00:00:00.000Hey everybody, what does the Supreme Court leak mean for our country?
00:00:04.000We dive into that with Mike Davis from the Article 3 project and also Alejandro Mayorkis defends the new disinformation effort.
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00:01:36.000Yesterday, we were diving into how the United States Supreme Court has suffered, I guess is the best word to use, an unprecedented leak from who we do not know.
00:01:48.000We think we know, but the person who is best able to describe this and articulate it is the head of a wonderful organization called the Article 3 Project.
00:02:23.000And if so, what is the proper course of action to hold that person accountable?
00:02:27.000So I clerked for Justice Gorosic on the Supreme Court, and I also served as the chief counsel for nominations on the Senate Judiciary Committee.
00:02:35.000And my part of my portfolio was oversight over the federal judiciary.
00:02:39.000I have never heard anything like what happens with this leak.
00:02:43.000I don't think it's ever happens that a draft majority opinion for a Supreme Court case has leaked out prior to the court issuing the opinion, especially in a case this monumental.
00:02:55.000This is the Dobbs case where it looks like at least five, maybe six justices on the Supreme Court are going to overturn Roe versus Wade and Planned Parenthood versus Casey and return abortion regulations back to the states where it belongs.
00:03:10.000This is a stunning breach of protocol.
00:03:15.000Each of the nine Supreme Court justices have four law clerks.
00:03:20.000Each of them have generally two to three administrative aides.
00:03:23.000It is a very small universe of people who have access to these draft opinions.
00:03:30.000And these opinions have to circulate among the justices because they have to work together.
00:03:35.000They have to collaborate in order to draft majority opinions, dissenting opinions, and concurring opinions.
00:03:42.000And if you shatter that trust, if you shatter that secrecy, that confidence in the Supreme Court, the Supreme Court can no longer function.
00:03:51.000So who potentially could do something like a clerk or just someone in kind of that orbit?
00:03:57.000And what could be done to hold this person accountable for leaking this decision?
00:04:03.000Well, like I said, there are a very limited number of people who have access to these draft opinions.
00:04:08.000The nine Supreme Court justices, each of their four law clerks and each of their two to three administrative aides, may be IT people, but I doubt it.
00:04:15.000There is an intranet system in the Supreme Court that's not even connected to the outside world.
00:04:20.000It's not connected to the internet where they draft and circulate these opinions.
00:04:24.000So it looks like to me, if I had my hunch, I would say that a disgruntled law clerk printed this and gave it to the political reporter.
00:04:35.000If you look at the draft opinion that Politico published, it looked like a printed and scanned opinion.
00:04:42.000It is a draft majority opinion by Justice Alito.
00:04:45.000What I would do, if I were the Chief Justice of the Supreme Court, of Chief Justice of the United States, has already ordered the Marshal of the Supreme Court to investigate this.
00:04:56.000The Marshal is a Supreme Court officer.
00:04:59.000This person is the head law enforcement officer for the Supreme Court.
00:05:03.000This person runs the Supreme Court police.
00:05:07.000The Supreme Court actually has its own police force of nearly 200 police officers.
00:05:13.000If they need additional help, they can call in the U.S. Marshal Service from the Justice Department and deputize them to help with this investigation.
00:05:22.000The U.S. Marshal Service has worked very closely with federal judges, protecting them, protecting federal courthouses for over a century.
00:05:29.000So that's the most likely federal agency who could step in if needed.
00:05:33.000I would just caution that we do not want the political branches sticking their nose into this investigation without the court's permission, because you don't want to set a precedent where Congress or the Biden White House or any other White House thinks that they can meddle in the internal and the internal operations of an independent branch of government, especially the Supreme Court.
00:05:55.000So I think the Chief Justice is going to get to the bottom of this.
00:05:58.000I think that through the Marshal, I think what they're going to do is they're going to interview every single one of these law clerks and employees, other employees, and they're going to, if these, if they make a false statement to these federal investigators, it's a violation of 18 U.S.C. 1001, which is a felony.
00:06:15.000Whoever leaked this is in serious, serious trouble.
00:06:18.000If it's a lawyer, they're going to get fired.
00:06:20.000They're going to get disbarred and they might be prosecuted.
