When in the course of human events, it
becomes necessary for 1 people to dissolve the
political bands, which have connected them with another.
And to assume among the powers of the
Earth, the separate and equal station to which
the laws of nature and of nature's god
ent them,
8 decent in respect to the opinions of
mankind requires that they should declare the causes
which imp them to the separation.
Now that of course, is the opening of
the manifesto
of the British labor party for the upcoming
general election on the fourth of July.
Actually, is from the declaration of independence, which
was
declared,
not signed
on the fourth of July,
17 76.
However, we are recording this on the second
of July, which is the the day it
was actually signed,
in the year 2024.
And the United Kingdom, ironically is holding a
general election on the fourth of July in
2 days.
So we, a short circuit thought that this
would make for an episode where we can
tie our 2 nations together
in some way. So we're gonna do that
today on Short Circuit. Your podcast from the
federal Courts of Appeals. I'm your host Anthony
Sanders director of the center for Judicial engagement,
at the Institute for justice. So, again, recording
this July second, so some of you listening
to this
after July fourth, we'll,
know a little bit about what happens over
in the Uk when they have, their election
thingy in a couple days But we had
our revolution thingy a long time ago,
and,
some of you
may know,
some of the details of what that means
as that
constitutional matter. Now we often hear about it
the fourth of July, how we threw off
the king and, you know, we didn't have
the king over the United States anymore, and
we're gonna have a Republic and blah blah
blah. That's all very well known. What sometimes
get, we forgotten is that we didn't just
reject the British King,
but the British
system, the system of having a parliament that
can
do whatever it wants. And so instead we
had a written
constitution and
constitutional law of that nature instead of the
British constitution. But we did a funny thing
at the same time.
We kept
the British or the English really,
legal
system. So we kinda got a new constitutional
system, kept the legal system, and we even
constitutional
some of the legal system
like the right to a jury trial.
So,
anyway, I wrote about some of this in
a piece that just came out discord
not discord.
That's the chat thing.
Discourse magazine,
run by our friends at the Mer center,
So we'll put a link at the show
notes to that. If you wanna read about
the
connections between Britain and America, but how America
is different, especially when it comes to...
Judicial review.
But today, we thought it would be fun
to talk about some stuff that unites the
2 countries, including this thing about a jury
trial. So we have 2 cases
about,
some looser than others, a British American
connection. 1 of them is a big case
that just came out at the supreme court.
So usually, you don't to do supreme court
opinions on this show But this is a
big case.
We have,
experts who know, a lot about this this
area. We even are lit
these same kinds of... Claims here at I.
So I thought it was perfect to bring
back a very recent guest to the show,
and that is Rob Johnson because Rob
is actually a lawyer in these other I
j cases.
We also though are having Andrew Ward back
to the show he's been here many times
before. And this time he is going to...
He's gonna also give his opinion about this
this new case Jar Sec versus Jar from
the Supreme Court. But then he's gonna take
us on a little bit of a crime
keeper
that has to do with a British consul.
So
gentlemen,
Welcome back to short circuit.
It's good to be here. Yeah. Thanks for
having us. I feel like I should be
clapping for the excellent words of... Personal favorite
founding father, Thomas Jefferson that you that you
opened with there. Go america.
You know, they say he wasn't the the
only author of the declaration,
it's it's it's little disputed exactly how many
of those words are are his, but but
thank you nonetheless.
So,
Rob,
Jar.
This
people were watching this case. It was a
little unclear what was gonna happen, but it
seems like it's a pretty big deal.
When all is a sudden and done.
Yeah. It's huge. It's probably the biggest opinion
of the term at the court. And and
since we are talking about the circuit courts,
I have to say, you know, the fifth
circuit had a rough
term at the... At the supreme court. They
got
reversed. I'd...
I... I'm gonna get the exact numbers wrong.
I I think I read somewhere 7 cases
and they got reversed in 5 of them,
which, you know, 2 of them I cases.
Yeah. Yeah. But, you know, on on the
plus side for the fifth circuit, they got
affirmed here,
and this is probably the biggest case of
the term. So maybe this is like an
example of, you know, you you got swing
big
if you wanna hit home runs, and, you
know, you're gonna miss a bunch, but then
maybe,
you know, I, yeah, from the fifth gets
opinion perspective, like, maybe it's worth it. Right?
You get
reversed a ton, but then the 1 time
you get affirmed at, like, is gonna completely
change the structure of the federal
bureaucratic state in significant ways that that you
like. So, you know, the the gets a
lot of
You know, they... People make fun of them
for their
reversal rate, but, you know, maybe it's maybe
they're onto to something.
