S7: We Need To Talk About Trump’s Maritime Murders

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With over 30,000 therapists, BetterHelp is one of the world's largest online therapy platforms having served over 5 million people globally. And it works with an average rating of 4.9 out of 5 for a live session based on over 1.7 million client reviews. This December started a new tradition by taking care of you. Our listeners get 10% off at BetterHelp.com slash strict. That's betterhelp.com slash strict. Let's keep justice. Please report. It's an old joke, but when I argue, man hardest 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. Or for next. Hello and welcome back to Strix Crutney, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host, I'm Leo Whitman. I'm Melissa Murray and I'm Kate Shaw. And we are halfway through the courts December sitting. So we've got some argument recaps for you, but we're going to start with some legal news. So news, then recaps and we will end with some court culture. We are not going to cover last Thursday's outrageous Supreme Court shadow docket order green lighting Texas's racially gerrymandered maps. We couldn't wait until Monday to rage cast that one. So we dropped an emergency episode last week. It's in your feed if you haven't had a chance to listen just yet. Instead, we are going to start with another enormously important story. As you may know, listeners, Pete Hegseth, although we are now increasingly referring to the Secretary of War as Hague Seth, because he seems to have no idea how things work at the Hague. And we are going to be covering Hegseth's murder strikes. And the story, of course, involves the increasingly urgent set of questions that have been raised by the administration's bombing campaign against boats in the Caribbean and now the Pacific. And we have discussed this issue before. But now we have new reporting that raises new legal questions about one specific event. And underscores the serious legal questions that surround all of these boat strikes. And to help us break it down for you, we brought in an expert. So we are joined by returning guest and friend of the show Rebecca Ingber. Beck is a law professor at Cardozo Law School, a former State Department lawyer and a real expert on all things international law and the law of war. Beck, welcome back to the show. Thanks for having me on. So, Beck, just to start us off, can you remind us of what we know about this bombing campaign and the legal questions that it raises before we plunge into this kind of latest round of Washington Post reporting about the September 2nd strikes? Yeah, so since September of this year, the Trump administration has been engaged in a campaign of what are essentially summary executions of suspected drug traffickers at sea. This started in the Caribbean Sea and then spread beyond to the Pacific as well. And the administration announced that the first strike on September 2nd killed 11 people on board that vessel. And at the time, in many times since, the president said he was going to keep going. And in fact, he and members of his cabinet have joked that no one is going to want to go fishing anymore. So since that time, there have been, and I looked up the latest count before getting on the show, 87 people killed in 22 strikes. And you might wonder, what's the legal authority for all this? Can the president just kill people? He suspects of crimes at will? And if so, then what would be the point of our entire criminal justice system? And we can get into this in much greater detail. But the very brief answer is that the entire killing campaign is not only just unauthorized. Some people have talked about it as unauthorized as if a congressional authorization to use military force would somehow solve all the issues. But it's actually quite specifically murder. So that's the state of play with basically all of the strikes. And then we got new reporting, originally in the Washington Post, now matched elsewhere. And the new reporting suggests that during a September attack on a fishing boat, the initial strike did not kill everyone on board. But instead left two survivors in the water. And then a second strike killed the two individuals who survived the first strike. Subsequent reporting has suggested these individuals were waving their hands. There was also apparently like a 40-minute gap between the first and second strike when they were deciding about what to do. But what new legal questions does this new reporting raise? Yeah, these are really horrifying facts when you lay them out, aren't they? Yeah. So this second strike that has been reported, and this is the strike on the survivors, clinging to the debris on that first boat after it had been blown up, this has been breaking through to the public and on the hill in a way that the rest of the killing spray somehow was not. And given that I just said the entire campaign is murder, you might wonder, well, okay, well, what's different about the second strike? Can you have anything worse than murder? And so there's a risk that this focus, I think, on the second strike clouds the illegality of the rest of the strikes generally in the minds of the public. But one reason that it's breaking through I think is that even if, even if you accept every single one of the manufactured facts and legal characterizations for these killings, and to do that you have to accept that the transporting of drugs is an armed attack in the United States. You have to assume that there are a bunch of organized armed groups out there that the administration won't even name who are the equivalent of state military forces engaged in an armed conflict with the United States that we somehow didn't know about until now. And you'd have to accept that the men on these boats are somehow themselves actual fighters in those groups, either akin to combatants or directly participating in hostilities somehow by transporting the drugs. Now all of that is false and twisting beyond recognition, the laws governing the use of force and hostilities. But even if you assume all that, you still can't shoot them when they are what we call order to combat, which means they're incapacitated in some way. And sometimes it can be complicated to determine if someone is incapacitated, but shipwreck is actually a paradigmatic example. So if we are at an armed conflict as the president claims, then this would be a classic war crime. It's not, it's murder because we're not in the armed conflict. But one reason that might be, it might be breaking through is because it is so recognizably wrong. We're not used to having to find language to talk about the president going on a killing spree, but the law of armed conflict, the military trains on this, these are classic examples, these could have been power points in an obstacle course. And I think it's also built into the public subconscious. Beck, can we talk a little bit about what the actual law does say? Because this isn't just magical thinking. There is actual law on this issue. There is the uniform code of military justice, for example, which applies to individuals who are in the armed forces. What does it have to say about the prospect of military personnel following a legal order? So if this is, in fact, illegal, and it was ordered by the secretary of war or someone who is an underling to him, what do enlisted people have an obligation to do under the UC MJ? So under the U.S. law governing the armed forces soldiers have to, they must obey lawful orders, and they can be punished for disobeying lawful orders. But lawful is an important caveat there. And in fact, soldiers have a duty to disobey on lawful orders. And of course, they can be held accountable for crimes. They can be held accountable for war crimes. They can be held accountable for murder. I think I saw a video about that. Yeah. And it's not a defense to say, as I think we're all more than aware, having seen, you know, just one movie, that it's not a defense to say, I was just following orders. So if it sounds like this can put soldiers in a pretty tough position when they're given orders they find questionable, I think that's right. And I think one of the horrors of all of this is the position that the administration has been putting soldiers and sailors in. And it's presumably for this exact reason that the rules for prosecuting soldiers for following unlawful