Ballrooms, ‘Bama and (Very) Bad Behavior

The Trump administration's excessive Christian nationalist rhetoric is only building,

“as we move toward the 250th anniversary of the Declaration of Independence.”

Those most caught in the crossfire are federal workers, specifically a multi-faith group of federal employees filed a new lawsuit against the United States Department of Agriculture for violating the separation of church and state and the religious freedom promised in our constitution. Our friends in Americans United for separation of church and state received emails from

multiple Department of Agriculture employees, handful of employees reached out saying the proscalletizing Easter emails sent by Secretary of Agriculture, Brooke Rollins, to more than 100,000 agriculture employees is an abusive power that violates the separation

of church and state promised in the first amendment.

And you know what? They are right. As Katie Fange and I talked about when Heggseth Cag's breath was proscalletizing to the troops, federal officials aren't supposed to be inserting religion into federal responsibilities and federal officials' authority.

It's in the first amendment, the first one, which prohibits the federal government from establishing a religion, including in the federal workforce. The hits keep on coming from this administration and Americans United is doing their best to keep up the fight against Christian nationalism.

“If you want to help, head to AU.org/Crucate to learn more about their work and how you can”

get involved. Hey Cricut listeners, if you haven't become a friend of the pod yet, you are missing out on exclusive bonus content that drops every single week. If you do join, you're helping us grow Cricut media, which is one of the few independent, proudly pro-democracy media companies left in Trump's America.

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“There's no joke about this, but I'm not sure if it's for you, but I don't know if it's a joke,”

but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, but I'm not sure if it's a joke, That's just a place for it. It's no joke, but when I argue, man, I argue against you.

The ladies like this, they're going to have the last word. She's small, not elegantly, but with unmistakable clarity, she said, "I ask no favor for my sex." All I ask of our brethren is that they take their feet, or for my next. [Music] Hello and welcome back to Strix Grootney, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.

I'm Lea Littman, and I'm Melissa Murray, and we have so much to cover today. We are going to start first with breaking news from the Supreme Court, the lower courts, and the executive branch. As usual, there has been a lot. We will then wrap with our favorite things. And after that, we will bring you a conversation that I had with Barbara McQuade about her new book, which could not be more relevant right now, and that is the fix.

Saving America from the corruption of a mob style government, sounds all too real. But first up, the news, some news, some not-so-new news, and some news that might be news

except it feels like it's always in the news, and it perpetually never ending cycle.

But first up, the lower courts strike back in Alabama. No, when you're saying in New News and then not so new news, I weirdly for the first time in my life saw Groundhog Day the other day with my children. It's a really good movie. Anyway, yes, it does kind of feel like that. And the first item of news is that the lower courts seem to be striking back in Alabama,

regarding the fallout from the court's disastrous decision in Louisiana versus Kelley. So this is a developing story, but we'll tell you where we are as a Friday. So as we have previously discussed, as a grieges as the court's decision in Kelley was, that a griegesness was somehow topped by what the court did next.

So first, the court granted expedited issuance of the mandate in the case by passing the typical 32-day period,

a losing party has to request re-hearing, and clearing the way for Louisiana to immediately begin redrawing its map to eliminate a majority black district.

meaning it vacated a lower court opinion that had found a map an illegal racial gerrymander,

which sent Alabama legislators racing to redraw their map to, you guessed it, reduce black political power in Alabama. As we noted at the time, the Alabama case, or cases, was particularly appalling because the Supreme Court just three years earlier, had affirmed a lower court opinion that found a map with only one majority black district illegal. And the state was still trying to insist on using a map with only one majority black district. It was also a grieges because the Supreme Court vacated the lower court opinion in light of Kelley,

even though the lower court had not only found that the map in question violated the voting rights act, but also that it was intentionally discriminatory in violation of the Constitution. Kelley should have no bearing on that finding, and yet the Supreme Court wiped away the lower court opinion without explanation.

“The three judge panel that got the remand, remember Grant Vacate Remand,”

means that the lower court is told to take another look in light of the intervening Supreme Court opinion here, Calay.

And basically, the court said, "Yeah, we read Kelley, and we said what we said."

This map is illegal under the Constitution, TLDR from the lower court did eye stutter. The judge is basically said without saying, "Perhaps you didn't read our earlier opinion, great ones, but after a full trial, we concluded that this map intentionally discriminates on the basis of race and violation of the Constitution. We've carefully reviewed Kelley, and it doesn't change anything about our conclusion." Microsoft.

Yes. The three judge court was also very explicit and very careful in its treatment of the question of timing. It noted that it was facing a very tight timeline given the looming election, and it described the two options as one, letting the elections occur using an unconstitutional map, or two, in joining the state from using that map, which would have been the status quo before the Supreme Court stepped in,

so hardly disruptive. That's two point five months before the primary and five months before the general election. And of course, the Supreme Court itself enjoyed a map just a few weeks ago in Calay, which would seem to suggest other federal courts could do the same.

“Just going to point out here, I think this was judicial shade.”

They were just like, "Hello, folks. What are we doing?" Just like fucking up elections left and right. They're clearly furious, and they want to make it if the court is going to try to do the damn thing and make the state use an illegal map. They want to make the court at least work to explain itself, because it's also lawless,

but I think they've basically made it impossible for the Supreme Court to again do the lawless thing

without explanation, basically just saying, "Nope, we're going to wipe away your work." So I thought it would say, "No, we're not going to do that." It was, I thought, very cleverly done by the lower court, but you're right. Of course, they will do what they will do. But just like to say another word about exactly what the lower court said,

that is going to at least make it difficult for the Supreme Court to just bull those ahead, they wrote, quote, "This is again, the three judge, the lower court." On the unique record before us, we determined that enjoying the 2023 plan will not disrupt Alabama's elections, we take extremely seriously the Supreme Court's command that federal

“district courts ordinarily should not intervene on the eve of an election for risk of causing”

administrative challenges and confusion. But the record here is clear. In joining the unconstitutional 2023 plan will improve the administrative situation in Alabama, not worsen it. On Wednesday, Alabama ran to the Supreme Court to ask it to step in once again,

and Justice Thomas requested a response that is due on Monday, June 1. So, at the moment, we are still waiting to see just how determined this particular Supreme Court is to reduce black voting power. Spoiler alert, I think a lot. If the court on the shadow docket forces Alabama to use a map that violates the constitution

and would cause further voting chaos and confusion, even I would have to say that that would be a new low for this court. But you know what? It's just a race to the bottom. So, why not, let's go.

LFG. So, out of the Supreme Court last week, we actually got a percureum order and opinion that we wanted to spend a couple of minutes on. So, this was a case brought by an association of immigration judges or IJs, challenging a policy adopted by the Department of Justice's Executive Office of Immigration

Review that regulated immigration judges work related speech. Immigration judges, it's surprising sometimes for people to learn this, but they are part of the Department of Justice, and so this is a policy that reported to regulate them. So, on the surface, this case is about to pretty dry sounding things.

One, where this challenge could properly be heard? So, option one, the merit systems protection board, or MSPBE, which is an agency that hears workplace-related complaints involving federal employees.

So, that's sort of the first dry question.

The second dry sounding question is whether what's called the party presentation rule. I'll explain that in a minute. Procluded the lower court from considering arguments about the forum for this dispute, where those particular arguments were not raised by the parties.

“Okay, so that's what the case on its face is about.”

But the case is also more kind of fundamentally about Trump's efforts to convert the entirety of the federal government into an extension of his will. And about whether federal courts can consider those efforts and that broader context and on the ground reality at all, in assessing things like whether claims have to be brought in a forum that is no longer operational because Trump has dismantled it.

So, that wind up pretty much gives the whole story. But this association of immigration judges filed a first and fifth amendment challenge to this new restrictive speech policy. The district court dismissed the claim, holding that the Civil Service Reform Act requires federal employees to bring certain work related grievances,

including this particular grievance, before the MSPB or the Office of Special Council. But the fourth circuit reversed on appeal, concluding that factual circumstances had "called into question" whether the CSRA was "functioning as Congress intended." Oh, really, maybe the fact that the MSPB and Special Council were supposed to be protected

“from at-will firings, but that hasn't stopped the president from firing the democratic”

appointees on the MSPB depriving it of a quorum and has also fired the head of the Office of Special Council, meaning that these immigration judges may not be able to get a super fair shake, like those facts. I don't know. These are the questions the four circuit seemed puzzled by. So the panel that is the four circuit remanded for fact finding into the current state of the MSPB.

