David French: Building a Legal Wall around Trump

Welcome to the Bulwark Podcast. I'm Charlie Sykes.
Amazingly, we have made it all the way to August. So happy August 1st.
As we sit down this morning, we are continuing to wait on Jack Smith. There seems to be a high alert indictment watch.
We don't know what will happen. You may know more than we do.
I think we can dive into the implications of all of this with today's guest. Welcoming back, David French, opinion columnist for the New York Times.
David, it has been way too long. It's been too long, Charlie.
No, I'm always honored and happy to join you. Now, hopefully we can do this as an event-free podcast.
Just a brief digression. You do podcasts and television and various things, and you're always concerned something's going to happen technically or something's going to happen in the room, especially since we do these things remotely.
I do my television stuff from my kitchen. People don't realize it, but it is actually the kitchen.
Oh, that's your kitchen. It is actually our kitchen.
And every evening, my wife makes a really nice dinner for us and for our dogs, who eat extremely well. Okay, so here's the thing.
I was doing a live Instagram broadcast with Katie Couric last night. And my wife, to be helpful, starts the dinner and then goes outside

with the dog. So the dogs do not create any kind of a stir, but then forgets that she left something on the stove.
And so right in the middle of this broadcast, every smoke alarm in the house goes off simultaneously as the room fills with smoke.

So I would describe this as a challenging environment. We muscled through and we finished the show, even though my eyes were beginning to water.
Hopefully nothing like that happens with you and me. I think I would kind of want it.
I mean, that would really spice things up a lot. It would be a little drama and it's a little bit of a distraction from the rather brutal reality checks we are getting.
So I'm sorry that we just have to start with this. The two New York Times surveys yesterday, we got the survey showing the really underlining the iron grip that Donald Trump has on the Republican Party, including the number of Republicans who believe that he's actually committed serious felonies.
Men are still going to vote for him. And while we're absorbing that, we get the latest New York Times survey, the one that was out this morning, showing that Donald Trump, the twice impeached, twice indicted former president, actually is in a tie with Joe Biden, 43-43.
So, yeah, I'm just going to throw the ball into your lap there. What is this political moment telling us when you have a guy like Donald Trump, who just a couple of weeks ago was found liable for sexual assault, who continues to fawn on dictators, who fomented an insurrection to overturn an election, who faces imminent, very serious indictments.
And yet it's 43-43. I mean, isn't the reality check is that Donald Trump could win this thing.
Donald Trump could be president again. And I think that we need to

face that. Yes.
I have been, to use one of my friend and colleague Jonah Goldberg's favorite sayings, like a toddler banging a spoon on his high chair for months and months and months saying he can win. I think it's not at all weird to say he could win the primary.
I mean, everyone's reconciled themselves with that.

Yeah.

But I've been just yelling and screaming,

he can win the primary. I mean, everyone's reconciled themselves with that.
Yeah. But I've been just yelling and screaming, he can win the general.
He can win the general. And it's not just about his strength because actually 43%, Charlie's not a high percentage.
It's Biden's weakness combined with the fact that Trump has this very high floor. And so Trump has this really high floor of support.
He has a very low ceiling, but he also has this high floor. And that means if Biden is weak, he's going to be absolutely vulnerable.
And look, it's easy to see how Trump gets there. So let's just do some basic math.
So yesterday, the Times puts out a poll that a lot of people are talking about because it really drilled down into the different components of Trump's support. And it talks about the MAGA base, which is this plurality of Republican voters.
And here's the key about the MAGA base. The MAGA base doesn't support Mr.
Trump in spite of his flaws. It supports him because it doesn't seem to believe he has flaws.
Okay. That's quite a base.
So that's a group of people are not going anywhere in the primary. They're not going anywhere, period.
Then you add on top of that, just the number of voters who may not prefer Trump, but they're just going to vote Republican no matter what, or people who really don't like Joe Biden or are alienated by Joe Biden and they want to not support him again, but there's going to be only one option for them to vote for. And pretty soon you can see how you can get to that mid forties number really easily.
And so then what Biden has to be telling himself and his team has to tell himself is that their 43 number is fake because 43 plus 43, everyone knows only equals 86. Who's going to get the other 14? And they have to sort of take it on faith that they're going to get most of that 14.
And it's just too dangerous for my liking, Charlie. It is too dangerous.
Let's go back to that breakdown of the Republican voters, the 37% of really hardcore Trump supporters who don't believe he has any flaws. Do they live in a world where they just don't believe any of the stories or the indictments?