orders, and this is U.S. domestic rules, as well as international law, they tend to clarify that this applies to clearly unlawful orders or manifestly unlawful orders. Now, an order to, for example, give no quarter an order to say that there shall be no survivors. That's an example of a manifestly unlawful order. And so too is an order to fire on the shipwrecked. And in fact, it is so textbook an example that it's actually used in the DOD law of war manual as its example for a clearly illegal order. And for those who are interested in a deeper dive on this, I highly recommend an excellent explainer that happens to be on just security on this precise issue by my good friend's test bridgeman, Ryan Goodman, and Michael Schmidt. So I could go on about all of the horrors about this, but I just want to kind of acknowledge a few. One is that after reporting about the survivors, you know, being bombed and murdered, Secretary Hegseth retweeted a turning points USA spokesperson and indicated your wishes are command Andrew. That's a spokesperson just sunk another Narco boat as if they are doing these kind of like murders on demand. There's also been reporting that maybe Hegseth suggested the final call was made by another military officer. So he's like, foisting blame on another officer. At the same time, he is posting images of Franklin the turtle murdering people. Justice for Franklin. He's not deserve this. Yeah, there's an element of you know, I've got your back. And yet I've never heard of the guy with respect to it. Like I'm a big tough man, but also it's all his fault. Exactly. In terms of additional developments. So the post initially broke the story that reporting has been matched elsewhere. And then last week, senators were both briefed and shown video of the striker strikes. And the video evidently showed that after smoke from this original strike cleared, it revealed that there were two survivors in the water. They were clinging to wreckage as the times reporting just Friday suggested they were waving for help. And then the follow-up strike killed them. So, you know, some of these lawmakers were clearly deeply shaken by what they saw. It led several senators, including at least one GOP senator to actually call for public release of the video. So that I think has not in any way like tamped down congressional interest in continuing to pursue this. But not every senator had the same reaction. Others like Arkansas senator Tom Cotton, he was inexplicably engaging in what seemed to be Gen Z cosplay by wearing a quarter zip. He emerged to claim that the videos didn't capture anything illegal, but rather the conduct that was being targeted was quote unquote highly lawful and lethal. He's also clearly trying to test out some kind of legal justification for the strikes. He said the video showed two survivors trying to flip a boat that he said was quote loaded with drugs bound for the United States. Question about all of this back. You have these two various versions on both sides of the aisle. What is it that Congress can do? What Congress should do? And what are the available avenues of accountability here? So Congress has a lot of control over the use of force, over decisions to use force. And it has a lot of tools at its disposal if it is ready to start flexing its muscles, which sadly have been I think atrophying. I mean it can hold hearings, it can subpoena documents, it can subpoena officials for interviews, it can pass legislation prohibiting force, which it also doesn't need to do because it's only lawful if it is authorized force in the first place. But nevertheless it gets that of a commission to investigate crimes. They could even hold with hold money. And of course they can impeach the Secretary of Defense, they could impeach the president. And individual members can keep using their platforms to keep talking about this. And some of them have started to do. And so I think that while there's a risk that this second strike obscures the illegality of the campaign as a whole, I think it's also an opportunity to start laying bare for the public, the absurdity of the administration's legal claims here that transporting drugs is somehow hostilities against the United States. And so in a way drilling down into it and actually showing people demonstrating what is out there, getting that video out there if they are able to do so is going to only further highlight the gross illegality of the entire campaign. And if they can get the video out, I'm reminded of the political seashift following the publication of photographs of American soldiers torturing prisoners in Iraq's Abu-Grad prison, back in the early war on terror years. This of course states me a bit. And there, as here, the specific criminal acts that were taken by those soldiers weren't necessarily part of the approved official policy under the Bush administration's torture program. But they did grow out of quite clearly that permissive atmosphere where abuse of detainees was being justified. And so and in that case, those individuals were court-martialed. And perhaps more importantly, I think it fueled an up political uproar that may well have spelled the beginning of the end for the administration's torture program. All right, well, I guess we can hope that some kind of similar public reckoning is at least beginning to be set in motion by these revelations. Beck Inver, always great to have you with us. Thank you so much for joining us today. Thank you so much for having me. Strix scrutiny is brought to you by Earth Justice. If you listen to our show, you probably know this already, but Earth Justice is a powerful legal force protecting the environment from Trump. Earth Justice sued Trump 45 over 200 times, winning more than 80% of cases that had a final decision. And they're raising legal challenges to Trump 47 and an even more breakneck pace. Earth Justice's lawsuits are scaling up to match the moment, and the scale of threats more attorneys, more cases, more public landfights, and more climate enforcement. They're scaling up to protect our public lands and our climate. They represent clients free of charge so that everyone from communities, tribes, and conservation groups gets top tiered legal representation even if they lack resources. They have defended countless acres of the Arctic from fossil fuel projects and will continue to do so. And this work, their work is important for all of us. Our climate can't afford massive new fossil fuel infrastructure. The consequences affect every one of us. Think about the wild places we love species hovering at the edge of extinction or climate. What we protect now will define what future generations inherit, and that's where you come in. Earth Justice lawsuits are entirely donor funded, so they rely on people like us to support their work. We invite our listeners to help Earth Justice take on the fights ahead. All gifts are tax deductible, and donations made through December 31st will be matched up to $25,000. Donate to Earth Justice to support their lawsuits and protect our planet. Every gift through December 31st will be matched to double your impact. Earthjustice.org slash strict. Take the beat Donald Trump mega. You follow every poll and twist in turn in the campaign. Message boxes for you. This isn't just hot takes. Every edition delivers clear analysis behind the scenes insight and practical strategy you can actually use whether you're working on a race or organizing your community or just trying to win the argument in your group chat. So if you're listening to this hit pause go to your browser and head to crooked.com slash yes we did because I have a special offer for crooked media fans. You'll get 20% off of message box for an entire year to go to crooked.com slash yes we did. One more piece of news before we dive into those recaps. Last week there was reporting that Pamela Jo Bondi's DOJ was making preparations to seek a re-enditement of New York Attorney General James. Evidently by trying to bring in an assistant US attorney from another district. This district apparently was Missouri. Well guess what the show me state showed her. MSNOW reported on Thursday that the grand jury refused to indict. This is both great news on its own but if the administration keeps trying and manages to get an indictment it will provide additional support for Tish James's already strong case that this is really a malicious