You're listening to Giraffe King's Network. Now is a good time to remember where the story of tequila started. In 1795, the first tequila distillery was opened by the Cuervo family. And 229 years later, Cuervo is still going strong. Family-owned from the start, same family, same land. Now is a good time to enjoy Cuervo, the tequila that invented tequila. Go to cuervo. Com to shop tequila or visit a store near you. Cuervo, now's a good time. Trademark's owned by Begle. Sab, The CV. Copyright 2024. Proximo. Jersey City, New Jersey. Please drink responsibly. Chaos erupted at the Copa America final match.

Fans pushing and shoving and climbing over security barriers to get in.

Scores of people arrested for trespassing. I don't have to get, but I'm going to get in. It appears we shit the bed. Hosting Copa America.

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After Copa America.

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Put the car in Gordon Mable because we're in Miami, bruh.

In two years for the World Cup, they come into South Florida.

What is going on here?

Just like Copa America, we're You're probably going to fuck it up. this order that she believes the special counsel, Jack Smith, was unlawfully appointed and unlawfully funded.Judge Eileen Canon is actually a Miami girl. She grew up here. That's too bad. At Ransom Everglades, another proud Miamian and member of the Federalist Society. She is also, most importantly, a Trump-appointed federal judge in the Southern district of Florida. Here to discuss more It's just nonstop Florida connection news. David O'Markus was actually on the very shortlist to represent the former president in this very case. You might remember, Roy, we talked with him about it on this very podcast last year, right around the time of Trump's historic arraignment here in downtown Miami. While some reporting claimed that he actually went so far as to have at least one conversation with Trump about the possibility of taking him on as a client, being the excessively ethical person that he is, he refused to either confirm or deny. But I can tell you, from personal experience, the President would have been very well-served and well-represented to have hired him. He is a prominent criminal defense attorney down here in the Southern district and host of the hit podcast, For the Defense in the interest of full disclosure It is produced by my company, Rackintour, and it's now in its sixth season at forthedefensepodcast.Com. Ellie Mistal, another friend of the show, is justice correspondence forthenation. Com and host of its legal podcast, Contempt of Court His first book is the sensational New York Times bestseller, allow me to retort, A Black Guys Guide to the Constitution. You must read it. By the way, it is black guy, G-U-Y-S. It's not G-U-Y-S. It is not for black guys. It is by a Black guy, and everybody should read it. It is absolutely fantastic. Ellie's column this week at thenation. Com has the grim headline, The Dismissal of the Trump Document's Case is Yet More Proof: The Institutionalists Have Failed. In it, he writes, Judge Eileen Canon's decision to toss the case should dispel any remaining hope that the courts will save us from Donald Trump. He concludes, The rule of law is not failing. It has failed. America is right now functionally a failed state. Jesus Christ, Ellie, I feel like I only have you on the show when there's bad news. We're like old friends who only see each other at funerals now. Because my Miami glass is very much half empty, I'm just that guy. And you are just that. Between you, me and Roy, We have a full cup because all of our cups are half empty.So now they run over by a third.Mine is completely empty. Roy's is totally empty. So between you and I, Ellie, we have a full cup then. Ellie, let's talk about this. How bad was this decision?A full cup of sadness, right? Look, the argument against the special counsel, as David Marcus certainly knows, is an argument raised by every criminal defendant who was ever prosecuted by a special counsel. It was raised during the Reagan administration. It was raised during the Clinton administration. It's been raised during the George W Bush administration. It is now being raised here. That argument always fails. It is the equivalent of Wesley Snipes saying, I'll have to pay my taxes because the IRS is an illegitimate institution. Yeah, you can say that, and people do that all the time, and they always fail. The most recent failure was Hunter Biden, who, again, said the appointment of his special counsel, David Weiss, was unconstitutional. You know what? It failed. Why didn't it fail this time? Because they were able to do it in front of Eileen Cannon. They were able to do it in front of the MAGA Canon, who has a history of making pro-Trump decisions that are then overturned by the 11th Circuit, her her superiors. We have a history of a judge who's in the tank for Donald Trump, taking an argument that is always made and rejected, but this time, magically giving it purchase.Now, what Canon says, in her opinion, is that the special counsel needs to be essentially appointed by the president, according to the Constitution, and confirmed by the Senate. This ignores the history of special counsels not being directly appointed by the president and not being directly confirmed by Senate. But in this case, Canon says, Oh, no, no, no, Jack Smith needed to be confirmed by the Senate, and she distinguishes it from Hunter Biden's special counsel, David Weiss, saying that, Well, he was confirmed by the Senate for some other job. So it still counts that he's special counsel now. they didn't, right? Because in front of Judge Chutkin, they knew their stupid argument wouldn't work. So they didn't even bring it up in DC. They only brought it up in Florida, right? So it's like if I'm the mayor and I say, Everybody, go into the water. No sharks everywhere, anywhere. And I tell my kids, Hey, don't go in the water. There's sharks, right? You can tell I'm lying to somebody. And that's what I look at with the Trump lawyers here. They didn't bring the argument in DC because they knew it was a bad and losing argument, but they brought it up in Florida because they knew they had the judge in their pocket.Always been on the black.I did not have that card on my board, but Roy had it at the ready for Wesley Snipes's Passenger 57. Now, let's bring in our institutionalist on the panel here, David O'Markus. I'm remiss to use the term technicality. The law is the law, the constitution is the constitution. If it's a legal loophole or technicality, That means it's the law. But this does fly in the face of what, 50-ish, some odd years of precedent. Yet another Trump-appointed judge overturning decades and decades of precedent. I'm sure you, as the former President's attorney, would have filed this motion because it is your job for the defense. But was this a fundamentally just ruling? And will it be overturned by the 11th Circuit?Look, is it unprecedented as Ellie says? No. Justice Thomas just wrote about it in a concurrence in the Supreme Court and invited a district court to rule this way. So it's not without some precedent. And in fact, she's got an ally in the Supreme Court. I know what Ellie will say about Justice Thomas, of course, but there is some support for her there. And I'm not ready to say that the system is going to burn down and crash down. I wish the Biden judge had granted this motion instead of the Trump judge, because I think then we would be hearing different arguments. I'm not ready to say the institution is failing. There's a loud voices from the right saying that our justice system was failing when Murchon was ruling against Trump. And I just think when you have a particular judge ruling a certain way, that doesn't mean that the whole system is going to crumble. I think you have to wait and see how it plays out. Will she get reversed? Maybe. The problem is going to be timing, of course. Getting this heard before the election in the 11th Circuit is going to be really, really tricky.I don't think anybody thinks that's going to happen, and certainly, it's going to be on its way to the Supreme Court, and we may be years away from a ruling on that. Of course, if Trump is elected, there won't be any ruling from the 11th Circuit or the Supreme Court because the case will just die on the vine if he gets elected.David, if Justice Thomas If he doesn't write that motion, does Judge Canon make this decision?Yeah, I wonder about that. She wrote 93 pages, so she obviously had been working on this for a while, and she invited Amica's support, which is friend of the court support, which It was a pretty rare thing to do in the district level. She was taking it very seriously, this argument, and she was listening to it for a while now. If Thomas doesn't come out that way, does she still do it? Probably. I think she probably still does, but I bet she felt really good once that concurrence came out that she had some cover.Certainly empowering.Ellie isn't just talk as adults for a second because they all talk.You don't need Thomas to actually write the opinion to understand what the federal society position is on this idea. This is a thing that the federal society has invented in their own cabals for a while now. They've been pushing this through every white wing media, a white wing legal organization. If you've been paying attention to what the Fed sock people say, they have been honing in on this point for a while. Clarence Thomas gave it voice first, but he didn't invent the issue. The place where I disagree with David is that the reason why the Biden judge, Chutkin, didn't make this ruling because it was never really brought up in her court. And that's why you got the Clarence Thomas concurrence when the immunity went up to the Supreme Court saying, Maybe we could have ruled on this, but I don't know. Nobody really argued it. So even Thomas is saying the reason why he couldn't get rid of the special counsel in the DC DC case is because it was never presented to them as an option through the process. And again, I say that the reason why they didn't is because they knew Chutkan wouldn't go for it.They knew the DC circuit wouldn't go for it, but they knew Canon would because they all talk.Sorry, Ellie, I meant the Hunter Biden judge because I think if the Hunter Biden judge grants that motion, I'm not sure you're as upset as you are now or other folks. Listen, I'm a liberal criminal defense lawyer, so I'm happy when cases get dismissed, and I think there should be more cases dismissed early on. The Hunter Biden prosecution was ridiculous, a joke. It should have never happened. And I think that case should have been dismissed if it was brought. And that way, you let the system and the law develop. The only way you can get decisions saying these arguments are stupid or whatever is if district courts actually take the step and dismiss, and then you get the appellate process and whatever. Otherwise, you're stuck.Here's the point, right? And I appreciate what you're saying, Oh, maybe if it had happened during Hunter Biden, people on my side of the aisle will be talking a different tune. I can't speak for them. I wouldn't be. And I think that the projection here that, well, what liberals are really concerned about is cases that help their side and what Conservatives are really concerned about are cases that help their side. I think that is projection as opposed to reality. What I want is a stable, consistent rule of law. Put it like this, I should not be able to predict with the accuracy at which I am able to predict what's going to happen in any appellate court. I shouldn't be