Or is there a portion of them that don't think that the crimes, in fact, are flaws? In other words, that they don't support him because they don't know who he is. They fully know who he is, and they kind of like it.
Yes to both. Yes to both.
So, you know, if you're going to talk about, say, my good friend's mother, you know, she doesn't think that he has the flaws at all. You know, so the narrative is.
Good Christian truth-telling man, right? Who sacrificed his wealth because he's such a patriot. You hear that stuff, I mean, without the Christian part, but you hear truth-telling, sacrificed his wealth, he's a patriot, all of this is political, none of this is legitimate.
And so they just flat out don't believe the negative reports at all, at all. I mean, genuinely believe the election was stolen.
So you've got a lot of people who look at him through the prism of God's chosen man, not that he's a Christian, but he's God's chosen man to save this country. And all that's happened ever since God chose him to save this country is just an enormous amount of persecution.
So that's one mindset. And then there's another, which is heavily represented on Twitter, which is all of that stuff that you call a flaw, I acknowledge it exists.
I acknowledge he does that or most of it, but I like it. That's not a flaw.
It's a feature, not a bug to use the phrase. Those are the people who love that he causes people anguish or they love that he, this is the cruelty is the point crew.
And it's heavily disproportionately represented on Twitter.

So I'm kind of stuck on the people who believe that he's God's chosen one, considering that God has many choices. And what must you think of God to think that God looks around and goes, of all the hundreds of millions of Americans, this is my guy.
Yeah, it's a great question, Charlie. But that's the unlikeliness of it, believe it or not is part of the argument for it.

Outsider. But, you know, that's the unlikeliness of it, believe it or not, is part of the argument for it.

Outsider, person who's rough around the edges, who's not a politician.

You know, you look at this and when you squint and you look at it through sort of,

when you try to put yourself in their shoes and you leave aside,

you don't believe anything you read in the New York Times. You don't believe anything you read in the Washington Post, all of that.
And you know who you believe. When you look at it through that, the unlikeliness of Trump actually becomes an argument for the divine appointment of Trump in their minds.
And it gets really hard. I mean, Charlie, I've had conversations literally that have gone like this with people I've known for years.
David, I was with you. I was with you in opposing Trump until the Holy Spirit told me that he was God's man for the job.
And how do you argue with that? Okay, how do you argue with that? I think I know what I would say, but it would be inappropriate. It feels kind of blasphemy-like, you know? Yeah, well, the one thing is you can't sort of laugh about it to them.
You can't mock it because they're dripping with sincerity, as they say it. Then I'm out of material.
Then I go into that conversation completely unarmed because I got nothing else. I'm sorry.
Yeah, Well, you have to get really pretty biblically precise. I mean, look, God's never going to ask you to do anything that's going to violate his word.
And lying is wrong. Lying is wrong.
And if you're supporting lying, if you're supporting dishonesty, if you're supporting corruption, that's going to violate their commands that are upon you. You can't support corruption.
You can't rationalize and defend lies. And in that circumstance, yeah.
I thought I was exhausted. You must really be exhausted by this.
I mean, this is exhausting. It feels like the lift is so heavy and it's been going on so long.
And I think that's one of the challenges that we all face is not to just be ground down by the craziness of it and the stupidity of it and just the cruelty and the brutality of it. I mean, isn't that the challenge? I mean, do you wake up some days going,

