← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Racism’s Over and Seashells Can Be Deadly
01:03:15
It was a devastating week for democracy thanks to the upside down law of the Trump Era
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- [00:01]
Mark Bittman
Hi, it's Mark Bittman from the podcast Food with Mark Bittman. It is getting warmer and it's time to go outside and start grilling. You can find quality meat, fresh organic produce, seasonal bakery treats. It's all there at Whole Foods Market. Ready to cook beef or chicken kebabs, corn, asparagus, great on the grill and Whole Foods has Teton Waters, Ranch hot dogs and sausages made from grass fed beef. Shop for all of your summer favorites at Whole Foods Market.
- [00:36]
Dalia Lithwick
This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Ever wonder why we make the choices we do and how to make smarter ones? Join Wharton Professor Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change, as she shares true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do and how to make better choices to help avoid costly mistakes. Choiceology covers the latest research in behavioral science and dives into themes like the power of self control, shaping your mindset for success, navigating new beginnings, and why starting over can feel so hard. Listen to choiceology@schwab.com podcast or wherever you listen. This is Amicus Slate's podcast about the courts, the law and the Supreme Court. I'm Dalia Lithwig.
- [01:42]
Madiba Denny
States are immediately having at it and just going ham to make use of this liberty to disenfranchise that the Supreme Court has given them.
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Unknown Legal Commentator
James Comey allegedly threatened the life of the President of the United States.
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86, you know, in 86 it's a mob turn for kill him.
- [02:00]
Barbara McQuaid
You know, Todd Blanche is not only more skilled, but more willing to be ruthless.
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Unknown Legal Commentator
There's been a tremendous amount of investigation and how do you prove intent?
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Barbara McQuaid
In any case, he has demonstrated a level of ruthlessness and a willingness to file charges, even if he's got to know they're going to fall flat eventually.
- [02:20]
Dalia Lithwick
This has been a very bad week for American democracy, another very bad week, and also an exceptionally bad week on its own terms. Last Saturday night, a man from California allegedly attempted to assassinate the president and members of his administration, endangering thousands at the White House Correspondents Dinner. Thankfully, no one was killed. But the stochastic violence that permeates American politics ticked up another notch on this one way ratchet. Late Monday, what can only accurately be described as Trump's personal Justice Department filed a motion that sounded as though it had been dictated word for word by the president himself, railing against, in all caps naturally, Trump derangement syndrome and the fake National Trust for Historic Preservation that is currently attempting to block his White House ballroom vanity project in court. On Tuesday, Trump's personal law firm, formally known as the Department of Justice, also announced a second indictment of former FBI Director James Comey for a year old since deleted Instagram post of a seashell formation in the shape of the numbers 86 and 47, a credible threat of bodily harm to the president, apparently. And on Wednesday morning, in announcing its decision in Louisiana v. Cala, the Supreme Court took a wrecking ball to whatever remained of the jewel in the crown of civil rights legislation, a voting Rights act that countless Americans fought for and indeed died for. This will seed the ground for a massive and historic decrease of black representation in government on the theory that the Reconstruction Amendments, the Voting Rights act, and the Congressional reauthor authorization of that act meant the precise opposite of what they intended. If you haven't listened to my interview with Janay Nelson of the NAACP Legal Defense Fund yet, she argued Calais, you can hear it in full by joining us@slate.com amicusplus later on in the show, we're going to talk to Medeva Denny, our friend and author of the book the Originalism Trap. She's also deputy editor and senior contributor at Balls and Strikes. And we're going to talk about what happened in Calais. And Madiba will stick around and join me in the Amicus plus bonus episode to discuss how the very same day the court halted a key tool in constituting multiracial democracy, the justices heard a case about how racist the president has to be to be considered a racist. If you are feeling despondent, we understand, we do. But returning to our guiding principle here on Amicus that legal knowledge is power, we are going to dig into some of this mess with one of the clearest legal minds that I know. Barbara McQuaid is a professor at the University of Michigan Law School, where she teaches criminal law and national security law. She's a legal analyst for NBC News and MSNow. From 2010 to 2017, Barb served as the U.S. attorney for the Eastern District of Michigan. Her new book, the Fix Saving America from the Corruption of a Mob Style Government comes out on June 2 very soon. It is available right now for pre order. Barbara Congratulations on the book. Welcome back to the podcast Save Me, Save Us All.
- [05:58]
Barbara McQuaid
This is a rough week, Dalia. I don't know that I've got a lot of hope to offer you today, but hopefully as we have a conversation, we can offer some glimmers of hope out there because I Think all is not lost, even though we are in some pretty dark times.
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Unknown Host or Interviewer
So I want to start, if we might, where your book starts, which is just mobbed up behavior. The Department of Justice acting as a personal protection racket and also a just
- [06:23]
Dalia Lithwick
personal vengeance machine for the current president.
- [06:26]
Unknown Host or Interviewer
On Tuesday, the Justice Department indicted former
- [06:29]
Dalia Lithwick
FBI Director Jim Comey again, this time
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Unknown Host or Interviewer
for posting an image on Instagram last spring showing seashells. I want to say that again, seashells arranged on a North Carolina beach to
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Dalia Lithwick
depict the numbers 8647. Comey, to be clear, later deleted that post. Now he's being charged with two counts, one alleging that he intended to do harm to the president President, the other
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Unknown Host or Interviewer
for digitally transmitting this alleged threat.
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Dalia Lithwick
So before we do anything else, can you just describe to me what the government would have to prove to show that 8647, you're going to explain to me what that means was a true threat to take the life of and inflict bodily harm upon President Trump?
- [07:20]
Barbara McQuaid
Well, I don't know that they're going to be able to do that. You, I'm sure, will recall, Dalia, that in 2023, the Supreme Court dec the case of Counterman versus Colorado, and that's the most recent explanation of what is a true threat. Of course, this is a delicate balance because we wanna permit political speech, we wanna permit people to say things that are critical of others, even the President of the United States. So a couple of phrases from that case I think are really important to recognize. So one is this idea that to be a true threat, there has to be a serious expression of, of an intent to inflict unlawful violence on another person. And in counterman, they said the individual uttering it must have a mens rea of at least recklessness. By that standard, it seems almost inconceivable to me that anyone could believe that 8647 was this serious expression of an intent to do unlawful violence to President Trump. And I think not only do we have the shells and the photo that Jim Comey posted, along with the words something like interesting arrangement of shells on my morning beach walk, or something like that. When he was interviewed the next day by the Secret Service, he immediately said, I had no idea people perceived those numbers to be a threat of violence. I reject violence in every form. And I am taking that down to find 12 jurors unanimously beyond a reasonable doubt that that amounted to this ser of an intent to inflict unlawful violence on someone, I think is just a far fetched legal theory.
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Unknown Host or Interviewer
So let's just spell it out. 86 means you wrote a whole piece about this. In restaurant parlance, it means cancel the bacon double cheeseburger. Like, it means, you know, the Mac
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Dalia Lithwick
and cheese no longer wanted.
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Unknown Host or Interviewer
It does not mean, I don't think murder a person.
- [09:24]
Dalia Lithwick
47, obviously, is this president, but Trump believes otherwise.
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Unknown Legal Commentator
Barb, do you really think that he
- [09:31]
Barbara McQuaid
was endangering your life or threatening your life with that?
