← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
What Did We Learn From The Trans Ban Injunction Decision?
00:56:33
Lambda Legal’s Sharon McGowan on their setback at SCOTUS.
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- [00:11]
A
This policy has no legitimate government justification and in fact is only intended to render trans men and women second class citizens.
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B
I don't think that the entirely appropriate arrest of the president's friend of 40 years is the triggering mechanism for concerns about federal arrests.
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C
Hi, and welcome back to Amicus. This is Slate's podcast about the Supreme Court, the courts and the rule of law. I'm Dahlia Lithwick and I cover some of those things for Slate magazine. And there is just a whole lot of news on every one of those fronts this week. The Supreme Court itself seems to have roused itself from its relatively slumberous autumnal state to do some kind of attention grabby things these past few days. Just last week, the court agreed to take on what may prove to be its first major gun rights case since the court ruled in 2008 and then again in 2010 that with certain exceptions, the government could not prohibit people from having handguns in their homes for self protection. And as we tape this episode, the court is actually deciding whether to get involved with a case out of the Fifth Circuit Court of Appeals that essentially just nullified the Supreme Court's ruling in Whole Women's Health v. Hellerstadt in 2016. The justices are being asked by plaintiffs to reverse the federal appeal court decision to uphold a Louisiana law that's almost identical to the Texas law the justices found unconstitutional. If the high court declines to get itself involved, courts around the country are going to be emboldened to just act as though Whole Women's Health no longer has the force of law. Stay tuned. But we are going to turn our attention this week to the decision by a 54 margin to lift two nationwide injunctions that had stopped Donald Trump's ban on transgender troops serving in the military. In a moment, we're going to talk to Sharon McGowan. She's the chief strategy officer and legal director of Lambda Legal, about what that actually means and what might happen next. Later on in the show, we're going to try to do a quick catch up with some of the Rock em sock em developments in the Mueller probe with Joyce White Vance. She's a former US Attorney in the Northern District of Alabama, and she's going to help us make some sense of Roger Stone and Raids and CNN and Whitaker and all the things that are happening in Muellerland. First, let's look at Donald Trump's ban on transgender service members. This was the court setting aside several injunctions without ever actually getting to anything on the merits. It's a very perplexing order and to help unpack what happened and what comes next, we bring you Sharon McGowan, the chief strategy officer and legal director of Lambda Legal, which brought one of the lawsuits. Sharon, thank you so much for coming on the podcast.
- [03:04]
A
Thank you for having me.
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C
So I think the best way to do this is, Sharon, if you don't mind backing way up and taking us through the relevant history here. So what the status was and then how it changed under Obama, and then we can talk about what Donald Trump did when he issued his ban. Good.
- [03:20]
A
Sure. So, winding back to what seems like eons ago, the Obama administration decided to study the question of open service by trans men and women in our military. And after an extensive study led by Jeh Johnson, the military concluded that service by trans men and women was completely compatible with the needs of our military and began a process of implementing not only sort of open service for men and women who were already serving, but also studying the issue about allowing individuals to start enlisting in the military. And unfortunately, this all came to a bit of a screeching halt in July of 2017, when in a flurry of tweets early in the morning, President Donald Trump announced that he would no longer actually be allowing transgender men and women to serve. And we found ourselves, instead of actually moving forward towards a full implementation of open service, finding ourselves truly sort of stopped in our tracks. And so within about a few weeks, we saw a more formal memo actually putting those tweets into place in a more sort of official way. But it was very clear that this was a directive that was coming from the top down. And so shortly thereafter, many of the legal organizations, including Lambda Liga, were in court on behalf of not only men and women who had already been serving and had come out under the auspices of the prior policy about open service, but also on behalf of men and women who wish to enlist. And so we immediately moved into the mode of what's called the preliminary injunction, which is an attempt to get a policy like this put on hold while the courts litigate the merits. And we achieved a preliminary injunction, putting the ban on hold in December of last year. But then a few months later, the President and the Department of Defense issued, you know, a follow up memo with more specifics about what the plan plan would look like. And then there was a question about whether or not the preliminary injunction from 2017 was actually still going to be in effect. Across the board, all of the courts recognized that the memo from March was, in fact, actually just sort of an addendum and a follow up to the policy that the president had announced the previous summer. And so we found ourselves in the court of Appeals arguing with the Justice Department over whether or not our order staying implementation of the president's ban should stay in place during the pendency of the litigation. Shortly before Thanksgiving, the Justice Department, in a move that was somewhat unusual, although