So so... Yeah. So,
the...
This case is a
It arises out of an Sec proceeding where
the Sec and imposed hundreds of thousands of
dollars of penalties on this guy, George Dark.
Who is a...
Really interesting figure. He's a tea party guy.
He's politically active. He also runs hedge funds
hedge funds with, like, sort of tea party
names like Patriot 28 and things like that.
And he gets
accused by the Sec of of various
wrongdoing
and gets this huge monetary fine,
and he then goes to Federal Court, and
he says, hey, this is the kind of
thing
that you have to do in a real
court. You know, if you're gonna find somebody,
you can't do that in an agency court
where you don't get a jury and where
the judge is employed by the very same
administrative agency,
that employs the prosecutors. You gotta go to
a real court
and give people a real judge in a
real jury.
And
when he, you know, first starts this,
you know, I j had... We we've had
a number of cases where we've been raising
these claims.
But for the most part, this is, like,
you know, greeted with
shock and disdain from the legal establishment. It's
like, oh, no. That's not that's not how
this works. You know, agencies all across the
federal bureaucracy.
Are, you know, imposing fines on people all
the time and it's surely that's not
unconstitutional.
But then the fifth circuit issued this huge
dark the opinion.
And they they said, actually, no, it is
on unconstitutional,
and it was greeted with,
you know,
front page New York Times article, like, this
is the end of the world.
And, yeah know. It's this this solicit general
petition for Sir, the court granted. And and
then the court
affirmed. Ed so, you know, I guess the
world has ended.
Well,
I feel fine.
Yeah. I know at the end... It's the
end of the world and we all feel
fine. I think. You know, and so the
ups shot of this opinion is the Supreme
Court basically says.
That
you know, if you are going to take
somebody's
money by finding them,
and you're gonna impose this kind of a
fine for some sort of wrongdoing.
That that's the sort of thing that historically
at common law
in the courts of Westminster.
There's our British connection. Had to be tried
to a jury in the common law courts,
and
we have the seventh amendment that is trying
to preserve the right to trial by jury.
So
in America today,
you still gotta try that to a jury.
There's no Sec exception to the right to
a jury. Why is that in the constitution,
Rob? Why did it why did they care
so much in the late eighteenth century about
trial by jury? What an excellent question.
Well, that, you know, so this gets us
to the justice gorsuch that writes this just
excellent concur.
And he goes into a lot of this
history and what justice cor she explains is
you've got,
you know, at the time of the founding,
they the
British were very suspicious
of the American colonists
as jurors, and they basically didn't think those...
Ragged colonists, were gonna
apply the law if they were put on
a jury.
So instead of having jury trials, they started
moving cases out of the local colonial courts
into what they call the vice admiral t
courts.
And these are basically
you know, vice because they were underneath the
high admiral court back in England.
And the judges on these admiral courts were,
put in place by the English,
They often had dual roles. So sometimes they
were both prosecutor and judge.
And they... There was no right to trial
by jury.
And, you know, that was
kind of accepted for admiral.
But the British started actually moving all kinds
of cases over into the vice Admiral royalty
Court,
and the colonists didn't like it, they didn't
like that they were losing their trial, the
right to trial by jury.
And so that was actually 1 of the
things that they complained about.
In the declaration of independence.
So
justice course just lays all that out, and
you know, it was sort of an interesting
concur he says it's not just the seventh
amendment that was enacted in reaction to that.
He says it was also
you know, there's article 3,
which says that the judicial power of the
United States extends to cases both, you know,
in law but also in equity and an
admiral,
and says that for all of those cases,
you gotta have judges who have life tenure
and who are protected from
removal and enjoy all of these protections, which,
you know, the vice admiral courts, those didn't
have that. Although A aig is are protected
by... From removal. They're very protected
from removal.
But not as much as a federal judge.
So they have some protection from removal.
But they can be removed, you know, a
federal judge right, a real article 3 judge
has to be impeached if you wanna get
rid of them.
But an A, you just have to go
to this like,
administrative board
and convince them to let you fire them,
which, yeah, It's not it's not easy, but
you can do it. It's the bigger difference
is, A j's have no salary protection.
So A j's actually can have their salary.
And they may have some, you know, statutory
protection. But it actually has happened, like, for
instance, during government shutdown downs
that, like, A don't get paid. They don't
have the same level of
independence.
And that federal judges do. And also, all
of that is just by statute.
It's not by
constitution, so it could be changed.
And, of course, you know,
There's also a huge constitutional question of whether
that removal is itself
unconstitutional.
Those removal protections are themselves
unconstitutional as the circuit could help, but the
the Supreme Court did not did not reach.