able to just look at the appointments made by which President appointed the judges and predict with 95% accuracy, not just how the case is going to come out, but the actual vote totals. That shouldn't be a thing, but it is a thing because of how the system works, because we have a group of Republican appointed judges, for the most part, who have gone so far afield from what normal precedent is, normal judicial ethics are, that you can always tell what they're going to do.You know what, Judge? I can't always tell what she's going to do, honestly, and I think you'll back me up here, David. Kataji Brown-jackson. I don't know until I hear her in our oral argument which way she's going to fly. If you look at her votes over this past Supreme Court term, you'll see that she was against the kicking Trump off the ballot in Colorado in a very strong concurrence, also at oral arguments. She went a little bit of a different way on a couple of criminal defense cases. This term, like Kataji Brown-jackson, I honestly don't know how she's going to vote until I hear her talk. The other eight of them, I barely have to listen to oral arguments to know how they're going to go out, and that's not how it should be.Give a little credit to Barrett, too. First of all, I love Ketanji Brown-jackson, a fellow 305er, Palmetto High, so a shout out to her. But Barrett has also been a little unpredictable on the criminal cases as well and has split with Ketanji Brown Jackson on some of those issues. But the truth is, Ellie, people have been making the criticism you make for a long, long time. This is not new on our justice system. People complained about the Warren Court, that it was too liberal, and it was a crazy court, and then it went the other way. Elections have these consequences because the presidents appoint all these judges. And so we got to win some freaking elections and We're going to get some more judges there if we want the courts to swing back the other way. The Supreme Court is what it is after we lost a bunch of elections and after they stole that seat. What are we going to do? We have to win this next election. It doesn't look so good right now.Again, David, I agree, but let's also be clear, when people were complaining about the Warren Court being too far left and too far liberal, what they were complaining about was the Warren Court taking their racism away. They were complaining like, Oh, I used to be able to stop on Black people, and now the Warren won't let me. That was their argument, right? That's a little bit different. I'm not complaining because the Conservatives Supreme Court is lowering taxes, all right? I'm not complaining because now there's a 28 8% corporate tax rate as opposed to a 33% corporate tax rate. I'm complaining that they've taken away the Voting Rights Act section, too, right? The issues are not, while I understand that the partisan breakdown feel similar, the issues that we're talking about are just not. But to your point, we've got to win elections. I totally agree, we have to win elections. The elections should matter. But the problem with the Supreme Court is that even if you win elections, That doesn't necessarily help you deal with people who have a lifetime appointed power. Over the past, through 2020, through the election of Biden, over the previous 32 years, we had an even split, 16 years of a Republican administration, 16 years of a Democratic administration.Yet the Supreme Court was not balanced. It was a super majority of Republicans because of death, because of strategic retirements, because liberals don't know how to say buy because Anthony Kennedy knows exactly when to get off the court to give it to his protege, Brett Kavanaugh. Like the asymmetry in how- If the price is right. Liberals and Conservatives retire has created a permanent conservative majority on the court that frustrates the outcome of elections.Ellie and David, I want to talk about the timing of this decision. Did the assassination attempt on Trump speed this up, or was it always going to be ahead of the RNC?You Well, Roy, a lot of folks have said that the timing is suspect. She released it right after the assassination, right on the eve of the convention. She wrote a 93-page order, so that took a lot of time. She may I have released it on Monday as opposed to later in the week for timing purposes, but it looked like that order had been worked on for a long time. I don't think she rushed it out over the weekend or anything like that. I think Ellie would agree on that.We are way over time, but I'm having so much fun listening to you guys. I have one more question for each of you, and then, of course, I'll give each of you 15 minutes for rebuttal. Ellie, isn't the fact that Trump hired her for a lifetime job with virtually no accountability, the greatest conflict of interest, necessitating recusal of all time. And by the way, I don't just put that on her. You have a passage in your column at thenation. Com this week where you basically say the Democrats never miss an opportunity to miss an opportunity. You basically make the argument that I've been making for a lot of years, which is that if you are on the ground, waving the Constitution in the air, and your opponent has one foot on your neck and the other foot, they're kicking you in the vital organs repeatedly, you're not winning that argument. I mean, you take the position that Merrick Garland is doing the... Is trying to do the noble thing, or perhaps he's OD on Ambian or something. Or is this a classic case of the Democrats never missing an opportunity to miss an opportunity.Yeah, I keep calling it an asymmetric war, right? And I don't like to use war analogies, especially given the shootings that are bad and whatever. It's an asymmetric conflict. The asymmetry involves the Democrats queuing closely to the rulebook. They are trying to do things in the way things have traditionally been done. And so the analogy I like to use, it's like the Democrats are playing chess, and they're moving their pieces, and they're saying, Ah, checkmate, sir. I have got your king surrounded. And it's not the Republicans are playing checkers.I don't know any Democrats who talk like that, by the way.I don't know. Well, I went I'm in a school in Massachusetts, so I know Democrats are talking. The Republicans are not playing checkers. The Republicans have taken the chess board, shoved out all the pieces, are hitting the Democrats on the head with the chess board, and shoving the queen up the Democrats so you know when. Republicans don't care They don't care about your rule book. They don't care about traditions. They don't care about precedent. They care about winning. They care about power, and they have it. At some point, the Democrats need to understand that they are not playing Playing a game. They have to, at some point, play to win, and you rarely see the Democrats doing that. So just to finish off with Merrick Garland, I think David would agree, the easiest way to get around Eileen Canon's opinion that the special counsel was unlawfully appointed would not be to appeal it to the 11th Circuit, would think what he's saying is, then who is the checker balance on the judicial branch itself? They appear to be unaccountable. Who polices the police, I suppose, in that matter, right?Well, that's the beauty of our system. We We don't want judges just to recuse because they're a Trump or a Biden judge. I think if your argument were to hold that she should have recused because she was appointed by Trump, then what? A Biden judge also should recuse? Who should hear the case? Should Murchon have recused? Because he donated, what was it, like five cents to the Dems? I mean, you have to be careful with these arguments because they can be used by both sides. And the whole point of a federal judge is that they're not supposed to be one way or the I thought Ellie's criticism before about looking at the court and being able to decide was not about the particular case. It was we can figure out the judge how they would vote. And that's been true for a long, long, long time. That's how our system has been because presidents appoint justices. And so you can't have recusal based on just that. And that's the problem that we face every day in our system. I'm for more criminal cases getting being dismissed.That's what I'm- Will you take off your institutionalist hat for a moment and answer my... Oh, no, hang on. Fifteen minutes rebuttal from Elie Musk.Because I have an answer to that. Honestly, guys, the most radical thing that I believe is that the President who appoints a judge, that judge should have to recuse themselves from cases involving the president that appointed them. And that would apply equally to Republicans and Democrats. Ruth Bader-Gainsberg could not sit in the Bill Clinton, Paula Jones situation, and Eileen Cannon or Neil Gorsuch could not sit in Trump-related cases. I think the most fair thing in this country would be that you can't pick your own judges. And so if you are a president and you've appointed a judge, and now you're a president and you are a litigant in a case, that judge has to recuse themselves, that would be fair, and I think that would be more ethical.I don't have a problem if that's the rule. We just don't have that rule now. I guess that rule would apply with Murchon, should have recused in the New York case because he to the dem. I don't have a problem figuring out a rule. I like Ellie's rule, but that is not our rule, and that's why she didn't recuse. That's, by the way, why the special counsel didn't move to recuse her or try to get her thrown off the case. Unfortunately, we don't have that rule in place.Fortunately, or hopefully, we will still have a rule of law to discuss in the aftertimes of the election in November, and I hope to have you both back. We ran out of time for you to answer my question, David, but I'm really super curious about it, so we'll have to do that some other time. This was a blast, guys. Thank you so much for being here, thenation. Com, for Elie Mistal, for thedefensepodcast. Com for David O'Marcus. Thank you, gentlemen.Thank you. Thanks so much.Hey, it's Mike Ryan, and man, it's a hot one, as Rob Thomas famously said. I know summertime means pool and backyard In some parts of the country, it might be too hot for that. So if you're going to be out there, be careful. Hydrate yourself, have some water, and also have a Miller light, because Miller light makes summertime Miller time. Whether you're grilling over an open flame or out there on a charcoal grill. Listen, man, I don't know what the best way is to actually grill meat. I just know that when I'm doing my grilling, it's a lot better when I have a Miller light, because Miller light keeps things simple. Undebatable quality, and it tastes as great as your barbecue. The original light beer since 1975, and a perfect companion for grillmasters or want to be grillmasters all across America. With the Miller light in your hand, drilling doesn't just taste great. It tastes like Miller time. To get Miller light delivered right to your door, visit millerlight. Com/dan, or you can find it pretty much anywhere that sells beer. Celebrate responsibly. Miller Brewing Company, Milwaukee, Wisconsin, 96 calories per 12 ounces.Get ahead with your Panasonic heat pump. Sign up for an annual heat pump service with Aquarius Service Plus. With monthly payment options and fast response times, it's the easy way to maintain your heat pump. We know our energy-efficient heat pumps inside and out, and our Aquarius Service Plus packages are designed to give you peace of mind. Panasonic for a greener future. Search Panasonic heating service for more.

