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and Dylan Rights. This may be my favorite quote: Pre is a very stable genius, close quote so Dylan Richmond Zanna. Thank you. We want to send you a t shirt, but we need to know where to send them. So if you would send us a note with your address to stay too at cafe dot com for everybody else. Let us nowhere! You listen to the show and an apple pie cast review. Every five star review helps more people discover the programme all right now time for the show. From CAFE, and W and Y see studios welcome to stay tuned. I'm prepared Before I start working the issue you we had four hundred thousand members today. We have one point: seven, five million members, that's a tremendous source of power and I think a tremendous source of hope that David call

he's the legal director of the American Civil Liberties Union when Donald Trump was elected president, the ACL youth, famously tweeted, we'll see you in court and they have since election day, David CALL has been pretty busy. We're gonna talk about some of the cases his organizations taking on. out which include the travel ban and lots of issues related to privacy. But first, let's get to your questions. A previous is Valerie roads and growing from looking in ago telephone yeah and my question is about all the discretion. Allow proper security clearance is in the White House, and my question is as follows: folk, who don't have the proper clearances? Are they still being allowed to access and handle. classified information, and if they are improperly handling classified information without appropriate clearances, are there some consequences either?

them or folks around them that are allowing them to handle this classified information pertaining to shed some light on that think some of your podcast listen to each and every one of them. The court hearing them thanks to care for expel, that's a great set of questions and, in fact, my answer is that some things were hearing about with respect to security. Clearances in the White House raise a lot more questions that are being answered at the moment. As a national matter, security clearance is no joke. It's a big deal. It takes a long time at various points. In my We are both when I was an assistant use attorney, then I work in the Senate and an army he has united Attorney, I had to go through the security clearance. Process. Everyone in my office had to go through some process their higher and higher levels of of clearance. You need, depending on this, tivity of the information, but obviously given the kinds of materials that the leader of the freeway old and commander in chief needs to have access to

and then we hand, but also a principle advisers to him have to be able to have access to return with a high level of security clearance. So the first thing I'll say it is very disturbing that after this length of time in a well over a year and office, there very significant people in the White House. You don't have to It's one of those people has been the news. A lot is Rob Porter. I don't know how much people appreciate about the significance of the job Rob Porter had staff secretary. It sounds like a low level position, but it is actually the point person in the White House who was supposed to be responsible for all of the paperflow that reaches the desk of the President. That's an incredibly important, sensitive position, especially when you're talking about classify

mission to the fact that not only did he not have full clearance, but it appears from the testimony of the FBI directorate in the past week that he was never going to get full clearance, one consequence of not being in a position to obtain your final security clearance. Even after the you know, the background investigation has been completed. Is you should lose your job, and that happened for different reasons with respect rapporteur, but maybe it should happen. Respect other people as well getting the other part of your question about whether or not there should be a consequence for people who are looking at material this beyond their security clearance. I think perhaps we should be the point of security clearance, and the point of having varying levels of security clearance are very clear. The point is that you're not supposed to be able to access things that are beyond what in a professional people have decided, is safe to entrust you with, and so, if it is the case that rapporteur or others

not having a high level of security clearance are looking at things they shouldn't be, there should be fired and there should be an investigation to good news is that there seems to be some effort to get to the bottom of this, trade Gouty who's on the House Oversight Committee, who has decided to run for reelection, and maybe that explain some of this has just today sent a letter to the White House Chief of staff, asking a series of questions about security clearances. What people were aware of with respect to Rob, porter and, I think, a whole host of other things. The letter. I have had more questions more specific questions, more supports, but that's just me being a stickler, but how that will shed some light on on these matters to beyond what I can

We had a lot of questions this week about security. Clearances, can imagine why here's another one from twitter, user, Smarty pants spelled with two Z's. I, like that question for your podcast, do president's themselves undergoes security clearance and, if not, you think the Donald Trump would himself pass a security clearance. Well, the answer that question is no. The president is the person elected by the citizens of the country Then he walks into the oval office having clearance and meeting that clear, and so he can actually be commander in chief and Take the homeland, and some people may not like that in this talk of having some hurdle, that people have to jump over in order to get a security clearance, but. Is there a lot of good policy reasons why you don't wanna preclude the person has been elected? the United States from having access

to every bit of information that he needs in order to run the country and command our military forces. On the second part of the question of whether I think that Donald Trump, it we had to jump through the same hoops, would himself pass the test for security clearance. Not knowing all the details, I highly doubt it among the things that people consider in granting or denying a security clearance would include how you ve handled your finances, whether you ever declared bankruptcy. How you try your business partners. What you're propensity and reputation for truthfulness is- and we know the down from- does not have a great reputation in that regard, going back a long time, also whether their credible claims against you ve, not proven in court, not beyond reasonable doubt at trial, because that's not the standard here for a security clearance, that's a privilege, but whether or not there are credible claims that you have engaged in acts. It might be criminal.