The Court of Appeals denied re-hearing on bonk, Judge Quadobam, appointee of Donald Trump from Trump 1.0, together with three others dissented. Accusing the panel of "shirking party presentation principles" by deciding the case on this MSPB operations ground, without any party raising the issue and without requesting supplemental briefing.

And the Supreme Court basically endorsed that position,

excorating the four circuit for deciding the case on a ground, not presented by either party and evidently, without giving the parties a chance to respond to this novel theory, which I'm pretty sure is just acknowledging reality, but what- Pretty novel of the Supreme Court, yeah.

“Um, and obviously out of line, and so that's what the precurium basically said.”

The four circuit didn't say, like, you know, we are declaring the MSPB is no longer an operational entity. They just said, like, let, I think it's not unreasonable for there to be some briefing on this question below, but that, of course, was a bridge too far for the Court. Um, okay, so a procuring opinion without an identified author, but there was a separate concerning concurrence by Justice Thomas,

which, you know, of course means it's like a day ending and why. Um, but bear it, join him, which actually is relatively atypical. The thrust of the concurrence was basically, you know, not only that this party presentation rule was violated, like the parties have to make arguments, courts don't get to, you know, sort of generate them on their own.

But also the substance underlying the fourth circuit's decision was wrong, like it is fundamentally improper for judges to take real-world facts into account. Only alternative facts. Alternative facts totally fine, encouraged, celebrated, but not real-world facts. Um, so the fourth circuit had said, it sort of grapple pretty directly with us.

It said, it would quote, "not allow its black robes to insulate it from taking notice of items in the public record." And Thomas was like, "Oh, no, that's exactly what we're supposed to do." Um, so, you know, you know, he's a hyperformalist, I guess it's not that surprising. He's saying the statute, it issue means what it means. It doesn't matter, you know, what the MSPB looks like today.

So, not surprising, he doesn't think courts can take these sorts of real-est considerations to do account. But bear it, joining him here was genuinely surprising, and I thought pretty alarming. [music] This episode is sponsored by Better Help.

It's summer, and Better Help is here to make sure it's thrive, not just survive, summer. For some, summer is their favorite season. Travel picks up kids are out of school, and adventure is the focus. Also, the Supreme Court stops releasing opinions in argued cases by the end of June. Bonus, "For others, juggling it all can be tough."

And it can lead to overwhelming and counting down the minutes until the kids are back in school. And many worry, they're wasting the days of sunshine. Plus, sometimes the Supreme Court makes it chatterdog at summer, which is not cool. What are my summer plans? I'm trying to thrive, but look, there's maybe going to be some surviving, too.

On the thrive side, we take our annual summer vacation, and I'm going to two concerts. I'm super excited about, and I've got our live show to look forward to. The Survivors, I have a lot of writing I want to do. But I feel like I need to do.

Plus, as always, I'm putting a lot of pressure on myself for the paperback release of Lawless.

Obviously hanging out with my dog, at least half the week, including beaches, and hose game, and more.

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New customers on the first 3 month plan only.

Speed slower above 40 gigabytes on unlimited plan, additional taxes, fees, and restrictions apply. Seament mobile for details. In other news, it seems that front of the pod, Samuel Alito remains ethically challenged. Hmm, don't say. A new new site, notice, recently reported that Justice Alito's son, Phillip, has been working as an attorney

in the general council's office of the Treasury Department under Scott Bessant. While the Supreme Court is obviously taking up a lot of cases, some of those cases do involve the Treasury Department. Interestingly, many of those cases involving the Treasury Department, Justice Alito, Phillips father, has not recused himself and that includes the recent tariffs case. Of course, there are many, many cases from many agencies that might come before the court.

It's not illegal to have cases from agencies. It's not illegal to work in an agency even when your father is a justice. But it does bear repeating that some of these cases are really consequential and may come before the court. I'm thinking here specifically about any case challenging an insurrectionist slush fund, for example, which raises the question of whether, at least some acknowledgement of the association

between Justice Alito's son and the Treasury Department would be worth noting, and maybe even for Justice Alito himself to recuse in those cases. Yeah, I mean, to be clear, Justice is typically recused from cases involving their family members. Or Justice Breyer would famously recuse from cases decided by his brother, Northern District of California, Judge Charles Breyer. And my recollection is that Justice is also would recuse when their kids' law firms say we're party to a case.

Doesn't seem that different from, you know, the General Council's Office of the Treasury Department and get Alito does not show any signs of having recused or planning to recuse in these cases. I did like you introducing this Melissa by calling San Alito Ethically a Challenge, which I don't know if you kind of follow some of the reporting about the Texas primary, but someone described Ken Paxton as ethically challenged.

And then there was this other paper that quoted someone in the Republican Party, who apparently said something to the tune of calling Ken Paxton ethically challenged is like saying, Jeffrey Dahmer had an eating disorder, which was, really, from the guy's own party. This is a Republican from the guy's own party. Yeah, they truly hate him so much.

It's something to observe. Yeah, totally unrelated, but if you like these and other digs at San Alito, reminder you can pre-order the paperback version of Wallace. This is actually the last week to pre-orders.

Sign copies from my local Indie Literati as always the link to that is in the show notes.

We got opinions last Thursday.

“And the courts are Republican appointees continued their quest to make recentencing,”

and efforts to revisit past convictions, and sentences virtually impossible and completely unavailable, even when Congress provided otherwise.

So the court narrowed provisions of the first step act.

The federal law that Donald Trump had actually passed during his first term in office that expanded opportunities for courts to revisit sentences, order individuals released and more. The Supreme Court prohibited courts from considering certain factors when reviewing motions for compassionate release under the first step act.

Under that law, courts can grant compassionate release in extraordinary and compelling circumstances. And last week, the court said two specific aspects or features of a case cannot count toward their being extraordinary and compelling circumstances that would warrant a compassionate release. In one of the cases Fernandez versus United States,

the six Republican appointees said the potential in validity of a defendant's conviction cannot be an extraordinary and compelling circumstance. It can't even count toward their being in extraordinary and compelling circumstances. So in that case, the defendant asserted he was innocent and asked that to be one factor

“for a court to consider granting him release.”

The six Republican appointees said nope.

Any challenge to your conviction has to proceed via habeas. Justice is so to my or and Kagan concurred to say, that rule is entirely gratuitous and unnecessary given the facts of this case. They agreed this particular petitioner couldn't ask a court to grant a compassionate release motion, but that was because the facts and arguments the petitioner was advancing

in the compassionate release motion had already been made to the trial court that imposed the sentence and reviewed his conviction. So they disagreed with the rule articulated by the majority, even if they agreed with the outcome, Justice Jackson, by contrast, filed on a full dissent.

In Rutherford versus United States, the Supreme Court said the fact that the sentencing commission recommended lower sentences for people like the petitioner couldn't qualify as quote extraordinary and compelling circumstances. When the sentencing commission lowers the sentencing range, it can decide whether to make those changes retroactively applicable

or it can decide that a only apply in future cases to anyone under the provision.

Here, the court said that when the commission elects to make the reduced sentences non retroactive, courts are prohibited from considering the fact that the commission now recommends as appropriate punishment, a potentially dramatically lower sentence. Justice Sotomayor wrote the dissent here and she was joined by Justice's Kagan and Jackson.

Both decisions were six to three either formally or effectively and both were also written by Justice Barrett.

“I think it's a good clarification that first case got reported as, like,”

like, as Leah was just explaining, it very was. No, so there were these were both six or three decisions. Like, they just should be in addition to the Supreme Court, habeas saying compassionate release. People are going to misreport that actually the Supreme Court is all on board

with doing so just in front of those. All right, so let's get back to some more criminal justice wrongs and rights in any event. In pitchford versus cane, black lives matters slash bats and slash Brett Kavanaugh wrote for a five to four justice majority to say that it is indeed

unreasonable to conclude that a defendant waved his objection to the prosecutor removing jurors on the basis of race. If that defendant's lawyer was told three times by a state trial judge that the objection was in fact on the record and in the record. That this decision is only a five to four decision is really the shocking part

here. The facts of this case were genuinely egregious. But please tell me more about libertarian Neil Gorsuch and how good he is for criminal justice defendants. He was indescent in this one and in the majority is in Rutherford and

Fernandez. I know. And again, this was like, oh, great. A bats and days prevailed. The Supreme Court is like, this is this is crazy case not to be unanimous,

or at least seven two, but in fact, it's five four. But you know what, black lives matters and Brett Kavanaugh knows. Five, like one year is still a margin. Right. And like a black life or two might matter, but that seems to be something

of an organizing principle. Maybe it should be a BLM. Black life matter. Totally. Yeah.