this order that she believes the special counsel, Jack Smith, was unlawfully appointed and unlawfully funded.

Judge Eileen Canon is actually a Miami girl. She grew up here. That's too bad. At Ransom Everglades, another proud Miamian and member of the Federalist Society. She is also, most importantly, a Trump-appointed federal judge in the Southern district of Florida. Here to discuss more It's just nonstop Florida connection news. David O'Markus was actually on the very shortlist to represent the former president in this very case. You might remember, Roy, we talked with him about it on this very podcast last year, right around the time of Trump's historic arraignment here in downtown Miami. While some reporting claimed that he actually went so far as to have at least one conversation with Trump about the possibility of taking him on as a client, being the excessively ethical person that he is, he refused to either confirm or deny. But I can tell you, from personal experience, the President would have been very well-served and well-represented to have hired him. He is a prominent criminal defense attorney down here in the Southern district and host of the hit podcast, For the Defense in the interest of full disclosure It is produced by my company, Rackintour, and it's now in its sixth season at forthedefensepodcast.

Com. Ellie Mistal, another friend of the show, is justice correspondence forthenation. Com and host of its legal podcast, Contempt of Court His first book is the sensational New York Times bestseller, allow me to retort, A Black Guys Guide to the Constitution. You must read it. By the way, it is black guy, G-U-Y-S. It's not G-U-Y-S. It is not for black guys. It is by a Black guy, and everybody should read it. It is absolutely fantastic. Ellie's column this week at thenation. Com has the grim headline, The Dismissal of the Trump Document's Case is Yet More Proof: The Institutionalists Have Failed. In it, he writes, Judge Eileen Canon's decision to toss the case should dispel any remaining hope that the courts will save us from Donald Trump. He concludes, The rule of law is not failing. It has failed. America is right now functionally a failed state. Jesus Christ, Ellie, I feel like I only have you on the show when there's bad news. We're like old friends who only see each other at funerals now. Because my Miami glass is very much half empty, I'm just that guy. And you are just that. Between you, me and Roy, We have a full cup because all of our cups are half empty.