00:06:23.000You could prosecute this person for potentially misuse or even stolen federal property this did not belong to them to give out to a reporter.
00:06:33.000Another thing that you can look at is a potentially obstruction of justice.
00:06:36.000If you are leaking out a draft opinion for the purposes, illegally leaking it for the purposes of putting political or illegal pressure on a Supreme Court justice to change their vote on a pending case, that is obstruction of justice.
00:06:54.000I don't want to see meddling from other branches of government, but hasn't that already happened?
00:06:58.000I mean, I find it hard to believe this person acted independently.
00:07:02.000Maybe they did, and they leak it to Politico, which is just suspicious in and of itself.
00:07:08.000And so the calculus here is maybe we can get enough angry people upset about the decision that the rancor will make the justices change their mind.
00:07:17.000I think that's the calculus here, which is basically a complete and total undermining of Article III of the U.S. Constitution, the idea of an independent judiciary.
00:07:27.000If this, as it stands today, basically they're trying to make the judiciary independent no more, isn't that right?
00:07:33.000Yeah, I mean, this is a direct inside job attack on the independence of the federal judiciary, including the highest court in the land.
00:07:57.000It is a direct assault on judicial independence, and they must find who did this, and they must hold this person accountable to the fullest extent of the law.
00:08:07.000So, let me ask you a question: How likely is it that the final decision will be the same as the draft decision?
00:08:16.000Having clerked and having gone through that, do you think now there's a chance that they change their mind?
00:08:21.000Or do you think that the draft was actually not as certain as we might have believed?
00:08:28.000Yeah, I mean, I don't have any insight into this particular case because I don't talk to justices or court employees, including the clerks, about current cases.
00:08:36.000That would be inappropriate, but I will tell you just how the process has generally worked: the first draft comes out and then the justices collaborate, which is and it improves the draft.
00:08:46.000You maybe, maybe one of the justices and their clerks catches a mistake and they go through that editing process and it circulates for a long time.
00:08:55.000It circulates for several weeks, and then the dissenting justices write their draft and circulate it.
00:09:01.000The concurring justices write their draft and circulate it.
00:09:04.000But I will say this: if the intended effect was to get justices to change their votes, maybe waffling conservative justices to back away from a five or six vote majority to overturn Roe versus Wade and Casey, I think this leak is going to have the exact opposite effect.
00:09:24.000Now, justices cannot condone this likely illegal behavior.
00:09:31.000They cannot reward it by changing their vote.
00:09:34.000I think for judicial independence, they need to stay firm.
00:09:39.000I think that this was a latched-it-ditch effort.
00:09:41.000I also, I've been underwhelmed by the protests, by the way.
00:09:44.000Um, not to say that they can't get out of control after what we saw with Floyd and that whole thing, kind of post-Floyd.
00:09:52.000But I mean, they've just kind of the same sort of liberal activists kind of screaming with their signs, like, okay, but I also think they hurt their cause, right?
00:10:00.000They hurt their cause by all of a sudden losing the moral high ground by saying we're going to leak decisions to try to decide this in the streets.
00:10:08.000Like, I don't think most Americans are actually okay with that.
00:10:11.000I think I think they're repulsed by it, uh, regardless of their opinions on abortion.
00:10:28.000Um, there might be some changes to the actual language of the opinion, but anyone that wants to protect the integrity of the court would should just be totally and completely repulsed by this.
00:10:41.000So, Mike, can you explain to our audience that this decision in its current form, draft opinion, does not outlaw abortion, instead, it brings it back to the states?
00:10:51.000This is really a states' rights argument.
00:10:53.000Can you help build that out for our audience, please?
00:10:55.000Yeah, I mean, if you look at what our United States Constitution is, it is a loan agreement between we the people and our federal government.
00:11:04.000And what it does is we loan the federal government specific and enumerated powers in exchange for the federal government promising to protect our liberties.
00:11:15.000And if we, if we, the people, did not put on paper that the federal government has specific and enumerated powers, the federal government does not have those powers, or at least that's the way it was supposed to work before the liberals took over the federal judiciary 90 years ago and flipped it, flipped that on its head.
00:11:34.000And so, if you, but if you look at the Constitution, nowhere in the Constitution is abortion mentioned.