Yeah. Mattertals this week. One today. And it wasn't Clarence Thomas. Nope.

He was definitely adcent. Okay. So, and the last case that we got last week, just to end on some good news was flowers, food versus Brock.

A real genuine unanimous opinion. So this was yet another arbitration win for Gupta Wessler's Jennifer Bennett. She just can't stop won't stop bringing these cases and winning these cases.

So this case involved in effort by Flowers Foods, which is a producer of packaged baked goods like Wonder Bread

So this is a suit that was brought by a franchisee,

Brock, who delivered Flowers goods and who claimed to have been underpaid by Flowers. So that's the underlying dispute. Flowers invoked the Federal Arbitration Act, which directs court to enforce arbitration agreements

in many circumstances. And Brock and Flowers had entered into an arbitration agreement. But the Federal Law, the Federal Arbitration Act, or FAA has an important exception, providing that nothing in the statute.

She'll be used to compel arbitration in disputes involving, quote, "contracts of employment of semen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." So the question, in this case,

and variations on this question have a reason in a bunch of recent cases was whether Brock Strivers were part of a, quote, "class of workers engaged in interstate commerce." So three times in recent years,

the court has rejected invitations to read that exception narrowly, in other words, to read the FAA's arbitration directive broadly, and this marks the fourth.

“I think Bennett argued in one all three of those.”

And that streak just for her personally. So in this six-page opinion for a unanimous court, so that is a very short opinion.

Just as course, it's just basically concludes

that no worker doesn't have to cross-day lines or interact directly with vehicles that do cross-day lines in order to engage in interstate commerce for purposes of this FAA exception. So that means the suit can proceed in court

rather than being diverted into arbitration. Again, Jennifer Bennett. Really killing it. Not gonna let Kate end on Good News at Scotist, so what a point to something on the order's list.

And that is Glen's Thomas filed a dissent from the Supreme Court's decision to deny Florida's motion to file with called a bill of complaint against two other states, California and Washington.

Bills of complaint, those are what start cases under the Supreme Court's original jurisdiction. Those are cases that are filed at the beginning in the Supreme Court. The Supreme Court will then refer a case

to a special master who makes findings that the court then reviews anyways. Justice Thomas has a longstanding, wrong, in my view. View that the court can't refuse to hear suits between states and he writes about that here.

But he also writes about the underlying facts

of this bill of complaint in completely unhinged ways.

“And he's joined by Sam Alito because of course he is.”

Florida wanted to file a case against Washington in California because those two states provide driver's licenses to people who are not authorized to be in the United States and who Florida alleges reportedly cannot read English.

And Thomas writes, quote, "The result of this practice, Florida alleges is the disturbing phenomenon of illegal alien truck drivers causing fatal accidents on the road."

And, quote, "The underlying case involved a crash that was caused by a driver who made a U-turn while driving a tractor trailer at a place where signs generally prohibit U-turns

and the trailer hit a minivan whose three passengers tragically died. But Justice Thomas insists that, quote, "crashes like these are disturbingly common."

And he cites a press release of Secretary Road Rules Real World Challenge, Sean Duffy. He also insists that this dispute would be a matter of diplomatic concern

in the international arena if Florida, California and Washington were independent nations. And just writing to suggest that there's this phenomenon

of people unauthorized to be in the United States causing vehicular homicide

“is just where do you even get this from?”

I... It's just like an epidemic. I mean, I don't even know where to start. Those of us who grew up in the Midwest are quite familiar with like

very American teenage boys like drinking alcohol and causing like crazy carnage on roads. Like, yes, like road fatalities are a big deal.

But like the idea that there's an epidemic of undocumented individuals and they alone causing these accidents is just like so unhinged. This is your brain.

This is your brain on Fox News. So do you all see that the duffies are taking a road trip the summer to celebrate America and it's being sponsored by all kinds of corporations.

Yeah. Yeah. Including corporations that duffie regulates in real capacity

as Secretary of Transportation. You know, but like, you know, let's definitely spin out this particular wrong when there's that one going on right in front of our face.

Well, Tom should tell him how dangerous it is on the roads out there. I mean, that's important. I mean, important to know, given that's a big road trip.

But yeah, I think the duffies are just really stuck in my cross and road rules in the real world. Like, I don't want to watch this road trip at all. Fair.

Like, take me to the street and form moves anyway. All right. Let's turn to various and century developments

in the lower courts and the muscular executive branch. First, the continued fallout from slush fund gate.

Well listeners, since we last gathered the Republican caucus in the Senate looked around and said, you know what?

It's time to start knitting some pink pussy hats and join the resistance. I'm just kidding. About.

Jordan. Jordan. Like knitting a pink pussy hat. Oh, God. More soon for that matter.

All of them really. Anyway,

The president personally ensuring the primary defeats of Senators Bill Cassidy and John Coran, as well as the most commonly

corrupt move that any president could have dreamed up, which is of course, the IRS/fund immunity agreement combined with

another ridiculous edifice complex fuck up, which is the White House effort to sneak $1 billion in ballroom funding

into a reconciliation bill. This all in tandem finally got the Senate Republicans to look around and be like, hey,

something seems wrong here. Yeah, Republicans out. We outbitches. Anyway,

almost like the Senate Republicans became Texas Democrats.

“They just left and went to another state.”

Anyway, in an age where it feels like everyone's memory is like 24 hours long, it does feel like the outrage around this IRS/fund immunity deal

is just really piling on both with the public and even among his party on the hill. And you know what?

I love to see it. I agree. I heard in this age we spend time talking to these kind of comparative

democratic decline scholars and I heard one, I don't know if it's for attribution, so I won't say who these days on the other day

like, you know,

these like strong men always use

the course in abusive ways, but like, no one has ever done this. None of them ever thought to do suit themselves

like this. Like you have to sort of hand to him on a student grounds. I'm going to suit myself. Yeah.

I'm going to do a selfie settlement to give myself immunity. Make a slush fund to fund a private army that I may or may not need

in the future. And then I'm going to get tax immunity on top of it. And I'm going to give myself a ballroom.

Oh. We haven't even talked about the MMA, like, oh yeah.

I mean, Jackie Kennedy is like in her grave, like, what the fuck?

I think I'm actually I didn't even like, I didn't even make a note of it. We could talk about it

at the end. Like in the core culture segment at the end of the show. I'm just too upset by the defilement of the White House

to even consider MMA fighting there. But yes, I guess we should probably say something about it. Okay.

But back to the slush fund. Yeah. So I think it's right that like this does feel like it is sticking.

So Trump again, I think very much benefits from everyone's just completely diminishing attention span. Because like,

I'm going to do this outrageous thing. And then I'll do another outrageous thing. Everybody will forget about

the first outrageous thing.

I actually don't think that's happening with the slush fund. So people are getting to talk about it. And it can be a unity. Yeah.

Well, I'm sorry. Go on. The Washington Post noted that for the first time ever in his two terms.

His approval among his core base, like white voters, has dropped to perilous lows.

Yeah. And I don't know desperation makes it more dangerous. But yes,

he's I think there feels like there's an inverse relationship between these poll numbers and like his

ambition shall we call it? Anyway. So in terms of this specifically, the kind of IRS deal,

one and a flag that there is an interesting response that we got last week, which is that a group of federal judges decided to try to

do something about it, which is to file a motion in federal courts. And these are

are initiatives that retired federal judges sitting federal judges probably wouldn't be filing this motion.

But these are retired federal judges. I think the number was 35 of them. Asked the federal court where this contextual lawsuit

was filed in Florida to reopen the case on the ground that the underlying lawsuit was

collusive. And that that lawsuit, and it's sort of the predicate for the

voluntary dismissal and the settlement that it was tantamount essentially to a fraud

on the court. So the motion was filed under federal rule 60, which allows courts to

set aside judgments and to reopen cases. And which the 11 circuit has said authorized courts

to do upon

application of third parties

in extraordinary circumstances. And these three dozen former federal judges argue that that was the case here.

So we will keep a close eye on that to see if anything the district court does with it.

If you read the filing, it's actually, they talk about rule 60. They're like,

even if you don't do rule 60, like there is perhaps just an independent obligation to kick

retirees on this settlement because it is. Yeah. Or, and also they say,

right, like you can let us as third parties move. But also you used to a sponte could do it.

So yeah, they do offer the judge a bunch of different. It is a road map.

It's a judicial course. Exactly. So we'll see which way should we go?

