Ballrooms, ‘Bama and (Very) Bad Behavior

Strict scrutiny is brought to you by Americans United for Separation of Church and State. 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 at Americans United for Separation of Church and State received emails from multiple Department of Agriculture employees. A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture Brooke Rawlins to more than 100,000 agriculture employees is an abuse of power that violates the separation of church and state promised in the First Amendment. And you know what? They are right. As Katie Fang and I talked about when Heg Seth Keg's breath was proselytizing 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 slash crooked to learn more about their work and how you can get involved. Ready to launch your business? Get started with the commerce platform made for entrepreneurs. 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It's an old joke, but when I argue, men argue against two beautiful ladies like this, they're going to have the last word. She spoke 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 off our necks. Hello and welcome back to Strix Grutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Leah Litman 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. But first up, the news, some new news, some not so new news, and some news that might be news except it feels like it's always in the news and a perpetually never-ending cycle. But first up, the lower courts strike back in Alabama. When you're saying 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 Kalei. So this is a developing story, but we'll tell you where we are as of Friday. So as we have previously discussed, as egregious as the court's decision in Kalei was, that egregiousness was somehow topped by what the court did next. So first, the court granted expedited issuance of the mandate in the case, bypassing 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. Next, the court GVR'd, so that's granted, vacated, and remanded a similar case out of Alabama, 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 egregious because the Supreme Court vacated the lower court opinion in light of Kalei, 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. Kalei 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, Kalei. And basically the court said, yeah, we read Kalei, and we said what we said. This map is illegal under the Constitution. TLDR from the lower court did I stutter. The judges 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 Kalei, and it doesn't change anything about our conclusion. Mike drop. 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, enjoining the state from using that map, which would have been the status quo before the Supreme Court stepped in, so hardly disruptive. That's 2.5 months before the primary and five months before the general election. And of course, the Supreme Court itself enjoined a map just a few weeks ago in Kalei, which would seem to suggest other federal courts could do the same. Just going to point out here, I think this was a 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 have basically made it impossible for the Supreme Court to again do the lawless thing of without explanation, basically just saying, nope, we're going to wipe away your work. So I thought it was like- Never say never, Kate. Girl. Is it impossible? We'll see. It was, I thought, very cleverly done by the lower court, but you're right. Of course, like 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 bulldoze ahead, they wrote, quote, this is again the three judge lower court, on the unique record before us, we determined that enjoining 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. Ensuring 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 1st. 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. All new lows, yep. So out of the Supreme Court last week, we actually got a percurium 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 purported to regulate them. So on the surface, this case is about two pretty dry sounding things. One, where this challenge could properly be heard. So option one, the Merit Systems Protection Board, or MSPB, which is an agency that hears workplace related complaints involving federal employees. So that's option one. Option two is federal court. So that's sort of the first dry question, where? The second dry sounding question is whether what's called the party presentation rule, I'll explain that in a minute, precluded 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 in 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 Counsel. But the fourth circuit reversed on appeal, concluding that factual circumstances had quote called into question whether the CSRA was quote functioning as Congress intended. Oh, really? Maybe the fact that the MSPB and Special Counsel 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 Counsel, 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 rehearing on bonk Judge Quaddlebaum, appointee of Donald Trump from Trump 1.0, together with three others, dissented, accusing the panel of quote shirking party presentation principles by deciding the case on this MSPB operations ground quote without any party raising the issue and without requesting supplemental briefing. And the Supreme Court basically endorsed that position, excruiting 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 I'm pretty novel at the Supreme Court. Yeah. Yeah. And that's what the percurium 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 it 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. Okay. So a percurium 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 in Y. But Barrett joined him, which actually is relatively atypical. The thrust of the concurrence was basically, you know, not only that this party presentation rule was violated, right? 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. So the fourth circuit had said it sort of grappled pretty directly with this. 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. So you know, he's a hyper formalist. I guess it's not that surprising. He's saying the statute at 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 realist considerations into account. But Barrett joining him here was genuinely surprising. And I thought pretty alarming. This episode is sponsored by BetterHelp. It's summer and BetterHelp 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 and 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 Shadow Dog 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 survive risk. 