and vindictive prosecution. So interesting turn of events as it were a bench slap if it were as it were to Pamela Jo. So let's move on to argument recaps. The first case we're going to recap is first choice versus platkin. This is the case we previewed with new Jersey Attorney General Matt Platkin. Okay I'm going to sort of sound conspiratorial for a minute but weirdly I have to ask you guys something so I- It's enhanced we're right we know. I at least on this little point and who knows maybe on all of it but basically I could not get the document that is referred to as a day call on the court's website to load before the argument. So I actually didn't know who would be arguing usually like a day or two before you see exactly who's arguing in what position for what case. So I actually didn't know who'd be doing the first choice argument and as it turned out up first for first choice was one Aaron Hawley who we have mentioned before as the attorney who led the challenge to Mepha Pristone was a key member of the DOBS team and is allegedly on the Trump administration shortlists for an appellate judgeship. So she argued for first choice and we actually got a dispatch from inside the courtroom from Mark Walsh who is the Supreme Court correspondent for the ABA and he let us know that one senator Josh Hawley who was married to first choices attorney Aaron Hawley was also in the house. Mark shared with us. Did he run there from Capitol Hill? I didn't get any intel about his mode of transportation but it's not far so very possible. I could have jogged over. Hawley could sprint could have sprinted wouldn't even necessarily have broken a sweat but however he got there he was in the courtroom. He stayed for the entire argument just pretty long and interestingly also in addition to the hallies in the courtroom for bar admissions that is people who are sworn into the Supreme Court bar typically before the oral arguments was a group of trans lawyers who are part of the National Trans Bar Association. The group announced this admission ceremony on its website noting that swearing in a new cohort of trans attorneys is a testament to the community's quote unwavering presence and resilience so sounds like a great ceremony and really glad that Mark brought it to our attention. I love resisting in any way possible. And making John Roberts say a group of attorneys from the trans bar association which John Roberts would have had to say to call them up is honestly an actor resistance. Can you imagine Sam Alito was saying he had that Arthur the art of art fist at the side just like clenched. All right let's break down this argument. As we discussed with Attorney General Platkin this is a case about a procedural question. When can the recipient of a state subpoena go to federal court to raise a first amendment objection to that subpoena. Recall that first choice received a subpoena from the New Jersey Attorney General's office and the Attorney General says that is because the office was engaging in routine enforcement of the state's consumer protection laws. First choice clearly thinks that that's not the reason. Instead they argue that the Attorney General is hostile to the fact that first choice is a crisis pregnancy center which is a pro-life organization that among other things seeks to dissuade women from seeking abortions. As we also noted in our conversation with General Platkin the case is indirectly about access to reproductive care but as we all discuss it wasn't really on the table until justice bear it raised the prospect of reproductive care quite late in the argument. Although Aaron Holley in her remarks did refer to pregnancy centers and suggest that the Attorney General had quote assembled a strike force against them and quote I wonder if it was an elite legal strike force. At least the crack in Sydney Powell. That was that was quite the poll. So only five years ago folks. I know I know. If we characterize this case as a procedural case that's also on some level about abortion Holley mostly wanted to characterize this as a major civil rights case about nonprofit donor privacy akin to cases such as N. double ACP versus Patterson and important Supreme Court case but how that the N. double ACP could not be compelled to release its donor list in Alabama in the 1950s. Yes the crisis pregnancy centers are likening themselves today to the N. double ACP in the 1950s. This is Aaron Holley's contribution to critical race theory. Holley took a very broad position on how her client should be able to get into federal court to make its first amendment argument about donor privacy. The lower courts have said of course you can raise first amendment arguments but right now all you have is a subpoena which New Jersey represents isn't even self executing without additional state court action. So for now you have to await further state court developments before you can go to federal court. First choice has two arguments for why they should be in federal court now now now. So the first one is that there is a credible threat of enforcement and the second is that the subpoena itself violates the first amendment and in particular the first amendment right to associate because a reasonable donor would be chilled in giving and associating with the organization by the existence of a subpoena like this without any further action necessary. So there is an important question of New Jersey state law here. It's kind of an antecedent question and that is whether the subpoena is self executing. So despite New Jersey's representations about its own subpoenas, Hawley kind of resisted that including by repeatedly invoking the Latin meaning of subpoenas if that like some hours off the question. It's Latin folk. Yeah, it's Latin. I don't know if it's important. But despite my finding that pretty unconvincing at least a couple of the justices seem to be kind of rearing to but actually this question of obviously state law. So here is one Neil Gorsuch on this. I don't know how to read that. Other than it's pretty self executing to me council. This is the new face of federalism. Blue states don't even know their own laws. And the attorney arguing for New Jersey, Sinti Bair, conceded that if these subpoenas are in fact self executing then first choice can immediately go to federal court to challenge the subpoena. So if this court in its infinite wisdom decides that these are self executing subpoenas, first choice would win. But other justices like Justice Barrett seem to accept that these subpoenas are not self executing. And so to me were and modest of her to like at least allow that a blue state can decide what its own damn laws mean. So mindful. Yeah. Well again, he can decide what it means. And she will validate them. Right. She does them based on their own understanding through laws. She learns you in page. She learns you in with a reasonable prospect even the federal government here. Even the federal government here was like no Neil. This is not up to you. Guards. He says there's some executing. We should treat them that way. But to your point Melissa like yeah, Amy may find another way to side with first choice. She's definitely going to find another way to side with first choice. There are billions of possibilities for first choice as we will unveil. So there weren't a lot of questions for Holly which a little unclear how to read that. You know, often at least sometimes that's because a side is doing well. And the justices did seem sympathetic. But I also got the feeling they were a little distracted, maybe totally consumed with Texas redistricting and maybe the National Guard case. But the question or emotional support billionaire who is to say, who is to say the questions there were for Holly were pretty friendly. So Justice Kagan asked, how would you prefer to win type question? Justice she knows her call. Exactly. You got to win. How would you like us to do that? Yeah. Justice Jackson was a little mixed. Justice Soto Mayora seemed more skeptical. The federal government also argued here of course on the side of first choice. And it at least had the decency to note that there was some tension between first choices chill theory and some of the courts standing jurisprudence like Clapper for example. And of course the SB 8 case whole women's health versus Jackson. So it asked the court to side with first choice under the threat of enforcement