I have another year and a half to do this? At minimum, Charlie, at minimum. No, no.
So is this thing cooked? Is the Republican primary baked? Because I said yesterday in a dark moment that it's naivete boarding on delusional to think that Donald Trump will not be the nominee. Is there any conceivable lane now for a non-Trump, a normie? We'll get to Ron DeSantis in a moment.
It's not going to be him, I don't think. But is this thing done or is there an alternative out there? Is there an alternative lane with the numbers that we see in this New York Times-Ciena poll? Charlie, I got to say, every single thought rooted in rationality and logic should tell everyone he's winning the GOP nomination and he might be president because we've never, ever had a political figure with such a high ceiling of support.
And with such a high ceiling of support through an amount of adversity of political adversity that's mind blowing. you know and and i keep going back to the polling right after january 6th which i would assert is one of the historically worst moments it might be one of the historically worst moments in the history of the american presidency yeah and his approval with republicans was stayed high and mitch mc and Mitch McConnell and Pence's approval plunged.
And when I look at that, I think any argument that this next indictment will be the one or this next revelation will be the one is just a foolish hope. And then my heart says, but there's still a chance.
It's like the dumb and dumber. Or you can invent yourself.
It's the cumulative effect. There will be an exhaustion.
But I think that that's being exposed as kind of wish casting, isn't it, at this point? It is August before the election year. I've lost count.
How many felony charges are against him? I mean, we're in the dozens. And the big ones are still to come.
I mean, it is August before the election year. I've lost count how many felony charges are against him.
I mean, we're in the dozens and the big ones are still to come. I mean, the really, really big ones are still to come.
And I think that it's incredibly naive at this point to think that that will be enough because with the exception of Asa Hutchinson, Will Hurd and Chris Christie, none of the other candidates even want to take him on on this. Rhonda Sanders know.
In fact, Rhonda Sanders, you know, who's supposed to be the great anti-Trump hope, basically keeps defending him or minimizing what he did. And I'm not sure how that strategy is going to work going forward.
Well, you know, in a lot of ways, these guys are all, they've all built their own prison. I mean, I say all, I'm putting Will Hurd to one side, but Christie, in a way, has built his own prison because what they did for years and years and years and years was come to his aid and to feed the narrative to the very same public that they're now trying to pry away from him.
They, for years, they have fed the same narrative about Trump's greatness, about Trump's persecution. Don't forget, Ron DeSantis is the guy who recorded an ad when he was running for governor where he's reading a book to his kids about Trump's wall.
So this is a guy who was a class A Trump sycophant. I mean, absolute class A Trump sycophant.
And then you run against him, but you don't run against him. You don't take him directly on and look from a distance.
You might say, well, that's nuts. Well, how can you run against him without running against him? And then you realize they've helped build their own trap.
If they run against him, then they become the very thing that they've taught all the voters to loathe and despise and hate, which is a Trump critic. They built that wall, but it was the wall around them and their ability to do anything about it.
Yeah, exactly. So normal political gravity applies to every single person in the field where a scandal here and there or a gaffe or all of that hurts them.
So normal political rules apply to them and do not apply to Donald Trump at all. It was extraordinary how many hopes and dreams were projected onto Ron DeSantis as the great anti-Trump hope, even though there were skeptics out there who said, you know, the guy really does not have this great personality.
He doesn't just play a bleep hole on television. He really is one.
He has not been tested. He seems to imagine that you can run to Trump's right.
He picks some bizarre fights with Disney. And yet there was a diehard group of people I would describe as sort of anti-anti-Trump who were really just arguing, no, Ron DeSantis is the guy.
Ron DeSantis is the normal Republican. Ron DeSantis is the Trump killer.
Where did Ron DeSantis go wrong? I'm assuming that Ron DeSantis is crashing and burning. I think that the end of his campaign is now pretty inevitable.
But what is your autopsy of the Ron DeSantis fancy dive? Well, a couple of things. One, and I'm not writing him off yet.
He's almost gone. He's almost toast.
He's not toast, but he's definitely in a crisis point in his campaign. And so how did we get to this crisis point? I think it's a multifaceted thing, Charlie.
I think one thing is he misunderstood the reason for his rise. The reason for his rise, I think, was rooted in two things.
One was just kind of happenstance that when Trump was faltering and when Trump was at a lower point, this was at the point when DeSantis was sort of portrayed in much of the right media as sort of the hero of COVID and all of this. And he was sort of the only other Republican that was really on the national stage at that time.
And the other thing is, why were people originally drawn to him? It wasn't because he was fighting Disney over free speech. It was because he was fighting a media that was oddly obsessed with Florida, more than a Georgia or an Alabama or Mississippi or Tennessee, which all had quite similar policies, if not even looser than DeSantis'.
So he was taking on a media that was very obsessed with Florida and sometimes in ways that were proven to be ridiculous. I don't know if you remember, there was a controversy over reopening Florida beaches.
Oh, yes. Which, in hindsight, was like, what? He was under fire for reopening beaches? sinceaches.
Since we now know that outdoor transmission of COVID wasn't, especially in a beach-type situation, wasn't really a thing. And so he made his name engaging in fights over reasonable policies with some unreasonable voices in the media.
That's where he really got his prominence. And then he flipped it around and he then maintained his prominence by picking unreasonable fights with reasonable people.
And so he went from defending open beaches to defending things like censoring university professors, censoring private corporations,