or misconduct, and here we have a number of credible claims, I think, on the part of at least eight. You know, nineteen women, the doll trump engaged in some form of sexual misconduct, and there may be others we don't know about using about a very the people need to know is investigators go way back to the beginning of time and when you fill out a security clearance the US, if eighty six form that jar cushion had to resubmit time and time again, you basically the list everywhere. You ve ever been every country visited the reasons why you did that every job you ve ever had and any kind of fees and you engaged in even decades earlier can be a potential reason.

Are you a security clearance? Again? I don't know all the details relating to down trumps life business dealings, but there's a lot out there that I think, would cause the average professional career security clearance investigator to have concern. So a feature of the trumpet ministration has been that people keep leaving they get fired or they leave of their own accord and in one such and whose very significant in the administration, though not so well known, is a woman by the name of Rachel Brand Rachel Brand has been the number three person at the Justice Department and there is not significant and people of a sort of paying attention to her comings and goings. Is that because just sessions, you turn general, is refused from the russian restoration the person who's in charge of it is the deputy attorney general, the number two person, the Justice Portman ROD Rosans time and because there is a concern and the present might fire rod, Rosen Stein, who so far has been very

good about making sure that our mother can do his job without impediments if he gets fired. The next person in line who will be responsible for overseeing special council Mahler and the rush investigation is Rachel Brand she's, leaving for a big deal opportunity in private practice in the private sector, specifically for Walmart. So Rachel ran his leaving and all we people kept tweeting. It may things like this from Rebecca S, W H, who tweeted, but why is she leaving? While the answer that is I dont know, no one can really know, but there is a lot of credible speculation. Some reporting that she had told friends, two things: one she's upset frustrated in her job at the Justice Department that she wasn't getting lot support port the underlying subordinate. She had not been filled it's hard to do her job when their lot of vacancies and second- and I don't want this- is true, but it seems credible, given the environment,

but she was concerned, there were hundreds of might actually be fired and she would be in the hot seat having to oversee the rush investigation, and that put you in a difficult position. You don't have particular job security. You dont know The present is gonna, be saying terrible things about you and it's not a great way to go about doing your professional job. From everything that I know about rich brand, she's, a true professional? So we'll never know, maybe we'll talk about it further, maybe some of the past at some point, but we should wish her well. I guess this week is data, whole Georgetown, La Professor and now legal director of the Asia. You I think it's important that were speaking with him this week. Because a lot of what's going on in the country and a lot of what people are fighting against with respect to the proper administration is happening in court. it's complicated stuff on illegal mumbo. Jumbo David is a great pity. The breakdown exact, What he arguments why he cares about them why the you? You cares about them and why you

care! That's coming up, stay tuned, headers I'm one of the producers on stay tuned and I'd, take quickly about a pod cast that we really been enjoying around here. It's called pod save the people with derail it hosted by direct Cason. He's an educator and activist most people know derived from criminal justice protest, but the show is much more. Each week he and three other black activist, Clint, Psmith Samson young way in Brittany Packet talk about the week's news through their lens. We have all learned a lot by listening to their analysis on everything from,

funding to criminal justice, to lead poisoning then to re interviews, one or two people. Next, on the show I've had. We need a group on whose also and stay tuned he's talk to everyone from John Legit to Katy Perry, Tracy Ellis ROS Chelsea. And Senators Gillette Brand and Booker also Reza as lawn. It's a rich discussion about hope, activism and personal stories and a really gives you, a whole new lines on the world to check it out. Let us know to think Sir David call, thank you for being on the shelf. Thanks for having me are used to the professor, well, sort of I am on leave from Georgia reconcile call you, professor call me: why should I call you executive director, I'm legal director illegals, Roger for Asia. We are going to talk about the issue you a bit why'd you make the switch from comfortable tenured spot at the great law school endorse down. To go to work for this organisation, we have to do