theory. And Arging for New Jersey as Melissa already mentioned was some deep iron who I thought was really good in a way that was both understated and pointed. And it came out in a couple of places. So one I thought I'm sorry to harp on this but I was so enraged by a gorge on this like self-executing point. He had I thought a nice response to gorge contemplating declaring himself the ultimate authority on New Jersey's state law as well as everything else. So let's play that clip here. I will say that if again the question that this court has is about the meeting of state law, I think there are entirely appropriate ways to resolve those questions for example by remanding the case to the third circuit with instructions to certify the question to the New Jersey Supreme Court as is consistent with typical practice. And what and the question shorter iron. Sir you are no Bruce Springsteen. The stone pony would never accept you anyway. I are also made very deaf use of lions and Clapper. These are two awful decisions in which the court denied standing to plaintiffs. It was not sympathetic to lions is a case in which the court denied standing to an individual challenging the Los Angeles police department's policy of putting suspects in chokeholds. And the logic of the case was that even though Mr. Lions had been put in a chokehold already by the LA police department because he wasn't able to show that he was going to be put in a chokehold again in the future. Immunately he had no standing. Clapper is a case where the court denied standing to lawyers and NGOs representing Guantanamo detainees because they had not established that it was sufficiently likely that the government would listen in on their conversations. So here's an exchange between IR and justice Gorsuch talking about the prospect of donor declarations. Really? I mean that, we're going to now pick over the tents of the verb that they chose. I mean they're saying if we'd known that this was going to happen we wouldn't have given. Perforce, if it's going to be disclosed we won't give. I mean, doesn't that just follow night from day? We don't think so for a couple of reasons. First, okay. This court's decision in lions makes perfectly clear that a backward facing allegation of harm. No, I don't see it. I understand that. So I are also, I thought, made very clever use of the Holamann's health decision. So let's play that clip here. For one thing, this court has always made clear that you don't bend the rules of Article 3 standing based on potential fears of preclusion. And in cases like Holamann's health for instance, this court noted that there may not always be available a federal forum for a federal constitutional claim challenging. So you're not saying they wouldn't be precluded. And while we're going through, you know, the greatest hits of the Supreme Court Justice Jackson also referenced the ICE case, the immigration and customs enforcement case, the one that bless the Kavanaugh stops of Ask Was Prado Mo here. Isn't it interesting that we don't have credible threat in other areas? I mean, I'm thinking about, for example, Prado Mo and you know, this situation, I'm looking for it in my note, in which people are saying we're fearing that we're going to have these adverse interactions with ICE. We have evidence of this happening. And the court seems to say not enough. We don't employ some sort of a credible threat analysis in that context. Now, as we said, Holly didn't say much about pregnancy and nothing about abortion, mostly referring to first choice as just a non-profit, but Justice Barrett definitely did in an exchange with I.R. that was a little bit spicy. I mean, you have this project strike on the pregnancy centers, you know, the Attorney General had essentially, you know, what your friends on the other side would say declared war on pregnancy centers. So if it is true that the non-self-executing subpoena is enough if it's in the context of other government statements, why wouldn't that be satisfied here? My friends on the other side don't let the actual factual allegations get in the way of telling a story about hostility here, but I think that story is just not borne out by the record evidence that's been offered here. And I.R. did go on to say if there were a record of state hostility and targeting that might be enough to get into federal court, but here, there just isn't that kind of record. But as in the Texas redistricting case, facts, we hardly knew ye. Well, it's not just the absence of facts. It's that she, like, this is sort of the Fox media orbit in which they're all existing where anything that has to do with the crisis pregnancy center is obviously going to be the target of some blue state sinister plot. Like the end of the CPN, it's memberless and the 1950s. Exactly. Indistinguishable. I think it's the first sentence of Holly's brief. It's like it is all over the brief. It is. It was the first sentence of her opening argument. This is not the first time these right-leaning organizations have done this. You know, this was Americans for a prosperity versus Bonta, right? Like they also, you know, invoked NAACP cases from the 1950s when they were arguing you cannot compel us to release information to the state. I just want to point out that NAACP members in the 1950s were in danger of literally being lynched if their identities were known. Like, these folks are just basically giving money to crisis pregnancy centers. Yeah. But you know, when you think about it, like, there's no discrimination against transgender people today or ever, which is why the court cannot hold. No, by law. Fans on gender affirming care. But there is massive discrimination against crisis pregnancy centers. Yeah. So, and it's not just Barrett who seemed receptive to this account. Robert's kind of seemed sympathetic to this account of sort of targeting pregnancy centers as Holly called them in this clip. Council, you referred to the fact that you've addressed these subpoenas to car dealerships and things like your friends on the other side don't represent a car dealership. This is not a car dealership. Madam, right? This is something very, very different. Very different. Justice Kavanaugh also asked about a brief he described as the brief of the ACLU citing with first choice. This was a bit of a misstatement. It was actually the brief from fire. That is the foundation for individual rights and expression. But the ACLU was on it and it just seemed like a very kind of cynical move to suggest that there was some sort of broad cross ideological consensus that first choice was being targeted and should win. Yeah. I did read the transcript to suggest that the justices are going to rule for the crisis pregnancy center quite possibly likely with some democratic appointees joining them. And it really made me wonder whether some of the justices including specifically the democratic appointees might be influenced by, you know, the larger context in which this case is being decided, which includes very abusive targeting investigations of, for example, media matters by the Texas Attorney General and potentially abusive investigations by the Trump administration as well. And, you know, they wonder like, well, should those entities be able to go to federal court immediately? And I don't think those concerns mean they have to rule for the petitioners, crisis pregnancy centers here in order to protect the interests of targets of investigations that are truly protective and abusive and baseless. But I did wonder if that was influencing their perspective. Yeah. I mean, is this an appeasement strategy? I mean, just, I don't mean appeasement in that sense, but like if the idea is to put on the books law that would help those who are truly the targets of investigations that are pretextual and abusive, why wouldn't it you entertain the prospect that maybe your colleagues would just come up with a different line of reasoning to avoid all of that precedent when it truly was some blue state. Yeah, this is a lot. But there was, there was a lot of the kind of vulo versus NRA energy, right? So that's the case in which the democratic appointees all joined their Republican colleagues. So to my or even wrote the opinion right finding that the NRA was targeted by blue state officials right here in New York. And that there too, the ACLU was on the side of the NRA as it was, you know, on the side