• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down former President Donald Trump’s lawsuits against Facebook, Twitter, and Google, the Supreme Court’s recent voting rights decision in Brnovich v. DNC, and Michael Avenatti’s prison sentence for an extortion scheme against Nike.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce.

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network.

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

RSVP to live taping of Now & Then with Heather Cox Richardson & Joanne Freeman, Thursday 7/15 @ 6:30pm ET

“Why smart statistics are the key to fighting crime,” Anne Milgram, TEDTalk, 11/2013

TRUMP v. BIG TECH

First Amendment to the U.S. Constitution

47 U.S. Code §230 – Protection for private blocking and screening of offensive material

Federal Rules of Civil Procedure Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

Donald Trump et. al. v. Facebook and Mark Zuckerburg, U.S. District Court Southern District of Florida, complaint, 7/7/21

Donald Trump et. al. v. Twitter and Jack Dorsey, U.S. District Court Southern District of Florida, complaint, 7/7/21

Donald Trump et. al. v. YouTube and Sundar Pichai, U.S. District Court Southern District of Florida, complaint, 7/7/21

“Procedural Matters and Freedom of Speech: State Action,” U.S. Congress, Constitution Annotated

“State Action Requirement,” Cornell Legal Information Institute

“A Federal Judge Holds ‘Kraken’ Lawyers’ Feet to the Fire at Sanctions Hearing. Lin Wood Tried to Distance Himself from It All.” Law&Crime, 7/12/21

“Donald J. Trump: Why I’m Suing Big Tech,” WSJ, 7/8/21

“Permanent suspension of @realDonaldTrump,” Twitter, 1/8/21

SCOTUS VOTING RIGHTS

52 USC §10301. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

A.R.S. §16-122. Registration and records prerequisite to voting

A.R.S. §16-542. Request for ballot

A.R.S. §16-1005. Ballot abuse

Brnovich v. Democratic National Committee, U.S. Supreme Court, opinion, 7/1/21

Shelby County v. Holder, U.S. Supreme Court, opinion, 6/25/13

Letter from Office of the Solicitor General to Supreme Court, 2/16/21

“Court upholds Arizona voting restrictions, limits cases under Voting Rights Act,” SCOTUSblog, 7/1/21

MICHAEL AVENATTI

“Michael Avenatti Sentenced To Over Two Years In Prison For Attempting To Extort Nike And For Defrauding His Client,” DOJ, 7/8/21

“Michael Avenatti Sentenced to 2½ Years for Trying to Extort Nike,” WSJ, 7/8/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, Welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce Vance?

Joyce Vance:

I’m very well. I’m rested after a quick vacation trip up in Maine.

Preet Bharara:

I read about your Maine exploits? How was it?

Joyce Vance:

It was really wonderful. We were visiting our daughter who we haven’t seen a lot of during the pandemic and for people who know Portland, Maine, it’s a foodie town. So we did a lot of walking and a lot of eating.

Preet Bharara:

Lobster rolls?

Joyce Vance:

Lobster rolls but Portland really has some pretty amazing food. But Portland was lovely. There was no humidity and I’m turning into an old person who cares a lot about the weather. So I appreciated that.

Preet Bharara:

So I have one public service announcement for the CAFE community, our friends, Heather Cox Richardson, and Joanne Freeman, who by the way, are just rocking it on their new podcast Now & Then, and so this Thursday, July 15th at 6:30 PM Eastern time, Heather Cox Richardson and Joanne Freeman will be doing a live taping of an episode of Now &Then. It will be streamed on the CAFE social media accounts and on Heather’s accounts, Facebook, and you can RSVP a cafe.com/live. That’s Thursday, July 15th at 6:30 PM. All right, Joyce, should we talk about some law stuff?

Joyce Vance:

Yeah, let’s talk law, Preet.

Preet Bharara:

There’s a lot of people suing a lot of people. That has been, I guess, the story of America for a very, very long time. And I guess the most famous suits, I’m really curious to hear your views is kind of a consensus view on it, but I think we should get into the weeds a little bit on the fact that the former president of the United States, the artist formerly known as Donald Trump has sued a bunch of social media platforms for violations, he claims, his lawyers claim, of his First Amendment rights. He sued Facebook, Twitter, and Google, and their CEO’s claiming among other things that the platforms are censoring conservatives. As you know, he’s been kicked off of these platforms for different periods of time. Any problems with these lawsuits, Joyce?

Joyce Vance:

Trump uses lawsuits like an artist uses a blank canvas. Right? He’s just trying to create something out of nothing here. These lawsuits are meritless for one thing they’re arguably filed in the wrong forum because the social media-

Preet Bharara:

That’s my favorite. Can you explain that to folks?

