280: The Red Queen’s Revenge

Welcome back to Hashtag Sisters in Law with Barb McQuaid, Joyce Vance, Kimberly Atkins-Store, and me, Jill Wine-Banks. We will be doing a live show in Denver that I want you to know about. Denver, Colorado, here we come. It's going to be at the Cervantes Masterpiece Theater on April 23rd. Tickets are available now at politicon.com slash tour. And we can't wait to see you there. We love meeting you in person. And we have more live shows to announce very soon. So stay tuned to hear if your city is one we're going to visit soon. We love Colorado. It's so beautiful. So many of our Olympians come from training in Colorado. And we all have friends there. So everybody come out and meet us. We want to see you. Colorado, rock and mountain high. Ooh, keep it up, Kim. Come on. I'll make a playlist. I love it. I love it. People of Denver, send us your favorite songs about your home, because if I make a playlist, it's going to be all John Denver. I need more creativity. So send them and we'll make one. We also hope you've been enjoying our new podcast, Sisters Sidebar, where we answer questions that we can't get to in the main show. It airs on Wednesdays, so keep sending in those questions by voice note or email. We really do love hearing your voices, so try a voice note, but you can also use email. And remember to tune in to listen to Sisters Sidebar. We have a great show planned for today. We're going to be discussing, I bet you knew it, tariffs. Yes, the Supreme Court decision came down and we're going to look at it and analyze it. But we're going to also turn to talking about Andrew, formerly known as Prince, and what he's under investigation for. And then we have an exciting discussion about Colbert and the FCC. So stay tuned. So before we get to those topics, I have a question for all of And that is, I'm sure we're all watching the Olympics and we all saw the dramatic fall of Ilya Malinan. And it made me think about one that I had had. And I'm wondering if you've ever had such a public humiliation, not necessarily falling, but some other way. So let me ask you. Wait, were you a figure skater too? Oh, no, no, no, no, no. Gold medalist. Oh, my goodness. Gold medalist. I would have totally believed it. Well, I did take ballet lessons and ice skating lessons, but going backwards was about as much as I ever accomplished in ice skating. In what became, by the way, the NBC Studios for a short time near the lakefront. But anyway, no, my fall was as part of the Sexy Liberal Blue Wave tour. I sat in the audience instead of going backstage, even though I was going to be on stage. And so when they started the show, they said, we're missing Jill. Where is Jill? And they put the light on the audience and said, come on up. And I left my seat and started to walk down the aisle in my high heels. and fell flat on my face. I tripped over one of the cables, and the audience leaped up to help me up. I went on stage. I still was wearing hose back then. They were ripped. My knees were bleeding, and we were sitting on high stools, and I had to sit through the entire show with a bloody knee and just pretend like it hadn't happened. I should have dealt with it much better by saying, okay, guys, you've all seen it happen. Let's move on. But I tried to pretend like it hadn't happened, which was a bad way to deal with my dramatic public humiliation. Anyway, what about you, Kim? Have you had something that happened to you? Oh, well, I don't have a physical fall that I can remember happening, but I've had a performance that definitely did not go the way that I wanted. So this was many, many years ago, like 20 plus years ago. And it was at the height of American Idol, you know, when everybody was watching that show. And so there was, I was living in Boston and there was this contest, this American Idol style contest, and to sing the national anthem at Fenway Park. And I thought, oh, I want to go, you know, try out. So I went, you know, tried out, did pretty well in the first round, advanced on. And then I was one of the finalists. So it was going to be the final night. And this time there were like local people from local radio stations as judges and other people. And so I walk in and I already see like the tryouts were in shifts. And I'm already seeing some of the other people performing. And they were really, really good. And I'm thinking, oh, my God, I'm like way over my head here. So I got so, so nervous. And it did not go well. I really just bombed so badly that as soon as I was done, I didn't even wait. I just left after I sang because my voice cracked. It was terrible. And I just left and I was hoping, OK, you know what? I just won't tell anybody that happened, that this happened. I was there with my boyfriend at the time. I'm like, I'm not going to tell anybody else it happened. Well, I was writing for the Herald at the time. And the next day, they didn't say that I bombed. But the next day, it's like, one of the contestants in the show was Kimberly Atkinson. I was like, oh, my God. Like, it was bad enough that I was terrible, but you have to tell everybody who I was. So it was not my finest moment. I don't know who ratted me out. Joyce, what about you? You know, fortunately, Kim, mine was not that public, which I guess I'm grateful for. And y'all, this is so long ago, but you know how you just remember these things. I was in eighth grade doing community theater, and I thought maybe I had acting talent. It turns out I did not. But I was cast in the role of the Red Queen in Alice in Wonderland. And three quarters of the way through the first performance, I forgot a line. And the line was when the Red Queen is doing off with your head, and the next line is, no, no, sentence first, verdict afterwards. words. That was the line that I forgot. Fortunately, there was a lovely woman behind the wings who sort of mouthed the first couple of words at me. And after just massive embarrassment, I got the line out. I guess the irony is this. In the Trump era, I have used that line more than once, right? Because it's the quintessential, right? It's a shanty rule of law quote from Alice in Wonderland. So I guess I ended up winning in the end. That's a great story. And Barb, what about you? Oh, so many to choose from. You know, one of the things I tell our students is one of the values of living a long time is you will embarrass yourself many, many times. And so it builds some resilience. You know, I think sometimes people are nervous to stand up in court and make an argument because they're afraid they're going to stammer or forget just the right word. And I think the value of having had many embarrassing experiences is, you know, that like, it'll be okay. As long as you work hard to prepare and do your best, it'll be okay. I think, I can't think of a performance based, you know, I just haven't had that many opportunities to be on the stage like some of you. But I can think of one life's most embarrassing moment when I was a cub reporter for the Mackinac Island Town Crier. I may have told you guys the story before. Summer job. And I am one of three staffers. So we do everything. Like, you know, we sell the ads. We write the stories. We take the photos. We deliver the paper. Like, we do everything on this paper. It's a great, super fun summer job. Well, one day, I was the only one in the office on a weekend. And the phone rings. And I answered it. And it was a publicist for Governor Jim Blanchard. And they said, Governor Blanchard has just hit a hole in one at the golf course. There's a beautiful golf course at the Grand Hotel. Would the paper like to come cover it? Like, you