of first choice. In this case, so yeah, I think if we could be assured that the justices will neutrally and fairly treat future targets like this is a strategy that makes a lot of sense. But obviously, it's like bringing principles to a gunfight. One other observation that is, I think, similar to the one that Leah was just offering, but like a slightly different cut is just kind of how thoroughly the politicization of law enforcement under the Trump administration has poisoned all of our assumptions about the enforcement of the law, right? Like so just even the kind of discussion that we're having suggests that the democratic appointees might be nervous about red state targeting of unpopular left-leaning causes. And that is just like the world we live in. This is not Trump literally announced that in an executive order, right? Like he is going to be targeting like left-leaning NGOs and whatnot. Yeah, and that is just where we are. And so yeah, maybe it would be better for non-profits to be able to get to federal court to raise for some Emma challenges if law enforcement is going to proceed that way, like at the state as well as the federal level. Strix scrutiny is brought to you by Zbiotics Pre-alcohol. I have to tell you about this game changing product I use before a night out with drinks. It's called Pre-alcohol. From holiday parties to festive toast by the fire, the holidays are full of those moments where you're going to be sharing a drink with friends and family. So whether you're celebrating a year's end wind or just relaxing after a busy day being ready for the next morning, still matters. Zbiotics Pre-alcohol Probiotic Drink is the world's first genetically engineered probiotic. 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I had my drinks, had a great time, and then the next day, I was up super early to go pastry hunting, which is what I always do when I travel. Make the most of every toast this holiday season. Just don't forget to bring Pre-alcohol along for the ride. Go to Zbiotics.com slash strict. To learn more and get 15% off your first order when you use strict. Check out Zbiotics is backed with 100% money back guarantee. So if you're unsatisfied for any reason, they'll refund your money. No questions asked. Remember to head to Zbiotics.com slash strict and use the code strict at checkout for 15% off. You follow every poll and every twist and turn in the campaign message boxes for you. This isn't just hot takes. Every addition delivers clear analysis behind the scenes insight in practical strategy you can actually use whether you're working on a race, organizing your community or just trying to win the argument in your group chat. So if you're listening to this, hit pause, go to your browser and head to crooked.com slash yes we did because I have a special offer for crooked media fans. You will get 20% off a message box for an entire year. So go to crooked.com slash yes we did. We have some other recaps to get into. We will go shorter on some of these. The next case that we want to talk about is called Cox Communications versus Sony. This case is the latest to ask the justices to grapple with what sorts of upstream liability might attach to the misconduct of internet users. So earlier cases on related questions have involved the liability of platforms like Twitter and Google for terrorist attacks. At issue here is a jury award against an internet service provider for user copyright infringement. The petitioner in this case Cox Communications is among other things one of the country's largest internet service providers and the respondents Sony and other record labels and publishers say that Cox users infringed their copyrights by doing things like file sharing and that Cox is secondarily and vicariously libel for that copyright infringement. A jury cited with Sony awarding over $1 billion in damages an award that was affirmed in part by the fourth circuit though the fourth circuit did order a new trial on the question of damages. Cox says that letting the fourth circuit opinion stand would fundamentally change ISP's relationships to its users requiring them to engage in massive evictions of alleged infringers and possibly result in service being pulled from entire universities, towns and communities. Sony says that Cox was told again and again about all of this copyright infringement and yet the company took no action in response. So the case has a complicated procedural history as Melissa was just alluding to it also involves a number of intersecting bodies of law. So there's tort doctrine including contributory and accessory liability, there's substantive copyright law, you have the federal statute, the digital millennium copyright act or DMCA, folks who know both platform regulation and copyright law seemed pretty unimpressed with the performances in this case and by that I mean both the justices and to a degree the attorneys in the case who are Supreme Court practitioners but not really experts either kind of platform governance or copyright. So maybe the justices in this case recognizing that they are not in the immortal words of Elena Kagan the nine greatest experts on the internet will try to go small in a similar way to their approach to kind of other cases on related topics like Twitter versus Tom Na like Gonzalez versus Google. Yeah it did seem as though they are likely to side with Cox and reverse they seem troubled by the notion of this sort of broad imposition of liability here in particular in the context of some of the consequences they were told would flow from letting the lower court opinions stand. You know the idea that ISPs would be forced to cut off service to entire communities, universities, military bases in order to guard against the prospect of crushing liability like this but they also seemed a little troubled by the just trust us attitude of both Joss Rosenkran's forecawks and Paul Clement for Sony so it's not clear to me how they are going to get there. I think Brett Kavanaugh will like the way. Honestly there was a lot the indication of like cutting off service to military bases was so obviously pandering to Brett Kavanaugh. Yeah yeah yeah be like will you throw a temper tantrum for me too? The court also heard oral argument in Yorias Aureyada versus Pamela Jo Bonady. At issue in this case is the relationship of the federal appeals courts to the board of immigration appeals. That is the agency tribunal that individual immigration judges decisions get appeal to. And in this case the question is about whether an individual who had requested asylum experienced persecution. Under federal law to obtain asylum the non-citizen must establish either past persecution or a well-founded fear of future persecution. And the question here specifically is about how federal courts review a board of immigration appeals determination that a set of undisputed facts does not rise to the level of persecution. So the individual in this case or actually an individual in his family requested asylum on the basis that he and his family had been targeted by a hit man working for a drug lord in their home country of El Salvador. The immigration judge and that ruling was affirmed by the board of immigration appeals or BIA held that these events which did occur did not rise to the level of past persecution that would qualify these individuals for asylum. So federal immigration law structures judicial review differently for questions of law versus questions of facts. So the statutes require courts to defer on the BIA's findings of facts but not on questions of law. So the question here is how a court should treat a determination that a set of undisputed facts doesn't rise to the level of persecution. Is that a legal determination that the federal court gets to review exercising its own independent judgment or is it a factual determination which requires courts to give significant deference to the board of immigration appeals. And in this case the court seemed inclined to think that this kind of determination just had too much kind of factiness in a too much factual content for the federal courts to be second guessing administrative judges determinations. Which I have to say yeah I know it's a little different after the courts decision which we talked about in our emergency episode to entirely second guess the lower courts determination in the Texas redistricting case. It does feel