Joyce Vance:

Dismissed for lack of jurisdiction, terms of service? You don’t read all of the fine print probably when you sign up for Facebook or Twitter, but if you were to read those, you would learn that you’re required in the case of Twitter and Facebook both to file in courts in California. And Trump didn’t do that. He filed in Florida. So the cases could be dismissed just on that basis because people agree by virtue of using the services of, for example, Twitter, that they will abide by these terms of service. And the TOS requires that you file any lawsuits against Twitter and Facebook and Google in the forums that they specify. And that is not the form that is not the court that Trump filed his lawsuit in. So that’s basis Number one for dumping the suits.

Preet Bharara:

Can we pause on that for a moment? Because I’m just very confused. We can get to the merits when we get to the weird theory that Trump’s lawyers have constructed, that basically says these social media companies have become state actors, which is what you have to show to prove an abridgment of your First Amendment. Right? That’s a crazy theory but they have some argument there that I think fails dramatically, but it’s not a black and white question fully in the same way that this is. You have an agreement, which is the terms of service. You have agreed if there’s going to be any litigation or controversy that you will sue in a particular court and you don’t sue in that court, you really have no argument. Is this a new set of crack and lawyers that doesn’t know what they’re doing? I mean, I guess I’m trying to figure out even a very bad lawyer who is admitted to the bar would understand that requirement. Do you have any theory as to why they didn’t file in the right court?

Joyce Vance:

To me, it looks just like the sloppiness of the crack and law firm. Although I did see one academic who posited that because these are First Amendment claims, you don’t have to comply with the TOS. I just think that’s wrong. I think Trump is filing as a user who’s been banned and that puts him smack dab within the voluntary agreement that he made to comply with the terms of service.

Preet Bharara:

Yeah. I don’t think there’s any argument to be made that particularly at the district court level, when you don’t know who the judge is going to be, that the court in which they filed was going to be more hospitable to the claims and the theories than the court that they were supposed to file in. Do you agree with that?

Joyce Vance:

Absolutely. There’s just no basis for making that sort of a determination. This looks like sloppy lawyering. I guess we’ll find out when the motion to dismiss happens, but it’s important to note here that if the cases are dismissed on this basis, it will be with leave to refile in the correct form. Or maybe even just with a transfer.

Preet Bharara:

Right? It doesn’t do them the suit, but what it does is it delays things. It looks silly and invites commentary of a pejorative nature like you and I have engaged in and will continue to engage in. So I don’t really understand that. I guess we should move on from that. I’m going to remind our listeners and then ask Professor Vance to explain further the First Amendment, which we’ve talked about a lot on the show. We’ve talked about a lot on stay tuned and this sort of on the part of some people, good faith misunderstanding on the part of a lot of people, including I think these Trump lawyers, they willful misunderstanding of the First Amendment as people have been pointing out all over the place in the wake of these suits and other proceedings that have happened in the recent number of years.

Preet Bharara:

The first five words in the First Amendment that’s relevant to this is Congress shall make no law. It doesn’t say Facebook shall make no rule. It doesn’t say Twitter she’ll have no term of service. It says Congress shall make no law abridging the freedom of speech. Simple concept. Right?

Joyce Vance:

The First Amendment is clear when we talk about it in conversation, we always talk about free speech. And sometimes that gets translated so that people don’t fully appreciate that your First Amendment, your free speech right, is guaranteed to you vis-a-vis the government, not vis-a-vis your local restaurant or your necessarily your school and certainly not to companies like Facebook and Google, although Trump’s lawyers do make an argument in that regard.

Preet Bharara:

Yeah. I mean, it is true as it often is that blanket rules of law or constitutional principle admit of very, very narrow exceptions in certain kinds of fringe circumstances. And so we should discuss here that it is not unprecedented in the history of the world or the republic that a private entity or a technically private entity can qualify as a state actors such that your First Amendment rights can be bridged by that private entity. A good example that I think is mentioned from time to time is Amtrak, which is technically a private entity, but as people understand, given its mandate, given how it’s constructed, given how much input there is and where some of the funding comes from, it can be perceived as a state actor.

Preet Bharara:

So the First Amendment has a different role when you’re talking about a private entity like that, but the rule basically is a private entity can qualify as a state actor. When, for example, the private entity performs a traditional exclusive public function. One could think of Amtrak that way. Two, when the government compels the private entity to take a particular action or three, when the government act jointly with the private entity, you don’t have any of that here, Twitter, Google, Facebook, or their own private entities. Now you can make an argument. We should just be clear here you and I presume you agree with this. You can make an argument that as a matter of corporate policy or as a matter of ethical approach to who gets to speak and who doesn’t, that it’s not a great thing for Twitter, for example, to ban certain politicians and allow other politicians that you can argue, but on the question of whether or not it’s a violation of the First Amendment. And so far as these companies are state actors, none of these apply.

Joyce Vance:

So you could make that argument and you could even pass laws. Right? That would prohibit the platforms from taking certain sorts of action. But right now, and this is part of the debate that’s going on in this space that the net giants are largely unfettered by federal or state legislation and regulation. It’s almost the opposite of this situation that Amtrak found itself in because Amtrak is established and it’s organized under federal law, precisely for this purpose of pursuing federal governmental objectives. That’s not what’s going on with Google, with Twitter, with Facebook. And so it would seem to be a very clear situation where there’s no state action that would bring them within the First Amendment.