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Unknown Legal Commentator
Well, if anybody knows anything about crime, they know 86. You know what? 86, it's a mob term for kill him. You know, you ever see the movies? 86 him. The mobster says to one of his wonderful associates, 86 him. That means kill him.
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Unknown Host or Interviewer
So this is the president explaining to us that he knows that this is
- [09:58]
Dalia Lithwick
in fact an explicit threat of true harm. Your book title is so on the nose here. Like, here is Trump ironically telling us mob language.
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Unknown Host or Interviewer
But is this sufficient to convict the idea that he says, everybody knows this
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Dalia Lithwick
is mob speak for murder the guy?
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Barbara McQuaid
No. You know, one thing I want to mention just about the title of the book about, you know, mob style government. When I came up with this title, you know, like two years ago, it seemed like really insightful and now it's so obvious that this is a mob like government. So I feel like my insights have been exposed by the Trump administration themselves. But no, because as you well know, when you're looking at a crime, what's important is the mens rea, the mental state of the defendant, not the mental state of the victim or purported victim here. The fact that Donald Trump thinks this means to kill somebody, or that this is mob speak for to kill somebody, you have to show that Jim Comey was reckless. That is, he knew that there was a risk that this would be seen as a death threat, and he deliberately disregarded that risk Anyway, in posting this thing, I think based on his statements, based on, I think the common sense of a jury, it's going to be very difficult for them to believe that he intended to communicate a death threat. As you mentioned 86 to me, you know, it's from the restaurant business. You can tell Donald Trump, despite the fact that he's involved in the hospitality industry for most of his career, never worked as a waiter, because I think anybody who's ever worked in a Restaurant understands what 86 means. Cancel the order or we're out of that item. It's 86. It is capable of so many different interpretations. And I think the other thing, Dalia, that's gonna be really important here is I think Jim Comey is going to have a very strong argument for selective prosecution. That's an argument that gets tossed around a lot. It's rarely granted because it's very difficult to prove what selective prosecution requires. It's a violation of due process. But what you have to show is that the basis of the charges was not a legitimate law enforcement basis and that other people who were similarly situated were not prosecuted. And it's that second prong that can be so difficult to prove, because how do you find people who did the same thing who were not prosecuted? It's very difficult. It's like the dog that didn't bark. But here, here we've got a plethora of examples. Jack Posobiec is seen saying 86 46. That, of course, is Joe Biden. I don't recall any prosecution of him. If you go on Amazon today and search for 8647 or 8646, you will see shirts and hats and bumper stickers and all kinds of things. Nobody is suggesting that Jeff Bezos be charged with a crime for offering these items on Amazon. And so I think for that reason, we are going to see a very strong argument. In fact, if I can give you just one more example, Trump himself posted online a photo of that truck bed, remember, from 2024. This is while he was a candidate for president and Joe Biden was running against him. A picture of, like, Joe Biden, like, bound and gagged, that looked like he was in the back of a pickup truck. Trump posted that, you know, sort of like cheering them on. And so I think for that reason, we are going to see this fall flat, even if we don't get into the First Amendment arguments, which is another basis. I think prosecution argument is very strong in this case in a way. It just isn't in most other cases.
- [13:33]
Dalia Lithwick
Barb, can you talk for one quick second about the fact that it took almost a year? Right.
- [13:39]
Unknown Host or Interviewer
You mentioned the Secret Service interviewed Comey immediately thereafter.
- [13:46]
Dalia Lithwick
Keshe Patel had a very, very weird
- [13:48]
Unknown Host or Interviewer
statement in which he was like, hey, you know, here's some stuff that happened before the grand jury.
- [13:54]
Unknown Legal Commentator
James Comey allegedly threatened the life of the President of the United States. And as you all now know, shortly after posting that threat, he deleted that threat and then issued an apology. All of that information was presented to the grand jury, and Mr. Comey will have his day in court and his ability to speak to a jury of his peers. Thank you.
- [14:16]
Unknown Host or Interviewer
It just feels as though every piece of this is just horrible lawyering from the Justice Department.
- [14:23]
Barbara McQuaid
Yeah. I mean, you know, Keshe Patel is the king of the Keystone Cops when it comes to competence on some of these kinds of things, including here, where this is arguably a violation of Federal Rule of Criminal Procedure 6e, which prohibits the disclosure of matters occurring before a grand jury. I don't think we're going to see a prosecution of it, not in this administration and probably not in any administration. It's not a harmful disclosure, but it is a clumsy disclosure to say, hey, look, the grand jury heard this story that Jim Comey said. So in other words, we presented the exonerating evidence and they still returned an indictment. I wonder why he mentioned that. It strikes me as potentially an effort to cut off an inquiry into the grand jury transcripts themselves. You may recall when Lindsey Halligan indicted Jim Comey back in the fall, there was all of this strange irregularities about she left the room at 4:30 and then they didn't come back until 6:30. And maybe they voted on a document that was different from the one that she presented to them, and the judge ordered the disclosure of the grand jury transcripts. And so perhaps, in an effort to get ahead of that, that is why Patel decided strategically to mention this thing, to say, look, we're gonna tell you right up front that we told the grand jury this thing, and we still got probable cause. But with regard to the duration of time between the events in May of 2025 and April of 2026, when these charges are filed, 11 months. What possible additional investigation could have been done during that time? And Patel and Blanche both said that we were undertaking additional investigation. And all that time they had the photo on the day it. They interviewed him the very next day. It's hard to imagine what additional evidence they were looking for for this case unless they were searching Jim Comey's communications to find some other evidence that he intended to kill the president, which I can't imagine bore any fruit. I saw a cartoon today, Dalia, that strikes me as the kind of work that they may have been doing, which is a cartoon depiction of Todd Blanche questioning a witness, saying, isn't it true that you saw the shells that Jim Comey arranged? And that witness is SpongeBob SquarePants. So that is about the kind of investigation I expect to have been done. But I think what's telling about that duration of time is if they really thought this was a serious crime, they would have charged him the next day after this thing was posted. Maybe they wouldn't have interviewed him and tried to find out did he Mean to follow through on this? Did he mean to communicate a threat? You know, it seems like it went nowhere because it should have gone nowhere, but if they really thought it was a serious threat, they would have gone after him then. Instead, they went after him in the fall with this false statements charge, which, of course was baseless. It fell apart on procedural grounds, but that was going nowhere either. On substantive grounds that failed. So now it was sort of, well, what else do we have on Jim Comey? And I can't help but think that the timing of this attempted assassination of President Trump at the White House Correspondents Dinner didn't give them perhaps an opportunity to exploit. Ooh. While the country is acutely aw. That there are risks to the life of the President, that this is the moment we should spring these charges on the public, because that will show that Jim Comey is all part of this, you know, reckless effort to put the President's life at risk. So it's a very cynical view. Perhaps. But my positive take is this case is going nowhere.
- [17:47]
Unknown Host or Interviewer
No such thing is too cynical. For amicus. To be clear, I need to stay
- [17:52]
Dalia Lithwick
on Todd Blanche for one more moment,
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Unknown Host or Interviewer
because when he was asked, how will
- [17:58]
Dalia Lithwick
you prove this was your point men? How will you prove intent?
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Unknown Host or Interviewer
When Comey said he didn't associate 86
- [18:05]
Dalia Lithwick
with doing harm and he took it down promptly, this is his answer. It's so gorgeous.