to me like there's just like chasm opening between the rules and the law sort of mattering in some places like they will take seriously this question of what kind of review yes. But it's like so there's all these different ways that there is this chasm. So like between the Supreme Court and the rest of the federal courts like the lower federal courts are still acting like the law in the Constitution matter Supreme Court not so much and even on the Supreme Court across different categories of cases. So we're just going to jettison all of it if we want to give the Republicans a few extra seats in the House of Representatives. And we're going to take very seriously these questions about the exact relationship between the federal courts and an administrative agency on some questions versus other questions in a case like this. It is pretty hard to keep the faith you guys. I can think of a unifying principle. Tell us. So when we're trying to deport people of color and the BIA said we should do it we defer to their fact finding. When we want to disenfranchise people of color and the lower federal court said we can't do that we don't defer to their fact finding. That's called color blind constitutionalism right yeah yeah I don't make sense. You see it I see yeah yeah yeah yeah but back to this particular oral argument you know my read of the argument was similar to yours it seemed like they're going to say this particular question at least whether the facts give rise to a claim of persecution is subject to substantial evidence review even though as Justice Kagan acknowledged you that is the government quote have some good arguments in this case but honestly none of them come from the text and quote wampwamp okay um the court also heard oral argument in Olivier versus Brandon this is a case about a significant federal court's doctrine sometimes called Pryzer Heck which was set down in part in a case called Heck versus Humphrey. That case established the set of rules for when you can raise certain kinds of challenges under section 1983 rather than under habeas law and this matters because it is much easier to proceed under section 1983 than it is under habeas review and the decision in Heck which is a Scalia decision from 1994 makes clear that the court doesn't want section 1983 to be used as an end run around limitations on habeas which would invite what are essentially challenges to sentences using something that's not really supposed to be used for assessing challenges to sentences. So the petitioner here Olivier was arrested and fined for violating an ordinance targeting protests outside a public amphitheater. He argues this limitation violates his religious freedom because he is a Christian who feels called to share the gospel and so he filed this section 1983 claim seeking an injunction against enforcement of the state law in the future and the question is whether his prior conviction under the law precludes his section 1983 suit because it is a challenge to a criminal process that belongs in habeas. So his lawyer Ellison Ho had to do a pretty delicate dance to try to represent her client and maintain that his claim was not barred by this Heck decision while remaining appropriately deferential toward the great man himself because as Melissa said this was a Scalia opinion. So that was kind of a tightrope. I will say I am not sure I've ever heard Justice Thomas be friendlier to an advocate. I don't know if you felt the same way. So Ho is married to Judge Jim Ho who we don't even talk about that much on this pod anymore because he has been so overtaken by some of his colleagues on the fit circuit and some of the writings that they have issued. Just wait for birthright citizenship. The recestitation of Jim Ho. Well what else is he can have to say about it? It's going to be a it's scotus. No but the logic of it and like he's going to get props I think for how helpful it's entirely possible in any event. I have no idea if she and Thomas know each other I assume so because Judge Ho and Justice Thomas are very close but I feel like summer child. I don't make you clerk for him but he's not usually this friendly even toward his own former clerks when they are arguing there was one you know take away from this argument. All right I'm going to let that drop. On the substance this is a genuinely tricky case. The claim that Olivia is raising necessarily implicates the legality of his prior conviction even if he is not technically trying to challenge or reopen it and there will be other cases like Olivier's where someone does remain under some sort of sentence of supervision and so their claim really would seem to be more squarely barred by Heck. A lot of the Justices' questions in this case seem to circle around what the implications of ruling for Olivier would be for cases like that. Yeah so my take on the argument was that a majority of Justices understand intuitively that this particular challenge can't be barred and isn't barred and a problem that they are running into is that Justice Scalia wrote some in my view pretty sloppy opinions in this area with way overly broad language but it seems like a majority of Justices see some ways of limiting it and distinguishing the prior cases. Justice Salito might be a holdout but who knows he might say that at least this particular petitioner gets to challenge the prospective enforcement of a statute. I actually thought they were more skeptical of him than I expected given that he was a Christian plaintiff raising a religious liberty claim even if that's not exactly what was before the court because they are very cross pressured right like they have to treat as gospel everything that Justice Scalia wrote exactly you just said. Watch on the great man. But you know he wrote some stuff that I think might mean Olivier loses and they don't want that either so I truly don't know which is their major preference and which is their minor preference we will see how it shakes out. Strix scrutiny is brought to you by Cook Unity. 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Taste comfort and craftsmanship and every bite from the award winning chefs behind Cook Unity. Go to cookunity.com slash strict or enter code strict before check out to get 50% off your first order that's 50% off your first order by using code strict or going to cookunity.com slash strict. Quick question are you politically engaged and spiritually exhausted? If you said yes to both welcome home I'm Erin Ryan and I'm a Lissa master monaco and we're the host of hysteria the podcast for women who care about democracy culture and not losing their minds in the process. We break down the news call out the nonsense and spotlight the women actually fighting back on Capitol Hill in classrooms and everywhere the stakes are high. It's sharp honest analysis featuring women's voices with humor and zero handholding. Listen to hysteria wherever you get your podcasts and watch full episodes on YouTube. Let's move on to some court culture. First we have a unanimous 11th Circuit opinion. This is now like a week and a half ago but we recorded our Thanksgiving episode a bit early so we have some things to kind of catch you up on. This was an opinion authored by another noted liberal squish judge prior upholding sanctions against Alina Haba and others. Pretty interesting. So in addition to that 11th Circuit opinion bench slapping Alina Habas for frivolous lawsuits we also got a third circuit opinion this time on Trump's efforts to install hacks as the temporary US attorneys in various districts in this one again involved Alina Haba who had been appointed the interim US attorney in New Jersey. This opinion had a different rationale than the opinion bench slapping Lindsey Halligan from the fourth circuit. Here the court said that because Pamela Joe Bondi relied on other authority to appoint Haba the appointment was unlawful but nevertheless the opinion strongly cast doubt on Halligan's appointment as well. And just a reminder that next week going into all of this it's going to be a big one at SCOTUS. We have lots of cases that are on the docket to be argued and a lot of them relate to some of these opinions in that they are big questions about the authority of the executive branch. In particular about the future of the interaction between the executive branch and independent agencies and the administrative state also questions about