← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Demolition Man
00:55:25
The Department of Justice looks an awful lot like the East Wing of the White House these days… metaphorically speaking.
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A
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B
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A
Cut the camera. They see us. Only pay for what you need@libertymutual.com Liberty Liberty Liberty Liberty Savings Ferry Unwritten by Liberty Mutual Insurance Company and affiliates Excludes Massachusetts.
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B
This is Amicus Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwaite.
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A
It won't interfere with the current building. It won't be. It'll be near it but not touching it. And pays total respect to the existing building, which I'm the biggest fan of. It's my favorite. In order to do it properly, we had to take down the existing structure.
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C
When it comes to phase one of.
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D
This project, the tearing down of the current East Wing structure, a submission is.
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C
Not required legally for that and it's.
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A
Being paid for 100% by me and.
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C
Some friends of mine donors at this moment in time.
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D
Of course, the ballroom is really the President's main priority.
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B
Amid the deluge of dehumanizing imagery that flashes before our eyes each day, the demolition of the East Wing of the White House still managed to provoke shock. The iconic historic buildings guts on display, a bulldozer's claw reaching to tear down more to make way for the President's $300 million ballroom. The destruction to enable construction plowed on despite the government shutdown and without any of the approvals required by law. It was as if the largely invisible wanton destruction of fired federal workers, bulldozed norms and gutted institutions had at last been made manifest, metaphor rendered into reality. I wanted to set that image against some others that maybe also broke through since we last spoke. Photos and video of more than 7 million people pouring into the streets last weekend for no Kings marches, protesting lawfully, even joyfully, against authoritarianism and unchecked executive and military power. The costumes, the signs. This was the Federalist Papers in corporeal form, holding these pictures side by side could be the very embodiment of my guest's new book. On any given day, we toggle between hope and despair, between optimism and elegy, and that back and forth is itself destabilizing. Joyce White Vance's Giving up is unforgivable. A Manual for Keeping a Democracy is very much a manual for this seesaw on which we reside. As we watch courts halting Trump's lawlessness in its tracks, but then also Pam Bondi's DOJ coughing up yet another vindictive prosecution against a political enemy as we watch venerable democratic institutions decimated the literal non symbolic horror of ice raids, threats to universities slashed SNAP benefits, all while inflatable frog protesters point out authoritarianism's fundamental weakness. My friend Joyce has been writing her invaluable substack Civil Discourse for several years now. She's also part of the team at Cafe Press. She's an MSNBC contributor and a law professor at the University of Alabama School of Law. Joyce was the U.S. attorney in the Northern District of Alabama from August 2009 through January 2017. She was appointed by President Barack Obama and unanimously confirmed by the Senate. Joyce, thank you so much for being here to try to bridge this split screen and to lay out the manual for the teeter totter of this moment.
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C
Well, thank you for having me. And thank you for setting it out so perfectly. Those are the two images that are living simultaneously in my brain right now. You nailed it.
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B
Look, your book is a charge to stop waiting around and stop hoping someone's gonna save us and, like, pick up an oar and start rowing. And a line from the introduction of the book comes to mind. Quote, it had become easy to see where we were weak. It was more difficult to see where we were strong and really do feel. And this isn't Hopium. This past week made both of those things much more visible. The weakness and the strength. Is that your sense, too?
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C
Yeah. Like you, I am not a fan of Hopium. I don't think we get through this period of our history by sugarcoating anything. So I'm a big believer in staring the risk straight in the eye. And we saw it right when Donald Trump tears down the White House. It's not by accident. It's a deliberate message that he's sending. I'm doing this because I can. And while. While I have friends and former colleagues who are worried about paying their rent and worried about feeding their kids because they're not getting a paycheck, this man is wasting all of this Money to take down democracy. I mean, it's just. It's patent at this point. Contrasting that against the 7 or 8 million of us who marched last Saturday is a very remarkable image that speaks to how weak authoritarians are. You know, the whole gig, right. We all know what the game is. Convince people that they are weak, convince them that Trump is inevitable so that they won't push back, so that they won't fight to protect the vote. And that's how you come to power, or how you accumulate more power if you're a wannabe dictator. So this is all a mind game. I think we're smart enough to see it through.
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B
And I wonder if you'd just talk for a minute. You know, this is not really a show about press criticism. And I am not at all a fan of the sort of line of resistance that is just banging on constantly about press failures. But I will say there was a very, very, I think, justif critique that a lot of the mainstream media and the corporate media did a not great job of covering the enormity and the significance of these marches. And I wonder how that sort of feeds into your larger critique of both the sort of passivity, the frogs in the pot problem, but also the ways in which the media wants to tell the story of wanton destruction more than it wants to tell the story of pushing back.