we were well. I've always been up, professor who practices of I started out as a public interest lawyer working at the center for constitutional rights here in New York City and continued to do constitutional litigation. While I taught in the summer of twenty. Sixteen, the Van legal director of the S Yoyo Ganem, Steve Shapiro, step down and Anthony Romero. The executive director recruited me to the job and he said what David you been practicing: constitutional law teaching constitutional law for thirty some years under a concern, of majority Supreme Court. Just think what would be like to run the ACL Use legal programme under a liberal Supreme court and of course that was this, more of twenty. Sixteen everybody knew Hillary Clinton would win the election. I she would get to replace athletes, Scully S seat and for the first time and about

forty years, we'd have a liberal majority Supreme Court, and so I thought fantastic signed on the bottom line, didn't put in a little condition clause saying what, if because of course at that time, they thought there was any other possible result. The job changed in November, I'm a little confused, though but what it means to be liberal versus conservative and what that means with respect to what you want the mission of the ACL you'd media, because, issues. I think what people think of as the divide between liberals and conservatives, I'm something's having to do with liberty, particularly the first amendment, if not so easy to predict whether an wise, conservative or otherwise liberal person will be in favour the actual use position or not. Right. Now, that's out true and- and you pick the right around- which there is the most sort of mixing and matching of conservatives and liberals. That is the first amendment, many conservative justice,

Justice Scalia, was very strong. First amendment justice, justice, Kennedys strong on the first amendment Chief Justice Robertson. majority in a lot of first amendment, opinions, many brawls there. If you ask him, what's that, what's the worst decision, the Supreme Court has handed down last twenty years, its citizens, United, a first amendment to say right, I'm going to talk about two. So so it's not that we are always on the liberal side by any means We are on the side of protecting rights and liberties, but we have a robust programme to advance racial justice to advance I'll, be algae, Bt Rights events, women's rights, when, on those issues, the conservative justices tend to be not so likely to be on our side voting rights as well. So what happens when things come into conflict Unreason ask is There have been over time occasions where people who proud members of the issue of EU funding it or being on the board, have gotten upset about it:

the issue was taken. I think, most famously many years ago the so you took a position on whether or not the Nazis could margin Skokie Illinois and, I believe the case. Some people turn their backs on the actual. You had been supporters before that we lost five hundred several hundred thousand supporters and members may an area that was long before your time. How does have the decision made about what the ESA use position should be when you have a desperate membership? you have these tensions among people who were members while we have a aboard were I were actually had the democratic organisation we have a new. Are we have fifty three affiliates where a Federalist democratic organisation we have three affiliates one national office there's a boredom of seventy five people. One represented from each of the affiliates there in all the states, California happens to have three and they set our policy broadly speaking, and so for

the ACLU was founded in nineteen twenty, and this has been the way it's been since one thousand nine hundred and twenty, the board has set our policies at the broadest level, but that doesn't necessarily resolve disputes. So, for example, one of the major disputes scythia. So you has dealt with Were the years. Is the role of money and campaigns and and the ACL Use Board has taken the position that, when the guy regulates how much money people can spend on elections? That's a first amendment issue It should only be upheld where its serves a com. growing interest of fighting corruption and the like it's, essentially where the Supreme Court is is where the ACL you board has been. I had flight Abrams noted first amendment scholar advocate on the show recently and we talked about you know some of the cases he worked on, which will be familiar to you

and yes, you his. You know how to stake in some of those, and we talked about citizens United, for he was one of lawyers. Actually, the Supreme Court his head. He got more grief and attack from his cortical liberal free. Based on that representation, did when he represented people who he thought the right to engage in hate speech. and citizens are unwilling to take a second describe in thirty seconds with that case means so. Citizens I did- was essentially a challenge by a nonprofit corporation to a law that restricted its ability to spend money to engage in how electioneering to basically advocate against him Clinton by issuing a documentary, the very long add attacking Hillary Clinton, and the contention was that the first amendment protects their right to publish and distribute this dock him