betcha. I've got this story covered. So I grabbed my reporter's notebook. I grabbed my camera, you know, old fashioned with the lenses and the whole bit. And I get on my bike because that's the only mode of transportation on Mackinac Island. And I bike up there and I find him. and by now they're on like, you know, the seventh hole or something like that. And I get some quotes from the governor. I find out what hole it was and what club he used and all the details. And then I ask him to pose for some photos and say, how about one with the backswing? How about one at the follow through? How about one where you're standing over the putting green? And I get him in all these poses and he does like, thanks, that's great. This is gonna be the front page story of the town crier this week. And then I get back to the office and I discover to my horror that I had no film in the camera. Oh, back in the day, you had to put film in the camera. Did you call him back and say, hey, can you go back to the golf course? Yeah, I was too embarrassed. So that's probably the most embarrassing. Like now I just like, you know, slunk away and never to speak of it again. That's great. You know, Barb, there was just a, A raid on a house in Birmingham and they've got like 72 pets that went to a shelter. So now's the time. If you're thinking, I'll go look at all the pups for you and send you pictures. Just what I need, all 72 in my house. I can see them. No, seriously. If Bob and I go look at those dogs thinking that we'll foster a couple till they get permanent homes, we'll come home with five new dogs. I mean, I know us. We really can't go. But inevitably, we're going to go tomorrow morning. And we have a quick message from today's sponsor, the ASPCA Pet Health Insurance Program. We all have had so many fun times and amazing memories with our animal friends, and we know that your pet is part of your family too. Like us, you would do pretty much anything for them, but those vet bills can add up quicker than you'd think. 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Insurance is underwritten by either Independence American Insurance Company or United States Fire Insurance Company and produced by PTZ Insurance Agency Limited. The ASPCA is not an insurer and is not engaged in the business of insurance. The long-awaited Supreme Court ruling on Trump's tariffs finally came down on Friday. And aside from the fact that Trump clearly lost, looking at the 170 pages that the court issued, the rest is about as clear as mud. That's because you literally need a murder board to figure out what the majority actually did in this case, who joined what parts and why. It's messy, y'all. But first, let's start with the headline. Six to three, the court found that Trump overstepped his legal authority by imposing all of those emergency tariffs on all these countries that he called so-called reciprocal, although they were really reciprocal of nothing and there was no emergency. So, Barb, give the top line about what Chief Justice John Roberts' opinion said about the law and how Trump violated it. Yeah, well, as we've discussed before, the Constitution, of course, gives to Congress the power to impose taxes and to regulate commerce. But Congress is permitted to delegate some of that authority to the president if it wants to. And the argument that the Trump administration made is that Congress did that when it enacted a statute known as the International Emergency Economic Powers Act. It's sometimes abbreviated as IEPA because, you know, Every statute has to have a catchy acronym. And what the Trump administration argued is that IEPA, which is the statute says that it allows the president to deal with any unusual and extraordinary threats that has its source and whole or substantial part outside the United States. And the threat relates to the national security, foreign policy or the economy of the United States. And the president declares a national emergency with regard to the threat. And so traditionally, what we've seen presidents use this for is imposing sanctions. So if a country maybe engages in international terrorism, there will be sanctions imposed against them. Or sometimes there will be retaliation if a country in medals in elections, for example, Russia got sanctioned for that. So those can be all done under IEPA. Embargoes can be done under IEPA. But what the court held is that there was nothing in the IEPA statute, and they looked at the text of the statute, that gave the president this authority. Chief Justice Roberts wrote, those words, the words in IEPA, cannot bear such weight. IEPA contains no reference to tariffs or duties, and until now, no president has ever read IEPA to confer such power. So striking down President Trump's use of tariffs. I really wish there was a more expansive, like, no other president has ever done this before doctrine that comes out of this court. Because that would take care of a lot of these challenges. But it's good to see the chief justice at least apply that reasoning in this one. So, Jill, we need, before we can move further, we kind of have to visit a legal doctrine, something a little nerdy. And we've talked about it before. It's called the major questions doctrine. Now, it is my opinion that it is something that the court more or less made up around 2023 to make it easier for them to strike down Biden policies like the student loan policy and his EPA policy. That is my opinion, and I will die on that hill. But can you explain what the major question doctrine is and why did it come into play in this case? It's such an interesting doctrine. It basically says that in anything that involves a major question, the power has to be transferred to either the administrative agency, which is where it's mostly been used, or in this case, to the president by clear and concise language from Congress. And, of course, in this case, they said, yeah, Congress didn't give the president the power under IEPA because, as Barb has just said, there's no mention of tariffs or taxes that are part of his power. In the past, it's been used mostly against President Biden and administrative agencies that he was supporting. So it's been used to stop administrative agencies from protecting the environment, for example, because the Supreme Court thought, no, this isn't a specific power that was granted to this administrative agency. It's too important for the agency to handle. It has to be done by Congress, which has created a real problem in terms of the regulatory state that we now live in. If Congress had to make the rules and enforce them, everything would come to a steep halt and you wouldn't have the expertise. So Congress would have to hire all the people that now work for administrative agencies to do the work in Congress. It wouldn't change a thing. You would still need that expertise. And in this case, they said, and I should point out that there were only three members who actually addressed it, although during the oral arguments, there were a lot of questions about the major questions doctrine. But only three of the justices actually concurred in the opinion that talked specifically about major questions doctrine. And we'll get we'll get to that in just one second. But it's yeah, I mean, it's it was something that the court never cited. They never like if you went back and looked up through opinions looking for the major questions doctrine and, you know, law review articles on it or whatever. They weren't there because this is not something that the court was doing. All of a sudden, during Biden's term, the Supreme Court is like, well, we have this doctrine