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Unknown Legal Commentator
How do you prove intent? In any case, you prove intent with witnesses, with documents, with the defendant himself, to the extent. To the extent it's appropriate. And that's how we'll improve intent in this case.
- [18:21]
Unknown Host or Interviewer
This is exactly what you just said, Barb.
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Dalia Lithwick
Right.
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Unknown Host or Interviewer
Like, who are they interviewing to show the. That, like, a photo of shells on a beach represents the intent to harm the President. And I raise it only to make the point that you've made actually, in
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Dalia Lithwick
writing about Todd Blanche. You've said he's potentially much more dangerous than Pam Bondi.
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Unknown Host or Interviewer
And I'd love to hear why Trump, like, explicitly said to Pam Bondi, maybe we were supposed to consume it or not. Like, I need you to do a
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Dalia Lithwick
better job of indicting the people that make me.
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Unknown Host or Interviewer
Ma. Blanche seems quite aggressively, A, to be
- [19:05]
Dalia Lithwick
auditioning for the AG job, but B,
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Unknown Host or Interviewer
he seems to be much less constrained by, like, whatever the thing was that once constrained Bondi, he's going for it.
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Barbara McQuaid
Yeah. The reason I said he may be more dangerous is twofold. One is, you know, Pam Bondi was the Attorney General of Florida, a substantial job, a job that requires some management, but it you know, she's an expert in Florida state law. Todd Blanche came up through the federal system. He was an Assistant U.S. attorney in the Southern District of New York, which is a very fine office. He then worked in some large, big law, very reputable law firms. And so I think his legal skills and experience give him some potency there that perhaps Pam Bondi lacked in navigating the criminal justice system. But I also think he has demonstrated a level of ruthlessness and a willingness to file charges, and even if he's gotta know they're gonna fall flat eventually. And, you know, this has always been Trump's M.O. right? He can kind of win by losing. And so even if you file charges against Jim Comey or the Southern Poverty Law center or try to charge members of Congress for creating a video that just says what the law requires, even if you are ultimately unsuccessful, you can show the president that you're in there fighting for your guy. You can show the MAGA base that you are there representing their interests, and then you can blame some woke jud for not seeing the case your way. And so it's an absolute abuse of power. It's unethical. You know, the principles of federal prosecution that govern the Justice Department say that prosecutors should bring a case only if they believe the evidence is sufficient to make it probable that they can obtain at trial and sustain on appeal a guilty verdict. And it's hard for me to believe, if I could get into Todd Blanche's brain for just a moment, that he really thinks that it's just so baseless in this case, along with the Southern Poverty Law center case, that I can't conclude anything other than that he just doesn't care that he's willing to lose because he can win by losing.
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Dalia Lithwick
I'm trying to parse whether you're saying that Pam Bondi cared.
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Unknown Host or Interviewer
I don't think she cared a lot. But I think you're saying he's also
- [21:22]
Dalia Lithwick
just really savvy, like he's got a better skill set for not caring and executing. Is that.
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Unknown Host or Interviewer
Am I overreading?
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Barbara McQuaid
I think a little of both. I mean, I think that he's got the. Certainly the skill set, having come up through the federal system, of perhaps knowing where he can bring cases. But I also think he, having seen what happened to Pam Bondi, she got fired. Obviously, Donald Trump wanted successful charges against other people and more charges. We have not yet seen charges against Adam Schiff, for example. We have not yet seen the grand conspiracy come to fruition. Fruition. And so maybe he perceives that Todd Blanche is not only more skilled, but more willing to be ruthless.
- [22:02]
Dalia Lithwick
You mentioned the case against the Southern Poverty Law Center.
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Unknown Host or Interviewer
Can you just briefly explain, Barb, what
- [22:09]
Dalia Lithwick
the Justice Department is charging here and
- [22:12]
Unknown Host or Interviewer
why you think the case will fail and why it's just so worrying, even
- [22:16]
Dalia Lithwick
if it's doomed to fail?
- [22:18]
Barbara McQuaid
Well, this too is a criminal charge against the Southern Poverty Law center, one of the most well regarded civil rights organizations in America. And the charge is that that organization defrauded its donors when it claimed that it was in the business of dismantling racist groups, hate groups like the KKK and the Aryan Nation. And their theory is that the Southern Poverty Law center made payments to individuals it calls field operatives and that that that itself was fraudulent. It seems to me that this is one of those things where you can get the indictment out the door and try to disparage the reputation of the Southern Poverty Law Center. But I can't imagine this theory is going to hold water. Because you know, what the Southern Poverty Law center itself has said is, do we pay informants? You bet we do. That's how we dismantle these hate groups. We have people on the inside. It's the same thing the FBI does. You can't take down groups unless you have somebody on the inside. And so. So you bet we paid these informants who shared information with us, and guess what we did with it? We shared it with the federal government, we shared it with the FBI, and they know that we did that. And so the idea that they were defrauding donors by making these payments, I think unless they've got evidence that they were in fact supporting and creating the kinds of commotion that was furthering the interests of groups like the kkk, then this fraud theory is just not gonna hold water. And this does seem to be the theory. Todd Blanche said in these charges that the Southern Poverty Law center was manufacturing racism to justify its own existence. Manufacturing racism? Well, number one, I don't think anybody has to do that. But that's the theory. This is like the white supremacist dream, right? Fantasy that there's no racism, they're just creating it themselves so that they can ride to the rescue and be the heroes and, and attract donations for their noble cause. If they've got evidence of that, then let's see it. But it seems far fetched to me. What seems more likely is what the Southern Poverty Law center has said, which is we pay informants to do this. And so this is the kind of case that may have to go to trial. For the facts to come out. But I'd be very surprised if the Justice Department has the evidence to back these claims.
- [24:45]
Dalia Lithwick
More in a Moment with Barb McQuaid. This episode is sponsored by BetterHelp. May is mental Health Awareness Month and I want you to remember that whatever you are going through, you just don't have to go through it alone. Whatever's keeping you up at night, it's easy to feel like you have to figure everything out all on your own. But the truth is, nobody has all the answers and no journey should be taken alone. Having someone with you to listen, to, understand, to support you can make all the difference. And let's be honest, it is really hard to be in the world right now. It's hard to sleep, it's hard to eat, it's hard to take care of your kids. So please remember that Mental Health Awareness Month is in May and it's an opportunity to check in with yourself and to understand where you are and what you need. Better Help Therapists work according to a strict code of conduct and are fully licensed in the US BetterHelp does the initial matching work for you so you can focus on your therapy goals. A short questionnaire helps identify your needs and preferences and their 12 plus years of experience and industry leading match fulfillment rate means they typically get it right the first time. If you aren't happy with your match, you can switch to a different therapist at any time. With over 30,000 therapists, BetterHelp is the world's largest online therapy therapy platform, Having served over 6 million people globally and it works with an average rating of 4.9 out of 5 for a live session based on over 1.7 million client reviews. You don't have to be on this journey alone. Find support and have someone with you in therapy sign up and get 10% off@betterhelp.com Amicus that's betterhelp.com Amicus so there's a podcast that I think you might really enjoy. It's called Break Fake Rules, Change Big Giving for Good. Hosted by Glenn Galich, the show examines the fake rules, the seemingly immutable rules that hold systems in place that then shape the flow of charitable money and thus power and thus change in America.