they won't contributing money to come to a candidate. They were engaging in expenditure were spending their own money to express their own view and the fact they were a corporation, they argued should not preclude there being protected by the first a mammoth first moment. They are good dozen protect just people, it also protects businesses, and most of you were upset about this. I am sure that there are at what they perceive to be an incorrect analysis of what speeches there upset about a perceived harm from allowing unregulated amounts of money to be spent on this kind of speech, because I suspect right that they think guest sure what you said is true. The times of the corporation. The coat brothers have corporations, but they worry that some kind of aberrations where there's a lot of money are run by wealthy people in that perspective, will have more leverage and more power

in an already in balanced democracy, so you're getting too. I think what the key question really is is: when is it legitimate for the government to regulate how much people can spend? campaigns notwithstanding, that is protected by the first amendment and what the Supreme Court has said is that there is one and only one legitimate reason for doing that, and that is to avoid com. Option, bribery as that which they define as bribery or the appearance of bribery. I think that's personally, I think that's too narrow of construction. I think that the system is corrupt. When politicians have incentives to pay much greater attention to some of them. situations than others, because some of their constituents can raise millions of dollars for them and others of their constituents can only give them one vote that that's a corrupt system. In my view, and so I think that equalising interest should be understood to be a legitimate interests that justify

The regulation of campaign finance the acl you'd, isn't there, the Asia is official policy and on this I disagree with them, but but they so use official policy is you have to have very tightly defined, compelling interests to justify, The regulation of speech equalization is much harder to define and much mark here, and so at this point the board is not comparable with that kind of abroad. Justification just as new courses on the issues that in you and me. I feel you care about I think that remains to be seen, and I was only issued by thirteen decisions which are sense of well. I mean his first term on the court where he showed a political stripe. It was not. One was very favourable to civil liberties or civil rights by

hasn't. You didn't really have a tremendous opportunity to way in this term, because the court didn't have that many cases last term that were particularly blockbuster cases. This term, by contrast, there's Vista most of blockbuster cases, many of which were re. Also in Ireland I am, and we will say so. I think this will be the first sign of of where he really, which blockbuster case that you are involved with you and I First, where we can talk about carpenter, okay, so carpet, is our case in which we are challenging. We're essentially arguing the fourth amendment needs to be brought into the twenty first century. It as well as the government can get access to citizens. Cell phone location data without a warrant

thou probable cause and the argument that the government makes is well when you walk around with your cell phone, it's connecting up to sell towers all the time in order to work and the cell phone companies keep records of those connections, and so they know where you are twenty four seven and they have a record of where you ve walked. Twenty seven for the last year or what have you, and so the government should be able to get that information from the cell phone company. Without probably cause without one could not search there just serving a subpoena on a third party, on the phone company and you ve already given up your privacy. That information by sharing that information with the phone company? That doctrine is based on analogue era precedents? Yes, I was gonna say

You know that an issue that I'm sure you that I will have the daily it's like. I was a prosecutor for a long time. The animating principle for a lot of prosecutors was under the fourth amendment given exceptions are given what you had to show in light of of technology the necessity to find out bad things were happening, often in real time. No less of an issue in and historical as and where the law was not clear. I think you know Peters, would reasonably make the argument. We don't have to wait. national time and make additional shellings, which we might not be able to make in order to find out who kidnapped the child or some other your prosperous always would talk about the worst case scenario Rikers now we're not stupid, but I have often thought that this case this kind of case and tell me if you agree with us

Congress has very very lazy, and not particularly savvy about technology and doesn't keep up with technology, or is that not the problem at all? Well, Congress could do could certainly do a better job right. The electronic communications Privacy ACT, which is the law that governs this past and nineteen, eighty seven or ninety. Ninety seven, it was passed before the I found existed and prosecutors relying on that statute, which was passed when no. When in Congress imagine that every human being on the planet and every American will be walking around with a GEO locator in their pocket and sending out signals at every. You know few men at intervals as to where they are Congress has actually tried to update the very heart of the guys are working to set a pariah me, but in the house there's something like two hundred and fifty four co seiners. They had supported the Senate, but one

leader of one House Committee will refuse to let it go forward, and so you just couldn't get it put forward. So This could address it, but look at the end of the day if Congress doesn't act and there's a constitutional right, it's the court's obligation, fact that constitution and the government came in this case in the carpenter case, and it won this argument in the lower accords pretty consistently. It said In the old days, the court ruled that, if you share information with a third party, if I tell you great, I assume the risk that you might turn around and tell the government. I can assert, fourth amendment privacy interest, as between you and the government, with respect to that information in the court applied that to bank records and applied that to phone that now, as you dial on your phone and the governments have loved. This is the same thing. It's not the same thing right in our case, it showed the whereabouts of Mr Carpenter for four