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C
I mean, I'm thinking about this a lot these days. I'm not sure that my thoughts are fully formed, but the importance of not destroying what remains of the free press. Right. I think we need every aspect of the press, whether it's traditional papers, despite their. Their failures, whether it's network news, which has some astonishingly beautiful moments amidst what we're seeing, this, you know, this knee bending to the administration. So I too, am very hesitant to bash the press. You know, the best thing that I've seen was Rachel Maddow, who does, you know, all 50 states protests, and she leads in with Alabama. And I'm looking at our 15 protests all in video on her screen. And I'm thinking, why is this not everywhere? Because what Americans need to feel in this moment is that they're not alone. We need to be in community. It's the old truth from the civil rights era that being in community is powerful. It reminds you you don't have to take on the whole problem by yourself because you have other friends that will do it with you. And I don't really. Did the media not appreciate how big this was going to be? We all saw the numerical impact or the numerical expectations. I think it speaks to a larger disconnect where the media has to some extent succumbed to this notion that Trump is going to do what Trump wants to do and that there are no guardrails left. I don't believe that that's true. I think we saw 7 to 8 million guardrails standing up on the streets last weekend.
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B
One of the animating themes of the book is how quickly this torpor of normalizing outrage after outrage after outrage can happen. And yet I think of you actually as pretty emblematic of somebody who dedicates, as best as I can understand, every minute of every day to chronicling the legal outrages week after week, always in the hopes of breaking through the sense that this isn't interesting or I need to tune out, or this is some somehow inevitable or it doesn't affect me, so I, you know, I'm not gonna pay attention. And somehow some tide feels like it did turn. And again, not opium. I think between the protests and the polling and the shutdown and the willingness to blame the shutdown on those who have created the shutdown, I would put the trashing of the East Wing in that bucket. But I do worry that in this foot race between outrage and engagement and the things that are being planned, voter suppression, what's coming next, you know, the kind of Orban playbook that none of what we are waking up to now is enough to stop the tide.
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C
You know, this is not a new problem, right? This notion that when you're just reacting, you're missing the strategic moves you need to make. Right. That we should always be anticipating what comes next and working towards that. So I'm with you on this one. I worry a little bit that as a general public, we are not yet seeing what's coming next with sufficient clarity to prepare for it, and that I will hang on the media and on people like me who write substack columns and who should do a lot more. I do try to do this, especially in the area of voting, for instance, to prepare people for what I see as a deliberate move by this administration to be price people out of voting by requiring voters to have very expensive proof of citizenship before they can register. And so I've started telling people, you know, in your communities, you need to be thinking about what it will look like to help your fellow citizens who can't afford it, have passports so they can vote. It's crazy, it's wrong. It shouldn't happen. I think it's where we're headed. We need to think about it. That's, I think, one example. When I was in government, which seems like a long time ago in a very quaint moment in time, we understood that as law enforcement, a lot of the work that we did was reactive. Crime happens and you react to it. But the best work that we did in the Justice Department was that work where we were peeking around the corner and seeing what was coming next. A lot of it in the area of voting and civil rights, but also consumer protection work. And so I contextualize this in that same way. The challenge that we need is, and we have groups, by the way, that are doing this, civil rights community, the groups talking, meeting, working, planning for what comes next. State attorneys general, a level of coordination I don't think they've ever engaged in before, doing immaculate work, both litigating and otherwise. Military folks and retired military folks thinking about what's coming down the pike there, and the same in public health. What we don't do a great job of, and we need this desperately, is having a government in exile or something like that that's constantly educating the public about this. We need to do more to come together and understand what the future is going to look like and what we can do to make sure that MAGA doesn't win.
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B
So one of the things I really wanted to check in with you about is these prosecutions and indictments of James Comey. Tish James John Bolton and I wanted to talk about what is happening in the Eastern District of Virginia because I think you have some sense of what's going on inside in a way that I suspect a lot of our listeners don't. And so you've been covering this pretty carefully and technically, and I would love for you to just tell listeners who somehow, in the fog of war, may have lost the plot a little bit, how serious and significant it is that these prosecutions are being brought, who they're being brought by, and the ways in which the norms of how this has been done historically have been shattered in these cases.