That's correct. So the Supreme court base said,
well, we reached the article 3. We don't
have to reach the removal question, which does
actually raise an interesting. Question is the removal
holding still good law in that fifth circuit?
Presumably. And I I don't see why not.
Right? I mean the judgments affirmed.
Think that's right. Yeah. So it should be.
What about the non delegation part?
I think that's probably still good law too.
Right? I the court didn't reach any of
it. So they they only... The court basis
says we affirm on article 3 ground, we
don't touch the other stuff.
I think that leaves the other stuff in
the fifth circuit, not nationwide, but I think
in the fifth circuit, it's all still good
law. You know the way you're phrasing it
is kind of interesting, like, is it article?
3 or is it the seventh amendment because
if it's just the right to trial by
jury? I mean, can the Sec
at at the Supreme Court level and in
or in other circuits outside the fifth circuit.
Right? Could like... Because these are the important
questions, the real world consequences and not like,
agency win rates are gonna drop by half?
Like, could they set up a jury system
inside the Sec in front of an A.
I don't think they could. So there's sort
of... The opinion actually does talk about this
in terms of the seventh amendment and that's
because George Dark and his lawyers raised a
seventh amendment claim. So that's kinda how it
comes to the Supreme Court, and they talk
about it in terms of the jury.
But
the analysis
under article 3 and the seventh amendment has
always been
essentially, they dovetail together.
So if you have...
A case that is, you know, has to
be within the article 3 courts,
then,
you know, you get a right to trial
by jury. If it doesn't have to be
outside the article... It know, if it if
it can be outside the article 3 courts
then the courts have always said, well, then
you don't have to provide a jury.
So these 2... The 2 analyses,
you know are done in parallel. And this
the same question of is it does involve
public rights or does it involve private rights.
So cases that
involve private rights
have to be lit in the article 3
courts. And then if they are legal in
nature, you have to provide a jury. If
they involve public rights, then you can take
them outside of the article 3 courts you
can do them in an agency. And that's
the same analysis for both the seventh amendment
and
for,
the article 3. So I don't, you know,
then I don't know that that actually works.
No I I mean, probably
probably it doesn't. But the the public rights
distinction is important right? Because most A
are, like the social security administration, dealing with
various benefits. So,
many, many things are still gonna stay in
the administrative process
after this decision,
but some kind of
fines... At at the very least fines were
sort of things that rhyme with commonwealth actions,
maybe some broader, maybe even all fines,
but
some things are certainly going going back into
a to real court. Something which, you know,
love for the A j's out there. I
don't know. It's kind of dis discouraging.
But
that there's definitely a difference,
I I have been in I have been
in
administrative
court before. There were some
interesting aspects to that. Like, the government could
get discovery, but the respond couldn't. That was
weird.
Yeah. I mean, there's something very troubling where
the judge is literally employed in the... Very
same building in the same offices as the
prosecutors. And sometimes, you know, these administrative judges,
you know, not the case of these A
necessarily, but a lot of administrative judges, they
do double duty.
So, like, in the Epa, for instance, they
have a whole class of judges,
the who both
prosecute
and bring enforcement actions and also judge cases.
And they don't... You know, they're not doing
it in the same case, but it's like
I might prosecute
cases, and then you're the judge in my
cases and you prosecute cases, and I'm the
judge in your cases. Wait. That really happens.
Oh, yeah. That's nuts. That's like that's bananas.
That's obviously crazy. Yeah. There's all kinds of
crazy stuff that goes on. So, you know,
this is... A really important decision in terms
of establishing the independence of the judiciary.
You know, and we joke about the Skype,
calling. But it's true. In our Ami, we
actually went through in our Ami brief, we
went through and we, you know,
counted up all the different federal agencies that
have A
falling And it basically turns out that there
are... While there are thousands of A in
the federal government.
Like,
90 percent of them are employed by the
Social Security administration,
processing social Security claims, which
you know, that's like a quintessential public. Right?
That's the sort of thing that can be
done in the agency, and that's not gonna
change. Right? So,
if you're an A j who's listening to
this,
you know, which maybe there are a couple,
I I kinda doubt it. You know, maybe
who knows I don't know. Dozens of us.
If you're a federal, you know, A who's
listening to. I think you can rest assured
like, your job is probably safe. You're not
going anywhere. There's lots of social security claims
to process and things like that. But so
the sky is not falling, but for people
who are being targeted for fines,
this is a really good decision.
I should note if there's also a descent
from Justice So.
And, you know, on the topic of things
that are British.
It's a very british descent because what justice
So so basically says is that
the government
is sovereign.
