Viva Frye, a freedom-oriented legal observer and friend of the show, talks to Ezra about the Supreme Court cases that have had a profound impact on our understanding of the law, and why we should care about them.
00:16:44.200Well, listen, you and I both cared a lot about the lockdowns.
00:16:48.280And in that way, you and I were a very small minority.
00:16:50.340Because most of the regime media were either silent or cheering on the lockdowns.
00:16:56.180And I remember very clearly, February 14, 15, 16, 2022, when the Emergencies Act was deployed, the general reaction from the regime media was,
00:17:06.800what, you're not going harder, you're only seizing some bank accounts, you're not throwing people in jail by the hundred?
00:17:13.740Like, all these journalists who for decades said they cared so much about the Charter of Rights, they were egging Trudeau on to go harder.
00:17:23.700And I'll never let them again take the moral high ground when they say they believe in the Charter.
00:17:27.820But listen, David, I want to move on from things about the lockdown, although it's a very important thing and we should never forget it.
00:17:34.060There are other battles, current battles, future battles.
00:17:37.420And one of the things I look up to you for is that you analyze court cases.
00:17:43.400Now, there's a few court cases in the States that I've seen out of the corner of my eye and I have a very shallow understanding of.
00:17:50.460And I'm not asking you to go really deep.
00:17:52.600And remember, most of our viewers are interested, smart, but they're not legal experts.
00:17:59.240So with with our viewership in mind, can you help explain some of the recent U.S. Supreme Court rulings?
00:18:05.580I know you do that on your show with the great lawyer, Robert Barnes.
00:18:09.140Help us understand what just happened a couple of days ago with the Supreme Court ruling about Donald Trump,
00:18:16.460because I see apoplexy amongst the Canadian commentariat, but I know they haven't read the case.
00:18:21.220And I know that they're against Trump. Give us what what what happened the other day in the Supreme Court about Donald Trump?
00:18:27.140Well, we'll get to the I'll do the immunity third. We'll skip over the less interesting ones first.
00:18:30.820There was the the SCOTUS decision on what they call the Chevron.
00:18:34.040SCOTUS, that's Supreme Court of the United States.
00:18:36.260Supreme Court of the United States. So we've got the acronyms are everything now.
00:18:38.860You've got the Mojag in Canada, Minister of Justice and Attorney General.
00:18:41.940Yes, SCOTUS, Supreme Court of the United States.
00:18:43.200They issued their final rulings for the session. And there were three big ones that people were waiting on.
00:18:48.460One is a big for administrative law, which was overturning what is referred to as the Chevron doctrine.
00:18:54.720And this is when I say, like the states I see going in a separate direction from Canada in Canada.
00:18:59.160I see continued and more and more doubling down on deference to administrative tribunals, giving them the power because their specialty tribunals to make their laws, interpret their laws, adjudicate on their own laws.
00:19:09.580And you have an administrative state run amok.
00:19:12.040So let me pause for one second. And I'm sorry to interrupt you.
00:19:14.440I just administer. You mean all the agencies, boards, commissions, little bureaucracies that aren't real courts, but have the power of courts.
00:19:23.680That's what you mean. Everything from the Liquor Board to the IRS to the CRA.
00:19:30.280So there's hundreds of these boards and commissions, some with a very small focus, some with a very wide one.
00:19:35.680So that's what you mean by administrative law, right?
00:19:37.940Yes. In the administrative state where you have these tribunals that are not court systems run by judges who are not appointed judges, and they have more power than anybody can really appreciate.
00:19:48.840In Canada, you say, like, how did you get a human rights tribunal to order a restaurant in British Columbia to pay $40,000 to a transgender employee that was misgendered?
00:19:58.940Well, it's because you have these administrative tribunals.
00:20:00.980The court system shows deference to them because they're specialty tribunals.
00:20:05.580And who's the court to get involved in these tribunals that were created under statute?
00:20:09.200And so while in Canada you have increasing deference that is afforded to these administrative tribunals, in the States you have now an absolute pushback and a pull away from it.
00:20:21.620The Chevron Doctrine was deference to administrative tribunals to administer and interpret their own laws with minimal court intervention.
00:20:30.140I'm very, very much oversimplifying it, but this is what's the big takeaway.
00:20:33.860The Supreme Court comes in and says, no, we're reversing the Chevron Doctrine.
00:20:37.980The courts are going to be able to get involved and basically ensure that these administrative tribunals are not running totally, not lawlessly, but rather autonomously.