- [26:55]
Unknown Host or Interviewer
And it really, really asks which of
- [26:57]
Dalia Lithwick
those rules we must break in order to secure a better future for everyone. So if you care about how extreme wealth shapes or distorts the shape of society, and if you're asking yourself how to fix it, this is the show to listen to. I've checked out you Can't Fight Autocracy by the Spoonful with my dear friend Sky Pearman going deep on this question of how the intersection of big money and big change can in fact be revisited. To listen to Break Fake Rules Search for Break Fake Rules in your podcast app. That's Break Fake Rules.
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- [29:06]
Dalia Lithwick
Let's return now to my conversation with Barb McQuaid. I have to stay on the flim flammery if that's a legal word of Todd Blanche for one more beat, Barb, because I have to say it took
- [29:18]
Unknown Host or Interviewer
my breath away that ballroom lawsuit and putting his name. Other Justice Department folks put their name on a pleading that like with all due respect, looks like they like copied and pasted a truth social all caps like screaming rant. Can you first maybe before we get into why why why you would sign
- [29:43]
Dalia Lithwick
off on that litigation.
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Unknown Host or Interviewer
Can you tell us briefly what is happening in Ballroom Gate?
- [29:49]
Barbara McQuaid
Yes, so one of the organizations for historic preservation has filed a lawsuit to block the building of the ballroom and it's in that lawsuit that on the day after the White House correspondence dinner, I guess it was the Monday after Todd Blanche and others at the filed a motion with the court and a letter to the opposing side saying, this incident over the weekend demonstrates why we need this secure ballroom, and we think that this historic preservation organization ought to withdraw its lawsuit. But then it went on to say that they suffer from, as you said, Trump derangement Syndrome. It had the random capitalized letters. I mean, this did not look like a polished legal brief. And as I said before, or you can criticize Ty Blanche for a lot of things, but he can write a brief. And the idea that he's doing the random capitalization and the name calling and even making reference to Trump derangement Syndrome, I mean, this clearly is intended for Trump himself to get his approval. It is not going to get the attention of your opposing counsel, and it is most certainly not going to be viewed favorably by a judge. And so this is clearly an effort to amp up Trump and the MAGA base and try to make the political case that that the assassination attempt on Donald Trump is why we need this ballroom, to keep him safe. Now, of course, that's a ridiculous premise because it suggests that people only come to the president. He never goes anywhere else, that he should be sequestered in this fortress. The White House Correspondent's Dinner was not his gig. This was a private event to which he was invited. Your choices are go or don't go. It's not, let's all have it over at my place. And the idea that a president would stay confined to the White House and not travel to political conventions, which, of course, are held in convention centers all over the country, or would not attend a political rally all over the country in swing states, is absurd. So I just think it doesn't make that point. But, you know, in the old words of Saul Alinsky, the community organizer from Chicago, never let a good crisis go to waste. And so, while the country is feeling very mindful of the genuine risk that a president faces of assassination, let's jump on that moment and now justify this ballroom. That has never been about this. It's always been about the grandiose dreams of Donald Trump.
- [32:04]
Dalia Lithwick
So I should note that our colleague
- [32:06]
Unknown Host or Interviewer
Sharon Ali wrote about the ballroom obsession
- [32:10]
Dalia Lithwick
this week for Executive Dysfunction, that Slate's newsletter that surfaces under the radar stories about what Trump is doing to the law, how the law is pushing back. You can Sign up@slate.com dysfunction for weekly dispatches.
- [32:25]
Unknown Host or Interviewer
But, Barb, I think I'm hearing you say Blanche was just willing to put.
- [32:30]
Dalia Lithwick
Put his name on a bunch of, like, complete crazy pants, because there's no consequences.
- [32:37]
Unknown Host or Interviewer
And it raises the question for me, how can there be no consequences? And we've talked about all these DOJ
- [32:44]
Dalia Lithwick
lawyers who have stood up in front of judges and been sort of called out and told that they're not believed. I mean, massive, massive damage at every level to the Justice Department.
- [32:58]
Unknown Host or Interviewer
But is there just truly no way to hold the acting Attorney General to account for conduct that is by every measure intolerable under the rubric of how DOJ operates?
- [33:17]
Barbara McQuaid
Yes. And as somebody who spent almost 20 years of my professional career at the Justice Department, it's really heartbreaking to see this complete disparagement of the reputation of the Justice Department, which once stood for something, you know, decency, honor, or care. The rule of law. I know many judges would say, the first thing I do in a case is I read the government's brief because I know they're going to give it to me straight. They're going to tell me what the issues are. It's not going to be shaded or slanted. I'm going to know the facts. And then from there, I'll read the other arguments because I'll have a good baseline that I can trust. That's just out the window. I mean, Todd Blanchett is taking the fun out of dysfunction. It's shameful. And in terms of, is there any check? I guess if I walk through the various checks available, one, criminal charges for, you know, malicious prosecution and other kinds of things, this administration isn't going to charge him with any crimes. At the end of this administration, I imagine President Trump will give prospective pardons, blanket pardons, to many of the people in his administration, potentially state charges. Those are going to be very difficult to prove, I think, for matters occurring in federal court, civil matters. Can you sue him civilly for depriving you of your civil rights? Maybe. But that brings with it immunity. It's only a qualified immunity. It's not absolute. But typically, if you're acting within the scope of your duties, it's pretty easy to be able to stand behind some sort of immunity. That leaves us with one other thing, which is disbarment. It doesn't seem like there is any tomorrow for many of these administration officials. You know, it's a you only live once kind of mentality. But we've seen with people like John Eastman and Sidney Powell and Rudy Giuliani that ultimately they can lose their bar licenses. For some of those individuals who are, are nearing or at retirement age anyway. Maybe they don't care. But Todd Blanche is a young enough man, I would think, to hope to have career aspirations beyond this. But I suppose if every time there is a consequence for your actions, you simply blame the other side as having Trump derangement syndrome, you can undermine the credibility of anyone who tries to check your power. But I imagine that's the real consequence here. But perhaps Todd Blanche is not worried about that and believes that with the, the billions in wealth that the Trump family is accumulating during this second term that he will be taken care of.
- [35:37]
Unknown Host or Interviewer
We've talked about one sort of half of the mob dut scenario which is going after your enemies, but the other half has to be rewarding your friends. And a few weeks back, President Trump promised his top administration officials pardons before he leaves office. I think the quote that I read was, I'll pardon everyone who has come within 200ft of the oval. So this is the corollary, right of vindictive, relentless, serial, frivolous prosecution. This is anyone who does what I say is going to get pardoned. And can you just to the extent that there's any legal basis for preemptive forward looking pardons for anyone who came within some distance of the oval.
- [36:27]
Barbara McQuaid
Like what, what name? Yeah. So, you know, the pardon power doesn't have a whole lot of guardrails around is something that the President has. The idea is that it is there to allow the President to exercise mercy, especially when a person has shown remorse for committing a crime. When I was at the Justice Department and for all the decades before that, there was an office of the pardon attorney and they looked at applications for clemency, whether that was a full pardon or a commutation of sentence. And they looked for way that the person had expressed remorse, had become a contributing member of society, and for uniformity, they typically required that a person be convicted of their crime, serve their sentence, and at least five years passed since their release so that they could demonstrate that they had turned a new leaf and that would be the basis for a pardon instead. What we're seeing now is President Trump using it preemptively and blanketly as sort of a get out of jail free card to enable people to commit crimes on his behalf. And I don't think that is the way the founding fathers intended it when they designed it, but I don't know that there's much of a check on it. You know, we saw Gerald Ford give a pardon to President Nixon. Of course, back then we thought presidents could actually be Convicted of crimes. Dalia. How naive.
