In Monday’s emergency episode of the podcast, David and Sarah bring us up to speed on the Trump legal team’s latest litigation drama, which has become nothing short of a clown show. One of the most puzzling aspects about all of this is the striking gap between the Trump campaign’s public rhetoric about widespread voter fraud during press conferences and its much more modest—albeit still meritless—legal arguments in the courtroom. No matter how you slice it, the president’s legacy is on the line here. In Sarah’s words: “This is what he’s going to be remembered by.” Our hosts discuss the Trump campaign’s failed Pennsylvania election lawsuit and Thursday’s rather unconventional press conference given by Sidney Powell, Rudy Giuliani, and Jenna Ellis. Then Sarah’s husband, Scott Keller joins the podcast to spar with David about nationwide injunctions.

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows.

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian.

The Trump campaign is swinging for the fences in most of its litigation efforts in hopes that at least some of its legal arguments will be successful. But as our podcast hosts remind us, most of the president’s post-election lawsuits are unlikely to change the outcome even if the Trump campaign scores a few victories along the way. “The Trump administration could win, dunk on the opposition, hang on the rim, taunt its opponents, and nothing changes,” David explains. On today’s podcast, David and Sarah explain the overall legal context surrounding the president’s ongoing election litigation efforts and give us the lowdown on the latest voter fraud conspiracy theories. Plus, David and Sarah break down Supreme Court oral arguments for the Affordable Care Act case and discuss a race-based admissions lawsuit at Harvard.

We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!)

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Echelon Insights predicts that we will see record turnout this election cycle. How might a surge in, say, 2o million new voters this year affect the presidential race in battleground states? “If we’re talking the day after the election about why the polls were wrong,” Sarah warns on today’s episode, “it will be because of the extraordinary turnout, and [pollsters] were unable to figure out where those turnout increases were coming from.” Tune in to today’s episode to hear David and Sarah’s take on early voting in swing states, the importance of political rallies, and the DoJ’s antitrust lawsuit against Google.

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