00:20:49.860And so hitherto or prior to this, there had been deference to the administrative tribunals' interpretation of their own rules as they administered them.
00:20:56.060And now they basically say, no, that doctrine is overturned.
00:20:58.580The courts can get involved and make sure that what they're doing is actually lawful and judicious.
00:21:03.860That was the Chevron, more or less interesting, but some people might be interested in it.
00:21:59.040The government or these administrative bodies.
00:22:01.020And in the States, they basically say, look, there's going to be judicial oversight and you don't get to enact your own rules, interpret your own rules, and apply your own rules.
00:23:24.900And so in the states, you have the reversal of the Chevron doctrine, which I tell you, it shows a shift in the zeitgeist of two different countries.
00:23:32.280Canada wants more of the full control, and America says, no, no, we're going to pull away from the administrative state.
00:23:39.980The other great one was the obstruction charges in the January 6th cases, which indirectly impacts Trump as well.
00:23:47.560That was the big one that we were waiting on.
00:23:50.100A number of the Jan Sixers were charged with and convicted under an interpretation of the obstruction witness intimidation statute, which by all accounts, anybody who has half a legal mind, knew was not what this law was intended to do.
00:24:04.360It was obstruction, destruction of tampering with evidence for the purposes of impeding government proceedings.
00:24:11.700It was an Enron-era piece of legislation that intended to punish the Enron execs who destroyed evidence in their possession before the subpoenas came because they knew they were coming.
00:24:23.600And they say, oh, crap, there was nothing that prohibited you from doing that.
00:24:26.320So we issued this law that says if you tamper with, obstruct government proceedings, well, then it's a charge under 1512, and it was subsection C2.
00:24:34.540The issue there was they were charging the Jan Sixers with obstruction of congressional hearings under that statute for merely protesting.
00:24:42.960And everybody was like, no, that's not what Section 2 was supposed to say when it says or otherwise obstructs a congressional, a government proceeding.
00:24:50.420The otherwise wasn't a catch-all to apply to everything even as innocuous as constitutionally protected protests.
00:24:57.600And lower courts, you know, disregarded it.
00:25:00.060And the Supreme Court came and said, no, this was never the intention of the statute.
00:25:03.320If otherwise includes any and all behavior, then the first subsection, which specifies methods of tampering with evidence, is rendered moot, you know, non-existent.
00:25:12.720And canons of interpretation are a legislator doesn't enact a legislation to say nothing, which is effectively what the subparagraph one would have said if the subparagraph two consumes it and everything else.
00:25:24.260But the bottom line, the Supreme Court said all of these felony charges for obstruction for merely the act of protesting is not what was intended by otherwise obstructing or tampering with evidence.
00:25:36.100Well, let me jump in there because basically they – I mean, most of the people that day on January 6th were peaceful protesters.
00:25:43.360Some of them smashed windows to get in.
00:25:45.820Some of them did some minor acts of mischief or vandalism.
00:25:49.620To call it a riot I think is overstating it.
00:25:52.060My friend Gavin McInnes calls it the great meandering.
00:25:56.360But to find felonies and to jail people for years there shows such an overstretch.
00:26:05.380And here's what caught my eye, and you tell me if I read this wrong, one of the judges that sided with the majority against this extreme interpretation of the criminal law was a Biden appointee who on the face of it is ultra-liberal, even woke.
00:26:23.340I think her name is Justice Katanji, a black woman leftist who – correct me if I'm wrong – she sided with the conservative majority because she knows what goes around comes around.
00:26:34.420And if the government can way over-prosecute and over-jail people who are protesters by finding some legal trickery, that's going to happen to Democrats too, just as it happened to Republicans.
00:26:51.780She's the Supreme Court nominee, the Biden pick, who infamously could not define what a woman is because she's not a biologist.
00:26:59.480And that – and there's a number of issues with her.
00:27:02.200She was trivialized and nominalized and basically reduced to an ethnicity because Biden says we need a black woman, so I'm going to pick one.
00:27:09.640Qualified or not, that's her legacy and how she got appointed to the Supreme Court.
00:27:14.120But she sided with the majority, and oddly enough, Amy Coney Barrett sided with the dissenting minority, saying, well, that's what the government – that's what the statute reads, and it's not up to us to limit the powers of the executive.
00:27:27.040But no, Katanji Brown Jackson is 100 percent right in law.