And then on Friday morning, the Eastern District of Virginia issued a decision order barring any

transfers to or disbursements out of the fund while litigation challenging it proceeds.

So this case Floyd versus Department of Justice was filed by a number of individuals

actually targeted by the Trump administration and who by the terms of the agreement creating the fund

are not eligible to benefit from it. The order is just meant to preserve the status quo

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All right.

“We did a quick update on our last show about this.”

But the criminal charges against a group of Chicagoans known as the broad view six. This is a group that includes former congressional candidate Kat Aboguzale. Those charges have been dismissed. But we need to walk through the sequence of events that led to the dismissal because it is wild. So the broad view immigration detention facility in the Chicago suburbs was a sight of a lot of organizing and protest activity.

During what the federal government called Operation midway blitz. This was the insane immigration enforcement surge that presaged a lot of what we later saw in Minnesota. So in this Operation midway blitz last year, tons of people were picked up on suspicion of not being wildly present in the country. And many were sent for processing out of facility known as broad view. Much of this conduct was challenged in a lawsuit before Judge Sarah Ellis,

which we talked about a number of times on this podcast and ended up with Judge Ellis finding that the government's conduct had violated the first and fourth amendments.

And maybe even refer the Religious Freedom Restoration Act as well. Although the seven circuit later and inexplicably vacated the district courts 233 page long opinion. Okay, right. So that is the context out of which this case arose. So there were tons of protests at the broad view facility, including a big one on September 26, which ultimately resulted in six protestors including cat being arrested. They were initially charged with both conspiracy to injure or impede an officer in violation of 18 USC section 372.

And also forcibly impeding or intimidating or interfering with a federal officer in violation of another federal statute, the allegations were that they had obstructed officers and banged on cars and that someone scratched pig into one of them.

In March, two defendants were dismissed turning the broad view six into the broad view four. Then the prosecutors revised one of the charges which led the defendants to request the grand jury transcripts to be sure the instructions match what was now actually being charged because it was different. The judge agreed, but as the date for production of those transcripts approached, the USC attorney's office said, "You know, actually we're just going to drop that charge, so we've mooted the request for the transcripts, no need."

At that point, only actually misdemeanor charges were made. So the judge ended up reviewing redacted transcripts, but then unredacted transcripts. Then six days before trial was scheduled to start ordered a hearing at which she made clear that the USC attorney's office had engaged in misconduct before the grand jury, including vouching where prosecutors are doing something they are not permitted to do.

“Basically saying, "There's secret evidence you can trust me and just indict anyways." They also did improper outside communications of some sort with grand jurors, although it's not entirely clear of what sort.”

And they also dismissed grand jurors who voted not to indict, basically restructuring the entire grand jury just to include people who agreed with them and act.

It's like redistricting except for for grand jury. The new grand jury jerry mandering. And then as agreed just maybe more, agreed just the office then tried to conceal all of this with improper redactions of the grand jury transcript. The whole thing was appalling and disgraceful. And even the US attorney for the Northern District of Illinois seemed, I don't know, to suggest he was shocked, disappointed, maybe Susan Collins levels about what had transpired on his wife. Still very mad at the protesters, very scoldy at them still.

Yes. And defense counsel is now on surprisingly seeking sanction. So a fitting end to a group of prosecutions that should never have been brought.

And we know that we're similar violations of grand jury rules by Lindsay Halligan in Virginia and by another Trump US attorney in Wyoming. And it all makes me wonder, there was this period when DOJ was getting a lot of no bills, failing to secure indictments before grand jury's sandwich guy. Some other immigration enforcement protesters. Mark Kelly, Tisch James. But then and more recently they've had better luck. Kind of makes me wonder whether there's a lot of what went on in Chicago going on elsewhere.

“And I think it's fair to wonder and fair to ask that defendants in other cases some high profile ones like Don Lemons.”

Some not high profile are pointing to these findings of DOJ misconduct. In other cases they're using them in their cases and urging courts not to give the government the benefit of the doubt or decline to Pete beneath the curtain and try to figure out what is really going on in these cases. Yeah. And I mean the judge in the Chicago Broadview six case was like, I do generally believe in a presumption of regularity, but you have forfeited it.

And I think it is reasonable for all of these defendants who are facing off against the same department of justice to basically say this

presumption has been forfeited and we should all get access to grand jury transcripts. And I think there's probably going to be some crazy shit in them if I had to guess. And you know the misconduct led to the dismissal of the charges against the remaining broad view for and I would not be surprised if that misconduct led to other dismissals as well. Speaking of DOJ misconduct, Kailmar Obrego Garcia has had his criminal case thrown out, not on the same misconduct grounds, but you know not unrelated.

So let's explain. So last week a federal judge in Nashville throughout the indictments against Kailmar Obrego Garcia who had been charged with conspiring to traffic and also with trafficking undocumented immigrants.

“Listeners will recall that early in the second Trump administration which honestly seems like a decade ago but was literally just last year.”

Obrego Garcia was sent in error, which everybody concedes was an error to all salvador's notorious sea god prison. He and his family fought this rendition with help from, you know, a number of others including Marilyn Sender Van Hollen and the Supreme Court ultimately concluded that the lower court had properly required the government to facilitate Mr. Brake Garcia's return. Now there was some initial resistance to complying with that directive. Then Attorney General Pamela Joe Bondi had this to say at the time.

So he is not coming back to our country. President Bouquetla said he was not sending him back. That's the end of the story. All right. Well, despite this insistence, he was in fact sent back, but sent back to face federal charges based on a previously closed investigation growing out of a 22 traffic stop. And now a court has thrown those charges out, finding that Abrego Garcia has successfully established that he was the victim of vindictive prosecution, which by the way, no one is ever able to establish ever.

The opinion begins with the famous Robert Jackson quote, quote, "therein is the most dangerous power of the prosecutor that he will pick people that he thinks he should get rather than pick cases that need to be prosecuted."

“The district court goes into painstaking factual detail and a very, very specific timeline.”

The basic upshot is that Todd Blanche's public statements tying these charges to Abrego Garcia's successful challenge to his wrongful expulsion, plus the obviously punitive desire by main justice to see Abrego Garcia punish for standing up to them and winning, convince the court that this is, indeed, impromisible vindictive prosecution. Once again, string or bell, you take your notes on a mother fucking conspiracy for vindictive prosecution. Or in this case, appearing on talk shows to talk about who's to say, "The feds say they're going to appeal this ruling in the meantime.

They're still trying to deport Mr. Abrego Garcia to some third country, apparently currently Liberia."

In addition to those doings in the Department of Injustice, there have also been more attacks on senators and New Jersey's Delaney Hall and listeners of the name Delaney Hall sounds familiar. It may be because New Jersey Congresswoman Lamanica McGyver who joined us on stage at CricketCon last November was charged with interfering with and assaulting an officer after she made a lawful visit to that immigration detention facility in the district she represents in New York, New Jersey.

“Well, she is no longer the only member of Congress who has been thwarted in efforts to conduct oversight in that district.”

Last week, New Jersey's Senator Andy Kim was pepper sprayed outside of that same facility, Delaney Hall. There have been increasing demonstrations at Delaney Hall in recent days and some detainees are staging a hunger strike against the deplorable conditions and compelled labor and lack of medical care that all mark their time in government confinement. Kim was there to talk with family members and to enter the facility to observe the conditions.

And after exiting the facility, he ended up weirdly being hit with a pepper ball as often happens.

When you're a member of the Senate trying to diffuse a situation. I just want to say this is the stuff they are doing in public and out in the open. We should all be terrified about what is actually going on in Delaney Hall. You know, the family members say their family members in detention alleged they are being beaten. That there is blood on the floor and it's just excretion. The hunger strikeers specifically are being targeted for beatings. Yeah, and it does feel like there. I mean, and the protests are understandably and probably correctly growing and so too is the law enforcement presence.

And it's just it is a very dangerous situation at the moment in Delaney also will keep an eye.

And I mean, I, you know, I'm glad that members of, you know, the legislative body are showing up and literally putting their bodies on the line to try to find out what is happening inside.

And it is outrageous that this is the treatment they are getting. Okay, we have more findings involving the ball room, which we talked about at the beginning of. Let's just call this what it is, Kate. This is an edifice complex. This is a man with an edifice complex. It is, but there's also the underground component. I don't know how to work that into the edifice has underground, like a basement is part of your edifice.

“Like you can have an edifice complex and it involves a basement. Okay. Well, both the above and below ground portions of this particular edifice complex, I think, our issue.”