Joyce Vance:

So it seems to me then that part of the conversation at least has to center around section 230 of the Communications Decency Act of 1996. That’s quite a name, the Communications Decency Act, but the law is put into places when the internet is young. It’s growing up. One of the ongoing themes I don’t know if you guys discussed this a lot in your office, Preet, but something that we were always very aware of was the way that the internet was constantly outstripping the capacity that the law had to deal with certain kinds of conduct. That was really acute for us in many areas in criminal law, where crimes that had been traditionally conducted in person were now being conducted online. And the laws weren’t always a good fit but in any event, section 230 is Congress’s effort to figure out how do you protect these platforms from being held responsible for the content of speech that’s going on within their platform.

Preet Bharara:

Right. But 230, does it something else too that’s related. It permits these platforms to regulate themselves and in their discretion decide what is appropriate, what is not appropriate. They’re allowed to have terms of service, just like other platforms that are not social media can decide. Well, we’re the kind of platform that doesn’t want profanity or with a kind of platform that doesn’t want to show graphic depictions of sex. And that’s not a violation of anyone’s First Amendment. If you have private entities who decide that’s the way we want to do it, that’s the way we do it. In the same way that if you have a private store, you don’t have a First Amendment right. To say or do or wear anything you want in the bakery shop or in the pizza parlor. That’s not how the country works.

Preet Bharara:

And in fact, the argument is the inverse that to the extent there’s an attempt by Congress or some other state actor to impose an obligation on a private platform to carry certain viewpoints, you mandating them to carry certain viewpoints and types of speech that’s then the violation of the First Amendment. So in some ways the argument has been turned on its head. Right?

Joyce Vance:

I think that’s right. And the only thin sliver here that Trump’s lawyers could use in response to that is that maybe this is somehow different because it’s core political speech. This candidate for the highest office in the country. And so maybe you could make some argument and they try to that the marketplace of ideas is now Twitter and Facebook. And so they are implicitly taking on the role of government. It’s a tough argument to make.

Preet Bharara:

It’s a weird argument. They say sort of in a conclusory way, that’s a word lawyers like to use conclusory. I think I put it in every brief I ever wrote when I was in a defensive posture. They say in their lawsuit, defendant, Facebook status, thus rises beyond that of a private company to that of a state actor, sort of bootstrapping these big companies. I don’t fully understand the argument, but in part it’s an argument that they’re really big and they’re really important. And that’s true. Lots and lots of people do think of Twitter, Facebook, Google, and other platforms as the Public Square, but just calling it the Public Square and those platforms being important doesn’t make them an actual public square.

Preet Bharara:

And then they have this other argument that is even more bizarre. And I don’t really understand it, but I’ll attempt to convey it. The democratic politicians have kind of conspired with these social media platforms or coerced these social media platforms into censoring conservative opinion on these social media platforms. So the government has basically taken over in that way oversight of these platforms and caused conservative views to be diminished or minimized or prevented from being broadcast. And that renders these social media platforms, state actors. It sounds so bizarre when you say it from a lawyer’s perspective, is that a fair rendering of the argument.

Joyce Vance:

That’s as close as I can get, but here’s the problem with that. And maybe I’m looking at it in too fact-based of a way but Trump gets on these platforms, he’s there through the 2016 election. He’s there for almost four years of his first term. And when he gets booted it’s not because of his political views. It’s because he’s using the platforms to incite violence and Twitter in particular is very clear about that when he’s removed from the platform, it’s not his political views, it’s the incitement to violence. So this notion that there was some sort of a conspiracy with the Democrats, but they only put it into place at this very at this end point far down the road, sort of defies belief.

Preet Bharara:

A contrary to what you said a second ago, just to play devil’s advocate. The Trump lawyers and the Trump supporters would say with some force, I think ultimately doesn’t succeed with some force that he was actually booted for political speech. That what he said on January 6th was not a call to arms, was not a call to insight, was not a call to insurrection, but was an outgoing president making political comments about an election that he perceived in good faith in a particular way, whether or not you and I agree with that, they would say, that’s the essence of political speech. It speaks you don’t like it, speech that some people misinterpreted and misconstrued, and maybe took as a call to go to the Capitol and do things that were unlawful that got hundreds of people arrested. But that had base, the president was exercising his constitutional right as others were and have to say things. And he said them in an aggressive way. So not incitement, but political speech and that controversy will play out in other forums as well.

Joyce Vance:

It is really interesting because isn’t that the core question that underlies so much of January 6. Was Trump just legitimately protesting or was he inciting violence? I think a problem that they face in this lawsuit is that the evidence gets worse if you’re on Trump’s side of this argument, the further down the road we get, the more we learn about what happened and also watching Trump’s ongoing use of buzzwords. Just yesterday issuing a statement saying 1776 is better than 1619, and really intentionally pushing on these hot buttons.