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. So I'm trying to take care of myself, building in mandatory fun like concerts, travel and fun summer outings. 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In other news, it seems that front of the pod Samuel Alito remains ethically challenged. Don't say. A new news site, notice recently reported that just as Alito's son, Phillip has been working as an attorney in the general counsel's office of the Treasury Department under Scott Besant. 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, Phillip's 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 and 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. So, clear, Justice is typically recused from cases involving their family members. So Justice Breyer would famously recuse from cases decided by his brother, Northern District of California Judge Charles Breyer. And my recollection is that Justices also would recuse when their kids' law firms, say, were party to a case. It doesn't seem that different from the General Counsel's Office of the Treasury Department. And yet, 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 Sam Alito ethically challenged, 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 Texas. Right, from the guy's own party. They truly hate him so much. It's something to observe. Yeah. Totally unrelated. But if you like these and other digs at Sam Alito reminder, you can preorder the paperback version of Wallace. This is actually the last week to preorder sign copies from my local indie literati. As always, the link to that is in the show notes. OK, also at the Supreme Court, we got opinions last Thursday and the courts, Republican appointees continued their quest to make resentences 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 there being extraordinary and compelling circumstances that would warrant a compassionate release. In one of the cases for Nanda's versus United States, the Sixth Republican appointees said the potential invalidity of a defendant's conviction cannot be an extraordinary and compelling circumstance. It can't even count toward there being an extraordinary and compelling circumstance. 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 Sixth Republican appointee said, nope, any challenge to your conviction has to proceed via habeas. Justice Sotomayor 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 they 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 justices Kagan and Jackson. Both decisions were six to three, either formally or effectively, and both were also written by Justice Barrett. I think that's a good clarification. That first case got reported as like virtually unanimous, but like as Leah was just explaining, it very wasn't. So they were, these were both six three decisions. Like they just should be interested in addition to the Supreme Court, habeasing, compassionate release, people are going to miss report that actually the Supreme Court is all on board with doing so. Just like, please, please. All right. Let's get back to some more criminal justice wrongs and rights in any event. In Pitchford versus Cain, Black Lives Matter slash Batson slash Brett Kavanaugh wrote for five to four justice majority to say that it is indeed unreasonable to conclude that a defendant waived 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 in dissent in this one and in the majorities in Rutherford and Fernandez. I know. And again, this is like, oh, great, a Batson case prevailed at the Supreme Court. It's like, this is, this is crazy case not to be unanimous or at least seven two, but in fact it's five four. So, um, you know what? Black Lives Matters and Brett Kavanaugh knows by the narrowest of margins, 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. Mattered. Yeah. Mattered once this week. Once today. And it wasn't Clarence Thomas. Yep. Nope. He was definitely dissent. Um, okay. So, and the last case that we got last week, uh, 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 Westler's Jennifer Bennett. She just can't stop won't stop bringing these cases and winning these cases. Um, so this case involved an effort by Flowers Foods, which is a producer of packaged baked goods like Wonder Bread to force a lawsuit into arbitration. So this is a suit that was brought by a franchisee, Brock, who delivered flowers, goods and who claimed have been underpaid by flowers. Okay. 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 shall 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 arisen in a bunch of recent cases was whether Brock's drivers 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 and won all three of those. I think this is the fourth in that streak just for her personally. So in this six page opinion for a unanimous court, so that is a very short opinion, Justice Gorsuch just basically concludes that no worker doesn't have to cross state lines or interact directly with vehicles that do cross state 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 to arbitration. Again, Jennifer Bennett, really killing it. Not going to let Kate end on good news at SCOTUS. So wanted to point to something on the orders list. And that is Clarence 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 and California because those two states provide drivers 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, end quote. 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, it's like, like as 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. Indeed. Did you all see that the Duffys are taking a road trip this summer to celebrate America and it's being sponsored by all kinds of corporations and gas companies? Includes corporations that Duffy regulates in really interesting as Secretary of Transportation. I know, but like, you know, let's, let's definitely spin out this particular wrong when there's that one going on right in front of our face. I just, well, Thomas should tell them 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, the Duffys have just really stuck in my cross since road rules in the real world. Like I don't want to watch this road trip at all. Like take me to the straight of poor moves anyway. All right. Let's turn to various incendiary 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 joining the corn and like knitting a pink pussy hat. Oh God. Or soon for that matter, all of them really. Anyway, these Republicans faced the following developments. The president personally ensuring the primary defeats of senators, Bill Cassidy and John Cornyn, as well as the most comically corrupt move that any president could have dreamed up, which is of course the IRS slush 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. And Republicans out. We out bitches. Anyway, I'm 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 slush 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, you know, in this age, we spend time talking to like these kind of comparative democratic decline scholars. And I heard one, I don't know if this is for attribution. So I won't, I won't say who these, they say something 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, sue themselves like this. Like you have to sort of hand it to him on. Here's the idea. I'm going to sue myself. And I'm going to do a selfie settlement, 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 fighting. Yeah. The UFC. 