of reproductive freedom in this country since the overturning of Roe v. Wade. We’ve covered a lot of it on this show and on CAFE Insider, but the fallout from that decision seems endless. But for a change, there’s a bit of good news to share, though it’s from the other side of the Atlantic. This week, France became the first country in the world to explicitly make abortion a constitutional right, not reproductive care or the right to a family, but abortion specifically. The vote in the French Parliament was a staggering and lopsided 780 to 72. Abortion has been legal in that country since 19 75 after an uphill battle led by feminist activists and lawmakers. The existing law, one of the most liberal in Europe, already provides for state-funded abortions up to 14 weeks and even later if the pregnancy might harm the mother or if the fetus shows harmful abnormalities.

But the Constitutional amendment goes one step further, ensuring future leaders can never take the right away, a decision supported by over 85% of the French population. The French Prime Minister said before the vote, “We’re sending a message to all women. Your body belongs to you and no one can decide for you.” Experts say the decision was directly inspired by the Dobbs case in the U.S. Supreme Court, which eliminated the constitutional right to an abortion. French legislators cited the drastic change in US law for why they should pass this amendment. What an incredible feat for the people and women of France. One that I wish for us here too. In their coverage, the New York Times quoted a French senator who helped shepherd the bill through parliament. She said, “I want to send a message to feminists outside of France. Everyone told me a year ago it was impossible. Nothing is impossible when you mobilize society.”

I want to repeat that. Nothing is impossible when you mobilize society. To be sure, much of America is mobilized too. In Kansas, just after Dobbs came down, voters chose to keep abortion legal in the state. In Wisconsin, voters elected a liberal candidate to the state Supreme Court who vowed to protect abortion rights. And in California, Kentucky, Michigan, Montana and Vermont again and again, voters showed up to support abortion protections. Mobilizing society means everyone. From the top of the political ladder to American voters getting in line to cast a ballot, to activists exercising their rights, to journalists telling the truth, it takes all of us working together for liberty and a better society. Let’s remember that going into the significant year in American politics and all the years after that.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, David Lat. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at @preetbharara with the hashtag #askpreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network, the executive producer, Ms. Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. The audio producer is Nat Wiener. And the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.