called the major questions doctrine. And it means that if Congress gives agency a power, they have to really explicitly note that they want agencies to handle this power. And people are like, wait, what is this? And it was this time, and we've talked about this before, where there was this growing animosity toward the administrative state by this court. They really didn't like the fact that agencies were putting out these regulations and putting out rules and doing what they saw as lawmaking, which is not the executive's job. And they're like, listen, Congress can only do that. So unless they specifically authorize this particular rule about how many, how much emissions that cars can give or whatever, then agencies can't do, which is ridiculous, right? I mean, that's what agencies are supposed to do. And so now, you know, it got messy, Joyce, because the majority of justices who struck down Trump's terrorists, there were six. They have the Chief Justice Barrett and Gorsuch, along with the liberal justices Sotomayor, Kagan and Jackson. They agreed that the terrorists were illegal, but there's no majority opinion as to why, which I think is going to make it a little tough for lower courts to try to explain or use this major questions doctrine. Get out the murder board, Joyce, and tell us how these six justices got to this place. Yeah, I mean, this is what's called a plurality decision, where there's no clear majority on the court agreeing about the rationale for the decision that they all agree is the right one. Everybody agrees in the six that you can't issue tariffs under IEPA. The question is, what role does the major questions doctrine play? And this is not as bad, I think, as some plurality decisions where you just can't discern a rule. I mean, here at least as DAIIPA, it's clear. Roberts and Gorsuch would strike down tariffs because they violate the major questions doctrine And Kim I will die on your hill with you You know that doctrine is just something that was created to protect conservative interests which is exactly what it's doing here, by the way. This opinion is really 6-3 against MAGA, right? MAGA is the three. Roberts and Gorsuch, right, in support of the view of folks like the Koch brothers. And we all saw the markets rebound, by the way, this morning after this decision came out. I'm sure Pam Bondi felt very proud as the Dow went up. But Justice Barrett's decision is interesting because she tries to finesse the major questions doctrine, but she's clearly in the three. Sotomayor, Kagan, and Jackson continue to take the view that I think is the correct one here, that the text of the statute plainly does not authorize a president to borrow tariff powers from Congress. So these tariffs aren't legal, period. I mean, the conservatives are supposed to be the textualists, and they seem to have just really abandoned any pretense of that. There was no need to even reach the major questions doctrine, which is what the three progressive justices say, because the language of the statute is plain. So this is really a conversation that the three in the majority are having with the three who didn't join, and this issue about the major questions doctrine will be decided another day. Yes, there was a majority in this case, as there are in most cases, but it splintered the majority. What do you think about the conservative majority of the court? You had Thomas, who his reasoning is always just confounding to me. I'm not exactly sure what his rationale was other than, well, of course, if the president did it, it must be right. Let him do it. It really does seem like that these days, doesn't it? I hate to be that cynical, but he and Alito both are like, I'm sorry, which was the president? It's not cynicism when it's true. They will contort themselves into any shape, no matter how painful to support this president. And I hate that and I regret saying it, but it is simply the reality we live with. Right. And, you know, but you had Kavanaugh, Alito and Thomas who said, you know, this is fine. And he declared an emergency. This statute says emergency. So he should have been able to do it. I found Justice Neil Gorsuch's concurrence really interesting because he he just kind of cusses everybody out. Like he he was just like, OK, we you know, three of us got it right and applied the major questions doctrine and came to the right decision. Although Barrett did it in a weird way. But, you know, you do you, girl. but like all of the people in the in the the rest of the majority the liberal justices they don't like the major questions doctrine but they major they basically applied it by reading the statute it's like no like that's the like what are you talking about and then he also gets really angry at the you know the dissenters too like Gorsuch was just like mad at everybody but that sort of is what brought me to my question. It's like, yes, on the one hand, this is an important decision because it's one of the very few times that this Supreme Court has turned to President Trump and said, no, you cannot do this. You do not have the authority to do this under the Constitution or federal law. And that's important. What they could not, they split, figuring out why they splintered. The court basically splintered. And that makes me worry that if it's this hard for this court in a case that seems pretty clear to me when you read the statute, it doesn't say tariffs. What does that mean? What takeaway do you guys have from that? I mean, I'm thinking lower courts. Yes, not in an IEPA case. IEPA sounds like the sound I make if I see a mouse in the house or something. You know, not when it comes to AIPA, Joyce is right. But any other case that has to do with agency action, do they apply the major questions? Do they not? Do they do a strict statutory construct? What would that look like? If I were a lower court judge, I would say, what in the world? How do we handle all these Trump challenges? Talk me off the ledge. I do think it went further and gives power to the lower courts to say, well, the Supreme Court's willing to say no. I have to analyze things carefully and maybe I can get away with saying no. Although I'm sure you've all heard the press conference at which he said the court was influenced by foreign countries. They're all traitors. I mean, he's gone way, way far beyond just criticizing an opinion to personally attacking the justices. So maybe lower court justices won't feel so empowered. I don't know. Nothing says you have the winning argument than just blowing out ad hominems left, right, and sideways. That just says. But, you know, what really distressed me about the press conference, I mean, I know this is about the politics, not the law. But Trump praising Kavanaugh just in glowing terms with State of the Union just around the corner next Tuesday. And you got to wonder, are any of the Supreme Court justices going to show up? I think Alito typically doesn't go after his little run in with Obama, right? He hasn't been in years. Oh, yeah, over Citizens United, right? Yeah, right. He shook his head and said no. He didn't say you lied. He didn't say you lied. He just said not true. Not true. Yeah, he said he shook his head and said not true. How does Brett Kavanaugh go into the State of the Union address after the president has just, it's just, it's so disgusting. It's just awful. Well, remember, he did thank Chief Justice Roberts for the immunity decision, basically. So, yeah. Thank you. I won't forget it. Yes. Yeah, exactly. We'll see if the chief usually does go. So that's going to be a little chilly. Well, and, you know, here's the irony, right? Apparently Trump