- [37:50]
Unknown Host or Interviewer
So young. So young.
- [37:53]
Barbara McQuaid
Until the Supreme Court, of course, ruled that presidents are immune. Um, he gave kind of a. One of these generic. Now it was after the fact, but he said it was a pardon for anything Richard Nixon had done or may have done that would constitute a crime. So that kind of expanded the definition and our understanding a little bit of what a pardon could be. And then we saw Joe Biden pardon Hunter Biden and Some others, like Dr. Anthony Fauci, for fear that President Trump would make good on his threats to go after these people out of vengeance. And so, so I see now supporters of President Trump point to that. Point to what Joe Biden did to say, well, they did it, and so it's only fair that President Trump do it as well. But, of course, the political climate of the end of Joe Biden's administration was of a successful candidate for president vowing revenge on some of these people, you know, people like Liz Cheney, simply for serving on a committee that investigated the attack on the U.S. capitol. And so I think what Joe Biden did was. Was correct and appropriate to protect those people who were doing their duty and would perhaps be charged for doing it. I mean, you know, if Jim Comey had gotten one of those, we wouldn't see these nonsensical charges. If Liz Cheney hadn't gotten one, you can bet she'd be charged with a crime today. And so I think that between Gerald Ford and Joe Biden has now given President Trump a hole to drive a truck through, and that is what he will do. And I don't know that there's any way to check him from giving pardons to everyone in his administration.
- [39:26]
Dalia Lithwick
Just parenthetically, let's all recall, under the 8,000, 647 rubric, that didn't Trump say of Liz Cheney that there should be guns trained on her face?
- [39:38]
Unknown Host or Interviewer
Like, it is amazing how many things don't amount to actual threats. But okay, just.
- [39:46]
Barbara McQuaid
Oh, he thought General Mark Milley should be executed, right? But yawn, yawn. Political rhetoric, Rick. Oh, you know Trump. That's just Trump being Trump.
- [39:54]
Unknown Host or Interviewer
He's funny when he does it.
- [39:56]
Dalia Lithwick
It's funny.
- [39:57]
Barbara McQuaid
He's hilarious. Can't you take a joke?
- [39:59]
Unknown Host or Interviewer
So I do want to talk about
- [40:01]
Dalia Lithwick
Calais for a minute, which came down on Wednesday. We broke it down in depth on
- [40:08]
Unknown Host or Interviewer
the show when it came down. We're going to talk to Madiba Denny
- [40:11]
Dalia Lithwick
about it in a second.
- [40:12]
Unknown Host or Interviewer
But I did hear voting rights expert
- [40:15]
Dalia Lithwick
Rick Hassan suggest for the first time
- [40:18]
Unknown Host or Interviewer
this week that maybe he might be
- [40:19]
Dalia Lithwick
open to serious structural Supreme Court reform.
- [40:24]
Unknown Host or Interviewer
I'm hearing a lot of people who really, really didn't want to say the sentence.
- [40:31]
Dalia Lithwick
I think we have to add seats to the court. Start to talk about adding seats to the court.
- [40:37]
Unknown Host or Interviewer
I'm old enough to remember people saying
- [40:39]
Dalia Lithwick
this after Dobbs came down, to be clear.
- [40:41]
Unknown Host or Interviewer
But you do raise this in your book. And I guess I'm really curious about, about whether and how people cross that line into okay, this is not a legitimate court.
- [40:53]
Dalia Lithwick
This is a court that was seated for one purpose. It is doing that work. What needs to change, can it change in our lifetime?
- [41:01]
Unknown Host or Interviewer
And I'm just curious about where you are on the spectrum of court packing. Curious court packing, excited court packing advocate. Tell me how you're thinking about this, because I think a lot of people who weren't there a week ago seem to be there now.
- [41:18]
Barbara McQuaid
Yeah, it's so interesting, isn't it? I have always been an advocate of good government. And regardless of party, what matters most is good government. And there'll be times when one party controls versus another, but what goes around comes around and the other party will have its turn as well. And that is, you know, how we survive as a healthy democracy. Sometimes one side wins, sometimes one loses, and you regroup and you win the next election. I think that Republicans have operated not as advocates of good government for the past few decades, but as advocates of winning and doing anything necessary to win to improve. More seats in Congress, more seats on the court. Look at the way we saw the votes which Mitch McConnell gave when there were empty seats and his complete hypocrisy when it was the seat that belonged to Antonin Scalia versus when it was the seat that belonged to Ruth Bader Ginsburg. Complete hypocrisy about those kinds of things. And so I am feeling a little closer to maybe Democrats need to stop worrying about good government and just start talking about winning. But I also think that in addition to the court, one of the things we really need to take charge of is the way we elect our members of Congress because it's only going to get worse now with gerrymandering. And I think that if we had true races around the country as opposed to these decidedly red, decidedly blue seats and now growing number of decidedly red seats, it is going to leave us in this situation where we're always facing an enablest Congress for a Republican president. And so what I'd rather see perhaps is an effort to improve the representation in Congress. So one idea that I express in the book Is of course ranked choice voting. When there's ranked choice voting, we sort of weed out some of those extremists. You know, the way that people like Thom Tillis and Liz Cheney get a gun held to their head. Figuratively, Todd. Blanche, I'm only speaking figuratively. Don't charge me with nothing to kill somebody.
- [43:11]
Unknown Host or Interviewer
No shells were harmed in the making of this pod.
- [43:15]
Barbara McQuaid
You know, they'll be told they'll be primaried by somebody who is even more extreme, who's farther right or farther left. And so ranked choice voting is a way to reduce the success of the extreme candidate. Lisa Murkowski, I think is a good example of that. Elected to the Senate in Alaska, where they have ranked choice voting and able to defeat people who are more extreme. There are also ideas afloat to increase the size of Congress so that individual districts are not represented by only one member, but multiple members. And so that would give, you know, a district that may be represented by a Republican now based on a vote of 60% Republican votes and 40% Democratic votes in a district, if you expand it to five now they've got three Republicans and two Democrats who are representing that district. And so instead of a winner take all on an issue, there is more moderation on an issue. I think those are some of the issues that are worth exploring to make our Congress more meaningful. Congress is where the action is supposed to be, right? Congress is in Article 1. They are supposed to be most represented of the will of the people. It took King Charles to come in and tell us about the importance and the value of a Congress on checking executive power. So maybe, you know, you're more of an expert on the court than I am, but maybe some of this power can come from a Congress so that when you get a case like Calais, Congress can come back and enact new legislation that might correct or fix what they broke.
- [44:37]
Dalia Lithwick
I love what you're saying because it's a curative to the slight nihilism post Calais, which is now even voting. Voting doesn't help us.
- [44:47]
Unknown Host or Interviewer
And what you're saying is we have
- [44:48]
Dalia Lithwick
to really think very hard about how we vote. And that too can be repaired.