retaliating against Walt Disney,

engaging in flirting with weirdo anti-vaccine movements,

most recently sort of flirting with Kennedy,

saying he'd sick him on the CDC.

That's nuts.

Well, and he launched his campaign

on what used to be known as Twitter with Elon Musk and a guy who is one of the most notorious anti-Ukraine cranks. Part of the thing is that he seems to be so deeply online.
He decided that he was going to be the ultimate online Twitter guy at the moment that Twitter was imploding, but he seems to have built this bubble, this story in Semaphore this morning about how they had the war room that came up with these really, really distasteful ads. I mean, the anti-LGBTQ stuff with a guy with the Nazi symbols and stuff.
I mean, this comes from his own campaign. It makes you wonder what world he lives in.
The guy is the governor of a major state. He's got mainstream support and yet he is obsessively focused on a narrow, narrow slice of the deplorable right.
And it's not working out for him. It's the weirdest thing, Charlie.
People will puzzle over this for years. There's online and then there's weird online.

So you're going to be off base if you're mainly online anyway. So this was the famous Nate Cohn finding in the Times before the Democratic primary, which was one third of Democratic voters are online.
Two thirds of Democratic primary voters are offline. the two-thirds that are offline are more moderate, more diverse,

than the one-third that's online that's super progressive and pretty white. of Democratic primary voters are offline.
The two thirds that are offline are more moderate,

more diverse than the one third that's online that's super progressive and pretty white.

And who was the only candidate in the Democratic field

who clearly ran for the two thirds?

That was Joe Biden.

And the rest of the Democratic field

was fiercely fighting over that one third that was online.

And a lot of Republicans in 2020 were pointing at that Democratic field and going, ha, ha, ha, you're way too online. And Ron DeSantis said, oh, you think they're too online? Wait until you see the Mos Eisley cantina of influencers I've assembled, which Charlie, it's some weird stuff.
It's not just that it's bad. It's all bad.
It's weird bad. When I began to look and JVL had some really good stuff that he wrote about the world of online influencers.
And when I say that they put out some weird stuff and they speak in their own weird insider language, I mean, they put out some weird stuff and they speak in a strange insidery language and then he's just all in on it. That's what his team does.
I mean, and if you've watched them, you should watch them interact on Twitter and just your mouth will gape open. It is ugly stuff.
And we're at the stage of the campaign where even some of his zealous defenders at your former publication were like aghast. I'm talking about the National Review.
We're just aghast at his flirtation with Robert F. Kennedy Jr.
And then you had the Wall Street Journal editorial board saying, Guy, you could actually run as a plausible Republican alternative as the governor of Florida. Instead, you have decided to contort yourself into this weird anti-woke warrior, and you keep stepping on one rake after another.
You know, maybe because he thinks he's imitating Donald Trump as kind of a Me Too campaign.

You know, his pack, his super pack is called Never Back Down, which means never admit you made a mistake, never apologize.