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C
Yeah, it's a tall order. This, in my judgment, is one of the most serious developments that we are seeing, one of the most dangerous developments for democracy and for all of our personal safety, although it can be hard to understand that. Right. It's just a couple of cases. Jim Comey is, in many corners, not a popular figure. That's not what this is about. Whether or not you like Jim Comey or as the President says, whether you think he's a bad guy, however you feel about New York's Attorney General Tish James here's the problem. Donald Trump obtained indictments against his personal enemies by removing career prosecutors, career prosecutors that he had put in place in the Eastern District of Virginia, and replacing them with blatantly unqualified yes man, or in this case, a yes woman, who would do his bidding. And this is Jim Comey, the former director of the FBI, the former number two at the Justice Department, with immaculate legal representation from two of the finest lawyers in the country. What's to prevent Donald Trump if, say, someone to whom he owes money, maybe a contractor on White House Palooza, and Trump decides he doesn't want to pay the bill? There is nothing that stops, stops him from sicking his attack dog on that contractor or on the editor of a small newspaper in Iowa or whoever it is that he decides is an enemy. In other words, this is why we have a professional Justice Department that makes decisions based on the facts and the law, that avoids any sort of, even the appearance of political interference in prosecutions, because permitting that political interference damages the fabric of our society. It renders us all vulnerable. And yet this is inexplicably the moment that we're in. I don't, by the way, think it's a hopeless moment. I don't think the Comey case will go to trial. Now that we've seen these motions that Pat Fitzgerald, who, for those of you who don't know, I just have to say for a second, because this is someone I have deep respect for. Pat Fitzgerald was a prosecutor in the Southern District of New York at that point in time. Illinois, which was just rampant with all kinds of political corruption, wanted to bring somebody in as their U.S. attorney. I think they'd had a little bit of history of bringing somebody in who was neutral, just somebody competent, highly regarded, very respected, above the fray. And so they get Pat Fitzgerald, who's dropped into Chicago, is the Bush U.S. attorney there. During that old timey, very political administration where nine US Attorneys were fired and an attorney general had to resign in the following dispute. But, so that's Pat Fitz. He's there. Then the Obama administration comes along. He stays in place for almost the entire eight years as the Obama U.S. attorney. There are not very many people who get to do that. Highly respected, highly regarded, and as far as I've ever been able to tell, just doesn't give a flip about politics, is very interested in justice. So that's who we've got doing this. He's filed motions to dismiss based on selective and vindictive prosecution. Comey, you know, but for the fact that the president hates him, wouldn't have been indicted. Those motions happen a lot. They almost never win. This one, I think will. I think that the moving papers are very good and they lay out a clear case. And then there's this super interesting challenge that says that the woman that Trump dropped in, Lindsey Halligan to be the U.S. attorney was not properly appointed, that it was done in violation of the Vacancies Act. You know, that motion looks pretty good, too. So I think that there's a good chance that this doesn't go forward.
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B
And same about Tish. James, do you think there's any chance that this holds water or is it similarly. Just feels like it's built on a bunch of assumptions and kind of deliberately misconstrued representations that should go away before this goes much further?
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C
Yeah, I mean, I think exactly what you just said deliberately misconstrued the facts to try to come up with a case. Know federal prosecutors love their jobs. I used to have a dream as a young prosecutor that for some reason I had to leave the office. And in the dream I would be crying. That was how much I loved that job and valued the opportunity to serve. We have learned that prosecutors down in Nafuk were either fired or left because they refused to bring that prosecution. So repeat of what we've heard on other fronts, you know, so there was only one time in my 25 years at the Justice Department that I told the U.S. attorney I would not file a motion that that particular U.S. attorney wanted filed because it was the wrong thing. Went home and I told my husband, I'm going to get fired in the morning. And strangely enough, I did not get fired. She just sort of acted like it didn't happen. But it was the only time I can just remember thinking, I can't do this in good conscience. I simply would have to leave rather than file this motion, which is just, just improper and not consistent with our understanding of justice. We have people who walked away from these jobs rather than indict James, because it's. Can I swear, can I say it's a case?
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B
I think you can. I think that is the term of art.
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C
It's just a case. I have done mortgage fraud cases. I know a good bit about mortgage fraud cases. For a while I was the DOJ co chair on the President's Financial Fraud Enforcement Task Force, the Mortgage and Other Loan Fraud Subcommittee. So I do know my way around a mortgage fraud case and have handled individual ones. And this is not it.
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B
More in a moment with Joyce White Vance. This podcast is brought to you by Progressive Insurance. You chose to hit play on this podcast today. Smart Choice Progressive loves to help people make smart choices. That's why they offer a tool called Auto Quote Explorer that allows you to compare your Progressive car insurance quote with rates from other companies so you save time on the research and can enjoy savings when you choose the best rate for you. Give it a try after this episode@progressive.com, progressive Casualty Insurance Company and affiliates. Not available in all states or situations. Prices vary based on how you buy. Fall is upon us and cooler days call for layers that last. Make quints your go to for quality fall essentials that feel cozy, look refined and will not blow your budget. I am still wearing the heck out of two Quince Batwing sweaters, cashmere sweaters that I have enjoyed so thoroughly for the last two years. Quince has all the pieces that will turn into your fall uniform. Think fifty dollar Mongolian cashmere sweaters, premium denim that fits like a dream and luxe outerwear you will wear year after year. It's the kind of wardrobe, wardrobe upgrade that feels smart, stylish and effortless. Find your fall staples at quince. Go to quince.comamicus for free shipping on your order and 365 day returns. Now available in Canada too. That's quincee.comamicus to get free shipping and 365 day returns. Quints.comamicus the warning signs are all around us. Record breaking temperatures, extreme floods, wildfires and other natural disasters. Animals like polar bears and whales vanishing before our eyes. And the Trump administration is making it worse, rolling back protections and sacrificing the planet that future generations will inherit. All for corporate profits. But when people come together, they can make an impact. Bank backed by 3 million supporters, NRDC, the Natural Resources Defense Council leverages the full power of the law to challenge corporations or government agencies that would illegally destroy our environment. They won nearly 90% of lawsuits they filed against the first Trump administration. Now, as their caseload grows, they need your support. Help stop oil and gas drilling in pristine wilderness, protect endangered wildlife from extreme extinction, and safeguard our planet's climate for future generations. Make your gift today. Donate and your gift will be matched five times at nrdc.org amicus and we are back now with Joyce White Vance. So Joyce, you mentioned, I think Lindsey Halligan, Trump's real estate lawyer who never prosecuted a case, insurance lawyer, real estate lawyer.