- [44:53]
Unknown Host or Interviewer
Listen, we started this conversation a little doomy, a little gloomy, and yet Friday
- [45:00]
Dalia Lithwick
was law day next to Constitution Day in the fall, the only other day dedicated, as best I know, to celebrating
- [45:07]
Unknown Host or Interviewer
the rule of law. Stop and think about the fact that there are more whites than than there are law days. But it's okay. That's good. Your book is not just a diagnosis of the mobbing. Up of America and all the ways
- [45:23]
Dalia Lithwick
we've just talked about your book is a prescription for what needs to happen next.
- [45:28]
Unknown Host or Interviewer
You've talked a little bit about that, but I think we got a lot of listeners here who are really feeling
- [45:35]
Dalia Lithwick
disempowered and a little bit gut punched
- [45:39]
Unknown Host or Interviewer
by Calais and by seemingly utterly immune
- [45:45]
Dalia Lithwick
to the dings and pings of lawfulness. Justice Department.
- [45:50]
Unknown Host or Interviewer
Can you tell us what some of
- [45:53]
Dalia Lithwick
your fixes are and maybe more urgently, Barb, because you think about this harder than most people.
- [46:00]
Unknown Host or Interviewer
What the kinds of folks who are
- [46:02]
Dalia Lithwick
listening to this show who are feeling
- [46:04]
Unknown Host or Interviewer
like, wow, if you can get charged for shells on a beach, like, what can I possibly do? What can people possibly do, not just on law Day, but, you know, every
- [46:19]
Dalia Lithwick
day to try to correct the ship? Because you're not hopeless.
- [46:24]
Barbara McQuaid
No, I'm not hopeless. I think there's a lot of things that we can do. I mean, one of the things, you know, the book talks about a lot of institutional things, guardrail things that will require Congress or others to move into that space, but things that ordinary people can do. One of the things that concerns me most is how much money there is in politics. It can be very difficult to organize when your opponent has millions of dollars coming in, dark money through PACs. But there's still more of us than there are of them. I think about who won the popular vote in the last several elections. We the people do have the power to organize and get out and vote, even in the wake of Klay. And so I think it's always been so encouraging to me to see the people who are showing up, for example, at the no Kings protests. I know sometimes people say, what value does that have of showing up and shouting into the void? But it has very important value because there are other people on the sidelines who will see this show of protest and say, wow, what is it that has them so angry and will cause them to look into things. I also think that it is really important that those of us who are in the fight see others out there. We can really be galvanized by seeing other people. Are you preaching to the choir? Maybe. But sometimes the choir needs a little boost. And so I think showing up in those kinds of things can be very persuasive. I also take a lot of optimism from what happened in Minneapolis. Now, of course, we had the tragic deaths of Renee Goode and Alex Preddy, but ultimately the people of Minneapolis won. When ICE agents were there and those protesters showed up peacefully, they showed up in the bitter cold that was inspiring, I think, to all of us. And ultimately they succeeded. And we saw ICE withdraw and de escalate and we saw the end of the CBP Commander Greg Bevino, who was the most aggressively leading that charge into his forced retirement. So that tells you that when popular opinion goes against an administration and it is showing out and showing up an administration's policies, they will react and change. And, and so I think all of us have the ability to do that. We need to talk to our friends and our neighbors and explain what we are seeing. Because I think too many people say, you know, I'm disgusted by it all. I'm just going to throw up my hands and focus on the things I can control like my family and my job and the rest of it is beyond me. And I'm just going to watch, you know, Celebrity Bachelor Apprentice on TV and watch my sports team and talk about the weather and my dog. That's all great, except we can't be disengaged because that's what an authoritarian wants. A disengaged populace is the antithesis of a democracy. And so we need to stay engaged and remind our friends and neighbors that we have tremendous power in a democracy. We just need to use it.
- [49:16]
Unknown Host or Interviewer
You know, one of the, to the
- [49:18]
Dalia Lithwick
extent that there can be a silver
- [49:20]
Unknown Host or Interviewer
lining from Calais, it's that in states that value a fair vote, and this goes back to, you know, what you said about representative democracy, seeing that the fix is in could create a massive backlash. And we've seen this in multiple sort of different areas where you try to take away people's right to vote. People react really badly to being told
- [49:49]
Dalia Lithwick
that the fix is in.
- [49:50]
Unknown Host or Interviewer
And so maybe, maybe to the extent that we can message KLA and I haven't really thought about it until we've spoken right now, but do we agree to having the fix be in like we don't have to. And maybe that's kind of the slight filament of how to talk about this case going forward. Barbara McQuaid is professor at the University
- [50:11]
Dalia Lithwick
of Michigan Law School. She teaches criminal law, national security law. She's a legal analyst for NBC News and MSNow. And from 2010 to 2017 she served as the U.S. attorney for the Eastern District of Michigan. Barb's new book, the Saving America from the Corruption of a Mob Style Government will be out June 2, published by Seven Books.
- [50:35]
Unknown Host or Interviewer
You should be pre ordering it right now. Barb, I really want to thank you
- [50:40]
Dalia Lithwick
both for the book and for coming here.
- [50:43]
Unknown Host or Interviewer
You are crystal clear in a moment
- [50:46]
Dalia Lithwick
where There's a lot of Merc and I am insanely here for it. Thank you.
- [50:50]
Barbara McQuaid
Thank you Dalia. Always appreciate being on your show and listening to it. It's words of honor, wisdom.
- [50:59]
Dalia Lithwick
We're going to take a short break and when we come back, the voting rights repercussions of the Supreme Court's reckless decision in Calais. That's after these messages. This episode is brought to you by Choiceology, an original podcast from Charles Schwab. Ever wonder why we make the choices we do and how to make smarter ones? Join Wharton Professor Katie Milkman, an award winning behavioral scientist and author of the best selling book how to Change, as she shares true stories from Nobel laureates, authors, athletes and everyday people about why we do the things we do and how to make better choices to help avoid costly mistakes. Choiceology covers the latest research in behavioral science and dives into themes like the power of self control, shaping your mindset for success, navigating new beginnings, and why starting over can feel so hard. Listen to choiceology@schwab.com podcast or wherever you listen. So it is almost summer, and it's also maybe a summer in which there's a lot of financial insecurity in your your life around costs and travel and whether you can even afford to take last year's trip to the lake. So one thing I do feel like I can control in this uncertain moment involves knowing with absolute certainty how much I am spending, how much I am saving and what things cost and what my family can afford right now. Monarch is the personal finance app that tracks everything accounts, investments, savings goals and spend spending. Get your first year of Monarch for half off just $50 with promo code AMICUS. Monarch's personal finance app monitors your savings and spending and investments in a way that is easy to take in and to process in a moment. And maybe the most unexpected gift for me is that it also creates a channel in a shared language so suddenly you and your partner can just track your spending, set your budget budgets, visualize your mutual financial goals, and do so all in one place. There's no more confusion. There's no more coded language or hidden surprises, just straightforward insights that bring you closer together. And it means that whether you are planning to buy a boat or save for that trip to the lake, suddenly you have a shared set of facts to understand and work toward. Use code amicus@monarch.com to get your first year half off at just $50. That's 50% off your first year at monarch.com with code amicus. It is absolutely okay to feel gutted to the core by Wednesday's decision in Louisiana v. Calais, which upended the constitutional and congressional project to protect multiracial democracy in America from two plus centuries of racist voting practices. Calais all but guarantees a massive and a historic decline in hard fought minority representation at almost every level of government. On Wednesday, the Supreme Court's far right supermajority in a 6 to 3 opinion penned by Justice Justice Samuel Alito, hollowed out what was left of Section two of the storied Voting Rights act while declining to admit what he was even doing. By Thursday, the Governor of Louisiana had declared that primary elections that had already begun in that state would be canceled so new maps could be drawn. Other southern states, including Tennessee and Alabama, have signaled they're also prepared to redraw their maps and Florida just did so as Calais was being handed down. Down. We talked to Janae Nelson of the NAACP's Legal Defense Fund immediately after Calais came down and she called the decision a catastrophe. And I gotta say, with a few days to process it, that almost seems like an understatement. So we're following up today with our friend Madiba Denny. She's deputy editor and senior contributor at Balls and Strikes. She's author of the Extremely Prescient, as it Turns out book the Originalism Trap, How Extremists Stole the Constitution and how we the People Can Take It Back. Thanks for being with us and I am sorry. It just is a really hard week.