00:27:32.740I mean, in reality, they just don't prosecute lefty protesters the way they prosecute righty protesters because everyone who protested Kavanaugh's confirmation hearings would have been arrested, could have been charged under that statute, under that ludicrous interpretation of it.
00:27:46.620Everyone who protested trans laws in – I forget what state – gun laws.
00:27:51.720I mean, they would be charged under this insane interpretation.
00:27:57.920I mean, bottom line, the first section says tampering, altering, or impairing evidence for the purposes of – you know, to impede a congressional hearing or otherwise obstruction section two.
00:28:07.100Well, if the or otherwise includes everything and anything, including subparagraph one, as the majority said, it consumes subparagraph one, and that interpretation renders a piece of legislation meaningless.
00:28:19.420You know, you say the important thing when you mention that freedom-oriented, conservative-oriented, republic-oriented prosecutors generally don't go nuts like this.
00:28:29.380Like, I can't think of a – of the opposite of January 6th.
00:28:33.980I can't think of where hundreds of people were scooped up for nonviolent protests.
00:28:39.220In fact, we see violent protests from Antifa, from Black Lives Matter.
00:28:42.820I mean, the summer of 2000 – of 2020, rather, the country was ablaze.
00:28:47.560And those were actual crimes, actual violent crimes.
00:28:51.440And there were no mass prosecutions, even in conservative jurisdictions.
00:28:56.180I – anyway, I'm glad that Ketanji Jackson-Brown, if I got her name right, was on the right side of that.
00:29:03.700Well, you see, I think the conservatives – the argument would be that the conservatives might have implemented something along those lines with the Patriot Act and with the secret courts following 9-11.
00:29:12.880And maybe learned a little bit of the abuses of government and why the Patriot Act was a grotesque piece of legislation.
00:29:19.520And so there's sort of been a shift now.
00:29:21.100The other dynamic shift is that the party that's in power implements and enforces laws different than the party that's not in power.
00:29:29.240So I said it's sort of analogous to free speech.
00:29:31.840Everybody loves free speech until they're in a position of power, and other people use that free speech to challenge them.
00:29:39.240They control the deep state apparatus.
00:29:41.140So they're going to abuse the law in a way that Republicans won't because they're not in power.
00:29:45.040And I hope that they don't ever abuse the law like the Democrats have done if and when they ascend to power.
00:29:49.960It should be righteous application of the law and not vengeful politicized application.
00:29:54.320But that interpretation of the obstruction charge was a way of felonizing, criminalizing a swath of protesters who were nothing but peaceful meanderers.
00:30:03.280You know, every once in a while I see someone, a pundit, say something really funny, and it goes like this.
00:30:07.840When Trudeau gives power or cash to hand out to journalists, like this $100 million a year Google slush fund that Google pays basically a shakedown tax to the government of Canada,
00:30:20.640and it's divvied up amongst media companies, or the debates commission that chooses who can or can't go,
00:30:25.720every once in a while someone says, if you're happy with this now, and this is the joke, and it makes me smile every time,
00:30:32.240how happy will you be when Ezra Levant is appointed as Pierre Polyev's boss of the debates commission or hander-outer of federal cash?
00:30:40.500Now, obviously, it would never happen, but the point they're trying to make is if you're fine with far-left-wing partisans choosing who has freedom or not,
00:30:48.200who has money or not, you better be ready for if a conservative appoints someone just as prickly.
00:30:52.860Now, obviously, I would not be appointed, and I most likely would not accept such an appointment,
00:30:57.080but you've got, you know, another way of saying is what comes around goes around.
00:31:00.580Or as they would say in Latin, stare decisis, stand by the president.
00:31:05.740So people who say, I'm going to use the law to get my enemies, well, you better hope you maintain the whip hand,
00:31:11.700because if tides turn, your enemies will have those powers.
00:31:16.680Well, that is the issue, and then it does result in a doubling down and a tripling down of ensuring that now that I've abused my adversary so much,
00:31:25.740if they're especially angry and if they ever get power, they're going to be even worse on me,
00:31:29.300so I've got to make sure to actually suppress them and crush whatever life they have left in them.
00:31:33.460That's what we're sort of witnessing right now with the Trump persecutions.
00:31:37.880Which is going to bring us into the last one.
00:31:39.620But they know that they have been unfair, they've been unjust, they've been unlawful,
00:31:44.060and they're so fearful of even the most minor of stabilizing of the system that they know they cannot let their adversaries get into power now because of all the wrong that they've done.