So context here is that last weekend there was another shooting near the White House. So an individual with a serious history of mental illness, open fire near a White House security checkpoint was shot and killed by the secret service. So question, what did the top law enforcement officials in our nation, including attorney general Todd Blanch and so general attorney general do not give him his desired promote acting acting. It's like, or auditioning. Yes, or auditioning. I like that.

Conditioning attorney general Todd Blanch and actual associate attorney general Stanley Woodward, what do they do in response to this new development? Well, run to court to file a glorified, true social post begging the judge once again to lift the injunction against the bar room. I'll, I just cannot get enough of these unhinged filing. So we still have another pool room, please. Are you satisfied for my safety?

It would be like a pool room, please. Well, it actually, the king and queen of the United Kingdom are invoked. I know. I'm a very like two sentences, and then Melissa, I will pass you the mic and finish it. But so the filing says, quote, when completed, this highly knitted integrated and unified project project, the capital P, which is a singular and vital capital and capital S national security facility, will provide a all caps safe haven from attackers such as the one last night and on April 25th.

It will provide a highly secure space for future inaugurations in inaugurations are going to happen in the bar room.

I didn't know that, ladies.

“And other major events such as the recent visit of the king and queen of the United Kingdom and the coming visit in September of President Xi of China.”

Okay, wait, the end of this, I just think, okay, I'm just going to, if it's okay, read the, then says, we need the ballroom because the walls are strong. Right now we have to have parties in a tent, and a tent can be penetrated by a bullet. Unlike he says, the walls of the facility under construction, which has the highest degree of bullet stoppage, including that of a house. Including that of a higher range than a large caliber AK47. At the end of this passage is the one that I'm the most puzzled by.

It then says, the temporary tent structure is also vulnerable to water and flooding when it rains, in that the White House is built on wetland.

And the grounds are innordinately wet. Over the years, many in evening has been ruined by even moderate rain. This is like, there was, someone was literally killed by a secret service agent. I mean, the person was post some sort of a threat. And I just, the, the mind of an individual who then, which is Donald Trump, and, I guess, auditioning attorney general, Todd Lange,

others decided to go to court and try to file this as somehow responsive to that development and also related to the injunction. I just and talk about being rained out for parties.

It's just, it's just morning.

Many that evening has been ruined.

“Won't anyone think of the national security, please?”

Like, rain is a threat to our national security. That is, I think, the takeaway. More on the end of the tent city on the White House lawn. More on the edifice complex. So in addition to constructing the ballroom, we alluded to the construction of this UFC MMA fighter ring, octagon circle.

And this week it came out that Donald Trump apparently purchased stocks in UFC while promoting this UFC ring. So just all, all good things. And we still have more in abusive uses of the law enforcement power because last week it was reported that E. Jean Carroll, the author who successfully sued Donald Trump for sexual abuse and defamation, may be under federal investigation criminal investigation, or at least aspects of E. Jean Carroll's litigation against Donald Trump,

may be under federal criminal investigation. So last week CNN reported that E. Jean Carroll, who again brought two civil lawsuits against Donald Trump, one for sexually abusing her in a Manhattan department store in the 1990s and one for defaming her in 2019, may be under criminal investigation. The investigation is supposedly over a deposition in which E. Jean described her contingency fee arrangement with her lawyer.

And it may involve democratic billionaire Reed Hoffman, who reportedly helped to fright some of the costs associated with the lawsuit or suits. Now there's also been some reporting that this investigation or some part of it is happening out of Chicago, meaning the same U.S. attorney involved in the broad view six, though late last week that attorney butriose denied any investigation into E. Jean. But it was a carefully worded statement that said the U.S. attorney's office in the Northern District of Illinois had not been asked to start an investigation into E. Jean and had not started one.

That denial does not preclude DOJ's involvement in an investigation into E. Jean. It also doesn't deny that the Chicago office might be involved in some investigation related to the E. Jean Carroll litigation, just not into E. Jean herself, maybe into entities or individuals involved in E. Jean's litigation against Donald Trump. And also this person's credibility is like at zero given that he headed the office that redacted all of these grave deficiencies from the grand jury transcripts. Indeed. So whatever the specifics turn out to be if there is, in fact, anything kind of of the sort happening any kind of investigation into E. Jean of the lawsuits happening.

It just feels like another example of Trump's sicking his justice department on critics. It is vile. It is abusive. Everyone involved in this effort is making a mockery of their job as a government lawyer. So also going to keep a close eye on this as it develops.

“Speaking of making a mockery of your job as a government lawyer, I think we have to at least note that right now as we are taping Pamela Joe Bondi is appearing before a congressional committee.”

And she is flanked by her ostensible attorney, one harmeet Dylan, who according to my records, checks notes is the assistant attorney general for civil rights. So I'm not sure how this is a civil rights matter. It seems that she is representing Ms. Bondi as her personal lawyer, which seems like a side hustle.

I mean everything Dylan has done so far has broken pretty new ground.

That's for you, Leah, like Kate, you've got to talk about.

“I do. Yeah, she put that on Twitter. I was like, you know what?”

I wanted to address like had a good profile for in the Atlantic this week. I should put that in my favorite things, but I will mention that. So if you're thinking about Dylan, definitely read that profile.

Anyway, let's put aside whether a member of the Department of Justice, a senior member, a senior official in the Department of Justice can be on task rabbit as a side hustle lawyer.

Let's learn a little bit more about what's been going on in the Office of Personnel Management. Well, the OPM last week rolled out a proposed rule that would have federal workers across the government sign NDAs. And the rule would be backed by civil and criminal penalties.

“I think people looked at John Robertson's like that. That is the way.”

Yeah, I don't know. They're not hiding it. Obviously, there are about a zillion first amendment problems with this new policy.

But again, the fact that the proposal sites the Supreme Court and particularly Jodie Cantor's reporting on the leaks along with Josh Gerstein's publication of the Dobbs leak in Politico is just chef's case fantastic. I want to read a little bit from the proposed rule just to give folks a flavor of health and tastic businesses. Quote, the problem is so widespread that the Supreme Court itself has instituted the use of non-disclosure agreements to attempt to dissuade staff from the harmful practice of disclosing confidential government information.

And as a means to hold individuals accountable for such behavior, the Supreme Court took this step after a shocking incident. We're an individual likely a law clerk disclosed without authorization a copy of a draft decision in a controversial abortion case to a reporter and quote.

“The part about likely a law clerk is just rank speculation.”

Yeah, that's, I mean, maybe, but like to put that in a proposed rule. That's not anything that we're going to. Yeah, I'll turn it to sex. They're the real facts. We talked about this. Like the clerks are the last people are going to do this. Those folks are so scared and so concerned about their careers. They're not doing it. It's someone else. So one additional piece of news before we get to some court culture and oh my. We're recording a district judge in DC. Judge Cooper has borrowed the Trump administration from shuttering the Kennedy Center.

The order also bars the center from being redesignated as the Trump Kennedy Center. The opinion concludes that doing so violates the clear terms of the statute creating the center and that the Trump Kennedy Center can't just be written off as a nickname or unofficial name. All right, let's turn to some court culture. So last week, we learned of an order issued by the 11 circuits judicial counsel and listeners. I just want to preface this by advising you to make sure that there are no little listeners,

no little stricties about for this segment, because this bit of news is definitely not family friendly. You're more worth the activities. And the 11 circuit whose conduct was the subject of this complaint and then a special committee investigation and then a special committee report and then this 11 circuit judicial conference order. So here's what transpired. And you're muffs on right. They're on. Go ahead. Awesome. What had happened was a law clerk to a district court judge goes to the chief judge of the district to report that the boss is engaging in misconduct and obvious affair with a high ranking police officer,

including audible sex in chambers zero supervision of law clerks work bullying behavior and excessive martini drinking at a political event to boot. This clerk was taking notes. Wow. Well, I don't think I'd seem like it was all happening pretty in the open. So the clerk was just, you know, trying to be a clerk and then all this was not remaining. And just like an additional word on the affair with the high ranking police officer. The police officer had a position at a department within the jurisdiction. So it was possible that that department right could be in litigation before the judge entirely possible.

So okay, so having gotten all of these allegations, the chief judge refers this to judge prior the chief judge of the 11 circuit. So chief of the district refers to the big chief of the whole circuit.

This allegation must be like retaliation against me because I once criticize the clerk for excessive cell phone use during working hours and also required my clerks to work in person.

“And so that must be what led to these completely false allegations.”