in many ways sort of indicative of the fact that this Justice Department needs to bend itself backwards and tie itself into knots to figure out how to Monday morning quarterback some of the policies of this administration, went to the Supreme Court and said, please take this case now. Don't let the courts of appeals actually decide on the merits of the case. Take the case now and resolve it. Or if you don't, at a minimum, you should put all of those injunctions on hold. So this winds up being one of those double negatives because we had an order that put the ban on hold. What the government was asking was to put the hold on hold, which would have allowed the ban to go into place. What we had was an order from the Supreme Court indicating that they were not prepared to bypass the court of appeals. And they wanted those courts to continue to consider these cases in the normal course, but indicated that the injunctions that had been put in place putting the ban on hold would be set aside. And so what that means now is while these cases work their way through the courts, the ban, for all intents and purposes, will still be in effect, which means that the individuals who wish to enlist will not be allowed to. Individuals who are currently serving who have not yet come out will risk losing their careers if they do so. And then there is sort of this third category of individuals who came out previously, and there is a grandfather clause that, at least from what it says, will provide them with some level of protection from discharge in the short term. But it really does sort of cast a pall over their career and their professional advancement. And frankly, we don't even know necessarily whether that grandfather clause will stay in effect. So it is a very, very precarious time for all of the men and women in the military, whether they're already in or wish to serve.
- [07:46]
C
I want you to go all the way back to the study you first mentioned, which was that year long study. This is with the Rand folks who do this year long study while the Obama administration is trying to figure out what to do. And am I right, Sharon, that the two big issues were how this is going to affect the military itself and also this cost issue of how much it's going to cost for the military to do whatever it needs to do to help people transition. Those are the two big issues that they studied. And unequivocally, I'm saying it again, the Rand Corporation, not like a lefty hippie outfit, says neither of these two things is disqualifying. We're going forward. Is that about right?
- [08:38]
A
That's absolutely right. Certainly, on the question of unit cohesion and morale, the study made very clear, based not only on its own work, based on its experience with implementing unwinding, Don't Ask, Don't Tell, which was the ban on service by lesbian and gay service members, based on the experience of other militaries throughout the country. There was no concern on that front. And then, as you said, they did a study of what potential medical costs might be incurred and found it to be really infinitesimal with respect to sort of the overall Department of Defense budget and something that could very easily be incorporated into service.
- [09:13]
C
So now I want you to accept. Explain the part of this that is. And you've said something that I think is worth saying again, which is, it's much like the travel ban. We have a 1.0 policy, and then we have a 2.0 policy. The injunctions happen between those two, the policy changes somewhat. But can you explain this kind of categorization based on gender dysphoria? Because this is the part, I think, that maybe listeners didn't fully understand what the policy was purporting to do when they say, it's not a ban, it's based on this other classification. What are they attempting to do?
- [09:52]
A
Right. Thanks, Dalia. It's a really important point because, you know, the government is trying in many ways to sort of, as I said, repackage a policy that is blatantly discriminatory on its face. And what they have attempted to do is say, oh, no, no, it's not that trans people can't serve. It's that, you know, trans people can serve as long as they don't actually live according to their gender identity. And for those who may not realize what it means to be transgender is that you have a gender identity, a deeply rooted sense of who you are that is different than the gender that you were classified at birth. And so the government is trying to suggest that somehow, well, trans people who are willing to basically not be trans are able to serve. So what's the big deal? And in this sense, I think it really is, you know, sort of indicative of the fact that saying blatantly that transgender people cannot serve not only is the kind of thing that would trigger all kinds of red flags and bells and whistles when it comes to the legal analysis, but also just reeks of fundamental sort of unfairness. And we saw that kind of reaction across the board from people across the aisle in terms of the reaction. And so this attempt to basically say, oh, no, it's not about trans people, it's about individuals, you know, with this medical condition. And. But if as long as you don't actually sort of do anything about it and you sort of serve in the closet, don't worry, you'll be allowed to serve, which, you know, in many ways is just, you know, you know, patently laughable because that is not, in fact, actually sort of how this policy works. It really is targeting trans people, even if they try to use different language. But it also, you know, reminds us of, you know, the world of don't ask, don't tell, which is, you know, you can. You can serve if you're gay, but don't tell anybody, don't act on it, don't let anybody know that you're gay. And by the way, we'll probably try to suss out whether or not you're gay. So it really is, you know, history repeating itself in many ways when it comes to the government's attempt to try and make this policy seem like something other than what it blatantly is.