00:31:54.960You can imagine the Jan 6th committee, imagine if we had an actual bipartisan investigative committee investigating the January 6th committee.
00:32:02.420They would go to jail for actual obstruction, for actual destruction of documents, actual destruction of evidence after their hearing to impair further investigations.
00:32:11.560Merrick Garland would actually, you know, potentially be looking at impeachment and other sanctions for his weaponizing of the DOJ.
00:32:22.020The other guy there, Alejandro Mayorkas, the border czar.
00:32:25.260He would arguably be facing consequences for dereliction of duty and facilitating the invasion of his country.
00:32:31.140And so what they have to do now, they have to try to smite whatever breath of life is remaining.
00:32:37.100And they're trying to do it by keeping Trump out of office at all costs, which brings us back to the immunity case,
00:32:42.360or at least brings us to the immunity case, that's the biggest one where you're seeing not just a meltdown, not just a hysterical hissy fit.
00:32:49.580You are seeing people in real time lying about it to whip people up into a frenzy so they should do atrocious things in the name of what they now believe is their own self-preservation.
00:33:00.260The immunity ruling came down six to three.
00:33:02.760And the greatest part of this decision, other than Clarence Thomas's independent opinion in the middle, was what the majority said about the dissent.
00:33:11.000And they basically said the dissent has no arguments, has nothing to rely on in the Constitution.
00:33:16.180And so their reasoning, you know, it basically resorts to fear mongering and lying about hypotheticals, extreme hypotheticals that have not been and will not be about what might be based on their incorrect interpretation.
00:33:28.900And give one of those hypothetical, I was reading this, and one of the dissenting Democrat judges says, well, this is going to allow them to send SEAL Team 6 to kill their opponent.
00:33:38.420Like, I just thought, that is so nuts.
00:33:41.740It was so weird to see that in a Supreme Court ruling.
00:33:44.400That's something that you'd expect, like, a freshman in college to write or something.
00:33:47.860Well, that is the joke, is that the dissenting opinion would be a failed answer on a bar exam.
00:33:53.160I mean, they basically said, yeah, oh, it greenlights death squads, murder squads, or death squads, I think, according to Rachel Maddow.
00:34:23.820It's like 120 pages, but there's 10 pages of executive summary, 40 pages of the majority opinion.
00:34:30.100Then there's a Clarence Thomas independent opinion, which concurs with the majority.
00:34:33.580And then there's a ridiculous, insane dissenting opinion.
00:34:37.580The summary of the decision is that the president enjoys absolute immunity for everything that he carries out under his constitutional duties, period.
00:34:47.660So if he's got a constitutional right to act in that capacity as president, absolute immunity for whatever he does in his purely private capacity, there is no immunity.
00:34:57.760So if he if he kills him, if he kills his chef because he doesn't like his food, I don't think you're going to get a court to say that even fits within the middle range.
00:35:07.480The middle range is there's a presumption of immunity if the act fits within the outer bounds of his duties as president.
00:35:14.440And in order to determine whether or not he actually benefits from immunity, there needs to be an analysis of the act to determine.
00:35:20.400Is it a is it a is it a constitutional act that he's entitled to as president?
00:35:26.280Is it a purely private or is it somewhere in the middle?
00:35:28.800And then we have to determine if he gets immunity or if he doesn't get immunity for that act.
00:35:33.200And the dissent has pretended that this is somehow authorized the president to do whatever he wants willy nilly, but call it a presidential act.
00:35:42.620And you're right, Ezra, it's pure, pure projection, because when they say, well, all he has to do is kill his political rival and call it a presidential act.
00:35:50.760And he's immune. I mean, first of all, they're telling on themselves.
00:35:53.740They're absolutely telling on themselves.
00:35:55.200The only people, the only people who've done that are the debt or is Merrick Garland's weaponized DOJ sending the FBI with license to kill to raid Mar-a-Lago in plainclothes officers with box cutters.
00:36:08.080I mean, they're the only ones who are doing this. But the idea that, well, just call it something so that we can then make it presidential for immunity, what they're basically telling you, just call it private so that we can prosecute for being a private act and therefore go after the president.
00:36:22.800They're telling you what they're doing in reverse. But the bottom line, in my view, the decision didn't go as far as it should.
00:36:28.780I think they should have just said you are impeached and convicted and then you can face prosecution and otherwise not,
00:36:35.800because otherwise it will just be harassment, judicial harassment once they're out of office.