Joyce Vance:

I think his lawyers have their work cut out for them here. We should say that because this is a civil case, the burden that they would bear if they ever got to the point of offering evidence, I don’t think that they’ll get there. I think this case goes away on a motion to dismiss, but if they did have to offer evidence, they would have to prove their case by a preponderance of the evidence, which is this lower burden that’s used in civil cases.

Preet Bharara:

Now, the other interesting thing is Trump purports to be the leader of a class. So he’s bringing these suits on behalf of other people, presumably conservatives, whose viewpoints have been suppressed allegedly by the social platforms. So we’ve talked about the fact that they may be dismissed as an initial matter because they’re filed in the wrong court. Then as a constitutional matter, these platforms are not state actors. So you can’t win. It’s a legal matter but then it’s a factual matter. I think it’s very, very open to debate separate and apart from certain particular things that people know about and that our famous chief among them Trump’s being banned from Twitter. This overall idea that conservative opinion and conservative viewpoints are being suppressed by these social media platforms is by no means clear.

Preet Bharara:

I mean, if you look at people who write about social media, you will see that the top performing posts. I see this almost every week. The very top performing posts on Facebook day after day after day, the top 10 are full of people like Ben Shapiro and other conservatives. So there may be some annoyance on the part of Trump about his ouster from Twitter but with respect to the overall viewpoint being suppressed of conservatives, the evidence I don’t think is going bear that out. In fact, Facebook has been used very, very effectively in multiple elections and for other purposes by conservatives for a while now, in fact, that gets liberals annoyed.

Joyce Vance:

Yeah, I think that’s right. And he purports to file this as a class action which means that it’s a complaint where he sort of raises these allegations. And then there has to be what the court would call a class certification proceeding where they would determine whether that class really existed, which I think is the argument that you’re making. There’s not a class. And so why does Trump go through this sort of weird legal maneuver instead of just filing on his own behalf? And this gets to, I think what most people’s theory of this case is that it’s more about fundraising and trying to stay in the public spotlight than it really is an effort to file a good lawsuit.

Preet Bharara:

Can I ask a lawyering question?

Joyce Vance:

Sure.

Preet Bharara:

It’s sort of an interesting question that you and I grapple with and I think maybe the public doesn’t fully understand. And I think it’s something that we should talk about in the coming weeks of what a lawyer’s responsibility is. There are rules that govern how lawyers are supposed to act, and there are rules that govern whether or not lawyers can appropriately file a suit in the first place. And some people may assume, well, you can file a lawsuit based on anything at all, if your client wants, because you’re a zealous advocate.

Preet Bharara:

We don’t have to go into it here but the interesting thing about talking about this new set of Trump lawsuits now is that this week there has been a hearing in district court in Michigan over the so-called craft and lawyer, Sidney Powell, and others who are being called to task by the city of Detroit for filing frivolous motions, trying to overturn the election. And there was a multi hour hearing in which it’s unclear what the final result will be. But I think there’s a really good likelihood that the judge is going to sanction. In other words, punish these lawyers for bringing lawsuits that they shouldn’t have brought.

Preet Bharara:

So that there is some standard. We talk in the federal rules, we refer to rule 11, which is a rule that requires some effort and good faith investigation in good faith drafting of allegations in a civil suit. That was a long winded way of my asking you Joyce, do you think the lawyers here have any concern?

Joyce Vance:

I think this lawsuit is better predicated than a lot of what went on with the crack in lawyering after the election, that was just out in a different universe. Right? I mean the lawsuits weren’t factually based, the lawyers were making misrepresentations in this hearing yesterday in Michigan, we saw the judge expressing a lot of frustration. The reality is that federal judges almost never imposed sanctions under rule 11. It’s very rare. And when those sanctions are imposed, they may look to the public like little bit of a wrist slap. If judge Parker actually doesn’t impose sanctions. I think any sanctions that she imposes up there would be significant. They will have consequences in terms of folks bar licenses. They could lead to bar disciplinary action. They certainly lead to reputational loss.

Joyce Vance:

So I viewed that whole processes as significant. The obligation that the lawyers have in this situation, in these civil lawsuits, maybe I’m a little bit Pollyannish about this and I’ll just confess to that upfront. But I always took my obligation to the ethics rules. And every lawyer has a duty to uphold the ethics laws in the state where their bar licenses issued or the jurisdiction. So I always took that pretty seriously. And you have an obligation to zealously represent your client, but you also have among other things, a duty of candor to the court. And sometimes those two obligations can come into a little bit of a conflict.

Joyce Vance:

My view is that your obligation of candor and your duty to be honest and fair in your proceedings as a lawyer is the most important obligation that you take on when you become a member of the bar. And so if you have a client who wants to bring frivolous claims, you need to look at them very carefully and make sure that there’s a good faith basis for bringing them. And I’m going to take up for Trump’s lawyers here just for a minute. I think that they lose. But I think the way that they’ve made these claims trying to come up with the argument that Facebook and Google and Twitter are in fact state action, that, that takes this out of the realm of a rule 11 sanctionable case, still a loser, but not frivolous.