And
she uses that word, You know, the government
is sovereign. And if the government and its
sovereign power decides that it wants to prosecute
a case in an agency,
then there's nothing that the courts
you know, should have to say about it
and that those are, you know, anything involving
the government is involved. The public rights of
the sovereign
as sovereign and that that can be heard
in agency courts. And my first reaction to
that, and this goes to Anthony's article, which
the you know, we... We're don't have to
get into all the substance of, but it's
a very good article. And 1 thing that
Anthony points out is the biggest difference between
the British system and the American system is
that
you know, in the American system, the government's
not sovereign, the people are sovereign. So,
you know, I read that from justice so.
This is very british. And it's and it's
wrong. And the people is not the same
thing as congress or the legislature. I mean,
I think that's the thing that people really
get confused is they're elected by the people
but in the Old British system
parliament to some extent was elected. Now it's
much more elected.
But parliament
itself in along with the crown
was the sovereign. So if Congress does something,
it's not like
the sovereign is commanding, you know, x. I
mean, we say that a lot she's saying
that, but that's not really how this system
is supposed to be thought of.
I thought it was very interesting that Her
descent ends with, like, there are good policy
reasons, like, greater efficiency and uniformity.
If if we just let the Sec keep
its, like, 99 percent win rate and, I
mean, yes.
But
a lot of the things in the institution
are sort of anti efficiency for the for
the sake of
other higher values. So I... That that particular
line didn't really didn't really resonate with me.
I think the the rule that the descent
is advocating for is also just kind of
a frightening rule. Right? So the government, the
the theory that the descent is adopting us
basically
And this is the government's argument in the
case too,
that
anytime the government brings an enforcement action against
an individual
that involves public rights, and so it can
be hurt an agency. So, you know, if
you sue me
for, you know, a hundred thousand dollars and
damages,
I don't know what I did you, but
I did something and and you're suing me
for a hundred thousand dollars in damages. That
involves our our private rights.
And so that case goes to Real court.
But if the government sue me
for a hundred thousand dollars and says I
did something wrong, and they're gonna take a
hundred thousand dollars.
Then that doesn't get a real judge instead.
You can have a judge who's employed by
the very same
agency,
that is prose
you and trying to take your hundred thousand
dollars. So, I mean, that's, like,
pretty wild
basically We assume the powers of the executive
will always be exercised responsibly by our own
political allies and people that we like Now
we just don't for it'll be fine. Right?
Like, we shouldn't have to worry about. We
just don't criminal prosecute the executive for for
doing those things. But other otherwise it's okay.
Yeah. That's another case that we're not gonna
talk about today. I I wanted to
do a little bit for a little bit
of fun. Do a little bit of... Back,
Rob, what you're you're you're just talking about.
But more to
maybe
educate some of our non lawyer listeners
on
the interplay of the different rights the trial
by jury in the constitution because I think
some people when maybe when they come to
this case, get a little confused
because there's actually different...
I think our intuitions are actually not quite
what the constitution says even though
the constitution leads us to where the I
think where the court came out here. So
when people think about tri jury and the
government, like, finding you,
what most people are thinking about is a
criminal
prosecution. But actually,
the sixth... So that's the sixth amendment,
and the sixth amendment
guarantees
your right to trial by jury
in a criminal case,
but this isn't a criminal case.
And it has been interpreted to not give
you a trial by jury if it's just
fines.
Mean, they kinda... I I can't remember the
case, but there's right, this case,
from the seventies, I think that says,
if there's
if you're prosecuted and the
potential
a sentence is going to be 6 months
in
incarceration or more than you get a jury
trial. But less than that you don't. I
I think it has to do with
incorporation doctrine too is why they...
I'm going back to my Cr pro days
in in Law Gop ford. To saying that.
But anyway, so it says in in 6
amendment, in all criminal
prosecution the cues shall joy the right to
a speedy and public a trial by an
impartial jury of the state and district we're
in the crimes he'll being committed. Okay? So
that's that's what the sixth amendment says, and
that's actually been incorporated against the states.
So... But that's
that's criminal prosecution. So if the government comes
after you civil,
which is what this Sec thing has.
Then we get to the seventh amendment
in suits at common law, where the value
and controversy show, say, 20 dollars,
the right of jury
trial by jury shall be preserved.
So that's another question of whether it's at
Ka, which you were talking about earlier, and
then there's the public rights exception. And then
we have article 3,
which says that, you know, judges shall have
good behavior and all that. Although, if truth
be told...
Right? Congress never actually had to create
trials,
courts under article 3. It just could.