00:11:40.000So, therefore, the federal government doesn't have the power to regulate abortion.
00:11:44.000That belongs to the states and the people.
00:11:46.000So if you, before 50 years ago, 49 years ago, before Roe versus Wade was decided in 1973, the states got to decide abortion regulations through the Democrat process.
00:12:00.000So if you were in a liberal state, you had abortions.
00:12:02.000And if you were in a conservative state, you had less access to abortions.
00:12:06.000And what happened with Roe versus Wade is the Supreme Court came in.
00:12:10.000Now, liberal justices on the Supreme Court just made up. this federal constitutional preemption of every abortion law in this country and they federalized it and they did that for 49 years and it created chaos.
00:12:25.000It created this unnecessary division and chaos for the last 49 years.
00:12:31.000And what the Supreme Court looks like it's going to do with Justice Alito's opinion is they're going to correct this wrong.
00:12:38.000Abortion was regulated by states for the first 200 years of the American Republic.
00:12:42.000It wasn't until liberal judicial activists hijacked the federal judiciary starting 90 years ago and then Roe versus Wade nearly 50 years ago that they just made up this federal constitutional preemption saying that states couldn't even regulate abortion.
00:13:28.000I mean, basically, are we seeing kind of revival back to states' rights?
00:13:32.000Because that's another decision where marriage was defined by 25 plus states and it became nationalized and federalized.
00:13:40.000In fact, I make the argument this de-radicalizes the country when it becomes local governance, right?
00:13:45.000If you want to live in a pro-life state, then live in a pro-life state.
00:13:48.000So can you kind of walk through how this might have precedent for other areas of legal interpretation?
00:13:54.000So if you look at those, if you look at those areas, that deals with the equal protection clause of the 14th Amendment of the Constitution.
00:14:04.000There's an equal protection component to Roe versus Wade, but it's really just made up.
00:14:10.000They talk about penumbras and emanations of these zones of privacy throughout these various constitutional amendments.
00:14:18.000Basically, they just, it's constitutional mush is what they did to create this zone of privacy large enough to encompass the right to kill your unborn child is essentially what Roe versus Wade came up with.
00:14:32.000I don't think Obergefell is on the chopping block anytime soon.
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00:18:08.000You're kind of the, no matter what, you're in a conversation with your family or friends, but it's always just kind of has to be a sharp kind of one-liner.
00:18:17.000You know, you can never find yourself in total agreement or harmony with whatever the kind of consensus is.
00:18:23.000It has to just be like, oh, but have you read Herbert Marcuse?
00:18:29.000Or, oh, have you read like Jacques Derrida or Michelle Foucault or whatever, right?
00:18:36.000This is kind of always a snarky one-liner in response.
00:19:14.000Information laundering is really quite ferocious.
00:19:17.000It's when a huckster takes some lies and makes them sound precocious by saying them in Congress or a mainstream outlet.
00:19:23.000So disinformation's origins are slightly less atrocious.
00:19:28.000It's how you hide a little eye, little lie.
00:19:30.000It's how you hide a little eye, little lie.
00:19:31.000It's how you hide a little eye little lie when Rudy Giuliani shared that intelligence on Ukraine.
00:19:36.000Oh, when TikTok influences say COVID can cause pain, they're laundry and disinfo when we really should take notes and not support their lies with our wallet voice all night.
00:19:46.000Now, mind you, this is her spreading disinformation.
00:19:49.000She's spreading disinformation that the laptop was actually Russian disinformation.
00:19:54.000Now, she wasn't taken down from TikTok, obviously, for doing that entire performance.
00:20:36.000Eminently qualified, a renowned expert.
00:20:38.000They just keep on saying this stuff, and there's just no basis for this at all.
00:20:42.000Majorca should be in prison for what he's doing to America, by the way.
00:20:45.000It is a crime to keep America's southern border open.
00:20:48.000But this is an important point, which is the left has now developed a backup plan.
00:20:53.000They've developed a backup plan to kind of their social media censorship regime.
00:21:01.000Now, the smart people on the left, and there's not a lot of them, they kind of saw this coming.