So now they run over by a third.Mine is completely empty. Roy's is totally empty. So between you and I, Ellie, we have a full cup then. Ellie, let's talk about this. How bad was this decision?

A full cup of sadness, right? Look, the argument against the special counsel, as David Marcus certainly knows, is an argument raised by every criminal defendant who was ever prosecuted by a special counsel. It was raised during the Reagan administration. It was raised during the Clinton administration. It's been raised during the George W Bush administration. It is now being raised here. That argument always fails. It is the equivalent of Wesley Snipes saying, I'll have to pay my taxes because the IRS is an illegitimate institution. Yeah, you can say that, and people do that all the time, and they always fail. The most recent failure was Hunter Biden, who, again, said the appointment of his special counsel, David Weiss, was unconstitutional. You know what? It failed. Why didn't it fail this time? Because they were able to do it in front of Eileen Cannon. They were able to do it in front of the MAGA Canon, who has a history of making pro-Trump decisions that are then overturned by the 11th Circuit, her her superiors. We have a history of a judge who's in the tank for Donald Trump, taking an argument that is always made and rejected, but this time, magically giving it purchase.

Now, what Canon says, in her opinion, is that the special counsel needs to be essentially appointed by the president, according to the Constitution, and confirmed by the Senate. This ignores the history of special counsels not being directly appointed by the president and not being directly confirmed by Senate. But in this case, Canon says, Oh, no, no, no, Jack Smith needed to be confirmed by the Senate, and she distinguishes it from Hunter Biden's special counsel, David Weiss, saying that, Well, he was confirmed by the Senate for some other job. So it still counts that he's special counsel now. they didn't, right? Because in front of Judge Chutkin, they knew their stupid argument wouldn't work. So they didn't even bring it up in DC. They only brought it up in Florida, right? So it's like if I'm the mayor and I say, Everybody, go into the water. No sharks everywhere, anywhere. And I tell my kids, Hey, don't go in the water. There's sharks, right? You can tell I'm lying to somebody. And that's what I look at with the Trump lawyers here. They didn't bring the argument in DC because they knew it was a bad and losing argument, but they brought it up in Florida because they knew they had the judge in their pocket.Always been on the black.I did not have that card on my board, but Roy had it at the ready for Wesley Snipes's Passenger 57. Now, let's bring in our institutionalist on the panel here, David O'Markus. I'm remiss to use the term technicality. The law is the law, the constitution is the constitution. If it's a legal loophole or technicality, That means it's the law. But this does fly in the face of what, 50-ish, some odd years of precedent. Yet another Trump-appointed judge overturning decades and decades of precedent. I'm sure you, as the former President's attorney, would have filed this motion because it is your job for the defense. But was this a fundamentally just ruling? And will it be overturned by the 11th Circuit?Look, is it unprecedented as Ellie says? No. Justice Thomas just wrote about it in a concurrence in the Supreme Court and invited a district court to rule this way. So it's not without some precedent. And in fact, she's got an ally in the Supreme Court. I know what Ellie will say about Justice Thomas, of course, but there is some support for her there. And I'm not ready to say that the system is going to burn down and crash down. I wish the Biden judge had granted this motion instead of the Trump judge, because I think then we would be hearing different arguments. I'm not ready to say the institution is failing. There's a loud voices from the right saying that our justice system was failing when Murchon was ruling against Trump. And I just think when you have a particular judge ruling a certain way, that doesn't mean that the whole system is going to crumble. I think you have to wait and see how it plays out. Will she get reversed? Maybe. The problem is going to be timing, of course. Getting this heard before the election in the 11th Circuit is going to be really, really tricky.I don't think anybody thinks that's going to happen, and certainly, it's going to be on its way to the Supreme Court, and we may be years away from a ruling on that. Of course, if Trump is elected, there won't be any ruling from the 11th Circuit or the Supreme Court because the case will just die on the vine if he gets elected.David, if Justice Thomas If he doesn't write that motion, does Judge Canon make this decision?Yeah, I wonder about that. She wrote 93 pages, so she obviously had been working on this for a while, and she invited Amica's support, which is friend of the court support, which It was a pretty rare thing to do in the district level. She was taking it very seriously, this argument, and she was listening to it for a while now. If Thomas doesn't come out that way, does she still do it? Probably. I think she probably still does, but I bet she felt really good once that concurrence came out that she had some cover.Certainly empowering.Ellie isn't just talk as adults for a second because they all talk.You don't need Thomas to actually write the opinion to understand what the federal society position is on this idea. This is a thing that the federal society has invented in their own cabals for a while now. They've been pushing this through every white wing media, a white wing legal organization. If you've been paying attention to what the Fed sock people say, they have been honing in on this point for a while. Clarence Thomas gave it voice first, but he didn't invent the issue. The place where I disagree with David is that the reason why the Biden judge, Chutkin, didn't make this ruling because it was never really brought up in her court. And that's why you got the Clarence Thomas concurrence when the immunity went up to the Supreme Court saying, Maybe we could have ruled on this, but I don't know. Nobody really argued it. So even Thomas is saying the reason why he couldn't get rid of the special counsel in the DC DC case is because it was never presented to them as an option through the process. And again, I say that the reason why they didn't is because they knew Chutkan wouldn't go for it.They knew the DC circuit wouldn't go for it, but they knew Canon would because they all talk.Sorry, Ellie, I meant the Hunter Biden judge because I think if the Hunter Biden judge grants that motion, I'm not sure you're as upset as you are now or other folks. Listen, I'm a liberal criminal defense lawyer, so I'm happy when cases get dismissed, and I think there should be more cases dismissed early on. The Hunter Biden prosecution was ridiculous, a joke. It should have never happened. And I think that case should have been dismissed if it was brought. And that way, you let the system and the law develop. The only way you can get decisions saying these arguments are stupid or whatever is if district courts actually take the step and dismiss, and then you get the appellate process and whatever. Otherwise, you're stuck.Here's the point, right? And I appreciate what you're saying, Oh, maybe if it had happened during Hunter Biden, people on my side of the aisle will be talking a different tune. I can't speak for them. I wouldn't be. And I think that the projection here that, well, what liberals are really concerned about is cases that help their side and what Conservatives are really concerned about are cases that help their side. I think that is projection as opposed to reality. What I want is a stable, consistent rule of law. Put it like this, I should not be able to predict with the accuracy at which I am able to predict what's going to happen in any appellate court. I shouldn't be able to just look at the appointments made by which President appointed the judges and predict with 95% accuracy, not just how the case is going to come out, but the actual vote totals. That shouldn't be a thing, but it is a thing because of how the system works, because we have a group of Republican appointed judges, for the most part, who have gone so far afield from what normal precedent is, normal judicial ethics are, that you can always tell what they're going to do.You know what, Judge? I can't always tell what she's going to do, honestly, and I think you'll back me up here, David. Kataji Brown-jackson. I don't know until I hear her in our oral argument which way she's going to fly. If you look at her votes over this past Supreme Court term, you'll see that she was against the kicking Trump off the ballot in Colorado in a very strong concurrence, also at oral arguments. She went a little bit of a different way on a couple of criminal defense cases. This term, like Kataji Brown-jackson, I honestly don't know how she's going to vote until I hear her talk. The other eight of them, I barely have to listen to oral arguments to know how they're going to go out, and that's not how it should be.Give a little credit to Barrett, too. First of all, I love Ketanji Brown-jackson, a fellow 305er, Palmetto High, so a shout out to her. But Barrett has also been a little unpredictable on the criminal cases as well and has split with Ketanji Brown Jackson on some of those issues. But the truth is, Ellie, people have been making the criticism you make for a long, long time. This is not new on our justice system. People complained about the Warren Court, that it was too liberal, and it was a crazy court, and then it went the other way. Elections have these consequences because the presidents appoint all these judges. And