the global economy are at stake in at least some of the cases tangentially. So we are flagging all of those because again what could go wrong but we did get these glimmers of hope from the intermediate courts of appeal. In terms of the slaughter case that's going to be argued on Monday if you're listening on Monday it's like the arguments are too early in the day for drinking games at least in our time zones. I do sort of feel like we should be coming up with slaughter argument. Wine o'clock somewhere. So here are my quick suggestion. What are you actually opening Melissa? Is it a seltzer? Is it something special? It's a seltzer. All right we are recording on a Friday afternoon and that would be fine if it was something stronger. Okay so here if we were going to do a slaughter drinking game here are my ideas. One we could just also do place over under bets but like how many mentions of Scalia's descent in Morrison? Oh god. Are we likely to get? How many mentions of the executive power? All of it. Which they have like tried to redline into the constitution but is in fact not there not an article two not anywhere. Wonder about every derisive reference to bureaucrats every ten-dentious comparison of Trump to FDR. Those are those. If you adopted all of these you would honestly you need Trump. You would be falling out of your chair in the liquor store exactly by 1030 in the morning. I think there are also going to be some references to Alexander Hamilton. Yeah for sure. Henry G. Dispatch etc. Yeah the the figure of the supermanly presidency that is being held by the super old guy who falls asleep all the time and is being manipulated by some real psychopaths but is very unitary. So that's all how it works. Some other court news the Supreme Court granted Sershiorari in the Berthraite citizenship case so it will now decide whether the president's executive order reporting to deny Berthraite citizenship to some people born in the United States is legal. And a part of me thinks that Samolito is like frantically preparing a list of people he thinks aren't actually American and should be deported but he will include as an appendix to whatever he writes in the case. I'm just did I just speak Jim Ho into existence? Yes you did. Yeah because we started recording this episode we did not yet have a grant in the Berthraite citizenship case and because Lea monitors breaking news like a hawk during our recording sessions we now have had a grant. I didn't even see it come across the transome but there it is. I didn't mean to manifest that sorry but you did that. Yeah you know another kind of piece of news that happened the Chief Justice granted an administrative stay and another request for emergency relief brought by the Trump administration as against a lower court ruling. This is in a challenge to the limitations on what immigration judges are allowed to say publicly. So shadow docket season really seems to be heating up just in time for the holidays. Just so I understand the nature of that case clearly. The president who vowed to make the First Amendment great again and to allow people to express themselves freely and fully wants to crack down on what immigration judges say publicly. Yes this is not cancel culture or censorship. This is some third thing to be determined exactly. All right cool. All right since those are at least favorite things let's turn to our real favorite things things that we did saw bought or read in the last week that we really like and think that you might like to. So Kate why don't you get a started. All right so this is again like a weaker two old at this point but I'm not sure how exactly these came into the public domain but Chris Geidener posted a bunch of the transcripts from the depositions in the Chicago case challenging the use of force by CBP and other DHS officials led right. Remember by Greg Bavino and the transcripts I've just never read a deposition like this. Oh yes you read the Laura Lumer Arby's in her pants. Okay there's no Arby's in this is okay it's a hundreds of pages and so I cannot guarantee there is no Arby's in the pants. I have a definition of any way. But it was if anything substantively more insane so Bavino the like sort of legendary Chicago civil rights lawyer Locke Bowman and this DOG. It truly somebody should just set it on the stage because it is that dramatic a set of exchanges so that's all I'll say about that. That case we should say which you've now mentioned a bunch of times was voluntarily dismissed. It had been pending on appeal in the seventh circuit. A couple of other things to mention Sarah Stilman in the New Yorker has an incredibly difficult but really amazingly reported and horrifying piece about the third country removals which we have talked about. My one critique of the piece is that there is not enough focus on the Supreme Court's culpability in allowing this outrageous campaign of sending people to just unspeakable horrors in our name but she really did very difficult reporting to even get in touch with folks who kind of by design have been rendered almost unreachable and many of these people who lived decades and raised families and held jobs in various parts of the United States have been sent to places that they have no relationship to sometimes incarcerated. It's just like unbelievable horror show so definitely recommend that. Lighter note I have been listening to a lot of Olivia Dean. Maybe you guys knew Olivia Dean. I did not. She's amazing. And also I guess bridging those two both music and I don't know immigration horrors Sabrina Carpenter who is politics I didn't really know delivering this just like furious slapped the administration when it tried to use one of her songs in a vile propaganda video depicting brutal ice tactics really gave me a lot of joy this week goes to Sabrina Carpenter didn't know she had politics she has good politics and I'm so happy. She's petty as fuck. I yeah I really think it's more of that in politics it's more just like you took my song. No I think it's no it can be both. Do you remember that guy what's that guy Barry what's his face he was in yeah like she dated him and he cheated on her she literally did a concert like he's Irish so that's the backstory he cheated on her she did a concert where she had everyone dress up in the union jack like I was like wow that's some petty shit like nothing Irish people love more than being reminded of the British up buyer yeah okay um my things are also probably in the petty register um so the dunks on Sarah is girls New York times op-ed in defense of the Supreme Court I lived for those on Friday morning like the gist of this op-ed which I don't think this is an exaggeration is that the court's steady stream of decisions empowering the executive branch to be a dictator is actually a big master plan if you squint enough and look closely enough to empower wait for it wait for it congress um real howler uh god a hand it to her you know we do try to make this podcast lighthearted and inject some humor and levity into it I just don't think I can come up with a funnier bit than that um like yes the Supreme Court might be massively expanding executive power but what if maybe they weren't um yeah okay so if it was all a ploy to make congress great again right exactly um number two seeing slash reading republican women coming to the realization that the patriarchy is never going to be totally cool with them uh enjoyed some of this so here I'm talking about the reporting about Nancy Mace Elise Stefanik and others being unhappy with Speaker of the House Mike Johnson um and I'm just gonna read a quote from a New York time story about this quote some of them said privately that the Speaker had failed to listen to them or engage in direct conversations on major political and policy issues suggesting that doing so was a cultural challenge for mr. Johnson evangelical christian who has often voiced firm views about the distinct roles met and women should play in society end quote ladies it was in his name right mama tried to tell you exactly exactly um so that's my number two um number three I am wearing my hands off Chicago T-shirt you probably can't see it in the video but I am wearing it um was in Chicago for Thanksgiving absolutely loved it you know there were protests all over the holiday which was very cold you know against ISIS presence in the city um a great way to spend the