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 can talk about it then like in the court culture segment at the end of the show. I am 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. Um, okay. But back to the slush fund. So I think, 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 spans because like, I'm going to do this outrageous thing and then I'll do another outrageous thing and everybody will forget about the first outrageous thing. I actually don't think that's happening with the slush fund. So, um, people are talking about it. And the immunity. Yeah. Well, I mean, 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. The numbers and, 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? Um, anyway, so, um, so in terms of the specifically, the kind of IRS deal, wanted to 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. So these are, I, sorry, I should have said 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, um, 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, which is sort of the predicate for the voluntary dismissal and the settlement, that it was tantamount essentially to a fraud on the court. Um, 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 and extraordinary circumstances. And these three dozen former federal judges argue that that was the case here. Um, so we will keep a close eye on that to see, you know, what if anything the district court does with it? If you read the filing, it's actually, it's, 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 the tires on this settlement because it is. Yeah. Or, and also they say, right, like you can let us as third parties move, but also used to a sponte could do it. So yeah, they do offer the judge a bunch of different. It is a roadmap. It's a judicial roadmap. So we'll see which way she goes. And then on Friday morning, Judge Brinkman, 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 while expedited briefing happens. Strict scrutiny is brought to you by fatty 15. You know how everyone loves dolphins? Seriously, I was obsessed with them as a kid. Here's another reason to love our flippered friends. They've helped unlock a core secret to healthy aging for all. I'm so excited to share with you all C 15 from fatty 15, the first emerging essential fatty acid to be discovered in more than 90 years. It's an incredible scientific breakthrough to support our longterm health and wellness. 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Aura makes it easy to shop for dad named number one by wire cutter. You can save now by visiting or a frames.com for a limited time. Listeners can get $35 off of select frames with code strict. That's Aura frames.com promo code strict. Support the show by mentioning us at checkout terms and conditions apply. All right. Leah 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 Abu Ghazale. 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 site 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 lawfully present in the country. And many were sent for processing at a 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 rifra the religious freedom respiration act as well. Although the seventh 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 26th, which ultimately resulted in six protesters, including Kat 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. I remember very clearly talking about these allegations and being like, I'm pretty dubious. And it turns out, ladies, we were right because over the course of the last two months, the case started to just completely implode 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 US 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. Um, at that point only actually misdemeanor charges remain. 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 US 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, right? It's just like that. The new grand jury gerrymandering. Um, so, and then as egregious, maybe more egregious, 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 watch. Although still very mad at the protesters, very scoldy at them still. And defense counsel is now unsurprisingly seeking sanction. So a fitting end to a group of prosecutions that should never have been brought. And we know there were similar violations of grand jury rules by Lindsey Halygan 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 juries, sandwich guy, some other immigration enforcement protesters, Mark Kelly, Tish James. But then 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 peek 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, you know, 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 Broadview Four and I would not be surprised if that misconduct led to other dismissals as well. Speaking of DOJ misconduct, Kilmar Abrego 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 Kilmar Abrego 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, Abrego Garcia was sent in error, which everybody concedes was an error to El Salvador's notorious Seagod prison. He and his family fought this rendition with help from, you know, a number of others, including Maryland Senator Van Hollen and the Supreme Court ultimately concluded that the lower court had properly required the government to facilitate Mr. Abrego Garcia's return. Now there was some initial resistance to complying with that directive. Then Attorney General Tamela Joe Bondi had this to say at the time. So he is not coming back to our country. President Bukele 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 2022 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, but now it's a thing. 