Preet Bharara:

So I tend to agree with you. And I think what you just said points up a distinction that may be it’s important to talk about. And that is, it is one thing for lawyers, plaintiffs on behalf of a client or an institution to come up with a creative legal theory, that’s likely to lose or at least in the near future, not likely to find purchase among courts of the day, but it is a tradition in American jurisprudence, including on the part of progressive causes that you have laws in place. And you have Commonwealth precedents in place that probably make a particular kind of lawsuit unlikely to prevail, but a creative legal theory that is innovative or sort of far-fetched maybe it’ll be a loser, but not a basis for sanctions.

Preet Bharara:

That’s different from some of what we saw in the crack in cases, which is among other things, the putting forward a factual allegations that are bizarre, untested, uninvestigated or knowingly false. Right? That’s a different thing. And that’s the kind of thing that judges will frowned upon much more seriously than people making sort of crazy legal theories that you actually see fairly commonly.

Joyce Vance:

And that’s the story of progress in this country. That’s how all of the civil rights cases proceed with new legal theories. Right? You’re being novel.

Preet Bharara:

But you’re not saying that this is progress. I don’t want people to write us letters and saying, I can’t believe you’re comparing. We’re not doing that. Just to be clear that you’re comparing Trump’s social media lawsuits to the civil rights movement. Are we doing that? Joyce? We are not.

Joyce Vance:

I think so. And I don’t believe I would have personally been willing to bring this lawsuit, but it’s important to differentiate. I mean, we heard a federal judge in Michigan yesterday saying to lawyers, didn’t you think you had some obligation to make sure that there was some truth to these facts, this notion that ballots disappeared and reappear. Didn’t you have any obligation to look behind just the mere stories people were telling you. I mean, that’s the level of frivolity that was going on in the crack in cases.

Joyce Vance:

It’s interesting that Trump brings these lawsuits talking about being de-platformed and having his voice in the marketplace of ideas taken away. And yet he’s able to write an op-ed for the Wall Street Journal. It runs on July 8th and he talks about grave threats to democracy and big tech corporations. He really raises his entire list of grievances in a very important newspaper, widely read in conservative circles. But I read it almost every day, the Wall Street Journal. So this notion that he’s somehow been effectively silenced is really untrue and something we always have to be on guard with, with Trump is his ability to tell little lies, then morph into bigger lies. So I think this bears watching.

Preet Bharara:

It bears watching. Certainly you want to talk about the Supreme Court?

Joyce Vance:

Yeah. Let’s talk about the Supreme court. It’s been sort of the-

Preet Bharara:

We’ve talked about all the courts here, district court, circuit court, and the Supreme court.

Joyce Vance:

We haven’t talked about traffic court, maybe that’s for a future day.

Preet Bharara:

We have not. I think Anne and I once talked about traffic court.

Joyce Vance:

Did you really?

Preet Bharara:

Or maybe that was offline. I shouldn’t have even mentioned that.

Joyce Vance:

That’s your baseline.

Preet Bharara:

I shouldn’t have talked about that. She’s doing well by the way. I think she has been the DA administrator for some days and maybe she can join us at some point in the future. And she listens by the way, she will comment on our episodes.

Joyce Vance:

Is she disappointed that we don’t talk about penguins?

Preet Bharara:

I haven’t asked her that question.

Joyce Vance:

We might need to do that.

Preet Bharara:

She’s above the fray. Now she’s a member of the administration. She doesn’t have time for penguins anymore. I don’t think so.

Joyce Vance:

I doubt that.

Preet Bharara:

So voting rights much in the news, much being discussed, much being fretted about. There’s a case that was much anticipated as well in the Supreme Court this past term. Decision came out some days ago we didn’t have a chance to talk about it last week and it’s called Brnovich versus Democratic National Committee. And this I’m going to set it up because you’re the expert here. And I think you can help take us through some of this and help people understand some of the confusing aspects of this and what it means and why people on the progressive side and people who are supportive of voting rights are upset about the decision, but at six three along ideological lines. The majority opinion written by Samuel Alito.

Preet Bharara:

And the question in the case was whether to particular Arizona statutes that relate to voting violated Section 2 of the Voting Rights Act. One is with respect to policy relating to out of precinct voting, such that if you voted in the improper precinct, even if you put in a provisional ballot, if it was later determined, you were in the wrong precinct, your whole ballot gets thrown out. And the other is a so-called ballot harvesting law. It’s a rule that addresses whether or not the particular voter has to on their own return their ballot to a particular place, or whether or not third parties can collect ballots from a building or a neighborhood. Do those people have to be the voters themselves? Can they be relatives? Can they be third parties? And the Arizona statute basically said, you can’t have people not within your immediate family collect ballots in their word, harvesting.

Joyce Vance:

Family or household.