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C
I get confused. I think it's insurance.
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B
Definitely was deep, deeply involved in defending Trump after the Mar A Lago search. You know, hasn't prosecuted a case, as you say, just kind of got word that now she was the boss and brought this indictment immediately thereafter over the objections, as you also say, over a bunch of people who knew the case very well. And that brings me to Anna Bauer and the WTF of it all. Anna is, of course, a colleague in the legal press. She writes for Lawfare. She really is a superb journalist. She's been reporting on the Justice Department, she's been reporting on many of these cases, and somehow the interim, possibly not appointed correctly, U.S. attorney for the Eastern District of Virginia approaches her by way of unsolicited text messages over signal, and then, like, is confused about when you're on and off the record. And again, this is one of these stories. It just happened. And yet that we're 17 outrages past it, and yet it is such a.
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C
Huge, huge, huge, big deal. You know, I don't know Anna, but I love Anna. So, Anna, if you're listening, let me just say that I'm fangirling right now. When I read her piece, what cracked me up was she sort of lays out, you know, lindsey Halligan, reaches out and texts me, and she does it again and again and again, and then after the fact, insists that we weren't on the record. And Anna says, let me just print our exchange for you, and you can judge for yourself. So as a U.S. attorney, one of the first things that happens is you go to this training on how to work with the press, and one of the things that they tell you is you are always on the record. You know, you really shouldn't go off the record. You're a public servant. You might want to talk on background, but you're on the record. Apparently, insurance lawyers don't get that same training before they become U.S. attorneys. And look, I mean, that's good on Anna for reporting it in that forthright way that she did. I don't think that Lindsay Halligan technically crossed a line into revealing grand jury information that gets her in legal trouble. I think it just adds to this picture of chaos and incompetence and revenge fueled prosecutions by people who would not be in those offices unless they had agreed in advance that they were there for that mission.
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B
Joyce, so much of your book is about what I think of as kind of inchoate or invisible institutions, you know, stuff that is the water, you women. And yet I think for a lot of people, it was an abstraction until it wasn't. And our mutual friend and colleague Ryan Goodman was on CBS this past weekend talking about what is happening inside the Justice Department, how it has affected judges who are overseeing some of these cases. Eris Ruveni, the whistleblower in the case in which the Justice Department apparently just brazenly lied to Judge Postberg about planes that were being sent to Secot Prison this spring. Rauveni spoke, like, brokenheartedly about his career, about what caused him to break with doj. And I keep thinking about people like you, Joyce, who worked there for so many years, and there is no corresponding image to that East Wing being, like, chomped out of the White House, to what's happened to doj, what's happening right now at Main justice, and how devastating it is when federal judges are starting to say, as Ryan Goodman suggested, I just don't believe anything they say anymore. I feel like you are trying really hard to express the level of absolute, possibly irretrievable loss in horror. Can you just try to give words to this thing that is very abstract to a lot of us about what happens when we can't trust doj and maybe more urgently, when judges can't trust doj.
- [26:36]
C
I mean, I'll just say on a personal note, it's like grieving. It's grieving the loss of an institution that was so solid that it withstood politics. Because what you're talking about in Ryan's utterly immaculate work is about the presumption of regularity, which is a legal presumption Hortz applied. That said, we assume, in the absence of evidence to the contrary, that the Justice Department acted in good faith and that public officials fulfill their official duties. And so that was so important because, you know, not for nothing, half a dozen times a year, a defendant who we in my office had indicted would come back and say, the prosecutors were out to get me, and, you know, I wanted to pose the agents and get the grand jury transcripts. And so you would go in front of a federal judge, and we would apply the presumption of regularity and say, this is speculative. This is fictional. There's no evidence that we behaved in any way, any way wrong. You know, this prosecutor brought these witnesses in front of the grand jury, and the grand jury found probable cause. And. And this defendant will have an opportunity to defend himself in due process at trial. And the judges would routinely apply the presumption of regularity. And you knew when you went into the courtroom that judges invested trust in you, and it was your job to live up to that. Jim Comey once famously told mine, my class of U.S. attorneys, that the public's confidence and the court's confidence in DOJ was like a water balloon. You know, it took a long time to fill it up, just a little bit of water at a time, but one pin prick could let that all out. And that was why it was so important to marshal our integrity and the public's confidence and to always remember that there was no one case that was more important than the integrity of the Justice Department as a whole. And so we've blown that. Or not we. Right. I've had nothing to do with blowing it. This administration has blown it. Starting with the Southern District of New York, where they ordered a sitting United States attorney to dismiss a corruption case against the mayor of New York City, not because there were problems in the case, but because the Trump administration wanted to cut a deal to get New York to help enforce its immigration policy. That I think was sort of the first inkling that we were in deep trouble. And that has been sustained with these prosecutions. I mean, I'm sure you had this same reaction that I did. I looked at that just horrible text message, you know, sans truth social post with Trump saying, pam, you've got to do these cases. We look bad. And Lindsey likes you. Let her be the U.S. attorney down there. She really likes you a whole bunch. And none of that sounds to me like how the Justice Department should ever operate.