So, you know, it could've have been in
a, like, parallel universe, we could have had
lived in a a world where the Sec
was doing this stuff in state court, not
even in. You know, jury trial or at
not even in... Before its own ale days.
And then, you know, God knows what would
have, govern there about jury trials. So throwing
all that stuff together,
you get you get a sense. Like, you
just kinda get a libertarian sense if the
government's trend coming after you for, like,
way more than 20 dollars in fines,
you should get a jury trial,
but that it it'd be... To get it
there, you kinda have to go through this,
It's a pseudo at common law. Otherwise, you
don't have something directly
on point.
And am I right about all that or
is some of some of that
may be wrong. Well, I don't think you're
wrong, but I think there's a... There's... So
2 thoughts. 1 is that there is actually...
Another provision that you didn't mention that justice
gorsuch points out is critical here. Right? And
that's the due process christ. Really And, you
know, the government can't take your life, liberty
or property without a due process of law.
And what justice Gorsuch says is like,
that was understood to mean
for, like, imposing fines. That was understood to
mean, like, a real court.
Right? You,
not this, like Pseudo court in an administrative
agency. So I think do process here is
the due process clause is kind of the
other missing piece to all of this. It's...
You know, to the extent that these
other provisions don't...
Specifically address something. I think due process is
still
the overriding idea that they had was this
stuff's gonna
go... The traditional way we did it was
we go to court and like, we're gonna
still do that, and we're not gonna have
these new fang
vice admiral teach courts or the Sec or
any of this. And this is a part.
This a part where I think history and
tradition really do help
understand what the purpose of it is is
that... The whole background about vice admiral courts
and the the seventh amendment,
unlike maybe some other times where history and
tradition got... They've gotten a little too crazy
lately. Yeah. I think that's right. I think
that, you know, sometimes history and tradition, and
you can kind of
the court ends up kind of...
Looking for analog and trying to find, like...
It's like, looking for faces in a crowd.
It's like, we wanna uphold this, So let's
find things where this was done or we
wanna strike it down. So let's find places
where it wasn't done, and, you know, it's
it's sort of the, like, Justice Sc said
about
statutory
interpretation and legislative history, Like, you're just looking
for faces in the crowd that support what
you wanna do. And and that whole analysis
can feel
problematic in a lot of ways. But this
is, like a good use of history where
we're looking at a constitutional... A set of
constitutional provisions
and we're thinking, what is what animate this?
What is it about?
And by knowing that, we can understand why
these administrative agencies
are just so problematic and not in line
with what the constitution says.
A huge huge
1 third of a of A123
sort of combo against the administrative state at
the at the end of the term,
along with the over ruling of Chevron defer
and then also the sort of there is
no statute limitations anymore to challenge
agency regulations in corner post, and and those
3 cases,
all
individually, but especially put together are our big,
big deal. My my idiosyncratic view on this.
And so, you know, how important a cases
is is in some sense both un noble
and
maybe, like, not all... Almost not even worth
discussing because it's so un noble, but my
idiosyncratic view on this is that some
Is the most important.
Kart corner post is the second most important.
And
the lo bright is the third most important.
Which is probably road.
You know, I I recognize this is controversial.
I reject
your implicit rejection of this topic and continue
on the topic. I think it's it's lo
bright is the most important then Dark c
then corner post. Yeah.
See my view on this though is that
who the judge is is typically more important
than what standard they are applying.
This is my, like, maybe slightly john view
as a lit. But... Let's say that's a
that's a very reasonable point. I'll, I'll, I'll
I'll give you that for sure.
Do you think... So this is comp... We
didn't prep for this at all, but... So
corner post for listeners benefit
said that when a new rule comes up,
administrative agency,
you...
There's... There was an argument that you could
only challenge it on its face in the
first 6 years
And if it's, like, after that, you could
only challenge it as applied, but the the
Supreme court has said, the majority said, no,
you could did that actually, you can apply
it, you know, whenever later on as a
facial matter.
Is that as a practical matter, a big
deal, Rob with a lot of... By ad
ad. Like, there are a lot of facial
challenges that they they just don't happen because
they were they were more than 6 years
that now can happen.
Yeah. So it allows people to go back
and challenge reg that maybe have been on
the books for a long time, But, you
know, either they were challenged.
But they were challenged in a different era
when, you know, the courts had a different
view of things or no 1 challenged them
maybe because it was a different era,
and courts had a different view of things.
It just opens the door to go back
and start and and challenge regulations that have
been on the books
for potentially a long time.
And to to get
rulings on whether those regulations are legal, whether
they're constitutional.
So it's a big deal. It's potentially a
big deal. You know, and I'm... I, you
know, I kid. I I think, obviously, overrule
Chevron is a big deal. Like, you can't
deny that it's a big deal.