once twenty four seven wherever he had his phone, there was a record showing where he was that's incredibly intimate data. That's data that, before the admin the cell phone. The government couldn't have gotten without putting twenty four seven live tail on this guy for food once they never would have done it, they probably couldn't have done it, and so there technology, so the advancement of technology. That's, I still think. That's that's thinking along the conundrum is the event the technology allows now government to do things more easily and quickly them but could before and some things that they could never do before? I can this case carpenter was suspected. This is historic data rights. Are they suspected him of engaging in bank robber or actually robbing cellphone stores? Ironically,

They went to the phone company and got where he had been for the last four months from the phone coming out. If you know it before the cell phone, if they want to know where Mr Carpenter had been for the last four months, will they could have asked him if he could have pleaded the fifth? they could have tried to go in a wildly go around an interview, people who might have seen him who might possibly remember but I would have non stop now, but they couldn't fallen because they're trying to get back information, historical information right. So so the question is: do you just allow the fourth amendment to shrink and shrivel as technology advances order? You update the fourth amendment to reflect that and I think historically, the court has updated wiretapping came in the government said: well we're not invading anybody's property. So it's not a searched. Court said. Yes, it is a search because people have a right to privacy in their phone communications when the We use the thermal imaging device to try to determine whether someone was growing marijuana in their house. The courts in Europe

using that device to find out. What's going on inside the house, we're going to protect that are putting a gps, entrepreneurs underneath someone's car exact, which the courts are working to protect that so I couldn't do that before and I think there are reasonable basis to take either you and I think they're both taken in good faith, be alone for very excited when they can. To a certain kind of surveillance- and I mean Donna Means- are trying surveillance but surveillance of the whereabouts of a person that doesn't require paying for detectives overtime before I was a dating to stick a gadget exec underneath someone's car. It's not crazy that they make the arguments that they make an end of people work out what privacy means. In that context, you think maybe this is unfair question about people. Do you think

members of Congress who were of an older generation are up to the task of figuring out what the proper balances, if they haven't, had particularly good experience for extensive experience with the technology, for example, Lindsey Graham likes to brag that he's never sent an email and he's supposed legislating on an update of the fourth, a member and with respect to electronic communications, what he well. You hope that they rely on their staff and that their staff her good job. You hope that their rely on the people. Brief thumb on these issues. Take that gps case. Another case you referred earlier Jones now Case that, like the issue, was it a search on the government's Dixon GPS on the bottom of someone's car and then uses it to monitor that car for twenty four seven for a month, and

the government won that case in the lower courts to based on analog your presents when it got to the Supreme Court. The lawyer for the United States was up there arguing the case and chief Justice Roberts at doing well here right that sticking this gps on the car does not constitute a search. Then that means you could search anybody right and the lawyer for the United States a- and I had to say yes and then she just Robert since it. So that means you Put a gps, I'm on the under side of the car of each of the justices. Man has the robbers and- and he had to say yes- and at that moment you knew the case was lost and they'll. Indeed, they lost at nine, I think the same thing happened in the Riley case, which was the case when a couple years ago, involving weather when you arrest somebody, can you search the contents of their cell phone on them? You generally concern the contents of any of their backpack. For their purse or their wallet and the gun

said? Well, you have the same thing is just another container and again they lost nine to nothing. So I think this court recognises that the digital era requires us to think differently about privacy, that we know we can't just give up privacy. Have to adjust the rules so that people are able to have certain modicum of privacy in their daily lives. If all of us have to go around, assuming that the government knows and get at without even a worn, detailed information about everywhere. We have gone for the past year, then our freedom is severely undermined and enough trust the government than you think. Well there only you do that going after the bad guys, but think how would you feel about that government that power? country like Russia, if you live in Euro City Street or in London, the South America, I think you can expect