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B
Right. And yet. Right. It's as with all things, and you say this so eloquently, it's just a series of norms. Right. It's just a series of, particularly with respect to the Justice Department and the White House, you know, post Watergate ideas about how dangerous it is when the president texts accidentally, publicly, his ag and says, like, go after my enemies. Do it now you're making me look bad. And yet I want to see all.
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C
The other texts or all the other truth social dms. I'm waiting for somebody to get those.
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B
By the way, listeners can click into our bonus episode right after this one to hear me and Mark Joseph Stern discuss the President shaking down his very own Justice Department for hundreds of millions. In part, he claims, because prosecutors should have guessed that the Supreme Court was going to grant him sweeping immunity. I mean, the grift, the corruption and the self dealing, it just has no bottom. But Joyce, I want to talk about Congress again for a minute because you really spend a lot of time in your book talking about checks and balances on what the Federalist paper set out, what the vision was, the three legged stool. And it's not just a matter of the shutdown Right now. Yes. Speaker Mike Johnson has shuttered the Congress altogether. There's no return date, no continuing resolutions, no committee activity, no oversight, a refusal to seat a duly elected member. But you and I have traded this phrase supine Congress a whole bunch over the years, and it's a thing we take for granted. Right. Congress sucks. It's broken. But I don't know, and I want you to talk more about this if folks really realize this is so much bigger than an inability to vote on releasing the Epstein files. This is so much bigger than a Congress that has been unwilling since Trump's inauguration to protect its own prerogatives, its own appropriation powers, its own oversight powers. This is a Congress unwilling to fight for its own constitutional role and calling up militias. Okay, we take all that for granted, but as of this moment, I'm not entirely sure that people understand the bigger picture, that this is a freaking ghost ship. It is powered completely down, and that has vast implications that go beyond whatever the scandal of the day is. It is so vast to have a Congress that is not functioning at all right now.
- [31:46]
C
This is the Article 1 branch of government. The founding Fathers believed that the Congress, with its two bodies was the most important part of government. And, you know, I am tired of a Congress that refuses to accept that responsibility and act that way. And I wrote about this in the book. I feel even more strongly about it now. I can feel my blood pressure going up. I have two Republican senators who don't care at all about what I think. Right? I mean, they have these little forms on their websites, and almost every day I type them letters and I say, oh, I'm concerned about your vote on X or the fact that you're not worried about my kids getting vaccinated or whatever the issue is. And you get denial form response back. They don't have any engagement with their constituents because they don't think we matter. And, you know, whether our elected officials are in the same party that we are in or not, I think it's time for Americans to have a little uprising and remind our elected officials that we chose them and that we can unchoose them. And then we have to be willing to follow forward with that. And, of course, gerrymandering makes that difficult and complicated in the House of Representatives, but it does not make it complicated when it comes to the Senate. And so, you know, I'm one of those people who believe that if young people could be persuaded that their votes were important and mattered, that it would be possible to have different outcomes in some of these unwinnable elections. Something that I'm really committed to going into this next election is for all of us to just quit accepting that our senators don't work for us and to demand that they do and to be willing to follow through in sufficient numbers that they feel the risk. So I guess that's my political diatribe. I'm a lawyer, not a politician. I try to stay out of politics, but I'm just, I'm really tired of people that we elect who essentially just spit on us and act like we don't care. You're talking about the danger when one leg in the three legged stool allows itself to be snapped in two and the entire stool goes off kilter because there's no longer a realistic check on the President, especially when we have lower courts that are behaving magnificently in a Supreme Court that, you know, nobody's quite sure where we're going to end up this term. And so for Congress at this moment to be absent, I think just suggests that the people that are playing that game are unworthy of public service. There should be a reckoning where they are all tossed out and replaced with thoughtful, smarter people. Whether that's younger people. And I get institutionally, you don't want fruit basket turnover in an institution. But look, we don't live in normal times. And so I love some of the folks who have a commitment to serve. I think about Patty Murphy Murray, the Washington state senator, who, when there's just this utterly ridiculous situation involving the arrest of a California senator who's trying to have a conversation in a Kristi Noem press briefing and she takes to the floor of the Senate and she says, this is our job. It's our job to come here and represent the people who elect us. You know, that was such a powerful moment. Angus King, the main senator, has taken to the floor of the Senate to really just lecture his colleagues to say we have a real job to do here. I'm ready to see Congress going back to doing its job because if it does not, it's going to be very difficult to right size this democracy without them.
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B
You're making two, I think, important points. One is, you know, we hear it said frighteningly often that Trump and the administration are governing as though there's never going to be another election.
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C
Yes.