Preet Bharara:

Family or household folks. And the question is as a violate Section 2 of the Voting Rights Act, and then I’ll turn it over to you, Joyce. But the language of Section 2 of the Voting Rights Act says among other things, “No voting qualification are prerequisite to voting or standard practice or procedure shall be imposed or applied by any state or political subdivision,” that includes Arizona, “In a manner which results,” doesn’t say intense, “but which results in a denial or abridgment of the rights of any citizen of the United States to vote on account of race or color.” And then the statute goes on to say that, “One of the standards you look at is whether or not the voting regulations cause voting to be equally open to participation by all people, no matter what their race or color is.” What the court decide and why is it bad, Joyce?

Joyce Vance:

So your reading of the language of section two is really what’s at issue here. This case was ultimately less about these two provisions in Arizona. In fact, the solicitor general in February so long after Merrick Garland was in place had conceded that these two statutes probably would pass muster the Arizona laws. What was it issue was the test that would be used for deciding section two violations. There’s a little piece of history here that you need to know. I think of Brnovich as a bookend, it’s the bookend on the end of the shelf, the bookend on the other side is a 2013 case that we’ve talked about called Shelby County versus Holder. In Shelby County, the Supreme Court gutted something called pre-clearance a rule, a process that had been used to keep discriminatory statutes from going into effect at all.

Joyce Vance:

State legislature could pass them, but if DOJ looked at it or the state also could submit it to a three judge panel in DC to try to get approval that way. But without one of those two mechanisms for approval, the law couldn’t go into effect. So historically, section two wasn’t a whole lot to look at these sorts of state laws like the provision in Arizona. It was used more in redistricting or in districting cases where vote dilution was the topic. So this case comes up in this sort of new posture for section two and in the lower courts in the Ninth Circuit, the court uses a test and pre-correct me here. If you think that I’m wrong that any good textualist like justice Alito would use a test that permitted you to prove that the new law had a discriminatory impact on black people or on another protected group of people. Seems like that’s what the law is saying. If there’s a discriminatory impact, the statute is no good.

Preet Bharara:

Yeah. I mean, just to repeat again, that’s why I emphasized it in the reading in a manner which results, results in a denial or abridgment of the right. So yeah, I agree with you.

Joyce Vance:

And the test that the lower courts used was vigorous. It wasn’t enough to prove just discriminatory impact. You had to actually link that to a history of discrimination in the jurisdiction. So even that standard that the courts used was a difficult one to meet but that’s not enough for the great textualist Sam Alito who says no, really the only thing that’s sufficient here is proof of discriminatory intent. Having sat on that side of the table, proving discriminatory intent is really difficult. In some cases it can be impossible.

Joyce Vance:

You may know that it’s there. You may suspect that it’s there. You may think that there’s indicia of it, but it’s very likely that the state will be able to offer a neutral reason to justify its actions and what Justice Alito does. And I think that this is really the, sort of, not a good kind of Maraschino Cherries because I’m a huge fan, but this is whatever the bad equivalent of Maraschino Cherries.

Preet Bharara:

I did not see that analogy coming.

Joyce Vance:

Well, it’s a bad one. If you think that there might be fraud in the future, we all know that there’s not fraud. Right? If 2020 has taught us anything, it’s that significant voter fraud does not exist as a problem in our elections but under Brnovich state legislatures can pass discriminatory statutes if they’re doing it to try to keep future fraud from happening.

Preet Bharara:

One of the bases on which Alito says we should be hesitant to do anything here is he notes how unusual it is for the court to be considering the propriety of a voting regulation that relates to time, place and manner of voting. That’s something that the highest court seldom takes up. Usually when issues like this come before the Supreme Court and they’re waiting up the Supreme Court to weigh in, they relate to anti-dilution kinds of issues like redistricting and the like, but as you point out, one of the reasons that there haven’t been a lot of time place and manner challenges in the Supreme Court was there used to be this pre-clearance requirement and those things were dealt with separately and didn’t get to the court. Am I right? That there’s a kind of odd and cynical bootstrapping of argument there?

Joyce Vance:

Well, I think cynical is a great word to use in connection with the majority opinion in this case because this is an opinion that really neat caps the ability of voters to protect their right to vote against states that are determined to suppress it. So, yes, I would agree with you that the bootstrapping here is awkward and intellectually dishonest.

Preet Bharara:

But let me play devil’s advocate for a moment. So we can suss this out a little more. And I think this is a methodology I think of cynical opinions that dismiss the problematic nature of certain kinds of restrictions. Right? And I think one of the arguments Alito uses in his majority opinion does too much work. He says, you know what? One of the things he talks about four or five different things that you take into account to decide whether or not there’s been a violation of Section 2 of the Voting Rights Act, he says, you have to take account of the size of the burden imposed by a particular voting rule. Right? How big a burden is it?

Preet Bharara:

And then he says, after all, “Every voting rule imposes a burden of some sort.” And then he goes on and say, “Mere inconvenience can not be enough to demonstrate a violation of section two.” Which on its face, I guess is a true statement. Right? Any kind of regulation, the fact that you can only vote on Tuesday versus Monday, the fact that even if early voting is available for a month, well I guess it’s a burden because it’s not available for two months, but doesn’t he try to argue too much there. And is there some sense of dismissiveness on the part of people for whom voting is not a struggle is not difficult, is kind of easy for various reasons of the struggles of people for whom voting is more difficult.