all of your comings and goings on that things is under my jargon necessarily, but I'm just talking about what it means. What privacy? in the modern era, not just in the air you're talking about which is in private communications and travel The fact that the government has his new modern ways of doing things means we should think about it differently, but We live in a then environment where, your cameras everywhere. And some of them have audio most of them? Don't that's how we sought that tell pity solve lots and lots of credit first thing we do when there's a murder or shooting warrant a drug dealer. Get to the bottom of we pull. The video in must always video of everything that's going on. That's lawful is an unfortunate it's not as revealing of an individual's personal life as twenty four seven information right. The fact that I walked past the camera-

on the bank outside the corner of my office. I walk past that every day and so that there is a record there. You know the government can get that walking in public, any human being. Who standing there can also see me walk, but to get Not only would that I walk past that the mornings go to work, but where I go when I leave work, who is going with me to wherever I go hoo I have dinner with you know whose house I see bat which offices I visit during the day, whether they be a psychiatrist or a doctor. What have you that's? The kind of info as you can get what this location, data information and that's much more difficult to get with the camera. Hammer gives you a one shot image of everybody who has been in a particular place. We have an account yeah. If you had a very good and there are all linked, but that's the soothing they're, not generally all linked so yeah yeah, you could link them, then you could create a similar kind of

Steven Spielberg gods, ivy situation right. Let's move past the fourth amendment and talk about cake. You are personally involved in one of the cases that a lot of people August on fascinating issue. Does what the cake is right. This is masterpiece cake shop, versus car out of civil rights. Commission involves a bakery in Denver radio that refuse to sell a wedding cake to a gay couple, because we're gay and were seeking to use it for their very gay wedding and under Colorado. Public accommodations law just as under public accommodations law of virtual every state in the in the union when a business opens itself to the public, it is barred from discriminating among its customers, based on certain protected characteristics in Ankara that include sexual orientation. So

brought their complaint to the Corrosive Rights commission? It found that there was indeed a violation of the statute, seems like an open and shut case seems like an answer. What went wrong answers? What what the Baker says is well wait a minute, I'm not just any business. I am a creative artistic expressive business and therefore I have a first amendment right not to be compelled to bake and sell Take to a couple for an event that I find offensive number one and number two. I have a religious freedom right because I'm christian and my religion tells me that you can't have a same sex marriage, it's against gods, teachings and- and I can't be

compelled to do something. That is contrary to my religion, so it set out a real conflict between, on the one hand, equality, norms and the notion that businesses, once they choose to be opened, the public have to operate and not discriminate and speech and religion claims on on the other side to the actual. You came down on the side speech right right, no raw, I'm so confused, professor Well, they were a multiracial. Could you explain that to make we explain it to the list? We came down the side of equality. We came down the side of equality because we think when the government targets speech or targets religion,

Court has to intervene and the government can only do what it's doing if it has a compelling interest in a desert and narrowly tailored way when the government regulates generally without regard to her speech without regard to religion. The fact that a particular individual happens to be covered by the law can characterize his business as speech shouldn't give em out from civil rights laws and that's actually been established for a very long time. In the early in the early days of these laws in the nineteen sixty nineteen seventies, many businesses claimed that they, add a religious based objection to integration or that they had a first amendment opposition to integration and therefore they could not be required to serve black people in restaurants. Bob Jones University said we can't be required to admit students who have interracial marriage is because it's up it's a opposed to our religion and in those

this is what the court said was. No the law here doesn't single you out because of your religion. It doesn't singly you out because of your speech. It treats you like it treats every other restaurant like a treats every other university like a treats every other business to the public and when the law does that you don't have to satisfy the kind of stringent scrutiny that required where the government singles out speech, and I think that either That's the right analysis. I mean otherwise, any time a business can be characterizes expressive could have a sign up in their window. Saying wedding, cakes, fur straight people only or a photography studio could say we take photographs of of men only or Muslims need not come to this barbershop for a haircut, because her cutting is expressive. I use

mystic and expressive skills in fashioning every hair cut, and I am opposed to Muslims, and so I shouldn't have to try to support them through my heart. So I think I don't think the Can we accept that kind of broad exemption, because what it requires is the is a cake, is edible, Well, no, not because an example, because it requires the government and the cord ultimately to draw a line between which businesses are sufficiently expressive. Tat, an exemption from equal protection law. So in the argument that you know she was saying that the lawyer for the Baker was saying well, this cake is very expressive, and so just Kagan civil. What about a a up? Artist? Artist? Oh no not make up artist that wouldn't be protected and just case only me they're called artists and justice leaders would about an architect, and she said: oh, no, no, no, an architect wouldn't be protected and justice