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. End quote. The district court goes into painstaking factual detail and a very, very specific timeline. The basic upshot is that Todd Blinches public statements, tying these charges to Abrego Garcia 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 impermissible vindictive prosecution. Once again, stringer bell, you take in notes on a motherfucking conspiracy for vindictive prosecution, or in this case, appearing on talk shows to talk about it. Who's to say? The feds say they're going to appeal this ruling. In the meantime, they are 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 La Monica McIver, who joined us on stage at cricket con 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 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 if 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 allege they are being beaten, that there's blood on the floor and it's just excruciating. That hunger strikers specifically are being targeted for beatings. Yeah. And it does feel like they're, 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. And 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 filings involving the ballroom, which we talked about at the beginning of the episode. 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, but there's also the underground component. I don't know how to work that into the edifice. Edifices have underground like a basement is part of your edifice. Like you can have an edifice complex and it involves a basement. Okay. Well, um, both the above and below ground portions of this particular edifice complex, I think are at 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. Um, so question, what did the top law enforcement officials in our nation, including attorney general Todd Blanche and associate attorney general, acting attorney general, do not give him his desired promotion. Acting, acting, I mean, he's like, or auditioning. Yes. Auditioning attorney general. I like that. Auditioning attorney general, Todd Blanche 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 truth social post begging the judge once again to lift the injunction against the ballroom. I just cannot get enough of these unhinged filings. So may I have another ballroom, please? Please have to wait for my safety. I would like a ballroom. Well, it actually, the king and queen of the United Kingdom are invoked in this particular filing. So, so I would like two sentences and then Melissa, I will pass you the mic and you want to finish it. But so the filing says, quote, when completed, this highly knitted, integrated and unified project project of the capital P, which is a singular and vital capital N, capital S national security facility will provide a all caps safe haven from attackers such as the one last night. And on April 25th, that's the way that's correspondence dinner. It will provide a highly secure space for future inaugurations. Inaugurations are going to happen in the ballroom. I think we learned that. I didn't know that ladies and other major events such as the recent visit of the king and queen of the United Kingdom in the coming visit in September, President Xi of China. Okay, wait, the, the end of this, I just think, okay, I'm just going to, if it's okay, he 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 higher range than a large caliber AK 47. 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 inordinately wet. Over the years, many an 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 posed some sort of a threat. And I just, the mind of an individual who then, which is, you know, Donald Trump and I guess auditioning attorney general Todd Blanch and 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 many evening has been ruined. Won't anyone think of the national security, please? Like rain is a threat to our national security. And that is, I think the takeaway more on 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, maybe under federal investigation, criminal investigation, or at least aspects of E. Jean Carroll's litigation against Donald Trump, maybe 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, maybe 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 defray 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 butros 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, but 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 or the lawsuits happening, it just feels like another example of Trump sickening 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 Jo Bondi is appearing before a congressional committee and she is flanked by her ostensible attorney, one Harmeet Dillon, who according to my records, Chex 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 don't know. Is this unprecedented in the DOJ having a side hustle being like a task rabbit for law, a law task rabbit? Is this new? I mean, everything Dylan has done so far has broken pretty new grounds. Pose. That was for you, Leah. Like Kate, do you know what I'm talking about? Do you remember that? I do. Yeah. She put that on a, on Twitter. I believe. Honestly, I was like, you know what? I'm not mad at it, but it's your hose. I quite a bit. I had a good profile of her in the Atlantic this week. I should have put that in my favorite things, but I will mention it now. 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. Literally that's in the proposal. Yeah. I know. I know. I know. They're not, 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 cites the Supreme court and particularly Jodi Cantor's reporting on the leaks, along with Josh Gerstein's publication of the Dobbs leak in Politico is just chef's kiss. Fantastic. I want to read a little bit from the proposed rule just to give folks a flavor of how fantastic this is. 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 where an individual likely a law clerk disclosed without authorization, a copy of a draft decision in a controversial abortion case to a reporter. End quote. The part about likely a law clerk is just rank speculation. My answer went up. That's, I mean, maybe, but like to put that in a proposed rule, that's not anything that any of that reporting alternative facts. They're the real facts. We talked about this, like the clerks are the last people who 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, while we were recording a district judge in DC, Judge Cooper has barred 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 an official name. All right. Let's turn to some court culture. So last week we learned of an order issued by the 11th circuit's judicial council 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. Your most. Nor were the activities. Nor were the activities in the chambers of a district court judge in the 11th circuit whose conduct was the subject of this complaint and then a special committee investigation and then a special committee report. And then this 11th circuit judicial conference order. So here's what transpired. Okay. And your muffs on, right? They're on. Go ahead. 