forgot it because last year it was all hugs and kisses with Chief Justice Roberts. And now this year it's like, man, you are dead to me. You are foreign interests. What have you done for me lately? That's the Trump mantra. Right. I mean, it's his Eddie Murphy moment with the Supreme Court. But there are commentators who are saying that they may have done him a big favor. It's like taking the matches away from the baby because his tariffs are so unpopular that by taking them away, it may give enough time before the midterms to let him recover and people forget how bad the tariffs were. I don't go along with that. But let's just put it into context, right? This case is only about tariffs that Trump imposed under IEPA. He has plenty of tariff authority granted by Congress in other contexts. The reason that they used AIPA and Kim flagged this, it's another one of those statutes that gives presidents extraordinary powers in emergency situations. So Trump seizes the power, says there's an emergency, tells the courts that they can't review his decision. And what he gains is the ability to impose these tariffs without any of the restrictions Congress imposes in other statutes, where they limit how long they can last or how high of a percentage they can be. I mean, this was a power grab. And thank goodness the Supreme Court, at least six of them, finally said no. It does. It concerns me like it does you, Kim, that three of them, even now, couldn't say no to Trump. Yeah. And it's like that's how Trump has been ruling, right? He issues an executive order out of thin air, declares something to be an emergency. Like, you know, same thing with the immigration policy and all of this. And then just starts acting. And if they can't clearly and this should be unanimous, clearly and unifiedly say there are separations of power. You cannot do this. You are not a king. If it takes all this machination, I don't know, maybe I'm overthinking, but just I'm glad that the decision came out the way that it did. But I do worry about the future. But Joyce, you had a good sub-sec post decision this morning making the point about the power grab and the use of, quote, emergency, close quote, powers. But I also want to point out that the court did say, you know, there are other ways you could have done this. And they sort of point to some of those ways. Kavanaugh gave a roadmap. Absolutely. Right? Exactly. So that's a little scary. Like, OK, why don't you try, you know, yeah, you could only do 15 percent for 150 days, but hey, go for it, you know. Kavanaugh's up there writing the legislation. I mean, I'm not going to take up for Kavanaugh, but the reality is, you know, Congress has the power to impose tariffs. They're able to loan it to the president if they do it clearly. and this was about whether or not Trump had gone too far into stealing power from Congress. I think it's ironic that Congress didn't stand up for itself and it was the court that had to do it. It's not ironic. It's predictable. My institutional wins wherever I can get them these days. Hey, can I end this segment on a happy note? Sure. Go for happy. I'm going to end this on a happy note. I just saw on social media, Olympics update, and there's a photo of Donald Trump sitting at his desk with his eyes closed. Trump wins gold in downhill presidency. When you're building a career or growing a family, giving your all isn't an option. It's the default. 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Yeah, I mean, this is crazy, right? Colbert shares the story that he was told by the network's lawyers that he couldn't have Texas Democrat James Tallarico. He's running in a contested primary against Jasmine Crockett for the U.S. Senate in Texas. And according to Colbert, who personally I have every reason to believe, the lawyers told him that he couldn't have Tallarico on his show because of Federal Communications Commission rules that require broadcasters to give equal time to opposing political candidates. So Colbert being Colbert put the segment on YouTube. And the last time I took a look at his numbers on YouTube, it had just millions of views. He was killing it. it was like four or five times more than the number of viewers on his late night show. So, you know, much props to Colbert, who instead of caving, has yet again shown us what it looks like to stand up to a bully. Yeah, you know, this reminds me of what they call the Barbra Streisand effect. You know, I think there's like some flyover pilot who showed a picture of her house and she got all mad and she complained about it. And nobody saw the original picture. But when she started complaining about how they publicized the location of her home, then everybody started paying attention to it, right? So you draw attention to the thing. Like Cable started playing the visuals on a loop. Like everybody saw every angle of Burma Streisand's house. Yeah, so same way. Like, you know, how many people would have seen this interview if they'd just aired it on the Colbert Report? Who knows? But, you know, millions of people have now seen it because it was on social media and on YouTube. Well, as Joyce said, what CBS reported, now their story is a little bit different from Colbert's, though I think the gist is the same. I think what CBS said is, if you run this on the air, the show will be exposed to some legal challenges under the equal time rule, which is part of the Federal Communications Act. And let's talk about what that is. Kim, what is the equal time rule? Yeah, so it is, as you said, a part of federal law that governs broadcast stations. Okay, so the reason that Colbert was able to put this on YouTube is that the FCC does not regulate the internet, they don't regulate cable, only the waves that go through the air, that's all. And so that really covers the major networks that we used to use, that we used to need, you know, rabbit ears to see. I'm aging myself. But what that does is it says that if a network puts a candidate, a political candidate, so not just any politician, but anybody currently running for office on air, they have to offer equal time to the candidate's opponent should they ask for it, which is an important caveat there. There are also exceptions to the rule, which include just a regular news program. If a candidate does something and you report on it and it's just a matter of public interest, you don't have to give their opponent extra time for that. And there's also an exclusion for what is called interview programs. Now, the last time I looked at Colbert, he seemed to be an interview program. But, you know, So here we are. This is where we are at this time. We already know that Colbert, the administration has beef with Colbert and others at CBS for various reasons. So I feel like this is political, but that's just my opinion. Well, Jill, the FCC issued some new guidance this year about how this FCC under the Trump administration intended to enforce the equal time rule. What's their new interpretation that caused CBS to have some concern? Basically, it's if you say anything against Trump, you can't do it. But they probably couched it in more regulatory language than that and said, yeah, those exceptions don't apply anymore. We don't care if you're a news show. And they have gone after The View as well as The Colbert Show and said yeah you can do it And if I not mistaken Colbert actually had already interviewed Jasmine Crockett who is Tallarico primary opponent So, in fact, he had given equal time. And except that now, of course, because this interview got so many more views through YouTube than it would have if they had broadcast it, maybe he didn't