so we got to win some freaking elections and We're going to get some more judges there if we want the courts to swing back the other way. The Supreme Court is what it is after we lost a bunch of elections and after they stole that seat. What are we going to do? We have to win this next election. It doesn't look so good right now.Again, David, I agree, but let's also be clear, when people were complaining about the Warren Court being too far left and too far liberal, what they were complaining about was the Warren Court taking their racism away. They were complaining like, Oh, I used to be able to stop on Black people, and now the Warren won't let me. That was their argument, right? That's a little bit different. I'm not complaining because the Conservatives Supreme Court is lowering taxes, all right? I'm not complaining because now there's a 28 8% corporate tax rate as opposed to a 33% corporate tax rate. I'm complaining that they've taken away the Voting Rights Act section, too, right? The issues are not, while I understand that the partisan breakdown feel similar, the issues that we're talking about are just not. But to your point, we've got to win elections. I totally agree, we have to win elections. The elections should matter. But the problem with the Supreme Court is that even if you win elections, That doesn't necessarily help you deal with people who have a lifetime appointed power. Over the past, through 2020, through the election of Biden, over the previous 32 years, we had an even split, 16 years of a Republican administration, 16 years of a Democratic administration.Yet the Supreme Court was not balanced. It was a super majority of Republicans because of death, because of strategic retirements, because liberals don't know how to say buy because Anthony Kennedy knows exactly when to get off the court to give it to his protege, Brett Kavanaugh. Like the asymmetry in how- If the price is right. Liberals and Conservatives retire has created a permanent conservative majority on the court that frustrates the outcome of elections.Ellie and David, I want to talk about the timing of this decision. Did the assassination attempt on Trump speed this up, or was it always going to be ahead of the RNC?You Well, Roy, a lot of folks have said that the timing is suspect. She released it right after the assassination, right on the eve of the convention. She wrote a 93-page order, so that took a lot of time. She may I have released it on Monday as opposed to later in the week for timing purposes, but it looked like that order had been worked on for a long time. I don't think she rushed it out over the weekend or anything like that. I think Ellie would agree on that.We are way over time, but I'm having so much fun listening to you guys. I have one more question for each of you, and then, of course, I'll give each of you 15 minutes for rebuttal. Ellie, isn't the fact that Trump hired her for a lifetime job with virtually no accountability, the greatest conflict of interest, necessitating recusal of all time. And by the way, I don't just put that on her. You have a passage in your column at thenation. Com this week where you basically say the Democrats never miss an opportunity to miss an opportunity. You basically make the argument that I've been making for a lot of years, which is that if you are on the ground, waving the Constitution in the air, and your opponent has one foot on your neck and the other foot, they're kicking you in the vital organs repeatedly, you're not winning that argument. I mean, you take the position that Merrick Garland is doing the... Is trying to do the noble thing, or perhaps he's OD on Ambian or something. Or is this a classic case of the Democrats never missing an opportunity to miss an opportunity.Yeah, I keep calling it an asymmetric war, right? And I don't like to use war analogies, especially given the shootings that are bad and whatever. It's an asymmetric conflict. The asymmetry involves the Democrats queuing closely to the rulebook. They are trying to do things in the way things have traditionally been done. And so the analogy I like to use, it's like the Democrats are playing chess, and they're moving their pieces, and they're saying, Ah, checkmate, sir. I have got your king surrounded. And it's not the Republicans are playing checkers.I don't know any Democrats who talk like that, by the way.I don't know. Well, I went I'm in a school in Massachusetts, so I know Democrats are talking. The Republicans are not playing checkers. The Republicans have taken the chess board, shoved out all the pieces, are hitting the Democrats on the head with the chess board, and shoving the queen up the Democrats so you know when. Republicans don't care They don't care about your rule book. They don't care about traditions. They don't care about precedent. They care about winning. They care about power, and they have it. At some point, the Democrats need to understand that they are not playing Playing a game. They have to, at some point, play to win, and you rarely see the Democrats doing that. So just to finish off with Merrick Garland, I think David would agree, the easiest way to get around Eileen Canon's opinion that the special counsel was unlawfully appointed would not be to appeal it to the 11th Circuit, would think what he's saying is, then who is the checker balance on the judicial branch itself? They appear to be unaccountable. Who polices the police, I suppose, in that matter, right?Well, that's the beauty of our system. We We don't want judges just to recuse because they're a Trump or a Biden judge. I think if your argument were to hold that she should have recused because she was appointed by Trump, then what? A Biden judge also should recuse? Who should hear the case? Should Murchon have recused? Because he donated, what was it, like five cents to the Dems? I mean, you have to be careful with these arguments because they can be used by both sides. And the whole point of a federal judge is that they're not supposed to be one way or the I thought Ellie's criticism before about looking at the court and being able to decide was not about the particular case. It was we can figure out the judge how they would vote. And that's been true for a long, long, long time. That's how our system has been because presidents appoint justices. And so you can't have recusal based on just that. And that's the problem that we face every day in our system. I'm for more criminal cases getting being dismissed.That's what I'm- Will you take off your institutionalist hat for a moment and answer my... Oh, no, hang on. Fifteen minutes rebuttal from Elie Musk.Because I have an answer to that. Honestly, guys, the most radical thing that I believe is that the President who appoints a judge, that judge should have to recuse themselves from cases involving the president that appointed them. And that would apply equally to Republicans and Democrats. Ruth Bader-Gainsberg could not sit in the Bill Clinton, Paula Jones situation, and Eileen Cannon or Neil Gorsuch could not sit in Trump-related cases. I think the most fair thing in this country would be that you can't pick your own judges. And so if you are a president and you've appointed a judge, and now you're a president and you are a litigant in a case, that judge has to recuse themselves, that would be fair, and I think that would be more ethical.I don't have a problem if that's the rule. We just don't have that rule now. I guess that rule would apply with Murchon, should have recused in the New York case because he to the dem. I don't have a problem figuring out a rule. I like Ellie's rule, but that is not our rule, and that's why she didn't recuse. That's, by the way, why the special counsel didn't move to recuse her or try to get her thrown off the case. Unfortunately, we don't have that rule in place.Fortunately, or hopefully, we will still have a rule of law to discuss in the aftertimes of the election in November, and I hope to have you both back. We ran out of time for you to answer my question, David, but I'm really super curious about it, so we'll have to do that some other time. This was a blast, guys. Thank you so much for being here, thenation. Com, for Elie Mistal, for thedefensepodcast. Com for David O'Marcus. Thank you, gentlemen.Thank you. Thanks so much.Hey, it's Mike Ryan, and man, it's a hot one, as Rob Thomas famously said. I know summertime means pool and backyard In some parts of the country, it might be too hot for that. So if you're going to be out there, be careful. Hydrate yourself, have some water, and also have a Miller light, because Miller light makes summertime Miller time. Whether you're grilling over an open flame or out there on a charcoal grill. Listen, man, I don't know what the best way is to actually grill meat. I just know that when I'm doing my grilling, it's a lot better when I have a Miller light, because Miller light keeps things simple. Undebatable quality, and it tastes as great as your barbecue. The original light beer since 1975, and a perfect companion for grillmasters or want to be grillmasters all across America. With the Miller light in your hand, drilling doesn't just taste great. It tastes like Miller time. To get Miller light delivered right to your door, visit millerlight. Com/dan, or you can find it pretty much anywhere that sells beer. Celebrate responsibly. Miller Brewing Company, Milwaukee, Wisconsin, 96 calories per 12 ounces.Get ahead with your Panasonic heat pump. Sign up for an annual heat pump service with Aquarius Service Plus. With monthly payment options and fast response times, it's the easy way to maintain your heat pump. We know our energy-efficient heat pumps inside and out, and our Aquarius Service Plus packages are designed to give you peace of mind. Panasonic for a greener future. Search Panasonic heating service for more.