So as I wrote yesterday, when he steps on a rake, he denies he steps on a rake and then he steps on it again and again and again. And when somebody points out you just stepped on a rake, he has to attack them.
He's created his own trap, hasn't he? I don't want to relitigate the whole issue of,, teaching skills and everything, but he can't back away from it. He keeps stepping on the rake.
He keeps, and he's written a letter now to Kamala Harris, inviting her down, wants another week of news cycle about something that a normal politician would have said, look, that's not what I intended to do. That's not what we believe.
Here's 200 pages of other stuff about slavery. Let's fix that.
Okay. Let's take that and let's move on.
Yeah. Could have handled it in half an hour.
So his instincts are just terrible. Yeah.
Well, you know, that's that never back down, never apologize ethos, which is really very much, again, a part of that weird online world. And yeah, you're right, Charlie.
I thought Kathy Young had a really good piece about all the nuances of this. And it is absolutely the case that a lot of folks on the left went way too far in their critique of the Florida standards.
It's also the case that that portion of the Florida standards was not good. It was bad.
And so in that super online world, you can't say that. You can't say 90% of it was solid and that small percentage was bad and should be fixed.
Instead, you have to double down and say it's 100% good. Well, no, just say, look, that part was very poorly phrased.
We're going to change it to the AP phrasing that the AP courses use nationwide. We'll change it to the AP phrasing and move on.
And especially don't spend a full day attacking Black Republicans who object to that phrasing. And they weren't adopting the whole Kamala Harris frame of it.
And now he wants to extend it into a whole different week at the point where he's cratering in the polls. Let's just move on from the DeSantis thing, because as I mentioned, when we began the podcast this morning, we're on indictment watch.
It may or may not happen today. I think that it's safe to say, I think you agree with me that it's going to happen.
There's going to be a major indictment from Jack Smith. We expect indictments from Georgia.
It probably won't move the polls. Let's put this in some context.
You wrote a remarkably important piece in the Times the other day, building a legal wall around Donald Trump. And you argued the American legal system is on the cusp of a remarkable historical achievement.
So let's talk about that. We don't know whether it's going to come today.
We don't know whether it's going to come tomorrow. But I think it's safe to say, and I think you agree, that there is something major that's about to drop.
Jack Smith will be coming out with probably the most important of all of the indictments. We expect charges out of Georgia as well.
So building the legal wall around Donald Trump, you write that at a time when so many of our institutions have failed, the success of our legal institutions should be a source of genuine hope. How hopeful are you? Well, I'm very hopeful about the legal system.
Because if you think about the challenges it's faced, let's just go back since the moments after it became clear in 2020 that Trump was going to lose, Biden was going to win. Think of the test the legal system has faced.
First was a massive legal attack on the outcome itself. And look, Charlie, for all of those people who say the federal judges are illegitimate, the Trump judges are illegitimate, they defeated Trump's claims.
You know, if you go back and you look from trial courts to appellate courts to the Supreme Court, they rejected Trump's claims. If they're just a bunch of partisan stooges, they're ruling for Trump.
In fact, one of the judges, an 11th Circuit judge, Judge Pryor, was actually on Trump's short list for Supreme Court when he rejected Trump's election steal effort in Georgia. So there you had the judiciary really came through with flying colors and the actual election steal effort, including the Supreme Court, I might add.