I would just, you know, I don't know
how many judges really have been following Chevron
for the last
20 years anyway. So... I mean, the Supreme
court hasn't been. But no.
Well,
that is a little bit of a history
lesson on our,
old relations with the United Kingdom.
But we we still have relations,
usually good relations
today, including with some of our... It's ambassador
staff.
So, Andrew, what happened to a cert member
of that staff in in Houston?
Yeah. Well, a console general is not an
ambassador there. Let's let's be close
part of the staff. Right have of the
of, you know, of the What is a
cogs
let's. Hold Let me let me tell you
what happened first us. Let me tell you
about what is going on with the current
relationship of American citizens to to Uk ones.
So so I'm gonna go to an unpublished,
because it's really much more interesting on the
facts.
Decision out of the fifth circuit. This is
United States of America versus it...
Da or Ryan Benjamin woods. It's a a
sad, but but lively tail, and I'm just
gonna
read the facts, which are basically in in
1 paragraph.
So woods and his c defendant, Kristen Brink,
broke into the British console general's family home
in Houston, Texas,
security footage from the home showed woods, driving
a u haul truck through the homes security
gate, entering the property and carrying items back
to the truck, woods some w stole 2
vehicles, a safe, high end watches, jewelry, a
television, the family's passports and personal documents
and a large amount of alcohol, put a
pin in that. They ran back the home
and caused over 50000 dollars in damages
what do you think that were?
I don't know. Maybe they're, like, sort of,
like,
diplomatic, you know, special plates cars.
But like they're they're already driving at U
haul. Like, did they... So how did they...
Like, like, in in shifts, like you go,
you still want you wondering if they were
no heads or something like that. Threw in
the back of the truck.
Oh, I don't I don't know.
Vehicles just probably chosen for a reason though.
I got that... This this was a per
unpublished decision
by
judges Higgins and Willard and O, and it
had a certain chris this to it that
I'd I think is sounds to me like
Andy Old. So I'd... I think that I
think the word vehicles was chosen for a
reason in a way that might include mop
pads. I I don't think this was no
vehicles in the park. Yeah. I I
Well, I'm sure these were una
vehicles. I don't I don't think this is,
like, an H l heart thing.
I don't think justice Will wrote it. It
didn't it didn't have quite his his particular,
Pan
But the important thing about this case, Right,
is that the Americans are once again rising
up against the British.
And and it basically gives a short circuit
listeners and excuse to hear about
what a console general is, which is...
Part of the diplomatic staff of a country,
but not the ambassador. So the ambassador is
the highest ranking person,
in a in a diplomatic
staff or or mission. The ones who responsible
for real issues of policy,
treaties, things like that.
A console
is someone who is generally helping relations and
the citizens of the home country in the
foreign country. So there are in fact, many
British consulate all around
the United States,
some of them are consulate like in like
in Denver,
in bigger cities, though, you have consoles general
as in as in Houston and and Chicago,
Boston,
Atlanta various other cities around the United states
so a a console general out ranks the
console obviously out ranks a vice console.
But they are not as important as ambassadors
and they're doing things like helping dates you
know, the local Uk citizens get passports and
deal with things on taxes. So this is
more the sort of, like, when you think
of,
maybe you're traveling abroad. You use your passport.
You sort of go to the embassy, but
for help not to negotiate a treaty. That
sort of for help thing is is the
sort of thing that
Consul general are responsible. So not to be
confused with Dame Karen Pierce,
Lady Ro, the the current ambassador since 20
20, She is in Dc. Being very important
at the embassy. This is merely the
the consul general
hanging out in Houston. I think under him,
though, there there are, like, the consoles,
and they can be, like, very kinda part
time even. Like, oh, yeah just be office,
and it'll be an honorary
like, in case there are any brits who
happen to be in the area. Yeah. Well,
there's there's an entire,
you know, diplomatic system that stems of course
from. 18 15 Congress Vienna in the wake
of the Napoleonic wars setting up ambassadors on
top of the minister's point of
going on down, your you know,
aids and
ministers, affairs, and and and all sorts of
of different things. These were simplified later in
the in the twentieth and But there are
still many important forms
about this, where the
you know, the,
a consult general would wing, rank on a
matter of protocol, the 3. In the Us
system, a console general is akin to but
below a b general. So if you had
a mixed you know, like military and diplomatic,
fancy dinner where you had to decide the
seating arrangements,
more important than a colonel less,
important any b or general or a or
a real admiral. So, you know, a console
general is is no joke, but it's also
not the ambassador
herself. Sounds like maybe you've been to 1
of these dinners that you you know this
stuff. I mean, this is not a podcast
about my personal life. I'm not maybe, maybe
not... We're not we're not gonna... We're not
gonna go into that.