get equal time. we should put the Jasmine Crockett one on line two. So yeah, they said, we're not going to do that. You just, you can't, no exceptions for news shows. And besides, you aren't a news show and you're not eligible for this exemption. Yeah, and you know, the problem when the law gets interpreted this way is that it's hard to know where the legal line is and when you might cross it. Joyce, of course, the FCC is led by Brendan Carr. I would say that he has been among the Trumpiest of the Trump appointees. What can you tell us about Carr? Well, I would say that you would be 100 percent, Ms. McQuaid. Look, Carr wrote the Project 2025 chapter on the FCC. I mean, do I need to say anything else, right? He wrote, you know, Project 2025. He claimed, by the way, that bipartisanship on the FCC, you know, there's this long tradition, bipartisan membership in action. He claimed it's a matter of tradition, not law. And he really has suggested without actually coming out and saying it for some time that Trump could change that tradition of bipartisanship. Now he just seems to be putting that unspoken statement into effect. And it's a really serious problem because the FCC regulates radio, television, wire, satellite, cable networks. You know, if you think grandpa is having a bad time watching only Fox News, imagine a universe where only Fox is available, right, where that's all that's out there. So Carr has suggested he could take away broadcast licenses from media companies that don't operate in the public interest. Having Carr there is, I mean, it's just welcome to George Orwell's 1984. Yeah. And you wrote a good piece in your Substack, Joyce, your civil discourse newsletter about this issue. And a couple other things I'll note. Brendan Carr wears not a U.S. flag pin, which many politicians do, but a Trump pin. It's crazy, right? It's creepy. A pin with the silhouette in gold of Donald Trump. That's really creepy. Remember, he is also the one who said back when there was another issue about we can do this the hard way or the easy way. He has threatened to take away the license of networks that have DEI programs in their own hiring. And so, as I say, I see him as among the Trumpiest of the Trump appointees. And he is the guy who's deciding how to enforce the equal time rule. So I can understand the skittishness of CBS, but it also makes me applaud Stephen Colbert for standing up to this kind of use of the law as a weapon and as a way to silence free speech. Hey, Kim, I want to ask you about something. I often hear a conflation between the equal time rule and the fairness doctrine. And I think people sometimes fail to differentiate between the two. The fairness doctrine is no longer enforced. Can you tell us what the fairness doctrine is and help us maybe put into context, you know, that ended, it's no longer enforced, what that has wrought? Yeah. So the Fairness Doctrine was a much stronger rule that used to be in place by the FCC. And what that did was, first of all, it required networks who had FCC licenses to devote some of their time on public interest programming. And within this requirement to devote to public interest programming, you had to give equal time to both sides of controversial issues in the public interest. I mean, to say it now sounds a little crazy because it's literally putting this federal agency basically in the programming department of all these networks, deciding what they had to cover and exactly how they had to cover. So not surprisingly, that ran into some First Amendment problems with the government really forcing what networks could and could not say, far beyond just regulating how they did it or ensuring that, you know, if a candidate, if somebody, the equal time rule is more meant to give an opportunity. If a candidate calls, you know, his opponent a child beater, you got to give the other time to get on the same stage in the same way and defend themselves, you know. So that's really what the equal time rule, although I have my issues with that, too, is more aimed at doing. The fairness doctrine was just so broad that it stopped being enforced because it's pretty clear it was unconstitutional and that Congress really didn't give the FCC that power. So since that ended, I know there is a thought that I don't necessarily agree with that, you know, the end of the Fairness Doctrine meant the beginning of what we have now, which is a really fractured media ecosystem where, you know, Fox News and other ultra conservative media was allowed to rise while facts were left at the wayside. I think that Fox News and the rise of the kind of conservative media we've seen over the past decades had more to do with greed and ratings. I think you had people like Rupert Murdoch who didn't really care so much about the truth as he did about getting views and getting a lot of ratings. And by airing salacious stuff, a lot of people tuned in to Fox and that kind of became the new rule. I think it was abused by the people who are in charge of those networks as opposed to a failure on the part of regulators. But that's just my opinion. I understand why some people think that. But I think that there's a better way of ensuring that people have fairness and integrity when they broadcast things than sort of a draconian rule coming from the federal government telling networks what they can and can't say. Oh, you're such a journalist. That's such a journalist. Yeah, I'm not sure I agree. And I say I'm not sure. I'm not certain. But, you know, there was a Supreme Court case. I remember learning about this in an undergraduate course on communications law. And there was a Supreme Court case in 1969 called Red Lion Broadcasting, where the Supreme Court did uphold the fairness doctrine. But in fairness, see what I did there? To Kim's argument, the reasoning of that case was about the fact that the broadcast spectrum was finite. right we had licensure for radio and television and that was it and the reagan administration stopped enforcing it when cable news came along because they said it's no longer finite we have all of these other options and so um we're not going to require as a condition of having this broadcast license we're not going to require you to you know kind of tell the other side because the marketplace of ideas now has lots of different sellers and so all these other voices will provide that other perspective. But I do think a consequence of no longer enforcing the fairness doctrine is that it gave us Rush Limbaugh. You know, he can just give one side of the story and never has to talk about the other side of the issue or Fox News. And I know you say, well, this is because we have bad people running these networks. We do, but how do you stop them? Because the business of business is business. They just want to get, you know, viewer share and all that sort of stuff. So is regulation perhaps an answer to it? I don't know. But, you know, when you think about the explosion in what is a broadcaster now with social media broadcasting, is YouTube broadcasting, is a substack live broadcasting, I think it becomes, as a practical matter, pretty difficult to enforce the fairness doctrine. So maybe we agree in the end, even if we get there in different ways. Jill, let me ask you one last question. This is not the first time Stephen Colbert has spoken out about CBS's submission to the Trump administration. Can you remind our listeners of that earlier controversy? Surely I can, because it shows exactly where we're at and why he was even freer to criticize now. because he was fired for the first one. And that was when he criticized his bosses for having settled with Trump for $16 million to settle a totally meritless lawsuit over edits to a 60-minute interview of Kamala Harris at the time, a presidential candidate. And they settled rather than saying, no, this is how it goes. and we were right to do it, and we didn't do anything. He called it a big, fat bribe on air. And all of a sudden, CBS said, you're not profitable enough. We're firing you when your contract expires, which is not until May. So everyone, watch Stephen Colbert every night until the end of his term. And then let's hope he goes somewhere else because he brings me great joy every night. And I know Joyce is pandering to him right now, right? You want to be on his show. I am. You know, I was so sad during my book tour. I really wanted to go on Colbert's show, but he didn't invite me. So I'm like hoping now that he'll read my piece and go, Joyce Vance, I should talk to her about her book. She's really funny. 