- [55:33]
Madiba Denny
I am glad, as always, to be able to talk about this with folks and also absolutely morose and furious.
- [55:42]
Unknown Host or Interviewer
So we're a couple days out from the decision, which was a surprise to nobody who heard oral arguments. But I have to say I'm feeling worse about the ruling in no small part, I think, because we've already seen the race to the bottom begin and it was a dishonest smash and grab piece of craftsmanship by Justice Alito. And it in the end feels like a monarchic court screwing over Congress, screwing over voters, ignoring precedent and just giving itself this monarchic role in every election. How are you feeling?
- [56:20]
Madiba Denny
I think you're right when you said if anything, catastrophe kind of feels like an understatement. Now that it's had a little bit to really sink and assess. You're also correct when you talk about the imperial nature of the court that they are really just doing whatever they want, whenever they want because they believe that they can and that no one will stop them. When I read Calais, my sort of reaction was they are just exercising all Kinds of powers, rewriting laws entirely to what they would have preferred them to say. Taking power from Congress in order to prevent people of color from acting, accessing political power in perpetuity. It's horrendous. It's handcuffing Congress so you can put black people in shackles. It's deeply offensive, lawless ruling that cannot be understood as judging in any meaningful sense. It's just bigotry.
- [57:18]
Unknown Host or Interviewer
I do want to talk about the
- [57:19]
Dalia Lithwick
big picture and how we got here, because you wrote in your book about
- [57:23]
Unknown Host or Interviewer
the mockery of history that was necessary
- [57:26]
Dalia Lithwick
for Chief Justice Johnson Roberts to get
- [57:28]
Unknown Host or Interviewer
to his opinion in Shelby county vs.
- [57:31]
Dalia Lithwick
Holder, where he was able to be like, shrugie emoji.
- [57:35]
Unknown Host or Interviewer
Thankfully, racism is done in America. And so, like, we're all good. And this week it felt like Justice Alito just lifted that banner high, like the same just complete distortion of history from supposed originalists, and then brought it
- [57:53]
Dalia Lithwick
all the way home to end whatever's left of section 2. So can you just walk us through
- [57:58]
Unknown Host or Interviewer
the arc of how we got from
- [58:01]
Dalia Lithwick
the Voting Rights act, the reauthorization of the Voting Rights act, what we thought was a very, very clear way of
- [58:09]
Unknown Host or Interviewer
thinking about this, to Samuel Alito just
- [58:12]
Dalia Lithwick
assuring us that we're all good here.
- [58:14]
Madiba Denny
Alito was really just freestyling in the opinion, much as Roberts was, without regard for the actual historical background, without regard for the actual laws that Congress wrote down. And. And we've seen a lot of assaults on the Voting Rights act over time. So I think that the Calais ruling kind of also has this sense of, haven't you done enough? Please, like, stop kicking. It's already dead. Leave it alone. The first really serious blow to the Voting Rights act was Shelby County. And there we see Roberts simultaneously say that, you know, things are better now. Times have changed. We've had a black president, so sort of whitewashing the actual history while simultaneously inventing a historical standard. He says that, oh, there's this long standing principle of equal sovereignty of the states. So it's really messed up and, like, offensive to that principle that the Voting Rights act treats some states differently than others. It's a defense to their equal sovereignty. That's not a thing. He just sort of said that there's this long history of this, even though there is not, and said that history shows times have changed considerably even though they have. Have not. But by doing this, he hollows out the most innovative section of the Voting Rights act, which said that states and, you know, municipalities, electoral districts that have a history of misbehaving, a bad track record of respecting people of color's voting rights. Said, you can't go changing up your voting policies without running them by someone first. We need to make sure that you are behaving. Now, if we take a look and it looks like legit, you can proceed. If not, you gotta walk that back. So Roberts says no more of that. We are freeing states to do as they wish, you know, regardless of the laws that Congress wrote, regardless of Congress's constitutional power. And states immediately have at it, much in the same way that now with Calais, states are immediately having at it and just going ham to make use of this liberty to disenfranchise that the Supreme Court has given them. That's what we saw in shape Shelby. But one of the things that the court said in Shelby is they're like, don't worry, we got rid of that section.
- [60:29]
Unknown Host or Interviewer
But you still have.
- [60:30]
Madiba Denny
You still have the other big provision. You always have Section two.
- [60:34]
Dalia Lithwick
We always have section two. We will always have Section two.
- [60:39]
Unknown Host or Interviewer
Bye.
- [60:41]
Madiba Denny
Yeah, they tell us not to worry. We have Section two. So we can still bring these claims saying, okay, even though you can no longer stop bad laws from going into to effect, you can still challenge bad laws that are already in effect. You know, after they've already hurt some people, you can do something about it. Then, you know, people said, this is terrible, but, okay, I will use the tool I have. And so they have been using the tool they have. And then the Roberts court comes back and says, okay, well, hang on, hang on. That's a little bit too much of that tool. Alito gives us this opinion in Bernovich that establishes all these new, what he calls guideposts for how you can make a successful claim out under Section two, making it harder and harder to prove with these standards that have no basis in law. They're just sort of what Alito personally wants. One of the ones that was really striking to me, he says something like, okay, these amendments were made in 1982, and so laws and policies that were commonplace around and preceding 1982, those are presumptively okay, because I don't think the law meant to address those. That doesn't make any sense at all. The law is trying to, you know, push back against racist policies, not preserve them. So he already, you know, starts making it harder to prove a Section 2 case. Then we get another decision where the court says, also, there's nothing we can do about partisan gerrymandering. We don't think that there's any historical role for federal courts and policing partisan gerrymandering. So that's fine. Perhaps not like a good look, but nothing legally problematic about it is what the court tells us. Never mind the fact that there's racially polarized voting in this country. So it's okay to suppress the votes of people of color so long as you're saying it's because they're Democrats, not because they're people of color. So all of that sort of lays the groundwork for R. Kelly, because your
- [62:39]
Dalia Lithwick
book is about the utter silliness and fatuousness of originalism.