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C
And so then I want you to talk a little bit about the task force that puts together the policy, because what they have to do is unspool everything that the Obama administration had found in terms of readiness, in terms of cost. Right. I mean, these things had been determined. So what changes when they announce the new policy? What is it about gender dysphoria that suddenly imperils readiness and suddenly makes it dangerous to the troops?
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A
Well, nothing in terms of actual facts have changed. Right. I mean, and that's sort of what makes this policy so head scratching is, you know, the notion that all of the study and the care that went into the rand Corporation analysis, DoD's previous analysis, and now all of a sudden is data that can no longer be relied upon again, is just indicative of the fact that there is an attempt to basically backfill a justification for this policy. The science about sort of the efficacy of medical care for individuals who are undertaking a gender transition has not changed in anything in any way, shape or form. And in fact, if anything, with each passing day, we see all of the major medical associations, the American Medical association, the American Psychiatric association organization, all lined up very clearly behind the notion that Transgender men and women are able to serve, that the medical care that they need is not experimental or cosmetic or somehow illegitimate, then what we find ourselves now is an attempt to cast doubt on a body of science that is very well established and attempting to use their particular doubt or uncertainty about all of this as a way to justify their desire to go back to a discriminatory policy.
- [13:43]
C
And is it your contention that this is just animus, that this is in some sense no different from the Muslim ban, where this is just really thinly veiled hatred of trans service people?
- [13:56]
A
Absolutely. And, you know, it's not even thinly veiled at this point. You know, when you have the tweets really speak for themselves. And the fact is, you know, this was happening, you know, at a time where a very, very small group of individuals in Congress were taking aim at trans service members, were soundly defeated in Congress because the attempts to target trans service members, you know, no longer can rally the kind of support that folks may have anticipated that they would receive in the past. And so you have the president meeting with Mike Pence and, you know, arguably a very, very small fringe group of people who have, you know, a desire to drag us back into a very particular sort of anti trans worldview. And now they have sort of the power of the White House in their corner. And so, you know, it's not lost on me, you know, that part of what we are fighting about right now in the courts is to get access to the information about how this policy was actually put into effect, because the government is trying to suggest that somehow it's the product of this deep, careful military deliberation, when in fact, you know, the tweets themselves indicate, and all of the surrounding facts indicate that this was not, in fact, actually a function of a sort of careful military judgment. This was red meat thrown to the political base that now the Justice Department is trying to justify after the fact.
- [15:17]
C
I want to get back to the discovery question in a minute, Sharon, but I think first maybe listeners would like to understand why there are four separate lawsuits filed by different groups in different jurisdictions. Can you talk a little bit about why we ended up with four injunctions across the country? Sure.
- [15:33]
A
One of the things that what we have in this country is, you know, a series of different courts set up in different circuits across the country. And so each one of the legal organizations that has brought a lawsuit had different clients that they were representing, and where those clients lived would impact where those cases would be brought. And as a result, what we see is a number of District courts that are able to examine the question. And as we have seen on so many other legal issues of our time, part of how these questions get resolved is that different district courts and different courts of appeals examine the law, examine the facts. And then in some cases, there is a consensus across the board and there's no need for higher intervention by the Supreme Court. And in other cases, there is a dispute across the different courts of appeals, and the Supreme Court does, in fact, need to weigh in. So while all of these cases raise many, many of the same legal issues, every single one of these cases involves individuals who are affected by this ban. You know, in our case, we have men and women who are already in the service, some of whom have come out, some of whom wanted to come out, but are now afraid to do so. And then some of our members are individuals who wish to enlist. Some of the other cases have individuals who are in the service academy. So the four lawsuits, while sort of raising some common legal issues, really, in many ways sort of reflects the fact that, you know, there are so many people who have been affected by this ban who want to have their day in court.
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C
So tell us about the constitutional claims you are making in your lawsuit.