And then you move from there into post-January 6th. We had major problems.
We had massive amounts of defamation when defamation charges are really hard to bring. We had an actual insurrectionary storming of the Capitol, hadn't happened in any person's lifetime in this country, huge prosecutorial challenges there.
And then this labyrinthine behind the scenes effort to overturn the election that was only just kind of coming into the sunlight. And so what we've seen since are these defamation claims have had real teeth.
For example, Fox is writing a check for $787 million, and that's probably not the last check they write. There are other defamation cases.
The bar associations have risen to the occasion. Jenna Ellis has been censured.
Rudy Giuliani is facing his problems with his law license. John Eastman is facing a trial over his law license.
Then you have the prosecution of the insurrectionaries on January 6th, including successful seditious conspiracy charges, which are incredibly hard to bring. And then now you're seeing everything move up the chain.
No one talked enough about the prosecution in Michigan under state law of the fake electors. That was an important moment because that's bringing it up to Republican Party officials.
And then now this upcoming indictment, which if the reporting on the target letter is correct, includes 18 U.S.C. section 241, which is a conspiracy statute that will aim directly at the stolen election scheme itself, we believe.
If that's the case, then we are finally getting the indictment that is aimed straight at the architect of the scheme directly relating to the substance of the scheme. And I'm sorry, that's a picture of a legal system.
And also, Charlie, I'd say if you spend any time with the legal system, you know the reason there's this old lawyer's joke that the great thing about America is that everyone gets their decade in court. The legal system tends to move slowly.
Everything that I've just explained has happened in the last two and a half years which is remarkable you wrote in roughly 30 months light speed in legal time yeah the american legal system has built a case law necessary to combat and deter american insurrection bar associations are setting precedents courts are setting precedents and these precedents are holding in the face of appeals legal challenges. It was interesting because I have been impatient at times, like others.
I've looked at this. This has taken a tremendously long amount of time.
Justice delayed is justice denied. We are now coming up against an election.
And I will admit a sense of frustration about the failure of the Department of Justice to move on the leaders of this with more alacrity. But your point is that when you step back and look at this, a lot has happened in the last 30 months.
A lot. Yes, yes.
You know, and I really could have extended this to some of the legal developments sort of against the new right more broadly. You've had the Trump side of this, which is related to Trump's criminality, related to right-wing infotainment's defamation, related to the insurrection.
All of that has moved with remarkable speed. At the same time, and I didn't have space for this or time to write about this, but I should write about this, is that this whole more authoritarian view that the right has about state power is facing defeat after defeat after defeat in court.
Civil court, not criminal court, but civil court. So you've had key elements of DeSantis' Stop Woke Act blocked.
You've had a social media regulation blocked. You're seeing all across the country some of these absurd anti-drag queen laws being blocked in court.
And so time and time again, when these more authoritarian new right laws are being passed, everyone on Twitter is celebrating them going, winning, winning, winning. And I start the clock on the court injunction because so many of these laws are so poorly drafted, so poorly thought out, that they're just ripe for the legal plucking.