00:21:07.000They saw all of a sudden post-January 6th when Donald Trump got kicked off social media that the idea of spreading information online freely through sites like Rumble and other places, that it was going to kind of be a short-lived thing to just have a couple different monopolies.
00:21:21.000Now, mind you, none of this that you are seeing unfold is a mistake.
00:21:29.000The left is now going to put on their we must break up companies, we must regulate tech companies immediately.
00:22:15.000No, I think there's a bigger problem that when we focus on the personalities of people like Elon Musk, and people say, oh, I think Elon's thinking this or that.
00:22:22.000There's a bigger problem here about how we are going to control the channels of communication in this country.
00:24:10.000In talking to people at these companies, I believe they are sincere in trying to limit content that engages in hate speech, encourages violence, or poses a threat to public safety.
00:24:23.000But while content moderation can limit the distribution of clearly dangerous content, it doesn't go far enough.
00:24:36.000So what they want basically is a disinformation board that has now been created by the Department of Homeland Security to determine which social media companies are favorable and which ones are unfavorable.
00:24:50.000So the question I think, and Glenn Greenwald posed this question, I really want to have him on the program to talk about this.
00:24:56.000What is a disinformation expert exactly?
00:25:18.000Now, mind you, she's the one that actually peddles disinformation.
00:25:22.000That makes her an expert, kind of like someone who used to be part of the mob is also kind of like a mob expert when they do those shows on CNBC.
00:25:28.000Like, here's Jerry, and he's a mob expert because he used to be a bag man for the mob.
00:25:48.000If this disinformation board was up and running a couple months ago, they would have censored all conversation around Ivermectin.
00:25:58.000If this disinformation board was up and running, they would have censored all conversation around Ukrainian biolabs.
00:26:04.000The disinformation board that this woman now runs, the Department of Homeland Security, we call it the Ministry of Truth, will be positioned precisely to try to stunt opposing ideas to the corporate oligarchy.
00:26:17.000That's really what the free internet was always supposed to be about.
00:26:19.000The free internet was supposed to let the best ideas win.
00:26:46.000I believe that this working group that gathers together, gathers together best practices, makes sure that our work is coordinated, consistent with those best practices, that we're safeguarding the right of free speech, that we're safeguarding civil liberties, I think is an extraordinarily important endeavor.
00:27:08.000The woman that they just installed with all of this power does not appear to have been vetted critically in the slightest in any way whatsoever.
00:27:20.000Hey, everybody, Charlie Kirk here with the left in total panic over Twitter and DHS essentially creating their own Ministry of Truth.
00:27:26.000It is safe to say we're facing the biggest threat to the First Amendment in our lifetime.
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00:28:22.000Okay, I want to get to some sound here.
00:28:24.000So, Nina Jankowicz is now in charge of censoring people's speech from the federal government.
00:28:28.000But before she said that the executive branch shouldn't have the power to determine what is fake news, play cut 16.
00:28:35.000Imagine that, you know, with President Trump right now calling all of these news organizations that have inconvenient for him stories that they're getting out there that he's calling fake news and now lashing out at platforms.
00:28:48.000I would never want to see our executive branch have that sort of power.
00:28:55.000Reminds me of Pete Buttigieg because she was created in the academy and for a very specific purpose.
00:29:02.000She was created in the academy because she's there.
00:29:06.000She's basically like somebody that is there in the branch of government that will never question the hierarchy, that is someone within the workings and almost has like a robot, a robotic type of focus on one issue.
00:29:24.000It's like you think about it, a disinformation expert, somebody in power picked up Nina Jankowicz a couple years ago, saw that she had some, I guess, I don't quite understand.
00:29:38.000I don't quite know the word, skill, I guess, but she was very likely to obey, right?
00:29:46.000I think Nina Jankowicz wants approval by other people.
00:29:50.000And she had an unflinching loyalty to the party line.
00:29:54.000Someone saw that she had a lot of potential for that.
00:29:56.000So someone obviously decided to get Nina Jankowicz in the right positions, working on the Ukraine desk, working in all sorts of places, that eventually Nina Jankowicz could have an over-promotion, just like Pete Buttigieg, Mayor Pete.
00:30:08.000And they go to these type elite schools.
00:30:10.000They never say anything disagreeable to the consensus.