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But, you know, he has never told the truth or faced legal consequences for allegations that he had sex with at least one minor girl. So, Barb, let's start with that early morning arrest and be clear about what happened, because the British legal system is a little bit different than ours. Andrew does not seem to have been charged, at least not yet. So what was the arrest about and what sorts of crimes are British officials investigating? Yeah, they called this misconduct in office and they have not revealed the details of what the arrest is about. He has been released, but he has not been formally charged. So we haven't had a chance to really see exactly what this is about. It may have something to do with sex trafficking of minor girls, but it seems quite possible it's not related to that, but is instead related to his inappropriate sharing of confidential information with Jeffrey Epstein. One of the jobs he had in his portfolio was to be the trade envoy for the UK. And in that work, he traveled the world, including South Africa and other places, and had confidential financial information. You know, as people who have read some of the Epstein emails know, one of the things Epstein was trafficking in was information. He groomed people, not just the girls who were his victims, but also all these other people, right? He would share little nuggets of information with people. And that was one of the things he wanted in exchange was information that he could utilize as a financial advisor or in other ways. And so it could very well be that this misconduct in office is not about what Prince Andrew did in his personal life, which is still repugnant, reprehensible, and perhaps even criminal, but it could be related to his official duties as a prince as this trade envoy. Yeah, I mean, it's fascinating. They interviewed him. We don't know exactly for how long. I think he was in custody for about 12 hours, but we know that they interviewed him. They searched both his current and his former residence, So it sounds like the investigation is very live. I guess it's stay tuned on whether there will be charges. But Kim, you know, I saved this question just for you, because I know that like me, you have strong feelings about the British royal family. How did the crown react and how does it compare to Donald Trump's reaction? Oh, my goodness. I would be so mad if my brother reacted this way if I was in trouble. But I am pleased with the way that King Charles III reacted to this news. A part of his statement reads, let me state clearly, the law must take its course. He said, too long, didn't read. I ain't in it. Does it have nothing to do with us? This is between Andrew and the authorities. And good luck with that. I mean, he called for a full fair, improper process, an appropriate investigation. He said all the right things, essentially. And this is important because, you know, as everyone who watched The Crown knows, it seems that, you know, when you are a member of the monarchy, you get a lot of protections. You are not treated like most other people. And it seems, at least from the statement that King Charles made, his brother, he's saying, look, you're like an ordinary British citizen right now, and the law must treat you as such, and the process should be fair. So definitely some distancing happening from the crown, because understandably, I think the last thing that Charles needs right now is for the crown to be associated with Epstein, of all things. I mean, did you not think it was sort of ironic that the country that actually has a king sort of did the no man is above the law thing? Yeah. Yes. It's like, I mean, and everything, including this, you know, if there are charges, the criminal proceeding is going to be done essentially in the name of the king. So it's like, it's, you know, the brother is in charge of it, but the brother's like, you want your own, buddy. Did you see what Donald Trump said by comparison last night? Yes. He said it was very, very sad, but it's a total. I can speak as an expert. It's a total exoneration for me. I'm totally exonerated. And as a totally exonerated person, I can say it's very sad. You know, I'm going to call S&L and say if they need a new actor to perform the role of Donald Trump, we got one right here. I mean, by golly, you just cannot make this stuff up. It's just nuts. Well, Jill, let's be serious just for a minute. You know, Andrew is not the only one in the United Kingdom who's sort of under the lens. What else is happening there in regards to people who had involvement with Jeffrey Epstein? So, of course, it's not just in the UK. This reaches worldwide to other governments and other leaders, other prominent citizens. But in the UK, it's led to a very interesting person who I really didn't know about until this happened and find totally fascinating. It's led to the firing of Peter Mendelsohn, who was the ambassador from Britain to the U.S. and was relieved of his duties because he was found to have been in the birthday book. You all remember the birthday book where Trump had the outline of a lady. Well, he had Peter Mendelsohn had one that said, to my best pal. And that was enough for him being fired. But the more I learned about him, it's not the first time he's been out of government. This man has a very, very fascinating history and a very patchwork career. he basically is credited with having started what is the modern labor party and bringing governments to power but he's been relieved of his duties he was the comms director for the labor party and then he got in some trouble and that ended and then he was a trade rep and that ended and then he came back in another position and then he eventually got out and he was an eu trade rep I mean, it's hard to believe. And now it's leading to his being investigated for possible conduct similar to Andrews of leaking information of great financial benefit to Epstein. They found in the Epstein files a lot of emails that show that he was giving information that gave confidential British economic information to him to Epstein that helped Epstein So that what he being looked at, just as is Epstein. But it's also leading to consequences for the prime minister, who is being criticized for how did he hire him at this point. They already knew about his relationship to Epstein in terms of the sexual stuff. Although I have to say, he says, I really didn't know about that because I'm gay. So they kept me away from it, which is one of the most interesting excuses I have ever heard for why. How could I have possibly, I'm gay, which keeps my eyes and ears from working when reports about Jeffrey Epstein being charged with