they didn't, right? Because in front of Judge Chutkin, they knew their stupid argument wouldn't work. So they didn't even bring it up in DC. They only brought it up in Florida, right? So it's like if I'm the mayor and I say, Everybody, go into the water. No sharks everywhere, anywhere. And I tell my kids, Hey, don't go in the water. There's sharks, right? You can tell I'm lying to somebody. And that's what I look at with the Trump lawyers here. They didn't bring the argument in DC because they knew it was a bad and losing argument, but they brought it up in Florida because they knew they had the judge in their pocket.

Always been on the black.

I did not have that card on my board, but Roy had it at the ready for Wesley Snipes's Passenger 57. Now, let's bring in our institutionalist on the panel here, David O'Markus. I'm remiss to use the term technicality. The law is the law, the constitution is the constitution. If it's a legal loophole or technicality, That means it's the law. But this does fly in the face of what, 50-ish, some odd years of precedent. Yet another Trump-appointed judge overturning decades and decades of precedent. I'm sure you, as the former President's attorney, would have filed this motion because it is your job for the defense. But was this a fundamentally just ruling? And will it be overturned by the 11th Circuit?

Look, is it unprecedented as Ellie says? No. Justice Thomas just wrote about it in a concurrence in the Supreme Court and invited a district court to rule this way. So it's not without some precedent. And in fact, she's got an ally in the Supreme Court. I know what Ellie will say about Justice Thomas, of course, but there is some support for her there. And I'm not ready to say that the system is going to burn down and crash down. I wish the Biden judge had granted this motion instead of the Trump judge, because I think then we would be hearing different arguments. I'm not ready to say the institution is failing. There's a loud voices from the right saying that our justice system was failing when Murchon was ruling against Trump. And I just think when you have a particular judge ruling a certain way, that doesn't mean that the whole system is going to crumble. I think you have to wait and see how it plays out. Will she get reversed? Maybe. The problem is going to be timing, of course. Getting this heard before the election in the 11th Circuit is going to be really, really tricky.

I don't think anybody thinks that's going to happen, and certainly, it's going to be on its way to the Supreme Court, and we may be years away from a ruling on that. Of course, if Trump is elected, there won't be any ruling from the 11th Circuit or the Supreme Court because the case will just die on the vine if he gets elected.

David, if Justice Thomas If he doesn't write that motion, does Judge Canon make this decision?

Yeah, I wonder about that. She wrote 93 pages, so she obviously had been working on this for a while, and she invited Amica's support, which is friend of the court support, which It was a pretty rare thing to do in the district level. She was taking it very seriously, this argument, and she was listening to it for a while now. If Thomas doesn't come out that way, does she still do it? Probably. I think she probably still does, but I bet she felt really good once that concurrence came out that she had some cover.Certainly empowering.

Ellie isn't just talk as adults for a second because they all talk.

You don't need Thomas to actually write the opinion to understand what the federal society position is on this idea. This is a thing that the federal society has invented in their own cabals for a while now. They've been pushing this through every white wing media, a white wing legal organization. If you've been paying attention to what the Fed sock people say, they have been honing in on this point for a while. Clarence Thomas gave it voice first, but he didn't invent the issue. The place where I disagree with David is that the reason why the Biden judge, Chutkin, didn't make this ruling because it was never really brought up in her court. And that's why you got the Clarence Thomas concurrence when the immunity went up to the Supreme Court saying, Maybe we could have ruled on this, but I don't know. Nobody really argued it. So even Thomas is saying the reason why he couldn't get rid of the special counsel in the DC DC case is because it was never presented to them as an option through the process. And again, I say that the reason why they didn't is because they knew Chutkan wouldn't go for it.

They knew the DC circuit wouldn't go for it, but they knew Canon would because they all talk.

Sorry, Ellie, I meant the Hunter Biden judge because I think if the Hunter Biden judge grants that motion, I'm not sure you're as upset as you are now or other folks. Listen, I'm a liberal criminal defense lawyer, so I'm happy when cases get dismissed, and I think there should be more cases dismissed early on. The Hunter Biden prosecution was ridiculous, a joke. It should have never happened. And I think that case should have been dismissed if it was brought. And that way, you let the system and the law develop. The only way you can get decisions saying these arguments are stupid or whatever is if district courts actually take the step and dismiss, and then you get the appellate process and whatever. Otherwise, you're stuck.