Okay, prior than a point to special committee, which goes all in on investigation, like they have been ready to do this. So the interview clerks current and former, they look at the security footage and like visitor logs, there is an actual seeming test of a couch cushion. There is acoustic testing in a chambers with similar layout will close the door will make some, I guess, sex noises on one side of the door and see what you hear them on the other side of the door. The really take their mandate to investigate very seriously.

So after this special committee in this investigation corroborate the initial allegations through things like interviews with other block clerks and visitor logs. The judge eventually comes clean about the affair though initially persisted in denying it and still persisted in saying the law clerk is just doing this because right I gave them some negative feedback.

“The judge did however continue to deny law clerk mistreatment how both of these things can be true should raise some eyebrows.”

And they admitted that they lied when they were first approached. The judge said they panic, they were worried about their marriage.

And then the report and order basically decides, well, all will be forgiven and we're just going to give you a private reprimand because you eventually came clean even though your initial misrepresentations impeded and obstructed the inquiry. The report also says we think it's unlikely that the judge will engage in similar misbehavior because they promise not to. And they broke up with the cop boyfriend I guess also like the the relationship was done so I guess that means that what happened. And they sent letters of a typology to law clerks who were subjected I guess to these sex noises.

You know, what do also there was the otherwise exemplary.

Like otherwise the judge. Yeah, exactly. Otherwise other than all that stuff. So what did you make of the reprimand due to I have my own thoughts which probably came through in my description. I mean, I don't want to sound like super punitive but I thought this was really too light.

I mean, this person is sitting in judgment of things like candor and sending people to the deprivation of liberty. All the time I don't know I don't think this person based on this description is necessarily like you know well equipped to be doing this really important job.

“So I didn't feel a whole lot of confidence honestly in the person so felt a little light to me.”

So it occurred to me listening to you Leah that this special committee really is the one that we should get on the dobs leak and also the weeks at the Supreme Court because they are clearly willing to go to great lengths to uncover the truth. And I think that's what we need. Yeah, so in case it didn't come through like I thought the reprimand also too lenient like I just think judges need to be able to give an appearance of integrity and the fact that they just stoned cold lied and persisted in doing so.

You know when people lied to judges they face criminal penalties for doing so like you can't have a judge do this and just get a private reprimand like if only for appearance sake. And then I think the lack of the committee taking seriously that the judges initial instinct and then the judge persisted in retaliating against their clerks like that is misconduct toward the clerks even though the report was like oh we didn't we weren't able to corroborate that and substantiate it so I was just I did not.

Yeah, it wasn't enough and also to the to your point Leah that this is a you know law enforcement official in the judges district. The report also finds like well there actually wasn't any matter in which this person was a witness or something but not because either of them took any steps to prevented it just like. You know, it's not that way to shake out that way so like great yeah go ahead like the good fortune of not having this person in a case in your chambers, but like you easily could have and like that in that self is an enormous problem.

Any favorite details from the reporter order. Please favorite can I just like say one there so we've mentioned a few times sex noises which I think is the way to understand what the clerks were describing but for some reason the report repeatedly referenced audible kissing and I was just like how loud was this kissing it was like it wasn't like the intimacy sounds I think comes up a little bit but like that's a little didn't ever to be somewhat like decorous in the description but I don't know that I was like just I found it profoundly disturbing the contemplate.

Yeah, the ears wanted to my favorite part of personally was like the natural experiment where they attempted to like emulate and simulate the chambers environment and figure out.

“That was mine here sex noises from the space that was assembled similar to it.”

Yeah, that was a favorite part to we just like I just like what was that day at work like ready for everyone. We got a field trip today. Wow.

One more like tiny bit of court adjacent gossip I guess there was sort of some chatter last week about the propriety of a reported visit by Vice President JD Vance to the Supreme Court.

He paid what was described as a quote social call to Chief Justice John Roberts at the court.

“People were pretty spun up about this I will say that this is the rare case where like actually I don't think I mean maybe he's in the gone.”

But he was not he people thought he was like going just to have like a tent with the chief like definitely not he is the spouse of a former Roberts clerk. Which advanced clerk for John Roberts and it sounds like there was a law clerk reunion spouses are typically partners and spouses are typically invited to those and so he was literally just ushows plus one to a Roberts clerk reunion. Again, appearances like maybe should have gone but he was not going to like actually conspire with John Roberts as far as I can tell.

Yeah, all right briefly what do we read and like or you know see or listen to in the last week I will drop a couple. Ruth Bengat in her sub stack had I thought a very good piece on the $250 bill effort which we haven't even gotten to like Trump wants an illegal bill with his face on it.

“You can't do that and there are you know treasury department officials being sideline for just like speaking up and saying no you can't do that.”

I thought that was a very good piece really good piece in Skoda's blog by ESA Colour Houseman my dear friend and co author Kevin Sang.

Basically how Colab wrote the Voting Rights Act and weaponized equal protection clause this is the first of two instalments.

I already mentioned quintadressics Hermit Dylan profile in the Atlantic. That's sort of all I got this week. Okay, so mine are Daily Show correspondent Ronnie Changs class day speech at Harvard was delightful it was anti-AI it was clever well done just loved it. I read to have and to hoax I enjoyed that as well so would recommend that and then music recommendations I like Gracie Abrams new single hit the wall makes me excited for the album. And then in the spirit of Fridays Pads of America episode where the boys said it's important to admit when you are wrong and others are right I would like to take a moment to acknowledge a major errada and shortcoming of mine which is our producer Melody Row will recommend music to me and I'll tell her I don't like it.

Only she always ends up being right so this happened with Hillary Duff's album right I like the single mature didn't love the album initially now I love it and I'm going to the concert this happened with Renee rap. She was like are you in a Renee rap era and I said no not into it she was like I do like the first either she grew on me exactly and now latest it happened with Zara Larson's midnight son girl strip didn't like the album first then I like two or three songs and now I think there's like at most one skip on there.

It's just in theory but I can acknowledge an error on my own part so can I say real quick one other music thing there's a remix of Lily Allen's bag. Yeah, yeah, yeah, yeah people should listen to that sorry one more favorite thing I was at Brown for my 25th college reunion last weekend had an amazing time and did a panel that was really was Saturday morning at nine o'clock which was a rough time the morning after the big campus dance and I before but some energetic students made it out anyway. It was awesome to meet them and the event was put on by this new entity at Brown the advancing impact on maternal and reproductive health lab the aim lab that's going to do sort of both reproductive and maternal health care.

Rhode Island has been a critical site for that and anyway it's a very exciting new collaborative institute at Brown just in the last six months and I really enjoyed getting to meet some of the folks involved with standing up. My favorite things this week so I was at the Brooklyn College graduation on Thursday the 28th and when people ask you is there a doctor in the house now ladies you can say that there is. I got an honorary doctorate that is not only did I get an honorary doctorate the city of New York gave me this citation.

Wow, I don't even know what I can do with this. Not like the part of citation. What kind of citation it says in recognition of dedicated service to community and cause and it was delivered by the public advocate. Jemani Williams. I'm just going to put this in my car in case I'm ever unlawfully parked and maybe hope for the best we'll see what happens.

It's a high quality education and they do it every day and there were literally like 5,000 graduates from bachelor's programs and master's programs and Brooklyn College got it done in two hours and 23 minutes and I'm going to say like whoever was planning that graduation you are your queen you are just doing it was so so well done. Other oddries included Patrick Despar, the former ambassador to South African former head of the Center for American progress and someone we have talked about on this podcast before Cecilia Wang who was the person who argued the birthright citizenship case on behalf of the ACLU she received the presidential medal.

So it was a really beautiful day. I'm so grateful to Brooklyn College for everything that they do and for this honor. My other favorite things this week I started reading bell burdens strangers because I was so intrigued by all of the forensic accounting being done personal finances and I'm just like folks.

If you didn't know she was rich the whole time what the fuck have you been like hello her grandmother was bay paley her mother was a man to burden her father was like a standard oil sia I mean like.

“She had money she always had like how are you shocked by this right now I think that Jessica went to New Yorker piece that is right the kind of forensic investigation of the divorce filings and yeah.”

And I'm like you can still be worried about money because you're basically covering everything for your your fail son husband who really needs to be a was bend and is trying very hard to be a was bend and he's just using all your money and you can still be worried about money and still be rich so. I think the book is really interesting it reads like a thriller even though it's just an ordinary story about a marriage falling apart but incredibly well done it's been on the New York Times best sellers list for like I don't know how long she's just totally crushing it.