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 clerk's work, bullying behavior and excessive martini drinking at a political event to boot. This clerk was taking notes. Wow. Well, I don't think that 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 the shit was documenting it all. 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 11th circuit. So chief of the district refers it to the big chief of the whole circuit. Um, and prior approaches the judge who, according to this report, stone cold lies. I have no idea who the law enforcement officer is. I never yell at my clerks. This allegation must be like retaliation against me because I once criticized 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 appoints a special committee, which goes all in on investigation, like they have been ready to do this. So they interview clerks current and former, they look at the security footage and like visitor logs. There is an actual semen test of a couch cushion. There is acoustic testing in a chambers with similar layout. We'll close the door. We'll make some, I guess, sex noises on one side of the door and see if we can hear them on the other side of the door. They really take their mandate to investigate very seriously. So after this special committee in this investigation corroborates the initial allegations through things like interviews with other law 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 promised not to. And they broke up with the cop boyfriend, I guess. Also like the relationship was done. So I guess that means it won't happen again. And they sent letters of apology to law clerks who were subjected, I guess, to these sex noises. You know, what do. Oh, also there was the otherwise exemplary. They were otherwise as a judge. Yeah, exactly. Otherwise, other than all that stuff. Um, so what did you make of the reprimand? You two, 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, it, this person is sitting in judgment of things like candor and sentencing 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. Um, 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 D.O.B.S. leak and also the leaks of the Supreme Court because they're 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 stone cold lied and persisted in doing so. You know, when people lie 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 judge's 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, it wasn't enough. And also to the, to your point, Leah, that this is a, you know, law enforcement official in the judge's district, it, the, 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 prevent it. It just like happened to shake out that way. So like great. Yeah. You had 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 itself is an enormous problem. Any favorite details from the reporter order? Favorite slash least 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 it's a little, there's an effort to be somewhat like decorous in the description, but I don't know. That I was like, just, I found it profoundly disturbing to contemplate. Like really high volume kissing among these two individuals. So they're between. The heart wants what the heart wants Kate. Yeah. The ears want it to. My favorite part personally was like the natural experiment where they attempted to like emulate and simulate the chamber's environment and figure out that was mine too. Sex noises. From a space that was assembled similar to it. No, that was my favorite part too. Leah, just like, I just like, what was that day at work like? Right. For everyone. Follow the simulation day. Yeah. Yeah. Like, wow. We got a field trip today. Yeah. 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. Um, 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 shouldn't have gone, but he was not, people thought he was like going just to have a like, teta-teta with the chief, like definitely not. He is the spouse of a former Roberts clerk, Ushavance clerked for John Roberts. And it sounds like there was a law clerk reunion. Spouses are typically our partners and spouses are typically invited to those. And so he was literally just Ushas plus one to a Roberts clerk reunion. Again, appearances like maybe she's not 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? Um, I will drop a couple. Ruth Bengett in her, um, 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, uh, 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. Um, really good piece in SCOTUS blog by ESA, Kohler, Hausmann, my dear friend and co-author Kevin Zang, um, basically how Calais broke the voting rights act and weaponized the equal protection clause. This is the first of two installments. Um, I already mentioned Quintedress, it's Hermit Dillon profile in the Atlantic. Um, that's sort of all I got this week. Okay. So mine are daily show correspondent Ronnie Chang's 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, um, 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 Friday's Pod Save 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 errata and shortcoming of mine, which is our producer, Melody Rao 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 liked 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 her first either. She grew on me. Yeah, for sure. And now latest, it happened with Zara Larson's Midnight Sun Girl Strip. Didn't like the album at first. Then I liked two or three songs. And now I think there's like at most one skip on there. It's just inferiority, 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 Beg for me. Yes, beg me. Yeah. Yeah. I really like that. 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 the night before, but some energetic students made it out anyway. It was awesome to meet them. Um, 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. Um, Rhode Island has been a critical site for that. Um, 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 it up. My favorite things this week. So I was at the Brooklyn college graduation on Thursday, the 28th. And, um, 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's so awesome. Not only did I get an honorary doctorate, the city of New York gave me this citation. Whoa. I don't even know what I can do with this. Not like a part of the citation. Wait, what kind of citation? It says, uh, in recognition of dedicated service to community and cause, and it was delivered by the public advocate, Jimani Williams. Yeah. 