holiday um also in other Chicagoist news this is unrelated I scored a touchdown in turkey bowl and it may or may not have involved me pushing over a 13 year old but I still won okay um this is I need to I need to tell you I need to tell you so my son David takes the bus to middle school every day and the one lesson that I have really imparted is you know you have to like really shove sometimes to get on the bus in New York City because it's crowded in the morning and like you cannot step on anyone smaller than you like that is the lesson you cannot do that in my defense it's unclear if I actually like cause this person to tip over right I did take them and then they fell over but you know uh-huh right all David also does always heed me so it's it's fine okay um I'm just gonna note we are recording this on Friday Friday was the morning where the temperature in New York was unseasonably fucked up cold on 18 degrees one I got up this morning and I typically don't wear a hat because I feel like hats mess up my hair like it just like smushes it down but my friend gave me this way soft cashmere beanie and it was so fucking cold that I'm like let me put this hat on and I loved it because it was like big enough an oversized that it didn't actually smush my hair but it kept me very warm so I'm maybe getting on the hat train so there it is but my other favorite things this week are something that you all can get into right now so I am loving the mayor emeritus outgoing mayor eric atoms lame duck interview with z-way and this is absolutely I don't know if its performance art or what but it's my favorite thing ever she asks him a question about whether or not someone of his age should be out in the club and his response is basically let your haters be your waiters when you are seated at the club night of success and I want someone for the holidays to gift me a lingua franca sweater that just says club night of success because that is where I am going to be in perpetuity for the rest of this administration he also discusses being 64 years old and getting out of the shower and noting his glistening six packs plural so he has more than one of them I don't know how that is physiologically possible but um respect sir it is absolutely hilarious and whoever did the editing on this clip you maim are a top tier editor it's just excellent the way it ends it's fantastic also on youtube prince harry on colbert um a plus content loved it and I am also very much enjoying the biography of jessica mittford she is one of the famous mitt for the sisters on the communist jessica mittford um it's called troublemaker the fierce underlie life of jessica mittford by christina deline and karlakapelin and it's fantastic and again because i'm an anglophile i just got into all of the victoria episodes that just dropped on netflix and this is a very good salve for people who just cannot keep watching the crown over and over and over again although i have been so this is nice i'm enjoying it all right some housekeeping before we go first from hysteria holiday season is basically here which means we are all one burnt appetizer away from calling in a garden for help man i wish i had her on speed dial that would be so helpful but good news aaron and elissa actually did call her in so they are talking with the barefoot contesta no other a host about everything about her early days with her husband her time in the white house her secrets to hosting without spiraling so new hysteria episode drops today so subscribe so you never miss an episode have you followed tom hurt on instagram no tom hurt is this amazing comedian and one of the things he does is he dresses up in a brown bob and a blue shirt as ina garten and the like has this like enormous cosmopolitan he's like hello isn't that fabulous like i called my friends jeffrey and tj and the whole thing is like if you watch the barefoot contesta it is supremely funny so listen to hysteria and then go check out tom hurt on instagram and it'll be amazing so good fyi so one of the things maybe the thing i am most excited about in the new year is we are heading to the west coast for the first time ever so this is for you jurisprudence heads this year the courts aren't just shaping policy they are throwing the constitution into a blender and reshaping the entire future of the country so we are bringing the full strict scrutiny treatment with us to california that breakdowns the historical context the side i the feminist legal rage the puns that might have some in you endo all of it so we are so excited molissa lived for years in oakland taught at Berkeley lias like kind of home of her heart is really in california if i'm not mistaken she is to urvine yeah but not for that long but i just feel like a third years are but i'm just saying i think of you as more deeply connected to california than just because of your time yes no that's that's totally fair i think that is like your soul home and i'm going to bring the most special t-shirts to california and she brings a lot everywhere so get excited um so we will be on march 6 in san francisco at the herb's theater on march 7 in los angeles at the palace theater we are going to get into election law executive power reproductive rights the cases keep us up at night and there are a lot um but you know we will do all of this in a fun way so by your tickets now because this west coast john is going to be so chaotic and so epic you definitely we're like i will be leading a country la quality donuts that sugar is unparalleled wow so come for the legal analysis stay for the sugar fueled roast of wet kavanaugh and sam alito you can grab your tickets right now at crooked dot com for slash events before they sell out just gonna say i think this would make an amazing holiday gift for a strictie in your life like be a hero um this is the way just the just a tip stricts crew music crooked media production hosted an executive produced by lia liman milisamari and me k-chall produced and edited by melody rauwell michael guldsmith is our associate producer jordan thomas is our intern audio support from kyle seglin and charlotte landis music by eddy kooper production support from katie long and adrian hill matto groat is our head of production and thanks to our digital team by tethco john matoski and joana case our production staff is proudly unionized with the writer's guild of america east subscribe to strict scrutiny on youtube to catch full episodes find us at youtube dot com slash at strict scrutiny podcast if you haven't already be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode and if you want to help other people find the show please rate and review us it really helps viola positive america and what more of my political analysis you should subscribe to my newsletter i'm dan fifer former senior advisor to brokobama and in message box i break down what's actually happening in politics and what it's going to take to beat Donald trump mega you follow every poll and every twist and turn in the campaign message boxes for you this isn't just hot takes every addition delivers clear analysis behind the scenes insight in practical strategy you can actually use whether you're working on a race or organizing your community or just trying to win the argument in your group chat so if you're listening to this hit pause go to your browser and head to crooked dot com slash yes we did because i have a special offer for crooked media fans you'll get 20% off of message box for an entire year to go to crooked dot com slash yes we did when you manage procurement for multiple facilities every order matters but when it's for a hospital system they matter even more ranger gets it and knows there's no time for managing multiple suppliers and no room for shipping delays that's why ranger offers millions of products and fast dependable delivery so you can keep your facilities stocked safe and running smoothly call 1-800 ranger click ranger.com or just stop by ranger for the ones who get it done if you work in university maintenance ranger considers you an MVP because your playbook ensures your arena is always ready for tip-off and ranger is your trusted partner offering the products you need all in one place from h-fac and plumbing supplies to lighting and more and all delivered with plenty of time left on the clock so your team always 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