- [62:44]
Unknown Host or Interviewer
I just want you to take a run at explaining the use of history
- [62:49]
Dalia Lithwick
by these guys who are purportedly devoted to originalism and dictionaries at the time and the intent and original public meaning and blah blah, blah. In terms of guns or abortion, History
- [63:02]
Unknown Host or Interviewer
is the only lodestar. It's the only thing that matters. And then somehow when you're talking about affirmative action or voting rights, now you get to do the thing where you, you're just like, bing, like it's a pop tart, like, well, the problems are over. And we've decided that history ended today. And that is, as you said in 2013, that's kind of the core idea behind Shelby County. You know, bing, racism is over. And then again this week, here's Sam Alito writing like he feels fine about racism being behind us and racist voting
- [63:38]
Dalia Lithwick
practices being behind us.
- [63:40]
Unknown Host or Interviewer
Can you help me understand, and I know this is unfair. Can you help me understand how, how we are wedded to history? And yet there is this just very strange underarching theory that to the majority
- [63:53]
Dalia Lithwick
goes the shot clock.
- [63:55]
Unknown Host or Interviewer
They get to decide when the timer goes right.
- [63:57]
Madiba Denny
Yeah, and I appreciate that you pointed out affirmative action cases as well. It's like any case involving policies meant to remediate past harm. The court does this. You know, are we there yet? Are we done yet? This can't possibly continue, can you? Things are so different now. We gotta stop looking at the past. You're relying on, you know, the history of discrimination. But, you know, I'm looking at the future, I'm looking ahead. Things are different today. This is fully ignoring what's going on around them today. And so at odds with the devotion and obsession with history that they display in these other cases. Originalists will swear to you that tying the meaning of the Constitution to history is like the only way to be objective. And yet when you look at these so called originalist rulings, it's wildly flexible. The judges are like not constrained in any way they're picking and choosing when they will use history, what parts of history they will use, how they will use that history. None of it actually matters in any sort of sense about, like, you know, objectivity and neutrality. It just gives them a nice mutual sounding cover to do horrible things.
- [65:15]
Unknown Host or Interviewer
I want you to take one more beat with this and talk about the
- [65:20]
Dalia Lithwick
utter insanity of the court dismantling a system that does the thing and then
- [65:27]
Unknown Host or Interviewer
saying, we don't need the system that does the thing, because from here on in, it's just gonna work. And this is, of course, you know, here we have Alito asserting his opinion again, out of nowhere, quote, vast social change has occurred throughout the country, and particularly in the south, which has made great strides in ending entrenched racial discrimination.
- [65:50]
Madiba Denny
Like, what would you know about entrenched racial discrimination, Sam?
- [65:54]
Unknown Host or Interviewer
What's the basis of that? But, like, what's amazing is this is the same thing. You know, Justice Ginsburg in her famous dissent in Shelby county was like, this is like putting away your umbrella. Cause you're not getting wet. Like, the thing that you are taking apart is the thing that got us here. And saying, like, it's working, I guess we'll chuck it is just this most strange move. And we see it again this week in Calais. Again, I'm amazed that this entire, entire thing comes under the guise of judging.
- [66:32]
Madiba Denny
Yeah, the claim that we don't need this because things are different now makes even less sense here than it did in Shelby. Because in Shelby, at least, the court could say, oh, you know, there was this formula that the law depends on that was made, like, decades ago. And things have changed so much that the formula no longer accounts for that. But Section 2 of the Voting Rights act does. Section 2 literally has a part that says to consider the totality of the circumstances, to look at present conditions. So all of the things Alito is saying about, oh, things have changed. Like, we don't need this anymore. Any judge honestly applying section 2 is looking at how things have changed. They are looking at what is going on right now. They are looking at current conditions. So Alito is. Is making up a law to get mad at and then writing a new law in its place.
- [67:27]
Unknown Host or Interviewer
We will talk in the bonus episode
- [67:29]
Dalia Lithwick
about the temporary protected status cases heard at the court just minutes after Kelly was handed down on Wednesday.
- [67:37]
Unknown Host or Interviewer
On any normal week, that would have been the main show. But before we do that, I need
- [67:42]
Dalia Lithwick
to give you a chance, Madiba, to
- [67:45]
Unknown Host or Interviewer
listen to Justice Sam Alito.
- [67:47]
Dalia Lithwick
Just very shortly after Kelly comes down talking about how Yucky he feels when he has to think about race in the context of temporary refugee status.
- [67:58]
Madiba Denny
I thought, I thought we were friends. Dalia, why are you making me listen to Sam Bolito?
- [68:02]
Unknown Host or Interviewer
I'm sorry, don't shoot the questioner.
- [68:05]
Unknown Legal Commentator
If you put Syrians, Turks, Greeks and
- [68:10]
Barbara McQuaid
other people who live around the Mediterranean, Iranian in a lineup, do you think
- [68:15]
Unknown Legal Commentator
you could say those people are
- [68:19]
Barbara McQuaid
all of them? Are they all non white?
- [68:21]
Unknown Host or Interviewer
Madiba, Again, we'll talk about this in the plus, but I guess it's quite a trick to not want to see race, both in the context of two and a half centuries of race based discrimination and race based vote suppression in the United States, but also in the context of the president. President's really recent remarks about refugees coming from what he deems to be shithole countries. Like his sweep of not seeing race
- [68:50]
Dalia Lithwick
is quite astounding, really.
- [68:52]
Madiba Denny
So Alito says that, you know, he doesn't see race, that he doesn't like dividing up people of the world into racial groups. But all that is really doing is allowing him to not see and not address racism. It's allowing him to let Trump and other people do the dividing and, you know, to oppress those groups and then he can choose not to do anything about it because. Whoa, you want him to consider race? That's so inappropriate. That's such a distasteful thing to do. He's relieving himself of any responsibility to actually do something about the racist laws and policies that people are dealing with because he can just say, I don't think about such things. I'm above race. I don't look at that.
- [69:36]
Unknown Host or Interviewer
I mean, I guess if racism is
- [69:38]
Dalia Lithwick
over for purposes of voting, it certainly must be over for purposes of Donald Trump. I guess that's the, the theory here,
- [69:45]
Unknown Host or Interviewer
but, oh boy, it is a head snapper. Thank you, Madiba.
- [69:50]
Dalia Lithwick
You're gonna head over now to the smokeless cigar bar for our bonus episode. We're gonna talk about this oral argument in depth.
- [69:58]
Unknown Host or Interviewer
It does look like the reactionary majority is inclined to greenlight at least parts of Trump's lawless and sudden stripping of
- [70:07]
Dalia Lithwick
legal status from hundreds of thousands of people. People fleeing armed conflict, fleeing natural disasters, because in his words, they come from shithole countries. Visit slate.comamicus plus to join us for that conversation. By becoming a Slate plus member, you
- [70:23]
Unknown Host or Interviewer
support our work and you get loads
- [70:25]
Dalia Lithwick
of extras and ad free listening and paywall free reading@slate.com youm can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts. And Spotify. Our bonus episode is available for you to listen to right right now. We'll see you there. That's all for this episode.
- [70:43]
Unknown Host or Interviewer
Thank you so much for listening and
- [70:45]
Dalia Lithwick
thank you so much for your letters and your questions and your comments.
- [70:48]
Unknown Host or Interviewer
Please keep them coming.
- [70:50]
Dalia Lithwick
We love to hear from you. We are always reachable by email@amicuslate.com you can 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 respond. Review us on Apple Podcasts. Sara Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad. Hillary Fry is Slate's editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Bam Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.
- [71:33]
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Unknown Legal Commentator
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