did. You say you mean means then arose not expressive, but your client is, I mean, there's just no principled way, rather distinction when the lawyer for the United States, which supported the exemption in this case the first time in history. the United States government has supporting exemption from a civil rights law on on First amendment grounds, and that was a trump decision. Trump administration decision He argued the reason you knew the cake was protected by the first man who's. That was a highly sculpted cake, and a lot of money. How much political a lot of money wasn't a cake that you bought. You know behind the counter it safe the whale, the Carvel libraries, crazy, crazy. So that's just there's no principled way to draw that line, whereas the position we were taking things very principle, the says: when the government is singling out speech or singling out religion, then you gotta be v,

very sceptical and court should step in, but when the government is regulating across the board, it says you can't discriminate in your business. If you choose to open your business, while you can't discriminate whether you are selling hammers or books. It doesn't matter whether its expressive or not. We don't want business, is open to the public, refusing to treat people as if they're, not members, But on this issue, was there any debate within the actual yo position you take? There was debate on this issue in this room, sense when these cases first arose these sometimes we call them religious refusals when concern it started to lose the battle over marriage equality. They shifted their tactics and they started asserting these kind of. First amendment and religious freedom based arguments to not have to support same sex marriage by providing services to them and in the course of business, and at that point we see

sat down. We put together a committee which we talked to through we looked at. What thought the right answer to this was as a principal matter, and we concluded that, where the gun, when is regulating generically, not targeting speech or religion. Sata. First amendment problem task a personal question, but persecutions of practice question at another people appreciate what it means to argue and the Supreme Court have attempted you are you're there. This is my fifth FIFA and how long will you given by the speak well. Original has given fifteen minutes of it. Your end up getting about two thousand and twenty two thousand and twenty two clear expectations. Fifteen minutes tell the folks were listening. How many hours pair alone and with your colleagues for a fifteen minute session in front of nine justice. Probably two weeks of non stop preparation, some preparation, you first, while you write the brief, so you ve thought through the issue you rohingya people for now I will

this word very. I worked very closely heavy penalties, brace with a tea with a team of to be sure, and I had a fantastic team in this case, but then I did five practice. Arguments is a most. We call mood courts of most maquas. I've ever done for a case added five and each one was incredibly helpful in sharpening these kinds of answers. I in a raising up questions that maybe I hadn't thought, but in fact, in the very last moved that I did the fifth mood. I got a question the very end of the very last minute that I hadn't thought about. I'd really didn't know how to answer it and I tried to bluff my way through, but couldn't and afterwards I talked with my team and want one member. My team said: oh yeah, that's that's a question. Justice Lido asked TAT question this other Kay. three years ago and an end

is how I would answer and sure enough that question came up in the argument from those from justice: not lead us to sleep so because our team, absolutely you practice, because you have such such a short amount of time and you want to get across your points. You and you don't get to make a speech. You know you are answering questions For the entire time Europe there in my twenty minutes, I probably got no forty questions or something that so you so you how many from having from Clarence Thomas. You know the answer that not not but pretty much everybody else very, very actively engaged on this panel. You need to both have thought about every question you might get and bees are of cognizant of how you make an affirmative argument in a defensive posture by answering questions, because you know you're making a speech, you can say what is my first point Here's my second point and my third you going to do the what's gonna happen to the travel ban.

The travel man. You know what should happen to the travel ban as it gets struck down arena proud. It is three generations of the travel ban has been struck down. We, the ACL, you filed the very first case. It was. We feel that the night that the travel ban was put to place with Father here in Brooklyn, and we got an order, the very next day and ever since every court that has looked at this has found that the ban, number one designed to do at present Trump promised, which is to ban Muslims entering the country by using countries that are majority muslim and number two violence, the immigration stature, because immigration statute, as of the nineteen sixty is, was amended to Prohibit nationality based discrimination in immigration,

Present tromp has just run roughshod over both the constitution and the statute, so it should get struck down. That's at any time. A case goes to the Supreme Court involving immigrants and national security. It's a tough case for those who are challenging the president's action, so I think it's a bogus national security claim. I think it's a bogus immigration claim and I think it's a really offensive under the establishment clause, so I hope the court will agree, but its it'll be a test case Have you enjoyed your time with the issue? You, I've loved you're having a moment the actual use, having something good eyes. I say to people you know before I started working at the I started in January of last year before I start working dsl you. We had four hundred thousand members today. We have one point: seven, five million members: now that's a difference between causation