sexual misconduct and trafficking happen. Being gay means that I cannot comprehend that. Even though even though he wrote to Epstein saying, I want to help you. What of my contacts could I reach out to to help you in this terrible situation in regards to the Florida case of his having sex with a minor? So, I mean, it's of course ridiculous, but Starmer is now looking to be in trouble for having hired him. And Prince Charles III may be in trouble. It's being reported that this is his Watergate. What did he know and when did he know it? What was his role in paying $14 million to one of the victims, to Virginia Giuffre? Virginia Giuffre. For Andrew. Paying for his misconduct. Civil sediment. And so, you know, someone says, well, it was really the queen and Andrew was her favorite son, so that's why it was paid. But there are other reports that at the time of the payment, Charles was really in charge because she was very ill with cancer and was not functioning very much as making these decisions. And so it's now a challenge to the monarchy because of this happening. So the consequences of the Epstein files, these are, I would say, unforeseen consequences beyond who had sex with who, is who was friends with him and doing bad things and helping him out. And so there are a lot of people now in trouble because of the release of the Epstein files. You know, I was going to say, I kind of feel like you certainly make valid points, but I feel like the media has been so excited about really famous, powerful people being sort of compromised and embarrassed because they had relationships with Jeffrey Epstein even after it came out that he was this child predator, which is awful. But I really feel like it has overshadowed what I think is really going on here, and that is DOJ's concealment of what still appear to be co-conspirators in this case. CNN ran a great piece, I'm going to put it in the show notes, of 13 redactions that we have questions about. Like there's one, an email from a redacted person to Jeffrey Epstein. Thank you for a fun night. Your littlest girl was a little naughty. We don't know who that is. And under the statute, there is no basis for that redaction. There's another one about, I found three very good young girls for you. They're very poor. Maybe not a beauty queen, this one, but I think she'll be good for you. We don't know who sent that. Here's another one. I met your little Lolita from Nabokov, femme miniature, and we don't know who that was. There's a draft indictment that names not just Trump, but three other unindicted co-conspirators. Actually, I guess they were going to be co-conspirators. Yeah. We don't know who are those four. There is a chart that shows Epstein and Ghislaine Maxwell and this other woman, Leslie Groff, who was his longtime assistant. And then there's four other people that are on a link chart as potential co-conspirators. Who are they? There's a whole bunch of these. As I said, CNN, like, pick the top 13. Are there more? Well, there probably are because we still only have about half of the documents. The DOJ still remains in violation of the law because there are still documents that have not been released. And your point is so important, Barb, because the difference, and we'll get to this a little more, but the difference between what's happening in the U.S. and what's happening in other countries is that there are consequences for this in other countries. But here, you have the DOJ basically saying, our job is done here. We don't see any. We're not investigating. There will be no charges. So you can't, even with Congress asking and pushing for more of these documents to be released, even with journalists going through it and trying to find out what, you know, is in this trove of millions of documents, it hits a wall at the end unless some crimes may have been, state law crimes have been created where Epstein has homes in Florida or New York or other places. Well, New Mexico is going to start investigating. Yes, there is an investigation. One of the issues is there's no federal statute of limitations on some of these crimes, although obviously evidence doesn't get any better when it sits around. But Barb, to your excellent point, you know, Mimi Rocha and I wrote a piece that I'll drop in the show notes, too, where we simply were looking in the DOJ database. And there's so much there that has more questions. I love that CNN pulled out these. Mimi and I just searched for the term Brazilian and came up with so many appalling, shocking documents that were investigative leads that you would expect DOJ to follow. And what's so concerning is we see here that DOJ was trying to do its job, right? That there was a draft indictment. We know that there's email traffic that talks about co-conspirators. So does Pam Bondi just come in and shut it down? We don't really know the answer, and there has to be a full accounting here, which I guess leads me to my last question to y'all. I mean, we've talked about what's happening in Britain. How do y'all compare the Brits' handling of Andrew to DOJ's handling of everyone who is not a prominent Democrat? And I guess my question really is just this. Why are we so bad at this? Because we have an immoral president who has normalized all of this bad behavior and has convinced us it's not a big deal. I will also say I still hold it against Bill Clinton for minimizing his lies about his relationship with Monica Lewinsky. I think that gave Republicans this ability to say Democrats started this. I think anybody who minimizes power imbalances and exploitive relationships deserves to be held accountable. I would also add I would blame Pam Bondi because her appearance before the Oversight Committee was one of the most despicable and inappropriate presentations by a representative of the Department of Justice that has ever happened. And that includes Attorney General Mitchell, who went to jail. So I just think that she not only has washed her hands of, we're not going to do anything, but she is insulting and dismissive of any possibility of disclosures. And that is a really serious thing that makes all of us former DOJers ashamed. You know, we've talked before about One Skin really stands out as a skincare company, and it's not just hype or fancy packaging. It's real science. Their founding team is composed of longevity researchers who asked a deceptively simple question. If many visible signs of aging, like wrinkles, fine lines, and loss of elasticity, are driven by so-called zombie cells, what if you could actually reduce those cells to slow the aging process down instead of just covering it up? That research led to OS1, OneSkin's proprietary peptide. It's the first ingredient proven to switch off those damaged senescent cells and actually slow skin aging directly at the source. And it's serious science that fits easily into my routine. 