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B
At this moment, Congress is operating, I think, in the same way as though there isn't going to be another election, as though their Congress can just power down and we'll just figure something else out. And I think that's really worth saying that it's not just the executive branch now that's seemingly operating as though there's no future in which anything matters. That's what I see Mike Johnson doing irreparable harm to the institution and seemingly fearing no consequences. The other point you're making, and this just is shot through in the book, is that you can be as grumpy as you want at Congress and God knows you and I are grumpy. There's no plan B, right? Like without a functioning democracy, there isn't a better thing coming along. And so get behind it, don't get behind it, reform it, don't reform it, but stand up for it, even if it is failing you because the thing that comes in its stead is not going to be better for us.
- [36:31]
C
I think that that's our job. We have to understand this nuanced point that the institutions as created and if they're fully functional, they work. The problem that we have is the people that are serving in those institutions in this moment. And so, you know, for too long, Americans took the whole notion of gridlock. I mean really, I'm old enough to remember gridlock in like the Reagan presidency and oh, Congress is broken. Although back then it did some pretty functional things, right? I mean, by comparison, that was not gridlock. We've just come to accept that. And I think it's just a moment where we have to say, no, this isn't how it works. And the founding fathers envisioned that we would elect these officials and then continue to hold them accountable, which can be really hard to do when they won't show up for town halls, right? Or when the money that imbues our politics with just this sort of political bias is implicit in almost every state. Now, the fight that we will fight for democracy will not be on battlefields in Europe. It will be in the political process, reforming it and at least starting to re establish some guardrails and some semblance of a functional Congress in 2026.
- [37:43]
B
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- [38:46]
D
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- [39:47]
A
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- [40:21]
B
Let's return now to my conversation with Joyce White fans. So that brings me to voting. All roads lead to voting. You talk about it a lot in the book. We have now come off a scary couple of shows about what happens if there are troops on the streets that are sent out to enforce election security in the midterms. We talked last week with Janee Nelson from the ld.
- [40:45]
C
One of my favorite people. I love her.
- [40:47]
B
Yes, and you know, talked about what I think is the likely demise of whatever remains of the Voting Rights act at the hands of the Supreme Court. Voting is like a real frog in the pot moment. And again, it's also one of those pain points for me. I know you feel the same way where anything that I say or you say that discourages people from voting is is malpractice. We can't do that. But at the same time, where I guess, are you on your personal frog boiling scale about the possibility of free and fair elections in the future.
- [41:27]
C
Here's where I am on elections. Nobody would fight so hard to keep you from voting if they weren't afraid of what would happen when you voted. So I think job number one is for all of us to do whatever it takes to be able to vote. Make sure your family can vote, make sure your friends can vote, and think about what you can do in your community to make it possible for people to vote. That can take so many different forms. It can be babysitting for your neighbor with kids so she can get out to vote in the ridiculously long lines that we'll face, or being a poll worker, a poll watcher. I mean, it just can take all different kinds of forms. It can be as simple as just asking people in the weeks before the election, are you registered? Are you ready to vote? Do you want to talk about any of the candidates? That's an olive community effort that we're going to have to take. I believe that we will hold elections in 2026. Like every good, you know, dictator like Putin. Trump will want to say that his party had strong returns at the polls in the midterm elections. The problem will be not to state the obvious, because it is whether or not those elections will be free and fair and whether in the most extreme manifestation, there will be troops at polling places designed to intimidate people or maybe ICE agents in proximity to polling places. Look, all of that would be illegal, clearly illegal. But this sort of comes to grips with the Supreme Court destroying the Voting Rights Act. It used to be that we could use Section 5 to challenge new measures designed to intimidate or interfere with voting before they went into effect. So before the bad stuff started to happen, you could go to court and challenge it and it would never go into effect. And we lost that in The Shelby county vs. Holder case, which ended this request requirement that new rules have pre clearance before they went into effect. We're left with Section two that historically we used mostly for gerrymandering, but which did have application to other sorts of problems with voting, but only after they went into effect, more or less. You had to wait until the bad stuff was happening to be able to challenge it. Now, of course, the expectation is that the Supreme Court will gut Section two. My personal take on that is that they're not going to outright gut it like they did with five. They're going to say some pabulum about, oh, it's still there, but here are these heightened requirements for using it because the Supreme Court, I think, is aware that if, heading into the midterms, they damage what's left of the Voting Rights act in that sort of a blatant way that they could become a rallying call in the midterm elections. So I would encourage people to pay attention when that case, the Klay case out of Louisiana comes down to understand and not let the Supreme Court get away with the game of pretending they're not doing away with the Voting Rights Act. If, in fact, that's what as many people believe they will do, we should see it for the outrage it is, explain that to the people around us and use it as a rallying cry. But all of that to say, yeah, it's going to be hard to vote. Yes, there will be places where they will try to intimidate people. They may succeed. In some places, there are resurgent stories about, you know, trying to collect voting machines and doing other things to interfere with the count. Don't let it keep you from voting. Double down. Stiffen your spine. Understand this right is so important. They are so terrified of us that they will try to keep it from happening. And our job is to be ramrod straight and to all go out and vote, no matter what it takes.