Wireless rattled think I don't use that argument. I don't think I can take credit for many of those new members. My dad join, so that's one. Black Donald Trump can take credit for, but that's a tremendous source of power, and I think a tremendous source of hope that so many people have stood up and not just by joining the issue. You it's by coming out and marching in the women's markets by going out to the airports to oppose the muslim bandits by going to town halls to oppose the report. of the affordable, correct its by going to the polls in Virginia and an Alabama to vote out republican candidates and and rebuke President Trump I find present trump to be one of the most terrifying figures in american history, Sorry, but I find tremendous hope in the extent to which I've seen the american public stand up, get involved, get engaged and fight back for what this country stands for,

best and for better or for worse we're in the middle of that, because we ve been for a hundred years, fighting this fight. It's just that now we have one point: seventy five million people helping us. Do you consider yourself to be part of the resistance, as they say so in oh, yes- and no- I think you know we're non partisan were not part of a resistance because, where Anti Republican, but we re rent from where we are anti trump because of the particular threats that he has posed to civil liberties and equality across the board. It's it's not because the Republicans cause of what he has done, what he has promised to do. He has gone after all things that we have been fighting for for so long in this country, and so we are resisting him. But ultimately, what we're doing is defending liberty say something nice about prosecutors.

So prosecutors. You know, I think of number was a couple things about prosecutors. One prosecutors are tremendously powerful actors in this country, more powerful actors, I think than many people have previous understood and, and so when a prosecutor exercises his or her discretion in a fairway. I think they can do tremendous amount of good, sometimes prosecutors, of the problem, but I also think prosecutors are the solution I'll take that David call. Thank you again for being thanks. This is a appoint a show rights talk about something that happened. The news that struck me and at the risk of this, turning into a sort of what pre did the prior weekend. Let me tell you what I did last weekend in commemoration of the birthday of one of our greatest president, somewhat

the greatest president, Abraham Lincoln. Last Saturday, I got an invitation to appear on stage with the Knickerbocker Chamber Orchestra conducted very ably Bulgaria for their performance of a number of pieces, but in particular a piece by the noted, composer, Aaron Copeland called Lincoln Portrait as We concert for anybody who want to come in a lot of people showed up at a beautiful, new, the winter garden in lower Manhattan and internationally with it Aaron Copeland, Lincoln Portrait was composed, I think, a nineteen forty two At a time when people really concerned about what was going on in the world and whether the forces of darkness, we can overcome the forces of good and it was a hopeful peace that contains in it a role a narrator to read some of the most inspiring words ever written and spoken, but Abraham Lincoln, so it's kind of a tall order, no pun, intent,

and I was asked to be the narrator, and I got to be on stage with this amazing orchestra conducted by Gary Fagin. And say things like this fellow citizens: we cannot escape history. He said also odd most of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty and we must rise to the occasion as our cases new. So we must think anew and act a new. We must descend Thrall ourselves and then we will save our country. Think of how dark a time was in eighteen. Forty, two people didn't know who was gonna prevail, the allies or the axis powers. People were dying in the military, civilians were dying in various places and there was an artist who is able to compose a beautiful uplifting hopeful piece of music that

most inspiring Lee of all was drawn from and came from. our own great american history in the form words and teachings of Abraham Lincoln. That's a pretty inspiring combination Saturday was a pretty inspiring evening so once again, We just thank Gary Fagin and Knickerbocker Chamber Orchestra putting it together and doing such a great job. Well, that's it for this episode of stay tuned thanks again to my guest David Cole, and thank you for listening. Send me your questions about news and politics, tweet them to me. I pre Parara or even better, give me a call at six hundred and sixty nine two hundred and forty seven seven thousand three hundred and thirty eight

that six thousand six hundred and ninety two for Preet or now there's even an email address. You can use stay tuned at cafe, dot com stay tuned is presented by cafe and Wnycstudios it's produced by the team at Pineapple Street media Chris Berube Henry Malofsky Joe Level and MAX Linsky. Our music is by Andrew Dost and special thanks to Julia Doyle. Jeff Eisaman and Jake Mcafee on Preet Bharara, stay tuned.