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So stay tuned for that one as well. You can listen for questions. But today we have some really good questions. And the first one comes from Sue in Harrison, New York. And Barb, I'd like you to answer this. Is there a difference between taking the Fifth Amendment and refusing to answer a question? Is it different in a congressional hearing versus criminal court? Can someone be compelled to answer questions that clearly won't implicate them? Oh, I love this question. You know, I teach criminal procedure, and we have just been talking about this concept, the Fifth Amendment right against self-incrimination in class. So I am primed for this question. Thank you, Sue. Well, it begins with the Fifth Amendment, which says, in part, no person shall be compelled in any criminal case to be a witness against himself. And it comes from this idea they call the cruel trifecta that would require someone to either tell on themselves or lie or be held in contempt. And so instead, you get to invoke the Fifth Amendment. Now, can you refuse to answer a question? Well, if you refuse to answer a question, you may be held in contempt, you would have to invoke the Fifth Amendment right. And the Fifth Amendment right is only for questions that might implicate yourself. So, for example, I once had someone in a grand jury say, I refuse to answer that question under the Fifth Amendment right against self-incrimination on the basis that it might incriminate someone else. And I had to say, That's not how it works. And we had to interrupt and have her go talk to her lawyer and come back. She was trying to protect someone else. And it really is only for ourselves. There are a few other testimonial privileges, like you can't be forced to testify against your spouse or medical patients, priest, penitent. There are a few other privileged areas. But mostly, it is just protect you from implicating yourself because of what I just described as the cruel trifecta. Now, you also asked this question about whether it's different in a congressional hearing versus criminal court. And this is a very interesting wrinkle because, as I said, the text says, no person shall be compelled in any criminal case to be a witness against himself. The in a criminal case has been interpreted to mean not the place where the witness is being compelled to give the testimony, but in the place where the testimony might be used. So if I am at a congressional hearing or in a civil deposition and I'm asked a question, I can still invoke the Fifth there and say it could be used against me later on in a criminal case. And so if that's a possibility, then the person may invoke the Fifth Amendment right. And the last thing I'll say about this is the prosecutor has a tool to override the Fifth Amendment, and that is immunity. And so a prosecutor can give one of three kinds of immunity to a witness and basically promise not to use that statement against them in a criminal case. And if that happens, then the person is compelled, it's called a compulsion order, to testify because after all, the harm the Fifth Amendment seeks to avoid having the statement used against him has now been washed away through this grant of immunity. And so immunizing a person in one context would allow the person to be free from having that used against them in the criminal case. And Margaret asked a question, Joyce, that you should answer, which is, do the district judges have any supervisory role over magistrate judges? And would the decision of the judge in the Fulton County case warrant such a review? You know, this is a great question. And it's just the kind of nerdy procedural question that I like to dig into. So thank you for this one, Margaret. District judges, all federal judges really, are Article III judges. They're their own branch of government appointed by the president and confirmed by the Senate. But magistrate judges are what we call Article I judges. Their authority stems from Article I of the Constitution, which empowers Congress to create, through the Federal Magistrates Act, federal magistrate judges whose job, in essence, is to assist the district judges. So the magistrates really do, in a very real sense, work for the federal judges. And there's almost always an automatic right to appeal a ruling issued by a magistrate judge to a district judge. The exception is you can consent, usually in civil cases, to have a magistrate judge hear your case. And they do that in some jurisdictions, particularly the ones where caseloads are higher. But by and large, and especially in a criminal context or in a case involving the legitimacy of a search warrant, a magistrate judge will take the first bite. They will issue a report and a recommendation, and almost always the district judge will adopt it. But of course, not all the time, right? Sometimes the district judge will take a second look, and sometimes they will even disagree with the magistrate judge. So here we've got one of those situations where a district judge is taking a hard look at what the magistrate judge did, and we'll see how the Rule 41 issue comes out. And our last question for today comes from James in Portland, Maine. Kim, who is subject to impeachment? All executive and judicial branch employees? Senate confirmed positions? White House staff? Who? That's the question. So, yeah, this is a great question. And I actually did a little research and looked to the Library of Congress to see the answer. And the answer is, honestly, it's unclear. So one thing that you mentioned White House staff, those are people who are not subject to impeachment. The people who are hired to work within the White House are people who serve at the pleasure of the president. So the president can fire them. But so far in practice, I should say, in practice, the Constitution provides that the impeachable offices are the president and the vice president. And it also says all civil officers of the United States. In practice, that has been applied to judges who are civil officers. And it's also applied to cabinet members. So the head of federal agencies, the head of the Department of Justice, the attorney general, the secretary of the interior, they are all subject to impeachment in order to be removed unless they resign. Now, how far down the chain of people that goes has not been definitively determined. We do know that there are some Senate confirmed positions that are not subject to impeachment. For example, U.S. attorney. You guys were both confirmed. Joyce and Barb were confirmed by the Senate, but you could be fired, as you learned. I resigned. I resigned the night before the bad man was inaugurated. Never fired. I was asked to resign. So it's not all Senate confirmed folks, but for example, Stephen Miller does not need to be impeached. He would need to be fired by the president. So I hope that gives a little clarity, even though there is not a clear cut and dry black and white rule, which I did not know until you asked me that question. That's such a great thing that we learn from our listeners' questions. Thank you, listeners. and thank you for listening to Hashtag Sisters in Law with Barb McQuaid, Joyce Vance, Kimberly Atkins-Store and me, Jill Wine-Banks. We hope to see you at our live show in Denver, Colorado at the Cervantes Masterpiece on April 23rd. Tickets are available at politicon.com slash tour. So make sure you get them before they sell out and we have sold out all of our tours in the past. So don't sit at this out, get busy now. Don't forget to pick up Sisters in Law merch and other goodies at politicon.com slash merch and wear it to our show. Make sure you check out our new companion podcast, Sisters Sidebar, on Wednesdays. And please show some love to this week's sponsors, ASPCA Insurance, Bowling Branch, Wild Alaskan Company, IQ Bar, and OneSkin. The links are in our show notes. please support them because they make this podcast possible. See you next week with another episode. Hashtag Sisters in Law. Jill, the joke is the Andrew formerly known as Prince. Yes. Like remember when Prince would stop going by his name and he was called the artist formerly known as Prince. So I said the Andrew formerly known. Otherwise, it kind of doesn't make sense. Okay. Let me. I thought it was kind of endearing. I thought it was kind of endearing the way it came out. Okay. Okay, that's fine. We can keep going.