Joyce Vance:

I love the phrase that you use that the argument does too much work because I think you’re dead on the money here. And as I was reading this case for the first time sort of doing a quick read to get to the ending, I was struck by almost the dictionary definition of white privilege that was wrapped up here. And I don’t mean to overuse that very overused phrase but this is someone writing for whom voting has always been easy. This is not a single mom who’s doing shift work as a waitress and has to choose between feeding her kids and voting. This isn’t a disabled vet who has to travel a distance who doesn’t have a car to get to the polls for whom it would be far more convenient to participate in souls to the polls on a Sunday. So wrapped up in this argument about mere inconvenience for me is an entire world view of someone who lives a very privileged existence without the cares that many of the rest of us have.

Preet Bharara:

It’s important to talk about the constitution at the provisions in the abstract and with reference to principles that is all fine and good and important, and you need to be grounded in that. But every case of the Supreme Court takes up is also grounded in fact, and you have to understand what the facts are. And so this idea of some people being burdened and not burdened in the abstract, not knowing what some of those particular burdens might be. Some of this language sounds not unreasonable, but as the Ninth Circuit here that was overturned by the Supreme Court found this is an amazing statistic and an unfortunate one only 18% of native American voters in the state of Arizona have access to regular mail service.

Preet Bharara:

So imagine a circumstance in which you have rules that affect who can mail in about and who cannot. That has radically different impact on certain communities in that state. And that’s important to take account of as opposed to being dismissive of.

Joyce Vance:

That’s why this moniker of vote harvesting is I think so damaging and so offensive. It’s used to imply fraud. Right? When you hear ballot harvesting, you think, oh, this is must be fraudulent vote counting, but in effect, it’s exactly what you’re pointing out. It’s people who are voting absentee, who don’t personally have access to a mailbox because of structural problems. Right? Structural discrimination against native Americans in Arizona, not to put too fine of a point on that problem, unequal access to sort of governmental resources or just people for whom it’s difficult. Why, when you think about it shouldn’t my neighbor be able to take my ballot into a drop box when she’s taking hers. If I’ve got to go to work or if I’ve got to take kids to school. There’s just no rational basis behind these laws, which is what tells you that they’re meant to suppress the vote.

Preet Bharara:

Here’s another part of the opinion that’s fascinating to me. And I’m really curious what you make of it. So the statute does not talk about partisanship. Right? The statute, as I understand it, and I’m not an expert, but the statute talks about discrimination based on race or color. If it was the case, presumably that you have a rule, let’s say you have an all-white state, everyone in the state or in the particular jurisdiction is white. And there was a rule of voting rule or regulation that was passed that would have the impact of causing Democrats more trouble in voting than Republicans. But everyone is white. No problem with section two, am I right?

Joyce Vance:

According to justice Alito you’re right.

Preet Bharara:

Right. Well, that’s what I’m getting to. Right? So justice Alito himself acknowledges that part of what started this whole thing. The debate over mail-in voting, “May well have been provided by one state senators, inflamed partisanship.” And this is what I’m getting at. He writes, “But partisan motives are not the same as racial motives.” And so I wonder if you have a thought about the connection between Republicans or in other circumstances presumably Democrats, but in this instance, we’re talking about Republicans trying to make it more difficult for black people to vote because they presume that black people are more likely to vote for Democrats. So there is an overlap of race and partisanship. What do you make of that?

Joyce Vance:

Well, I have a lot of thoughts, but we’re still a family rated podcast. So I’ll try to restrict my comments. This is the argument that’s at the core of the voting rights dilemma that it has become about our politics as much as it has become about race. And so the notion that a Supreme Court justice would legitimize efforts to deny people, any people, their right to vote by thinly gaming out the law and saying that it’s just partisanship, not race, I think is really disturbing. The problem that we have is that voter suppression has been a longtime game played by Republicans. As they’ve watched the shifting demographics in this country knowing that whatever the year you estimate that will become a majority minority country, whether it’s 2050 or something sooner, that that day is quickly approaching and figuring out how they can use existing law to retain some semblance of minority rule.

Joyce Vance:

I don’t have a nicer face to put on it than that. I’m not real fond of partisan arguments, but in this area of voting rights, I think the trends are so disturbing. So highly charged in a partisan way. And yes, we’ve got both Native American and African-American minority groups in the Arizona case in Brnovich who are impacted by this, then yes, that’s the statutory coverage of section two. And to try to hide behind what’s going on. I mean, this is the weird sort of 180 degrees that goes on here. Well, it’s okay if it’s just politics, not race, but they’re so inextricably intertwined at this point, that the argument that he makes is just almost not worthy of comment.