Do we think these people had a, like
a residence or was this just like their
family house? I'm Well, I think I... It
it the opinion describes it right as
their family home. Family home. Yeah. But whether
that's given to them by... It wouldn't surprise...
Like, certain the ambassador, of course, has, like,
an ambassador
residence,
And a console general, I I would guess
given the nature of the job, it probably
is a a piece of property owned by
owned by the sovereign, but I'm just. I'm
just kinda out on there now. If mister
Woods knew what he was getting into. Yeah.
I wonder that so. I mean, they have
an they have an office. The console general
office is separate Yeah the home. Like, that's,
like, a,
office address. But I want... Yeah. I I
mean, they took the safe. And the passports
that makes me
think maybe they knew what they were targeting.
They were... No. They were probably just in
the safe. Right?
That why why would you why would you
steal the console general's passport?
That's like that. I mean, that's a pretty
cool passport. You have diplomatic community.
You get arrested. I'm surprised woods didn't, you
know, try and pull that. I mean, may
you think it was careful, like, an oceans
11, like, I'm gonna get this guy's passport.
He looks to sufficient like me that this
is all gonna work. But we should we
should finish the we should finish the story
of of what happens to to mister Woods,
so generally because he's not actually convicted of
residential burglary,
us,
specifically, it was damaging property
occupied by a foreign official,
foreign official, almost certainly being the the federal
hook. His guidelines range is is relatively low.
He ends up with a... And this is,
of course, the the big
manual of of good and evil where the
the federal a federal court and criminal sentencing
sort of, like, weighs your sins and and
tries to figure out exactly how precisely you
should deserve to be punished.
And his his guidelines range is is only
in
around a year,
but the court varies upward,
sentences him to 30 months, and the fifth
circuit as anyone could expect from an unpublished
career fifth circuit opinion,
says no. Obvious not. You have behaved very
seriously. You're lucky. You know, you didn't have
a base level of 17 for committing resident
Burglar, you have all these other things that
weren't even factored into your record, like juvenile,
crimes, like fighting and, like, beef beats up
is cell made or something.
And so, of course, the
the court affirm a 30 month sentence, which
I... You know,
I am not the biggest fan of the
car state, I think, in the sentencing and
guidelines,
the the table that says what you actually
get. Probably divide all the numbers by 4.
But even I think 30 months for, like,
a serious
residential burglary sounds pretty fine,
plus, you know, whatever,
in est harm he has done to American
Uk relations.
But but perhaps a more interesting point
of the of the sentencing is that a
mister Woods loves his alcohol,
he gloves drinking, and he doesn't do it
that much anymore, but he sometimes drinks to
excess
And at oral pronounce of the sentence,
the district court says that while he is
in drug treatment program,
he is not allowed as a condition of
his sentence to drink alcohol to excess.
But then
in the written
sentencing order that comes out, it just says
he can't drink alcohol to access. And
you're you're Anthony, you're you're looking like you
wanna interject. To hope saying. Well, no. No.
You're you're saying it right. So so, basically,
we're... It was supposed to be orally when
he's part of this program.
Which is really about his substance of abuse.
He can't drink alcohol to access. But Yeah.
The the written order says... Alcoholic says, which
I'm guessing would be through his probation period.
And that the most interesting thing the me
is is how the court put it and
whether it was judge Ul and his clerk
or a Toilet or whoever, I think some...
This was not an accident that it was
written this way. Would said he began consuming
alcohol as a teenager, and although he
now he only drinks on where kate rare
occasions when he does,
it is excessive.
I don't know if he drinks Do,
but I I think that was in the
back of the mine. Of yeah. Well, you
know, just as a know, the the list
of things that were stolen from the house
includes
a large amount of a alcohol. Yeah. Yeah.
Which which
he's not gonna drink all the time. And
so, you know, and it's funny that he
bought... He and he chow ultimately what happens
is he challenges this condition on appeal.
Because the written
pronounce,
or sorry, the, you know, the writing, which
is that he shall not consume alcohol to
access conflicts with the oral pronounce, which is
that he shown not consume alcohol excessively while
he's in the drug treatment program that that's
part of his. And and this guy is
like, he's already got the ability to drink
alcohol. He's only limited from consuming it excessively.
