Morning Glory: The left's favorite legal 'analysts' are almost always wrong

S E E D E D   C O N T E N T

Conservative legal commentators are usually very cautious whether on cable or radio broadcasts or in-print for some obvious reasons detailed below. Legal commentators from the left are—sharp contrast alert—much more likely to be egregiously, repeatedly and loudly wrong in their "analysis." And not just on questions concerning the criminal liability of former President Donald Trump, but again and again, on all sorts of issues from abortion to EPA rule-making to property rights disputes.

This inherent bias towards caution among the right's legal commentariat generally combined with the partisan assessments dressed up as legal deep-thinking has led to an enormous imbalance among the dueling left-and-right legal analysts, which in turn has led to a particularly pernicious impact on big consumers of blue bubble media, whether broadcast over MSNBC or CNN or from the very online left at any of a dozen sites where the left goes to get its news.

The audiences fed the almost-always-wrong hot takes from the left's favorite "legal analysts" are not about to lose their faith in the commentators who led them astray. They are, when disappointed, going to fall for the absurdist conspiracy theories of the likes of Senator Sheldon Whitehouse or even the simply naked partisanship of Senators Chuck Schumer or Dick Durbin, who are at this moment the Senate Majority Leader and the Chair of the Senate Judiciary Committee respectively. Again and again the legal "analysis" on the left's platforms has been proven to be horribly wrong but the usual suspects keep spewing out stupid and actually astonishing claims with zero consequences.

Why is the conservative legal commentariat cautious even when they know the blue bubbles are filling up with junk legal takes?

First, there just aren't many conservative legal analysts anywhere except on Fox News which features Andy McCarthy, Jonathan Turley and Mark Levin. David French and Sarah Isgur Flores, who are well known and deserve their reputations as serious legal analysts, are more often than not mixing their legal commentary with pure political commentary because they are asked to do so, and thus are not categorized as "chief legal analyst" or some such absurd term that networks deploy to credential-up whomever they hire to take positions that will reliably defend the legal positions preferred by the left. Those include expanding the reach of the administrative state, the erosion of property rights, the most permissive positions on abortion rights disputes, and especially to side with Special Counsel Jack Smith, America's Javert.

Serous legal scholars who are considered conservative or "originalist" or at least "center-right" like Harvard Professor Jack Goldsmith and Adam White of the American Enterprise Institute are often reluctant to give quick assessments, probably because they value being careful and nuanced more than they do cable news appearances —and that's fine. Indeed that's an admirable restraint.

Second, younger legal scholars who aspire either to the bench, or confirmation to a senior position in the Department of Justice or even just tenure at a law school know better than to get involved in the rat-a-tat-tat of legal commentary much less posting on X because, well, they know the left keeps score.

As does the right. Look at what the Republicans did to Neera Tanden when she was nominated by President-elect Biden to lead the Office of Management and Budget. The GOP rejected her for mean tweets and hot partisan takes on cable even though Tanden was extremely well qualified for the job. She is a very smart lawyer from the left and should have been confirmed. The message for young ambitious lawyers that followed that episode are obvious: Stay low to the ground and do good and hopefully boring work and, for goodness' sake, don't get caught up in any high-profile fray. (And never, ever defend Trump on any issue, or kiss that confirmation or tenure vote goodbye down the road.)

The Supreme Court of the United States appeared concern in how presidential immunity for crimes alleged by special counsel Jack Smith will impact the future functioning of the executive branch.(Courtesy: William J. Hennessy Jr.)

Prudence on the part of conservative legal analysts combined with the hunt for ratings drawn almost exclusively from the deep blue part of the potential audience means even the center-left audience in America has been continually surprised by decisions from the Supreme Court in recent years, even when those decisions were extremely predictable.

The decision returning abortion law decisions to state legislatures in Dobbs v. Jackson Women's Health Organization reflected the center-right, "originalist" position on that issue since the decision in Roe v Wade came down in 1973. The ridiculous "joint opinion" in 1992's Planned Parenthood v. Casey did not create a new category of "super precedent" and the outrage from the left when Dobbs overturned Roe and Casey was inevitable because that blue bubble audience had been led to believe in "super-precedent" by erroneous references to what the doctrine of stare decisis actually means.

The 9-0 per curiam opinion returning former President Trump to the Colorado ballot in this year's Trump v. Anderson decision was another decision that was obvious from the jump.

The remand from the Supreme Court to the District Court that will be forthcoming in Trump v. United States will likely stun and outrage the left again, even though it shouldn't. The question of the scope of presidential immunity from criminal prosecution for acts taken while in office will require further proceedings in keeping with the majority's delineation of the zone of immunity for all presidents past, present and future. That's the obvious conclusion from the oral argument, and it was obvious from the briefs when they were filed and indeed from prior case law concerning presidential immunity and the powers of the president. An erroneous decision by the D.C.Circuit provides some legal commentators on the left cover in this case, but did even one of them stand up and question the D.C. Circuit given the obvious conclusion that there must be some scope of immunity for presidents when they exercise their legitimate powers?

The Supreme Court is seen in Washington, March 7, 2024. (AP Photo/J. Scott Applewhite, File)

Also obvious? That the civil fraud judgment against Trump rendered by New York State trial court Justice Arthur Engoron will be reversed eventually, just as it was obvious that his ridiculous bond requirement would be reduced.

Alvin Bragg's prosecution is likely to result in a conviction because of the absurd rulings of that trial judge and the extraordinary stretch by Bragg to stack charges and find a way to turn a time-barred misdemeanor into dozens of felony charges against the president. This abhorrent abuse of the prosecutorial power is also overwhelmingly likely to be overturned on appeal down the road. That's the likely end result, but you won't hear that on MSNBC because that network doesn't want to burst its audience's blue bubble.

Fanni Willis should not be leading the prosecution in Atlanta given the misstatements and evasions she made when under oath, and for that reason and others, that case and the recent Arizona case against Trump are likewise obviously deeply flawed and based on extravagant theories which will get tossed eventually.

These are all obvious things. You don't have to have been an accomplished prosecutor like McCarthy or a tenured and respected professor like Turley to know these things. Every legal analyst who takes to the airwaves should be prepared to present both sides of every argument and the pros and cons of each. They should not be about brainwashing their audiences.

To repeat: The feigned surprise by the analysts on the left when confronting decisions they don't like is predictable, and the outrage on the left side of the Democratic Party over those rulings is inevitable because of the junk analysis the activists are being fed in their news feeds every day. That's just what happens when terrible hot takes are churned out by the usual suspects every day: shock followed by outrage.

But, hey, these analysts of the left or the Never Trump rump are protected by the First Amendment and I wouldn't have it any other way. Forewarned is forearmed, though, and you might want to send this column along to any of your friends who are absolutely certain Trump is "going down" and will end up behind bars because Jack Smith, Alvin Bragg and Fanni Willis alleged he did crimes so therefor he should obviously be convicted and do the time. That's not how it works in our country though, no matter what that lawyer on TV says.

Hugh Hewitt is host of "The Hugh Hewitt show," heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel's news roundtable hosted by Brett Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University's Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting, and this column previews the lead story that will drive his radio/TV show today.