I also read our good friend Andrew Weissman's new book which hit the New York Times best sellers list at number one with a bullet liars kingdom also fantastic congratulations to Andrew and I'm going to project but I think one of my favorite things.

“Coming up in this upcoming week is that I'm going to be at politics and prose on June 3nd in DC at their big war location with my friend and friend of the pod Eric Holder and we're going to be talking about wait for it.”

The US Constitution a comprehensive and annotated guide for the modern reader and I'm going to see if I can get the general to wear what do you think we're that with those sunglasses that you were.

You were recovering from your injury and like Kate saw the picture sunglasses it was very he's very holder gave any sunglasses at one point you don't remember was but they worked. He also encouraged us to drink more on stage which was pretty fun. That's true the vice president of the United States was in the crowd speaking of live shows and on stage.

“Guess what folks we're just going to start bad decision season off exactly right with a live show at the historic grammar see theater on June 20th in New York City and you need to be there.”

We want to see your beautiful beautiful stricty faces tickets have been going fast but to accommodate to man we have added a few extra VIP tickets if you want to meet us before the show. And spoiler alert you do we are the most fun especially before the show just head on over to cricket dot com for slash events to get your tickets right now. So given all the news about uses and abuses mostly just abuses such as vindictive prosecutions and slash funds for loyalists you will want to stay tuned for this conversation I had with our McCoy about her new book the fix saving America from the corruption of a mob style government.

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“For this segment i am thrilled to welcome Barbara McCoy to the podcast to discuss her forthcoming book out tomorrow the fix saving america from the corruption of a mob style government.”

So Barb is a former u.s attorney she's also colleague of mine at the University of Michigan and she's an author of the New York Times best seller attack from within welcome to the show Barb. So in the fix Barb you draw on your decades of experience as a federal prosecutor to show us the detrimental devastating effects of a government that uses. What you describe as corruption cruelty and chaos as tools of control and you offer a roadmap for how we can stop it. So you say this is a book about power how it's acquired how it's abused and how we can take it back.

Now most books about this current political moment frame the problem in terms of authoritarianism or fascism you know in contrast you take aim at a mob style corruption cruelty and chaos. Which you describe as a new authoritarianism and you liken the Trump mob style governance to classic gangster movies like the godfather and good fellows. So what does that framing get us and what does it capture about. You know what Trump is doing and his various obsessions.

Yeah, so the idea for this book came from my observations of what Trump was doing early in his second term and it was so similar to some of the things I saw.

Some of the defendants we prosecuted in my time as a prosecutor whether it was you know organized crime enterprise or corrupt public official and that is using power to amass more power. In other words, especially in these crime enterprises and in the Trump administration. Looking at other sources of power who could be rivals law firms universities the media and using their power to inflict pain on those rivals. In an effort in my view to coerce them to come to the table to alleviate that pain by negotiating their own punishment.

So we saw it with law firms who entered into these deals where they provided pro bono legal services in exchange for these baseless allegations that they had somehow violated the law or weaponized the law. We've seen it with some universities. We've seen it with media companies where there were these baseless defamation lawsuits that then resolve for millions of dollars. And so it does a couple of things I think one is it neutralizes these critics, but it also does something else which is it instills fear in others.

People say wow look what he was able to do to these big law firms these big universities CBS right these media giants if he can do that to them imagine what he could do to me. And so it has a chilling effect on other would be critics who decide I'm just going to keep my head down and be quiet rather than go after this person who is inflicting pain on others. And I think one of the things that it can help us is by explaining it in these terms I try to label it dissect it explain what Trump is doing.

So you mentioned you know this reminded you of what you observed as a prosecutor and one of the most striking things about the book is that every chapter opens with the case from your time as US attorney for the eastern district of Michigan and you compare the cases to the policies and practices under Trump to point out. So you compare you know Trump's pressure on universities law firms media to a sextortion case and you know the how the mechanics are the same you mentioned manufacturing leverage but also manipulating the victim and returning with more demands.

So was there a case where you know the parallel to the Trump administration's tactics struck you most powerfully or how did you go about like picking the cases you used throughout the book. I tried to think of some of the parallels I mean frankly I went through like the cases involving these kinds of schemes with either extortion or fraud and thought about some of these parallels. But I think you know one that really comes to mind we prosecuted again case against the former mayor of Detroit Kwame Kilpatrick and I think one of the most important lessons I learned from that case is how when someone has power and uses it to extort victims.

The victim always thinks well I'll make this payment once and then everything will be okay and it's just the opposite.

Once you make that payment then the extorter owns you and they're going to keep coming back for more.

“And now you also lack the ability to cry foul because you've paid a bribe and so to report this misconduct to the authorities means you have to report your own complicity you have to confess.”

And that silence is part of the victim's you know the victimization. And so being isolated like that and responding to the extorter is the exact wrong way to operate and you know I don't blame these victims. They were found themselves in an unpleasant situation and they did what they thought they had to do but I do blame the extortionist. And I think one of the lessons to draw from that is if you go at a loan there is a divide in conquer strategy and you will lose. The way to prevail is to ban together to share information and let people know this is happening and there is strength in those numbers.

And the same way what we're seeing now is this group this NATO for nonprofits that former DOJ official Vinita Gupta has put together. So for example when the Southern Poverty Law Center was targeted with an indictment hundreds of them stood up and spoke out about this.

“So they are banding together and I think that's a strategy that can help defeat this kind of extortion.”

So at several points in the book you trace Trump's mom-style tactics to the influence of one Roy Comte. The infamous lawyer who served as Chief Counsel during Senator Joseph McCarthy's anti-communist hearings and later represented members of, you know, New York notorious crime families.

During his career, Kono's indicted four times never convicted of any crime prompting comparisons to Harry Houdini, although he would eventually be despard.

And when Trump complained that his first attorney general during the first Trump administration, Jeff Sessions, had followed DOJ ethics protocols and recused himself from the Russian investigation. You know, Trump asked where is my Roy Comte? So in Trump 2.0, like where are you seeing cones influence or lessons Trump might have drawn from Roy Comte most clearly? Yeah, so one of the things that Roy Comte read and followed was Machiavelli's The Prince. And he talked about how it was better to be feared than loved that, you know, power is gained through deception.

And this is also one of the patron saints of the mafia, they follow the code of Machiavelli.

“You know, I think one of the things we've seen in Trump 2.0 that's so different from the first administration is the selection of cabinet officials who are all in on loyalty to President Trump.”

And the first administration, we had people there who had worked in prior administrations who were willing to push back some of whom got fired.

And in this administration, it seems that many of these people are selected not for their experience or their competence, but for their loyalty to one person, not loyalty to the mission or the cause of the country, but loyalty to Donald Trump. He had Pam Bondi in the role as Attorney General. And I think she tried to be a Roy Comte. She sought indictments against James Komi and Latisha James. She would testify with a disdain for Congress. But I think Trump's dissatisfaction with her appears to be that she was unable to get the job done, those cases got dismissed.

And now we've got as an acting Attorney General Todd Blanche. I think one of the things President Trump likes is that acting role, because it keeps people on a leash for him. And we have seen, in my opinion, Todd Blanche auditioning for the permanent job, since he's taken off as we've seen this indictment of the Southern Poverty Law Center.

Well, you know, the FBI pays informants too, and that is in service of dismantling groups, not building up groups.

“But we've seen other things, including most recently, something I consider extremely egregious, and that is the creation of this 1.776 million dollar slush fund,”

that is, you know, just a lie built on a lie, built on a lie. The idea that this was ever a legitimate lawsuit is a lie. The idea that this is a legitimate settlement is a lie, and the idea that you can use funds that resolve one claim to pay as yet described claims from another group of people is just not the way the Justice Department typically goes about its business.

But it seems to me that what we are seeing is tied blanche, working very hard to prove his worth to Donald Trump that he is the Roy Kong he's been seeking all these years.

So since you mentioned, you know, the corruption of DOJ, you know, you discuss in the book The Significance of Robert Jackson's 1940 Federal Prosecutor speech, you know, in which he reminded the nation's US attorneys of the importance of the spirit of fair play and decency. The Harvard Law Review actually just published a pair of essays by Michael Dreeben and Hayken Scott and revisiting that speech.

“So what stand out to you as moments where you felt like really began to see that that spirit of fair play and decency was being degraded and betrayed?”