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. Uh, but I just want to say it was such a lovely ceremony on Brooklyn college is one of the CUNY schools at the city university of New York. And it is such an important mission to serve all of the people of New York city and provide 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, you're a queen. You are just doing it was so, so well done. The other honorees included Patrick Gaspard, 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. Um, 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 burden 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 babe Paley. Her mother was Amanda Burden. Her father was like a standard oil. Cyan, I mean, like she had money. She always had like, how are you shocked by this? Right. You're referencing that Jessica winter, New Yorker piece that is the kind of forensic investigation of the divorce filings. And yeah. Well, and I'm reading it now 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 wasp and is trying very hard to be a wasp. 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. Um, I also read our good friend, Andrew Weissman's new book, which hit the New York times best seller 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 pros on June 3rd in D.C. at their big wharf 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 one of these. What do you think? Oh, yeah. We're like with those sunglasses that he wore. Oh, that was so cool. It would be a really good combo. Yeah. I think you should be. Leah, you, this is when you were, you were recovering from your injury and like Kate. I saw the pictures. Sunglasses. It was very, he was very. Holder gave me the sunglasses at one point. I don't remember why, but it 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 Gramercy 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 demand, 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.com for a 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 slush funds for loyalists, you will want to stay tuned for this conversation I had with Barb McQuade about her new book, The Fix. Saving America from the corruption of a mob style government. Strict scrutiny is brought to you by Cook Unity. As you know, I'm a foodie. I love a good meal. One of my favorites was in Chicago recently. Obviously we went to Girl on the Goat and they had added some new menu items like a whole jarad with this spicy, amazing sauce salad over it. Also a cheesy buttery cake. Does that count as a meal? Obviously it should. Anyways, hard to get that level of culinary bliss at home, but Cook Unity brings me super high quality meals handcrafted by chefs, including top chefs. So I feel like I'm treating myself all the time. Cook Unity is the first chef led meal delivery service that makes your meals in small batches inside local micro kitchens across the United States, not factories. So every dish arrives with the kind of freshness you'd get at a restaurant itself. They offer meals from Michelin star chefs, James Beard winners and food network stars. Go to cookunity.com slash strict or use code strict before check out for 50% off your first week. Some of my recent favorites were the potato and mushroom taco suizos. 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Grainger knows when you're a procurement manager for an office park, you're not managing one building. You're managing all of them. And to stay ahead, you need to see through walls and around corners. Lights about to fail. Filters ready to clog. H back on its last leg. If you wait until something breaks, you're already behind. Count on Grainger for quality products, easy reordering and 24 seven support. Call 1 800 Grainger, click Grainger.com or just stop by Grainger for the ones who get it done. Daring leaves, epic duels, team wins, joint swing. I'm feeling unstoppable. This summer, join us for the adventure of a lifetime on a PGL kids camp where challenges are faced and memories are made. Discover our special offers for this summer at PGL.co.uk. For this segment, I am thrilled to welcome Barbara McQuade 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 a colleague of mine at the University of Michigan, and she's an author of the New York Times bestseller Attack From Within. Welcome to the show, Barb. Thanks, Leah. Great to be with you. 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 Goodfellas. 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, to 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. It's an effort to obtain leverage or in his case, manufacture leverage to be able to use it to obtain control over these rivals. 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 a 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 2.0. So you compare, you know, Trump's pressure on universities, law firms, the media to a sex torsion case. And, you know, 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? Yeah, 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 a 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 from war. 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, they 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 it alone, there is a divide and conquer strategy and you will lose. The way to prevail is to band together, to share information and let people know this is happening and there is strength in those numbers. In 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 mob style tactics to the influence of one Roy Cohn, 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. Um, you know, during his career, Cohn was indicted four times, never convicted of any crime, prompting comparisons to Harry Houdini, um, although he would eventually be disbarred. 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's my Roy Cohn? So in Trump 2.0, like where are you seeing Cohn's influence or lessons? Trump might have drawn from Roy Cohn most clearly. Yeah. So one of the things that Roy Cohn, um, read and followed was Maki O'Valley's The Prince and he talked about how it was better to be feared than loved, uh, that, you know, power is gained through deception. Um, and this is also one of the, um, patron saints of the mafia. They follow the code of Maki O'Valley. Um, 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. You know, in 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 or the country, but loyalty to Donald Trump. We had Pam Bondi in the role as attorney general. And I think she tried to be a Roy Cohn. She sought indictments against James Comey and Letitia 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, uh, 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 based on a claim that just seems to make no sense. The idea that, um, the Southern Poverty Law Center was not fighting, uh, hate groups, but it was actually empowering hate groups by paying informants. 