And you're seeing that now unfolding 12, 18, 24 months after the passage of some of these laws. And so the legal system has really responded to both the criminality and the authoritarianism of the Trump right.
But as you point out, if Trump wins next year, voters will break through the legal firewall that preserves our democracy from insurrection and rebellion. And you're right, American legal institutions have responded to an historical crisis, but all of its victories could still be temporary.
Our nation can choose the law or it can choose Trump. It cannot choose both.
Yeah. And we're having this conversation today when it's 43-43.
Exactly. Exactly.
I mean, there's so much at stake going forward. And I think that what folks have to realize, you can secure a conviction and Trump, while appeals are pending, Trump could order the DOJ to drop the case, end it.
Even if he's convicted in state court, he could make a incredibly compelling argument to a state court that you can't imprison a person who's just about to be elected president of the United States and in all likelihood wouldn't face the consequences of state convictions in time to make any sort of difference. And then if he wins, there is already a lot of talk on the right that Trump, the first time through, didn't do it right on the judges.
Like everything that I just said to you, Charlie, about how the judges he nominated rejected his election steal, in my mind, is a point for those judges. In the MAGA world, it's an indictment of those judges, and they're going to have a different kind of judge the next time around.
And I think that's important for people to know. Do you think that under the Constitution that he has the power to pardon himself? That's a really good question, Charlie.
It's a hard one. I mean, no one knows the answer, really.
Yeah, I think the short answer is probably yes, because the root of the pardon power is it's one of the last vestiges of royal authority that existed in the constitutional republic i think that it's that enormous amount of discretion granted explicitly in the constitution and then when you dive in you find that the founders said that the check on the pardon power was the impeachment power. And so it may not even come to that, Charlie, because let's imagine he's able to successfully delay the cases, or let's suppose that he loses an appeals.
I mean, he can direct the DOJ to drop the case. So unless it's completely resolved, even if he, in theory, didn't have the power to pardon himself, he would have a strong argument that as the head of the DOJ, he could direct his attorney general to tell the DOJ to end the prosecution without even getting to a pardon.
I don't think that should come as a surprise to anybody. I think he signaled that he would, in fact, do that.
But that would apply only to the federal charges. The state charges are not covered under that.
Right. But under the Constitution, he can still be elected and serve as president even as a convicted felon, couldn't he? If he was convicted of felonies, say, in Georgia or New York, that does not bar him from being able to serve as president of the United States.
It does not. It does not.
I mean, in theory, he could even be president sitting in a Georgia state prison. But the likelihood of that happening is about as low as you can get.
But in theory, in theory, he could literally be in prison and be president. More likely, he could be sworn in wearing an ankle bracelet.
Okay, so let's go back to this whole question of the importance of the legal system here and how the legal system has actually been this bulwark so far. I certainly understand why people are upset with the U.S.
Supreme Court. They have questions about some of the ethical concerns.
They object and disagree with many of the decisions. But I've argued, and I want to get your input on this as well, I think it is extremely dangerous now to be questioning the legitimacy of the court.
And I'm focusing on legitimacy because what does that mean other than maybe we could ignore the court? Maybe we don't have to respect the court. At the moment when the court may be the last line of defense against the kinds of things that we have been talking about here, I just think that this is reckless rhetoric.
And I get a lot of pushback when I say, look, you can dislike the decisions of the court, but when you question the legitimacy of the court, you are potentially giving a huge weapon to people like Donald Trump, who at some point just may say, you know, that's what the court ruled. Let them enforce it themselves.
Yeah. And in fact, you know, there have been people like a J.D.
Vance who have urged exactly that course of action if the court tries to block, say, civil service reform. This legitimacy point about the court really bothers me, Charlie.
It really bothers me. Because what we're looking at with the court is actually a very interesting – the Supreme Court is not a unified 6-3 block.
It is not. And one of the things that frustrates me is that one of the ways that the Supreme Court actually hands down decisions is it sometimes clusters some of the most divisive or contentious cases for the very, very end.
And so the sort of the last impression that you have with every term is related to the 6-3 dynamic when it is often decided. And in fact, in this term did decide a number of extremely important cases, not on that 6-3 basis, where the progressive three justices were in the majority joined by Kavanaugh or Roberts, or in a big case joined by Barrett and Gorsuch, et cetera.
And so it's actually a much more interesting Supreme Court than people give it credit for. And then all of this stuff is compounded, Charlie, and I know you feel you're frustrated as I am by this, by sometimes quite frankly, terrible coverage of court decisions.
And rarely have I seen worse coverage of a court decision than I saw of the 303 creative decision. Let's just remind people what the 303 creative decision was.
Yeah, this was the case involving the website designer who did not want to design websites for, really for any cause that she disagreed with. But the main cause here at issue was a website for a same-sex wedding.
And the coverage of that was abysmal, abysmal. And so what ended up happening is millions of Americans thought that 303 Creative was essentially completely undermining non-discrimination laws, was sanctioning discrimination against LGBT Americans, did not learn anything about the free speech aspects of the case, which is what it was decided on and why it was decided on free speech grounds.
And instead, they were fed a steady diet of incredibly inflammatory rhetoric that was just did not match the facts of the case. And it was very frustrating to watch because here we are at this key point in time, Charlie, where, as you said, people are questioning the legitimacy.
And then in one of the most controversial cases of the term, they just mischaracterized the case. And some of them knew better and they did it anyway.
And it was one of the most important free speech cases. And I understand that some people are going to push back against this, but I agreed with you on all of this, that when the court says that compelled speech is unconstitutional, that was an important precedent.
And that can become very, very valuable in an era in which people like Ron DeSantis and others on the NatCon right are saying, we ought to use government power to mandate certain things. So in fact, it was a remarkably small illiberal decision saying that, look, all discrimination laws remain intact.
No, you cannot refuse to serve someone because they are gay. But the government cannot compel any artist, any person to engage in speech or creative endeavors that they object to.
This is not a radical position. This is a deeply classically liberal position.
What I found interesting about the coverage of this was how much of it seemed designed to avoid dealing with the heart of the case, the free speech aspect, and going off into questions of standing, whether or not there was a bogus scandal because, you know,