Well, it's it's happened in a number of places. I think the first time I felt it was when we saw the plain loads of Venezuelan men go to the sea cut prison in El Salvador. You I'm sure you were a call. There was this emergency hearing virtual by Judge James Bozberg where they discussed what was happening and he ordered them not to send the planes and that if planes were in the air to turn them around. I think the first argument when the planes went that we heard was a lawyer actually said out loud, it doesn't count unless it's written down. Everybody who's ever tried to say the law knows that's just not the case a verbal order from a judge is an order from a judge.

We then learned some additional facts about that or at least allegations about that episode that email bovey was saying things like, you know, those planes have to go no matter what an average judge and left the courts and all of these kinds of things.

So that was the first hint that this department of justice was going to be very different from the last one.

But since then we've seen a number of things. I mean this switcheru in Virginia where the U.S. attorney who was Trump's own appointed U.S. attorney was ousted because he refused to indict the Tisha James and James. Call me replaced by Lindsay Haligan who was a White House aide and an insurance lawyer from Florida who indicted both cases herself four days after she joined the office and those cases were quickly dismissed. Of course I shouldn't forget another early episode which was the dismissal of the indictment of Eric Adams the former mayor of New York in exchange for cooperating with Trump's policy regarding immigration enforcement.

That of course caused Trump's own interremuous attorney Danielle says soon to resign over what she saw as bribery within bribery. How ironic. And then a bribery solution to that prompted that prompted Hayigan Scott and you know to resign. You know who wrote the essay reflecting on the Jackson speech. I mean so since you brought up like the sea caught you know expulsions as one of the initial. I don't know exposures of what was happening at DOJ. I mean the last few weeks have seen even more high profile cases being exposed as a addictive sham prosecutions. You know one originating from sea caught where you know there was actually a judge who concluded.

That the prosecution brought against Kalmar Abrago Garcia. You know one of the people who was wrongfully expelled due to a paperwork air. That DOJ charging him you know those charges were dismissed because the judge found they were in the addictive prosecutions. And then of course in the broad few six case charges were dismissed and the judge indicated she was shocked by what she saw from DOJ and that what she saw you know substantiated claims of indicted prosecutions. So you know how how did those cases kind of fit into the arc of the books argument.

“Yeah, I think they also demonstrate this idea that it isn't about seeking justice. It is about winning and sending a message that it's Donald Trump's Department of Justice.”

He's you know posted his own banner with his own face on it outside the Department of Justice. He went into the Department last May and declared himself the nation's chief law enforcement officer. And although that may be technically true on the book since Watergate independence of the Justice Department has been absolutely sacrosanct. I know the Justice Department has not been perfect but for people like me who spent 20 years of my career there to see these allegations happen is just. It's painful and it's shocking. So let's talk about Kilmar Abrago Garcia.

Therefore, if you prosecute me, it must be a violation of my due process rights. Now I might hate you, but if you're guilty of the crime, we're going to prosecute you anyway.

But in this case, he was actually able to demonstrate that the Justice Department had given a pass to this case. You know, was there some evidence that he was transporting undocumented immigrants? Yeah, maybe this stuff happens all the time. The Justice Department chooses its battles. It only has the resources to prosecute so many cases and so it goes after high impact cases. If you've got a trafficking organization, that's where your resources should go. Again, I drive in four other laborers around in a car, just isn't the case of the century. And so this happens several years ago, and the Justice Department closed the case and said we're not interested.

It only became interested after they found out that Kilmar Abrago Garcia had been sent to El Salvador onto this prison in error.

And then they did everything in their power to keep them there.

Todd Blanch had made some really over-the-top statements that the court cited in its opinion saying, "You know what? You found vindictive prosecution. You've established it." Which has to show that the motive of the prosecutor was to retaliate against an individual for exercising a legal right in the same or related cases.

“And so Abrago Garcia, of course, filed a habeas corpus petition to say, I think I'm being held here wrongfully and in retaliation of that legal right this indictment was filed.”

So, it's going to cause me to have to change the syllabus from a criminal procedure class to show that. Yep, here's an example where there's actually less and when vindictive prosecution.

And here's what it was like. But that's because in the past, the Justice Department doesn't do that.

They don't bring cases just because they want to retaliate against somebody for exercising a legal right. The other case you mentioned this brought you six cases, of course, these were some protesters in Chicago out of the Operation Midway Blitz immigration enforcement. And in this case, what the judge found on the record were a number of very disturbing things occurring before the grand jury. The vouching for witnesses appearing before the grand jury. Talking to grandurers in the hallway about the case, not in the grand jury room, informal session. And then when the judge asked for a transcript to review these allegations of misconduct,

“redacting the key portions of the misconduct so that the court couldn't see it.”

In fact, she said that, in her opinion, was the most egregious part of this misconduct. You know, you and your listeners, how unusual this is, prosecutors get training, prosecutors shadow other prosecutors before they're allowed to bring their own cases. And they follow the processes and the rules of the grand jury. And there's their reasons for it. One is just to be ethical to there's a grand jury manual that tells you the do's and don'ts of what you can and can't do, but also because you want to stress test your case.

If you're bringing a case to the grand jury, it's because you plan to bring that case to a trial jury at some point. And so a grand jury can point out places where there is weakness in your evidence. Maybe if it's so weak you pull the plug and you say we're not going to seek an indictment here. Or it may be that you identify a weakness in your case that you can shore up. The grand jury wasn't so sure about the evidence of intent.

I'm going to go develop more evidence. I'm going to interview some more people.

“I'm going to get some text messages, whatever it is, but the key factor here is that in the DOJ principles of federal prosecution, it's manual of policies.”

It says a prosecutor should not even indict a case unless they believe it is probable that the evidence is sufficient to obtain and sustain a conviction. That means you've got enough evidence to convict beyond a reasonable doubt. And the law is sound so that you don't expect there to be a reversal on appeal. And so it seems that what we're seeing now in this administration is I just want to get the indictment and that's good enough. Even if it's I'm just by the whisk, you're not going to win a trial.

And so what does that say? It really says that this justice department is just sort of going after its rivals. It wants the headline, it wants the splash, even if it doesn't think it has the goods to follow through with the evidence. Yeah, Trump DOJ, inditing protesters, victims, and ham sandwiches seems to be in the story. Or throwers of one last question. Or throwers of sandwiches sandwiched man, the hero we need subway man.

I forget what that is, the sandwiches are subway anyways. So bar one last question, you know, earlier you mentioned that one critical solution to the governance you are observing is banning together and making public what the government is trying to extract or threaten people with. You know, in the book you outline a roadmap for stopping, you know, this turned toward mob style governance that includes among other things protests, lawsuits, boycotts, teachings, satire, jury noification and running for electoral office.

You know, I think the one that is the easiest, you know, the lowest hanging fruit, if you will, is just our ability as individuals to band together.

“I think that sometimes, you know, if you have someone who's a mob boss or an authoritarian, one of the goals is to make you think that it's impossible that you're hopeless, that you cannot achieve any change.”

And you know, that's one of the reasons you see Trump's image all over the place, you know, that he's so powerful, but banding together is individuals.

There's a great statistic by the political scientist, Erica Chenoweth, who says, if just 3.5% of the population get out and engage in peaceful protest, there has been regime change in hundreds of countries with just that small percentage of people. And I think there's a reason for it. You know, we see protesters all the time, and I think sometimes it causes us maybe to pay attention to an issue we weren't previously paying attention to. Sometimes I've heard people say, "Oh, it's just people preaching to the choir when you get out there."

Remember, this is an answer, Leah, you gave in response to a question about your book. Sometimes the choir needs to be preached too, right? They need to hear a good sermon. I need to be energized and boldly to come up. We're not in this alone, right? And I think it also brings people who may be, you know, feeling these things aren't quite right, but sitting on the fence to say, "Things aren't right. I'm going to join them."

Or even if I don't go out and join them on the street, I see what they're doing, and I see what they mean, and they've persuaded me that this regime should not stand.

“So I think that banding together in political organizing, voting, knocking on doors, all of the things that we can do together.”

I think they're easy, and, you know, I hope that we, the people will do some of these things because it's the way we can take our power back. Awesome. Well, that's a great note to end on, Barb. Thanks so much for joining. And again, Barb's book, "Out Tomorrow" is "The Fix" saving America from the corruption of a mob style government. Thanks again, Barb. Thank you, Leah. [music]

Strixward Ne is a crooked media production. Our show is produced by Meli Raoul and Michael Coltsman. Jordan Pamis is our inter. Our team include Matt Dugrope, Ben Hethko, Johanna Case, Kenny Mothet, Eric Shoot, and our music is by Eddie Cooper. Our production staff is proudly unionized with the writer's guild of America East. [music] [music]

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