Apparently, that's not super important. That's not sufficient
for him. He wants at least sometimes to
be able to drink alcohol to access. And
so he challenges
the
the written
restriction as inconsistent with the oral pronounce. They're
act actually is a settled, like, very black
letter rule that is the oral pronounce
that controls,
we were sort of debating before we started
recording like, what's going on, who actually peeled
this. Why did this happen?
My working theory is that, you know, he
was trying to get a sentence cut in
half because he got this substantially above guideline
sentence, But while we were... Walk was up
there, you know, his attorney threw him a
bone and said sure. I'll get that alcohol
restriction removed, and the fifth circuit removes it.
I I did pull up the brief, so
it was he was represented by the federal
public defenders office, and they raised 2 separate
issues on appeal.
The first was the length of the sentence
and the second was the alcohol thing. So,
you know, that's your, I guess, your tax
dollars that were. Having 5.
I don't... Is is this like a litigation
tactic? Is this is this the opposite of
don't bring too many week issues? Like what
if I bring a second issue that doesn't
matter? But where I'm clearly right on the
black letter law. Does that increase my credibility
and show that, you know, suspicious things that
should be reversed, swear were happening below. That
that might have been their thinking. Maybe they're
thinking well, they're gonna send it back on
the alcohol thing anyway, maybe they'll send it
back on the first issue. Well, they send
it back for, like, technical
clerical, like.
And so... And so, yeah, So mister Woods,
residential burglar is
doing his 30 months, but he will be
able to drink excessively while out side of
drug treatment, and that is the end of
this per case that is just as important
as rolling back the image. But he won't
be able to drink
his majesty,
government's
alcohol because that was recaptured when they... Yeah.
Yeah. Found that yeah. He's... He won't get
to use the passport. If they're... I'm guessing
the large amount of alcohol. They they must
have, you know, like, fancy dinners.
And Of an Am ambassador. I don't know
just
Console general. It's just a console. But he's
like he's like the biggest brit in Texas.
Right? So there must be, you know, I
don't know, heads of oil companies or he's
trying to do trade stuff. They probably have
fancy dinners there. That's that's a that's a
fair point. I I hope those dinners weren't
delayed while they were missing their,
you know.
And I just wanna push back on it
a little bit. It says when they found
them, they found some of the stolen items.
So we don't know.
From the face of the opinion, whether all
of the alcohol was ever It's good. You
know, I I comb the records super hard
when I'm putting together a summary judgment motion,
but I I admit that I did not
apply a hundred percent of my usual warrior
sc. To
reviewing the details of this case. Maybe the
alcohol is buried somewhere in Texas still. Like,
we don't get in
hidden... Yeah Mean, yeah. It could be like,
you know, rare
cask of of fancy European vintage, not from
England to obviously, but that that they bought.
Big portals. I I think is is what
you would you would have because of the
England's old oldest allies is is Portugal as
they say. So
That's what you would have at the Am
ambassador
dinner.
Yeah. So I, you know, so on the
1 hand, I'd like that we're still throwing
off the yoke of our compressors, But on
the other hand, you know Burglary is probably
immoral and we're pretty cool with him now.
So
I don't know. Don't rob British foreign officials.
I want... You know, what I was thinking
is whether he knew this was
a big
British consul
fellow or not.
If he would've... Did he get a better
deal because he was in federal court than
in Texas State court or I I can't
think they go easy on this type of.
Burglar. I mean, I don't know Texas criminal
procedure and sentencing guidelines and all that. But
I mean, they have a whole separate state
Supreme Court just to be harsh
miles.
So maybe what's good for The Yeah. Maybe
he got lost happen to be AAA
general console.
Yeah. 30 30 months instead of 30 years
Who knows? Who knows? It's
It's a weird time to
in in in the life of, of mister
Woods.
Well, for those of you interested in British.
American relations. We did a show, actually, a
little over a year ago about the British
constitution,
and with a a couple fellows who put
together edited a book on the changing British
constitution. So we'll put a link in the
show notes to that if that's... That's your
thing that was our our biggest ever foreign
audience, I believe. By the way, was that
podcast because we could track who listens to
this stuff, Not individually, but by country.
Doctors will make you say that if you
have, like a stroke. British
constitution because it involves your tongue so much
to make all the consonants. It's like testing
whether your hypo muscle nerve works.
At or your biggest nervous both. But you
know, I I just wanted to come in
hard with with the weird facts for our
July fourth. 5. I did not know that.
But everything about Britain. But I I think
that everyone should be thinking about that this
fourth of July.
Whether you are celebrating,
the the American
declaration of independence or whether you're you're voting
in the Uk for our Uk listeners and,
in selecting a a new government.
I hope you have a brilliant fourth of
July as they say across the pond and
and for
everyone else,
I hope that
you all
get engaged.