the person that they had cited who wanted to do something, you know, doing this all from memory now. But, I mean, so much of it was I think the New Republic said, you know, that one of the people cited who had asked for the website turned out not to really be a gay couple.
And so, therefore, there was no case. It was made up.
but you know you go back and you read the bizarre 10th circuit opinion and they made it clear it

was a pre-enforcement case. And these issues of standing never were addressed by the dissenters as well.
So all of this seemed to me to be a distraction from dealing with the substance, which was a very, very strong case about free speech without undermining discrimination laws.

But certainly it's forgivable to people that didn't focus on that part of it. Yeah, it was hard to focus on it because there was so much extraneous noise surrounding the case.
So you're right. Number one, let's deal with that plaintiff issue or the standing issue.
This was a pre-enforcement challenge. This is a very, very, very normal part of First Amendment law.
So for example, you heard me say something about some of these drag queen cases. Yes.
And there was one just, I believe out of Arkansas recently, just struck down another anti-drag queen law. Those are pre-enforcement challenges as well.
The way it works is when there is a law in the books and the law on its face covers your expression, you're entitled to challenge that law before the government wields the hammer against you. And the reason for that is pretty darn clear is you don't want the government to have sort of the sword of Damocles hovering over your head, deterring and chilling your speech.
A pre-enforcement challenge is a challenge that flips around the dynamic and it kind of hovers the sword of Damocles over the head of the government if it's considering passing laws that violate the First Amendment. So this whole standing issue was a red herring.
You can challenge a law pre-enforcement on First Amendment grounds. You don't have to wait for a customer to come.
You don't have to wait for the police to shut down the drag queen show, whatever. You can mount a pre-enforcement challenge.
Then the second thing is, and this is something, Charlie, that people really should have focused on. They didn't.
Colorado basically gave this case away because they stipulated. Now, stipulations are a legal term for basically agreements.
They agreed on a certain sort of statement of the case, on a certain statement of facts, and they agreed to two things right from the get-go in the litigation. They agreed that 303 Creative would serve customers regardless of sexual orientation.
In other words, they made an agreement that this case was not about simply this business refusing gay customers. They stipulated that she would serve gay customers.
And then the other thing that they stipulated was that the building of these websites was expressive okay and so if you're making a non-discrimination claim that this is just a challenge on the non-discrimination laws writ large you don't make either stipulation you say no i don't agree that she'd be willing to serve gay customers and i don't agree that these websites expressive. I would argue instead that they're just cookie cutter websites.
And so by making the agreement that she was not discriminating on the basis of sexual orientation and the way that she served her customers and agreeing that these were acts of expression, these websites were expressive, they put this case squarely within 80 years of legal precedent going back to 1943 in the height of World War II, saying that the government cannot compel your speech. And I wish it had been covered more accurately.
And this is an important point because this was about religious liberty, but not just about religious liberty. It obviously did deal with gay marriage, but it is not really fundamentally about gay marriage, is it?

I mean, it does go back and establishes the principle that when someone gets into power, they cannot force you to say something. And I thought that Neil Gorsuch did a good job of coming up with some examples of how this might be applied.
But I do think there's a lack of imagination for people, you know,

not fully thinking about, okay, so you may not like this particular fact set, but this will also protect you if there's a president, J.D. Vance, who wants to impose, you know, these kinds of requirements on corporations or on other individuals or on universities.
it's a real sort of a wall against government telling you what to say or what you should create. And that's a good thing.
Yes. I mean, a really good thing.
Yes. I can't say it better myself, Charlie.
And I think that it hasn't fully absorbed, I think, believe it or not, into the larger public, the extent to which this

new right is extremely hostile to free speech, extremely hostile. If you look at, again, let's come back full circle to Ron DeSantis in Florida.
Think about all of the actions he has taken to directly regulate speech, whether it's the university professors in StopWoke Act, where it's the corporations in the StopWoke Act, whether it is the university professors and stop woke act, where it's the corporations

in the stop woke act, whether it is the social media moderation regulations that have been enjoined by the court, whether it's the direct attack on Walt Disney that is now subject to a lawsuit. He even floated the unbelievably absurd idea of filing a shareholder derivative lawsuit against Bud Light because of the trans influencer issue.

This is one state.

And then you can go, I would urge folks to look up the PIN America database on education gag orders and look at the sheer number of laws that have been passed in red states that dramatically regulate speech. Now, some of them are constitutional under current precedent or likely constitutional under current precedent because they're regulating K-12 education where the state has arguably some of its most authority.
But the instant it sets foot off K-12, they're defying First Amendment authority. And even within the K-12 context, where they have a lot of authority, even there, they have overreached many, many times.
And so if you think that you don't need free speech precedents and you're somebody who's a left-wing critic of the Supreme Court, you might want to think about that again. I'm so glad we had a chance to talk about this.
David French is an opinion columnist for the New

York Times. His most recent book is Divided, We Fall, America's Secession, Threat, and How to

Restore Our Nation. And he is the co-host of the podcast, Advisory Opinions.
Great talking with you

again, David. Thanks so much for having me, Charlie.
Really appreciate it. And thank you all for

listening to today's Bulwark podcast. I'm Charlie Sykes.

We will be back tomorrow and we'll do this all over again.

The Bulwark podcast is produced by Katie Cooper and engineered and edited by Jason Brown.