- [44:59]
B
I might add a battle cry on this show for almost as long as I can remember that, like, next November is too late to start thinking about it. Like, this is the kind of thing.
- [45:10]
C
This is the moment.
- [45:11]
B
Yeah. That we probably needed to be thinking about, you know, four and eight years ago, but really need to figure out what the plan is long before it's a little bit your point about not always seeing what's around the corner. And I think this is a good example of that. I want to give you a chance, Joyce. Again, I think your book is. It is that improbable thing, which is a love letter to just boring old institutions and workaday institutionals.
- [45:40]
C
I would be that girl, that nerdy girl who would write that love love letter.
- [45:44]
B
I mean, it's very important and I think, again, to institutionalism that is so unpopular right now. You know, you posit that the burn it all down alternative is so attractive when everything is burning around you. And whether you're talking about the Justice Department or the judiciary or a free press or, you know, I've been in a lot of rooms where a lot of people have said that Americans don't care about institutions. They don't much care about democracy, which you note in the. The book. It's just not, you know, there's just the vibe that Maybe democracy isn't important, certainly not the Hill that folks want to die on. And I think you know what your book suggests, and I love this line. The path to autocracy is littered with battered and broken institutions. If you want to preserve democracy, fight for the institutions. Our institutions are not perfect. It's important to acknowledge their problems and commit to improve, approving them, but not abandon them altogether. And I would just love to hear your sort of elevator pitch for what that looks like. When you say fight for the judiciary, which you do. When you say fight for a free press, you've just given more than an elevator pitch about what it means to fight for a functioning Congress. What does that look like in practice?
- [47:02]
C
Joyce, this is such a great question, right? Because nobody can do every everything. You just can't possibly fight for all of the institutions. But if, for instance, you happen to work at the Justice Department, then fight for the integrity of your job. You don't even have to fight for the department writ large. You have to fight for integrity in your personal work. If you have the opportunity to volunteer, for instance, in voting, which we've just been talking about, seize that opportunity. But your role might not look like an institutional role. It might look like teaching kids about civics. It might be teaching kids literacy and going and volunteering, you know, to read in a school. I think the mistake that we sometimes make, or at least that I make, is to be so overwhelmed by everything that's going on and the massive damage to the institutions that we don't fully appreciate what supporting them looks like. And it looks like a well educated, literate population that has been forced to stop taking the institutions for granted, which we look all guilty of. I mean, four or five decades at least, post Watergate, but really, I think before then, too, Post World War II, of being able to assume that democracy would always be around. So it was safe to bash it because it was a given. And it made it possible for us to have economic stability and to have good lives and to have advanced. And even if we weren't perfect, it permitted us to avoid the long overdue reckoning with slavery and the racial reconciliation that we desperately need in this country because we were continuing to make progress. And that moment, frankly, is past, where we can take things for granted, but we can't be so intent on acknowledging the problems that instead of fixing them, we just. Just break things. You know, I'm reminded of being a young married woman, and my husband had been trying to fix one of our toilets. I can't believe I'm going to tell this story, but I'm halfway in, so I may as well. And he came out looking frustrated. It'd just been like a little rubber ring or something that needed replacing. And he said, hey, can you just call the plumber in the morning? And so I call our sweet old timey Southern plumber who says to me, well Ms. Vance, you're going to need a new thick. And I said, what do you mean? I thought it was just a rubber ring. And he said, well, it was just a rubber ring, but it looks like Mr. Vance got frustrated and he took a hammer to it. And Bob had just gotten pissed off and he smacked it with a hammer and I had to buy a new toilet. Thank you, honey. And that is the problem, right? Let's replace the rubber rings, let's fulfill the institution's promise, let's not smack them. Because having to replace them would just bring a halt to any progress in this world.
- [49:54]
B
I love that Bob is going to be a metaphor for every amicus listener. For the like guy who took a hammer to the toilet, please tell him we will send him a T shirt. I'm super, super sorry.
- [50:05]
C
I know you have a lot of Birmingham listeners. So y', all, please, I was gonna say don't give me up, but go ahead, have had it.
- [50:13]
B
I can't let you go without this one last beat. Cause you've been in my head for the last two weeks. I've been thinking about you. And that is just about like tone and seriousness and gravitas. And this week we have been witness to just a lot of text threads teeming with like Nazi jokes and racial jokes and anti Semitism and vile misogyny. And I guess in some cases there have been some consequences. Although the Vice President has now decided that his boys will be boys defense covers 30 year old men. And I keep thinking to myself, I've been in WhatsApp chats with Joyce Vance for years now and I have never heard her joke that rape is epic. I've never heard you talk about people this way. And I guess I wonder, you know, I'm just gonna use the inshittification language, which seems inappropriate in a question about tone, but you know, the insidification of how we talk to each other. These words, you know, civil discourse and public discourse, they, they sound so old timey, right? But I think like the law, the language we use, it is really slow to keep up with what democracy and truth require. And I'm also thinking of a piece that Robbie Kaplan and Michael Block wrote this week about what it means when that language casually slips into in to the way we talk to each other and our leaders talk to each other. And I guess I'm asking you to reflect with me on when everything is on fire and they are chomping up the East Wing, why it still matters that the people who are in the room where it happens are talking to each other about us in this way and how it is that the people who don't think and talk that way, way have no place left at the table.