00:36:39.820And all they'll have to do is call it a purely private act.
00:36:42.480Oh, yeah. When you executed that American citizen by drone strike in wherever it was, Afghanistan or Iraq, well, that was a purely private act.
00:36:50.080And then they'll say, no, it was a presidential act. But then they'll still go through the process.
00:36:55.180So that's I mean, it's I think they should have done that.
00:36:58.120But what they ended up saying is, no, there's presidential immunity for constitutional constitutional acts, no immunity for private acts.
00:37:04.680And then we have to do a test for within the outer orbit of presidential conduct.
00:37:09.800And what the what the Supreme Court majority decision said and needling Jack Smith, needling Judge Chutkin out of D.C., needling the dude out of New York there, Justice Marchand.
00:37:20.000She's like no lower court ever carried out this analysis in Rico, the Rico, Georgia case.
00:37:26.480Did you ever do an analysis as to what was a purely private act, what was clearly a presidential act and what might be within the outer orbit?
00:37:33.220They never did it. So now what has to happen and what is going to happen in New York, all of these cases, including the conviction out of New York, have to go back for that analysis.
00:37:42.460And Justice Marchand in the New York Alvin Bragg Soros funded Alvin Bragg case where Trump was convicted for 34 counts of felony.
00:37:51.900They need one of the falsification of business records to conceal the payment to Stormy Daniels.
00:37:57.140They need to go back now and say, oh, crap, when he did that, all of those charges relate to acts that he carried out once he was president.
00:38:04.480So some might say purely private to hush money payment to a porn star.
00:38:09.060Others might say within the outer bounds of his president. It had nothing to do with the election anymore because he was already elected.
00:38:14.220Outer bounds. Others are going to say presidential.
00:38:15.680So they've got to go now and do that assessment. But there's already been a conviction.
00:38:20.520And so Justice Marchand, Judge Marchand of New York, says, I'm going to postpone sentencing and we might very well, he says, I'll postpone sentencing if it occurs.
00:38:29.960Because they might actually have to toss that conviction entirely and then decide whether or not they go back, analyze the indictment and flesh out what's a charge,
00:38:38.360what's an act that he can be charged with versus what isn't.
00:38:40.800Rico, same case. You imagine in the Rico, Georgia election interference case, they're charging Trump with acts of having discussions with his attorney general,
00:38:51.140having discussions with his internal members of government as relates to what he felt was a fraudulent election.
00:38:56.720Well, that's not that's definitely not a purely personal act.
00:38:59.880And so they've got to go back and say, OK, well, can we even charge him for this?
00:39:03.120You know, they've got to do it in D.C. They've got to do it in Florida.
00:39:05.280And so this has upended everything. The only conviction they got before the election, it was always going to get overturned.
00:39:12.080I just think Marchand now can weasel out of it and say, set aside the verdict because of the Supreme Court.
00:39:16.180Not my fault. Wash my hands like Pontius Pilate and go back if we recharge him.
00:39:20.660You know, it obviously a huge legal victory for the president.
00:39:25.320But as they say, the process is the punishment.
00:39:28.620How many tens of millions or even 100 million dollars has he had to spend on lawyers?
00:39:33.060How many hundreds of hours has he had to spend on this?
00:39:36.860How much stress and distraction and how much damage?
00:39:40.040I mean, I think by this point, a lot of people have their minds made up about Trump and no one will change.
00:39:46.180But I think a lot of people's in fact, there's a perversity to it that I think people do think that Trump has been victimized and attacked unfairly.
00:39:55.300So, in fact, I think there has been a net benefit, even though I hate to say it that way, because people say they're just picking on him now.
00:40:02.140But what an atrocious thing he's had to go through.
00:40:04.680I'm really excited about these cases because it gives me some hope.
00:40:10.640And of course, I love being a Canadian and I still have hope for our country.
00:40:13.920But it is deeply reassuring to me that the greatest democracy in the world, the country upon whom we rely for our security, still has some checks and balances.
00:40:25.880And Viva, David, you have a deep understanding.
00:40:30.500And, you know, it's somewhat a technical understanding sometimes.
00:40:33.800But I know that's why you bring the smarts to it, because you yourself are a lawyer and you have a show with Rob Barnes, who's a constitutional lawyer.
00:40:40.600I really appreciate you giving us a briefing.
00:40:42.660And I think our Canadian viewers, even if they're not lawyers, I think they understand what's going on.