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, um, 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, uh, 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 Todd Blanche working very hard to prove his worth to Donald Trump, that he is the Roy Cohn 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 Hagan 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 Seacott prison in El Salvador, I'm sure you'll recall there was this emergency hearing virtual by Judge James Bosberg, 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. Right. Everybody who's ever practiced in 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 Bovay was saying things like, you know, those planes have to go no matter what and after the judge and after 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 switcheroo in Virginia where the US attorney who was Trump's own appointed US attorney was ousted because he refused to indict Letitia James and James Coney replaced by Lindsay Halligan, 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 interim US attorney, Danielle Sassoon, to resign over what she saw as bribery within bribery. How ironic. And that was also the incident that prompted that prompted Hagan Scott and, you know, to resign, you know, who wrote the essay reflecting on the Jackson speech. I mean, so, 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 meditative sham prosecutions, you know, one originating from sea caught, where, you know, there was actually a judge who concluded that the prosecution brought against Kilmara, Brego Garcia, you know, one of the people who was wrongfully expelled due to a paperwork error that DOJ charging him, you know, those charges were dismissed because the judge found they were in addictive prosecutions. And then of course, in the broad view, 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 indictive prosecution. So, you know, how did those cases kind of fit into the arc of the book's 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, Abrego Garcia, you know, people bandy about the term vindictive prosecution all the time. And it almost always fails because what they tend to mean is you hate me. Therefore, if you prosecute me, it must be a violation of my due process rights. No, I might hate you, but if you're guilty of a 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. A guy driving four other laborers around in a car just isn't the case of the century. And so this happened 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 Abrego Garcia had been sent to El Salvador, to this prison in error. And then they did everything in their power to keep them there. Todd Blanche 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 Abrego 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 for my criminal procedure class to show that, yep, here's an example where there actually was. You actually can win some vindictive prosecution motion. Here's what it looks 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 Broadview Six case, 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 grand jurors in the hallway about the case, not in the grand jury room, in formal 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. But let me just tell 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, there are reasons for it. One is just to be ethical. A two, there's a grand jury manual that tells you the dos 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, 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 wisp, um, 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, you know, going after its, 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, uh, indicting protesters, victims, and ham sandwiches seems to be the story. So, uh, or throwers of one last, right. Or throwers of sandwiches, uh, sandwich man, the hero we need. Subway man. I forget what there was a sandwich or a subway. Anyways, um, so, uh, Barb, one last question, you know, earlier, you mentioned that one critical solution to the governance you're observing is banding together and making public what the government is trying to extract or threaten people with, you know, in the book, you outline a road map for stopping, you know, this turn toward mom style governance that includes. Among other things, protests, lawsuits, boycotts, teachings, satire, jury nullification and running for electoral office. I guess. Last question, which of any of those tools do you think is underused and what is giving you hope despite observing this phenomenon? You know, I think the one that is the easiest, uh, you know, the, the lowest hanging fruit, if you will, um, 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, um, that it's impossible that you're hopeless, that you cannot achieve, um, 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 as individuals. Um, 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 to, right? They need to hear a good sermon. They need to be energized and emboldened. And 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, 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. Yeah. Strix, Rootney is a crooked media production. Our show is produced by Mellie Raul and Michael Goldsmith. Jordan Thomas is our intern. Our team include Matt DeGroote, Ben Hethcote, Johanna Case, Kenny Moffitt, Eric Shoot, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East. America's 250th birthday calls for a history as sprawling and contradictory as the country itself. A history of the United States in 100 objects produced by BBC studios and 99% invisible tells this story one object at a time. Told over 100 episodes, join host Roman Mars as he reveals the fascinating story behind a collection of often overlooked objects, each of which sheds light on key moments in American history from a gold coin found in a shipwreck that triggered financial panic to a tiny screw that kickstarted an industrial empire. Every week, one object will open the door into an extraordinary, often shocking story about who we've been, what we built, and what we've allowed ourselves to forget. New episodes of A History of the United States in 100 Objects are released every Tuesday. Find it in 99% invisible wherever you get your podcasts. Granger knows when you're a procurement manager for an office park, you're not managing one building. You're managing all of them. And to stay ahead, you need to see through walls and around corners. Lights about to fail, filters ready to clog, HVAC on its last leg. If you wait until something breaks, you're already behind. Count on Granger. For quality products, easy reordering, and 24-7 support, call 1-800-GRANGER, click Granger.com, or just stop by. Granger. For the ones who get it done.