- [52:19]
C
We live in a mean and ugly moment in American history. There's no doubt about that. And in some ways, I will say I was relieved when the Nazi text messages came to light because I think that they offer proof of what people like you and me and many of our friends have been saying out loud, while other people are like, oh, no, they're not bad. And, you know, there are these casual moments. I'm walking through the airport in Birmingham and I see a family. It's like a dad and a mom and, and maybe an aunt or an uncle and four little kids, young kids, like a teenager and some little ones, and dad's got on his red MAGA hat and I, I hear him and he's swearing. He's like, you know, what is this shit? Let's get. Yeah, you know, it just, I thought even five years ago or 10 years ago, you wouldn't hear that from sort of just casual cursing. In a dad with kids in a conservative family. Right. There would at least be that veneer of, oh, no, we have to be respectful. That's gone. The veneer of respect for other people or civil discourse even in the family, has evaporated. In this administration, we have a president, you know, who you want to talk about. Inification personifies it, whether it's with his video of himself as, you know, the king of poop, whether it's the way he casually swears, whether it's the name calling that he uses against people. I mean, folks, this is who we are now as a country. This moral majority of right leaning folks who for years accused Democrats of behaving in morally improper ways, you know, has just adopted this stuff overnight and with it comes out in the open. Race racism, you know, this notion that anti Semitism, which the Trump administration trades on in shameful ways to justify some of its most immoral policies, and yet is willing to tolerate, I think, just sort of base antisemitism, misogyny, whether it's dislike and outright hatred for people in the LGBTQ community. And immigrants. If there's a unifying theme in this administration, it's hating people. It's hating people that aren't like them so that they can lift themselves up and feel better about who they are. What just saddens me so much is how many people have slipped into that so easily. That wasn't the uplifting answer you were looking for. And I'm sorry about that. I mean, I think this is something I catch myself trying to be more careful, to be very measured in my discourse, to be respectful, to try to listen to people even when I know I don't agree their views, so that we can have a thoughtful conversation. Because I don't like losing that and I want it back.
- [55:08]
B
Yeah. And I'm thinking, you know, of the White House press secretary saying your mother as though that's, I mean, a funny. Maybe if you're 7B, you know, an answer to a legitimate question from a legitimate reporter. And I guess I, you know, we do sound like get off my lawn, shake fist at sky grumpy old grandpas right now. But I do think, especially in a world of the law where language really matters, what seeps into acceptable discourse is again, hard to see how we unwind all this. Joyce White Vance's brand new book, Giving Up Is Unforgivable. A Manual for Keeping a Democracy is on sale this week. Run out and get it. And Joyce is on a book tour tearing social media and the media with just like a little important pamphlet on how we can all get some skin in the game. Joyce, I thank you for all the work that you do and for joining us here today. And I just wanna say congratulations. It is a really useful moment to have both your kind of longstanding regard for the law and for justice and also your dose of tempered hopium, which I desperately needed this week. Thank you for being with us. Congrats on the book.
- [56:30]
C
Thank you for friend.
- [56:36]
B
And that's all for this episode. Thank you so much for listening. And I want to take a moment to thank all of you for bearing with our technical difficulties last week. We are very much hoping everything is resolved now. And thank you for your letters and your questions and your comments. Keep them coming. We are reachable by email@amicuslate.com you can always find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or you can rate us and review us on Apple podcasts. On today's Amicus plus bonus episode, slide in to the Amicus plus Smokeless Cigar Bar with me and Mark Joseph Stern, where we are discussing the President's personal quarter of a billion dollar demand from his very own Justice Department and how how the grift that keeps on giving is the ultimate heads I win, tails you lose. For Donald Trump, we're also going to check in on some of the many lawsuits over his deployment of the National Guard to American cities. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now and we'll see you there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.
- [58:17]
A
This episode is brought to you by Lifelock. It's Cybersecurity Awareness Month, and Lifelock has tips to protect your identity. Use strong passwords, set up multi factor authentication, report phishing, and update the software on your devices. And for comprehensive identity protection, let LifeLock alert you to suspicious uses of your personal information. Lifelock also fixes identity theft, guaranteed or you your money back. Stay smart, safe and protected with a 30 day free trial@lifelock.com podcast terms apply. Hi, I'm Josh Levine. My podcast the Queen tells the story of Linda Taylor. She was a con artist, a kidnapper, and maybe even a murderer. She was also given the title the Welfare Queen, and her story was used by Ronald Reagan to justify slashing aid to the poor. Now it's time to hear her real story. Over the course of four episodes, you'll find out what was done to Linda Taylor, what she did to others, and what was done in her name. The great lesson of this for me is that people will come to their own conclusions based on what their prejudices are. Subscribe to the Queen on Apple Podcasts or wherever you're listening right now.