Here's the point, right? And I appreciate what you're saying, Oh, maybe if it had happened during Hunter Biden, people on my side of the aisle will be talking a different tune. I can't speak for them. I wouldn't be. And I think that the projection here that, well, what liberals are really concerned about is cases that help their side and what Conservatives are really concerned about are cases that help their side. I think that is projection as opposed to reality. What I want is a stable, consistent rule of law. Put it like this, I should not be able to predict with the accuracy at which I am able to predict what's going to happen in any appellate court. I shouldn't be able to just look at the appointments made by which President appointed the judges and predict with 95% accuracy, not just how the case is going to come out, but the actual vote totals. That shouldn't be a thing, but it is a thing because of how the system works, because we have a group of Republican appointed judges, for the most part, who have gone so far afield from what normal precedent is, normal judicial ethics are, that you can always tell what they're going to do.

You know what, Judge? I can't always tell what she's going to do, honestly, and I think you'll back me up here, David. Kataji Brown-jackson. I don't know until I hear her in our oral argument which way she's going to fly. If you look at her votes over this past Supreme Court term, you'll see that she was against the kicking Trump off the ballot in Colorado in a very strong concurrence, also at oral arguments. She went a little bit of a different way on a couple of criminal defense cases. This term, like Kataji Brown-jackson, I honestly don't know how she's going to vote until I hear her talk. The other eight of them, I barely have to listen to oral arguments to know how they're going to go out, and that's not how it should be.

Give a little credit to Barrett, too. First of all, I love Ketanji Brown-jackson, a fellow 305er, Palmetto High, so a shout out to her. But Barrett has also been a little unpredictable on the criminal cases as well and has split with Ketanji Brown Jackson on some of those issues. But the truth is, Ellie, people have been making the criticism you make for a long, long time. This is not new on our justice system. People complained about the Warren Court, that it was too liberal, and it was a crazy court, and then it went the other way. Elections have these consequences because the presidents appoint all these judges. And so we got to win some freaking elections and We're going to get some more judges there if we want the courts to swing back the other way. The Supreme Court is what it is after we lost a bunch of elections and after they stole that seat. What are we going to do? We have to win this next election. It doesn't look so good right now.

Again, David, I agree, but let's also be clear, when people were complaining about the Warren Court being too far left and too far liberal, what they were complaining about was the Warren Court taking their racism away. They were complaining like, Oh, I used to be able to stop on Black people, and now the Warren won't let me. That was their argument, right? That's a little bit different. I'm not complaining because the Conservatives Supreme Court is lowering taxes, all right? I'm not complaining because now there's a 28 8% corporate tax rate as opposed to a 33% corporate tax rate. I'm complaining that they've taken away the Voting Rights Act section, too, right? The issues are not, while I understand that the partisan breakdown feel similar, the issues that we're talking about are just not. But to your point, we've got to win elections. I totally agree, we have to win elections. The elections should matter. But the problem with the Supreme Court is that even if you win elections, That doesn't necessarily help you deal with people who have a lifetime appointed power. Over the past, through 2020, through the election of Biden, over the previous 32 years, we had an even split, 16 years of a Republican administration, 16 years of a Democratic administration.

Yet the Supreme Court was not balanced. It was a super majority of Republicans because of death, because of strategic retirements, because liberals don't know how to say buy because Anthony Kennedy knows exactly when to get off the court to give it to his protege, Brett Kavanaugh. Like the asymmetry in how- If the price is right. Liberals and Conservatives retire has created a permanent conservative majority on the court that frustrates the outcome of elections.

Ellie and David, I want to talk about the timing of this decision. Did the assassination attempt on Trump speed this up, or was it always going to be ahead of the RNC?

You Well, Roy, a lot of folks have said that the timing is suspect. She released it right after the assassination, right on the eve of the convention. She wrote a 93-page order, so that took a lot of time. She may I have released it on Monday as opposed to later in the week for timing purposes, but it looked like that order had been worked on for a long time. I don't think she rushed it out over the weekend or anything like that. I think Ellie would agree on that.

We are way over time, but I'm having so much fun listening to you guys. I have one more question for each of you, and then, of course, I'll give each of you 15 minutes for rebuttal. Ellie, isn't the fact that Trump hired her for a lifetime job with virtually no accountability, the greatest conflict of interest, necessitating recusal of all time. And by the way, I don't just put that on her. You have a passage in your column at thenation. Com this week where you basically say the Democrats never miss an opportunity to miss an opportunity. You basically make the argument that I've been making for a lot of years, which is that if you are on the ground, waving the Constitution in the air, and your opponent has one foot on your neck and the other foot, they're kicking you in the vital organs repeatedly, you're not winning that argument. I mean, you take the position that Merrick Garland is doing the... Is trying to do the noble thing, or perhaps he's OD on Ambian or something. Or is this a classic case of the Democrats never missing an opportunity to miss an opportunity.

Yeah, I keep calling it an asymmetric war, right? And I don't like to use war analogies, especially given the shootings that are bad and whatever. It's an asymmetric conflict. The asymmetry involves the Democrats queuing closely to the rulebook. They are trying to do things in the way things have traditionally been done. And so the analogy I like to use, it's like the Democrats are playing chess, and they're moving their pieces, and they're saying, Ah, checkmate, sir. I have got your king surrounded. And it's not the Republicans are playing checkers.

I don't know any Democrats who talk like that, by the way.