Preet Bharara:

There was at least one person who found it worthy of comment. Of course, she has a different job than you and I have. And that’s Elena Kagan who wrote a pretty strong descent for the three liberals on the court what’d you make of her descent?

Joyce Vance:

Can I confess that I got partway into the majority opinion? And then I skipped, I never read the ending of a book first, but I did hear, I went and I read her dissent first because I was getting so incredibly distressed. And I mean-

Preet Bharara:

That’s less like reading the end of a book than going straight to critical review of the book.

Joyce Vance:

The best part of the book. It was certainly a very critical review and she starts off with zingers. I mean, she immediately accuses the majority of inhabiting a law free zone, which is your point, Preet, that the majority abandons the clear language of a pretty clear legal provision to get to the result that they want. She really, I think picks up the pen that Justice Ginsburg used in Shelby County, where in Shelby County, there’s this memorable line where Justice Ginsburg just lambasts the majority and says throwing out pre-clearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you’re not getting wet.

Joyce Vance:

And it’s so clearly indicates what’s going on. Justice Kagan does that here making so plain, both the history of the country, the history of the law and the righteousness of efforts to protect the vote. I really like her opinion in case she couldn’t tell.

Preet Bharara:

Yeah, no that came through. That came through, Joyce. So before we go we began the show, Joyce, talking about the professional and ethical obligations of lawyers and there’s an example of that, a person who was at one point ubiquitous everywhere, a lawyer, soon to be former lawyer, I would expect if he’s not already Michael Avenatti, who engaged in a rash of criminal behavior, three indictments against him. He went to trial with respect to an extortion scheme. He carried out against the company Nike. Prosecuted by my former office, the Southern District of New York. Convicted some time ago, wasn’t sentenced until just a few days ago. 30 months in prison which from everything I saw about the trial and about the conduct and about the allegations richly deserved perhaps even a shorter sentence than otherwise he might’ve gotten. But for the fact that the Judge Kavanaugh in the case was moved by the fact that the conditions of confinement for Avenatti had been very bad. And so that seems to be one of the reasons he gave him a below guidelines sentence.

Preet Bharara:

We should point out Avenatti has two other trials pending against him. One in particular where the facts are incredibly egregious where he kept settlements that were doing owing to his clients in one case, a paraplegic client in California, and put the money in his own account. So he may have gotten 30 here, but I think he’s looking at convictions potentially and more prison time later, and whatever we said about the other lawyers in the crack in lawyers, none of that comes close to this.

Joyce Vance:

This is really the worst kind of misconduct that you could see coming from a lawyer coming from the member of the profession. What you don’t see often enough are these sorts of prosecutions. I think Avenatti got precisely what he deserved. I do have a question. You have to wonder about someone like this. How did he not see this coming? When he had raised his profile in the way that he did sort of becoming a national media figure at the same time that he’s withholding money from clients telling them I haven’t received the money yet. So I can’t turn it over to you. How does he not know that that’s going to end badly at some point?

Preet Bharara:

I’m not a psychologist, but the word pathological comes to mind. There are people you and I both know this. There are people who are as bad as Avenatti and much, much worse who committed worse frauds. Maybe not as lawyers, but we prosecutors our share of lawyers too. What I think makes this case pathological and the reason why you’re asking the question is those other people in our experience are sort of quietly doing their frauds and hoping no attention gets paid to them. And they’re not under scrutiny in any way, not just by investigative authorities, but it’s not under public scrutiny at all.

Preet Bharara:

Here you have a guy who was literally angling for every camera he could find on every cable news, networking. Some people have some egg on their face for how much airtime they gave him. Although it was not foreseeable at the beginning, he was actually a criminal fraud. And the fact that he was doing all that at the same time that he was committing blatant fraud and extortion is kind of startling. Maybe it’s a combination of his personality and also thinking you’re invincible. When everyone is sort of applauding you and you get a big fan club and it maybe went to his head and he thought he could run credibly for president of the United States while he’s defrauding clients and extorting companies.

Joyce Vance:

So Avenatti stands for the principle that no man is above the law but it of course raises that larger question that we’re all wondering about, not to equate Trump with the conduct that Avenatti has been convicted of. We don’t know that there are certainly some interesting allegations that Cyrus Vance has raised in the case against Trump’s chief financial officer. But we don’t know whether the former president himself was involved in fraud yet, but we see justice coming from Michael Avenatti and it can’t help but raise that question. Will justice come for Trump at some point?

Preet Bharara:

Well, that’s a good way to end the show.

Joyce Vance:

I guess it is.

Preet Bharara:

What a cliffhanger, Joyce. We’ll be back next week talking about all this stuff. Don’t forget to tune in, if you can, to a live taping of the Now & Then podcast with Cox Richardson and Joanne Freeman on Thursday, July 15th at 6:30 PM Eastern.

Joyce Vance:

Please send us your questions to leathers@cafe.com. We’ll do our best to answer them.

Preet Bharara:

That’s it for this week, CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noah Azulai, Nat Wiener, Jake Kaplan, Jennifer Korn, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.