I don't know. Well, I went I'm in a school in Massachusetts, so I know Democrats are talking. The Republicans are not playing checkers. The Republicans have taken the chess board, shoved out all the pieces, are hitting the Democrats on the head with the chess board, and shoving the queen up the Democrats so you know when. Republicans don't care They don't care about your rule book. They don't care about traditions. They don't care about precedent. They care about winning. They care about power, and they have it. At some point, the Democrats need to understand that they are not playing Playing a game. They have to, at some point, play to win, and you rarely see the Democrats doing that. So just to finish off with Merrick Garland, I think David would agree, the easiest way to get around Eileen Canon's opinion that the special counsel was unlawfully appointed would not be to appeal it to the 11th Circuit, would think what he's saying is, then who is the checker balance on the judicial branch itself? They appear to be unaccountable. Who polices the police, I suppose, in that matter, right?Well, that's the beauty of our system. We We don't want judges just to recuse because they're a Trump or a Biden judge. I think if your argument were to hold that she should have recused because she was appointed by Trump, then what? A Biden judge also should recuse? Who should hear the case? Should Murchon have recused? Because he donated, what was it, like five cents to the Dems? I mean, you have to be careful with these arguments because they can be used by both sides. And the whole point of a federal judge is that they're not supposed to be one way or the I thought Ellie's criticism before about looking at the court and being able to decide was not about the particular case. It was we can figure out the judge how they would vote. And that's been true for a long, long, long time. That's how our system has been because presidents appoint justices. And so you can't have recusal based on just that. And that's the problem that we face every day in our system. I'm for more criminal cases getting being dismissed.That's what I'm- Will you take off your institutionalist hat for a moment and answer my... Oh, no, hang on. Fifteen minutes rebuttal from Elie Musk.Because I have an answer to that. Honestly, guys, the most radical thing that I believe is that the President who appoints a judge, that judge should have to recuse themselves from cases involving the president that appointed them. And that would apply equally to Republicans and Democrats. Ruth Bader-Gainsberg could not sit in the Bill Clinton, Paula Jones situation, and Eileen Cannon or Neil Gorsuch could not sit in Trump-related cases. I think the most fair thing in this country would be that you can't pick your own judges. And so if you are a president and you've appointed a judge, and now you're a president and you are a litigant in a case, that judge has to recuse themselves, that would be fair, and I think that would be more ethical.I don't have a problem if that's the rule. We just don't have that rule now. I guess that rule would apply with Murchon, should have recused in the New York case because he to the dem. I don't have a problem figuring out a rule. I like Ellie's rule, but that is not our rule, and that's why she didn't recuse. That's, by the way, why the special counsel didn't move to recuse her or try to get her thrown off the case. Unfortunately, we don't have that rule in place.Fortunately, or hopefully, we will still have a rule of law to discuss in the aftertimes of the election in November, and I hope to have you both back. We ran out of time for you to answer my question, David, but I'm really super curious about it, so we'll have to do that some other time. This was a blast, guys. Thank you so much for being here, thenation. Com, for Elie Mistal, for thedefensepodcast. Com for David O'Marcus. Thank you, gentlemen.Thank you. Thanks so much.Hey, it's Mike Ryan, and man, it's a hot one, as Rob Thomas famously said. I know summertime means pool and backyard In some parts of the country, it might be too hot for that. So if you're going to be out there, be careful. Hydrate yourself, have some water, and also have a Miller light, because Miller light makes summertime Miller time. Whether you're grilling over an open flame or out there on a charcoal grill. Listen, man, I don't know what the best way is to actually grill meat. I just know that when I'm doing my grilling, it's a lot better when I have a Miller light, because Miller light keeps things simple. Undebatable quality, and it tastes as great as your barbecue. The original light beer since 1975, and a perfect companion for grillmasters or want to be grillmasters all across America. With the Miller light in your hand, drilling doesn't just taste great. It tastes like Miller time. To get Miller light delivered right to your door, visit millerlight. Com/dan, or you can find it pretty much anywhere that sells beer. Celebrate responsibly. Miller Brewing Company, Milwaukee, Wisconsin, 96 calories per 12 ounces.Get ahead with your Panasonic heat pump. Sign up for an annual heat pump service with Aquarius Service Plus. With monthly payment options and fast response times, it's the easy way to maintain your heat pump. We know our energy-efficient heat pumps inside and out, and our Aquarius Service Plus packages are designed to give you peace of mind. Panasonic for a greener future. Search Panasonic heating service for more.

think what he's saying is, then who is the checker balance on the judicial branch itself? They appear to be unaccountable. Who polices the police, I suppose, in that matter, right?

Well, that's the beauty of our system. We We don't want judges just to recuse because they're a Trump or a Biden judge. I think if your argument were to hold that she should have recused because she was appointed by Trump, then what? A Biden judge also should recuse? Who should hear the case? Should Murchon have recused? Because he donated, what was it, like five cents to the Dems? I mean, you have to be careful with these arguments because they can be used by both sides. And the whole point of a federal judge is that they're not supposed to be one way or the I thought Ellie's criticism before about looking at the court and being able to decide was not about the particular case. It was we can figure out the judge how they would vote. And that's been true for a long, long, long time. That's how our system has been because presidents appoint justices. And so you can't have recusal based on just that. And that's the problem that we face every day in our system. I'm for more criminal cases getting being dismissed.

That's what I'm- Will you take off your institutionalist hat for a moment and answer my... Oh, no, hang on. Fifteen minutes rebuttal from Elie Musk.

Because I have an answer to that. Honestly, guys, the most radical thing that I believe is that the President who appoints a judge, that judge should have to recuse themselves from cases involving the president that appointed them. And that would apply equally to Republicans and Democrats. Ruth Bader-Gainsberg could not sit in the Bill Clinton, Paula Jones situation, and Eileen Cannon or Neil Gorsuch could not sit in Trump-related cases. I think the most fair thing in this country would be that you can't pick your own judges. And so if you are a president and you've appointed a judge, and now you're a president and you are a litigant in a case, that judge has to recuse themselves, that would be fair, and I think that would be more ethical.

I don't have a problem if that's the rule. We just don't have that rule now. I guess that rule would apply with Murchon, should have recused in the New York case because he to the dem. I don't have a problem figuring out a rule. I like Ellie's rule, but that is not our rule, and that's why she didn't recuse. That's, by the way, why the special counsel didn't move to recuse her or try to get her thrown off the case. Unfortunately, we don't have that rule in place.

Fortunately, or hopefully, we will still have a rule of law to discuss in the aftertimes of the election in November, and I hope to have you both back. We ran out of time for you to answer my question, David, but I'm really super curious about it, so we'll have to do that some other time. This was a blast, guys. Thank you so much for being here, thenation. Com, for Elie Mistal, for thedefensepodcast. Com for David O'Marcus. Thank you, gentlemen.

Thank you. Thanks so much.

Hey, it's Mike Ryan, and man, it's a hot one, as Rob Thomas famously said. I know summertime means pool and backyard In some parts of the country, it might be too hot for that. So if you're going to be out there, be careful. Hydrate yourself, have some water, and also have a Miller light, because Miller light makes summertime Miller time. Whether you're grilling over an open flame or out there on a charcoal grill. Listen, man, I don't know what the best way is to actually grill meat. I just know that when I'm doing my grilling, it's a lot better when I have a Miller light, because Miller light keeps things simple. Undebatable quality, and it tastes as great as your barbecue. The original light beer since 1975, and a perfect companion for grillmasters or want to be grillmasters all across America. With the Miller light in your hand, drilling doesn't just taste great. It tastes like Miller time. To get Miller light delivered right to your door, visit millerlight. Com/dan, or you can find it pretty much anywhere that sells beer. Celebrate responsibly. Miller Brewing Company, Milwaukee, Wisconsin, 96 calories per 12 ounces.

Get ahead with your Panasonic heat pump. Sign up for an annual heat pump service with Aquarius Service Plus. With monthly payment options and fast response times, it's the easy way to maintain your heat pump. We know our energy-efficient heat pumps inside and out, and our Aquarius Service Plus packages are designed to give you peace of mind. Panasonic for a greener future. Search Panasonic heating service for more.