- [17:02]
A
So our claims are primarily equal protection claims that sort of really focus on the fact that this ban targets a group of people who have historically been subjected to discrimination that should trigger a heightened level of review from the courts. And so in our case, in particular, the district court actually recognized that trans men and women have in fact, suffered a history of discrimination, that they are a politically powerless group who is not able to defend themselves against kind of hateful acts like we've seen here. And recognize that what that means then, is that the government has a higher burden in terms of justifying actions that target this group of people for discriminatory treatment. Our case also talks about sort of the due process liberty interests of individuals who wish to be able to serve, and talks about the way in which this government is, is burdening those liberty interests by targeting individuals for who they are. And then finally, we have a First Amendment claim that makes very clear that the government is, in essence, sort of squelching the ability of these men and women to speak and to live authentically and without penalty from the government. And so in all those ways, these are complementary, overlapping, and synergistic claims that really get to the heart of the matter about the fact that this policy has no legitimate government justification and in fact, is only intended to render trans men and women second class citizens.
- [18:26]
C
And Sharon, you mentioned that these cases are bogged down in no small part because the government is not turning over this sort of evidence of what they call the, quote, considered military judgment that the policy is supported, but you can't get your hands on that. Is that the case in all four lawsuits?
- [18:50]
A
In all of these cases? Yes. The Justice Department is trying to use the courts as a way to sort of shut down any meaningful consideration of these policies by either claiming that there is some cloak of privilege that should shield the government from having to justify itself. In our case, we're even fighting over whether or not the government has to provide a list of the information they are refusing to give us because they claim that that, too, somehow violates executive privilege. It really is, in many ways a very broad, sweeping attempt on the part of the Justice Department to shield this policy from adequate review by the courts.
- [19:25]
C
Now, you mentioned that the Trump administration lost in almost every reviewing court except the appeals court in the District of Columbia at the beginning of January, actually said trump wins in an opinion that says, quote, the government took substantial steps to cure the procedural deficiencies the court identified in the Enjoin 2017 memorandum. So the panel basically said the 2.0 policy fixes the 1.0 policy. So we're all good. Was there a significant difference between 1.0 and 2.0?
- [20:05]
A
We don't think that there was. We recognize that, you know, there are ways in which there was different language that was used in an attempt to sort of soften some of the sharpest edges of the 1.0 policy. But I think it's important to recognize that in all of these cases, we have been litigating without necessarily the benefit of all of the information that we believe that we are entitled to. Now, it may ultimately be, at the end of the day, that this policy will fall based on the facts that already exist in the public record. But part of what the issue here is is whether or not the 2.0 attempt really does, in fact, reflect anything other than attempt to paper up, you know, the three tweets. Right. Instead of a three tweet policy, we now have a 44 page memo as the policy. But if, at the end of the day, you know, there was a very clear understanding that they were going to reach the same conclusion, you know, we believe that that in and of itself is really what gets to the heart of the matter. But all of these cases, you know, because of the fact that we all rushed in, in light of the urgency to seek preliminary injunctions, are all still in a relatively preliminary posture. And so, so in our case and in all these other cases, you know, we are going to continue to fight to get the full record into court in front of the public so that we can have a fair and complete adjudication of these policies.
- [21:22]
C
So that's actually really important. It's the question that I think is the nut of what's so strange is that none of these cases are actually formally adjudicated on the merits. As you said in the beginning, we were fighting over a preliminary injunction, over a series of preliminary injunctions, and yet the Solicitor General leapfrogs everything goes to the Supreme Court and says either take this on the merits or just do away with the injunctions. And they were making the argument that tick tock, this is urgent, burning necessity to do this right. Now, we've talked about this a lot on the show. That that seems to be the new. That's the new way we do it is we just race right to the Supreme Court. What was the argument that they were advancing that made this urgent and exigent in their view?
- [22:10]
A
Well, I appreciate the caveat then, in their view, right, because, you know, we have been living with almost three years of open service and the military has continued to function at a level of care and effectiveness. And so the notion that somehow the sky was going to fall if those injunctions stayed in place while the cases worked their way through the court really, in many ways is divorced from anything remotely like fact. And in fact just relies on speculation, fear of the unknown, you know, all of the, what it could have, should have that we see out of the Justice Department give us the benefit of the doubt. And obviously this administration is testing those presumptions that often operate in cases like this and taking them to the breaking point. But in this case, you know, what we saw was the Supreme Court deciding what they wanted the status quo to be. In our view, the status quo is open service. And there was no reason for those injunctions to not remain in place. But the Supreme Court decided that they wanted these cases moving forward in a careful, deliberate way so that if and when it arrives at the court, you know, they have, you know, the information that they need. And to the extent that, you know, they sort of erred on the side of keeping things in the government's view, you know, as a status quo of non open service, you know, we obviously sort of disagree with that, but, you know, that's where we are right now.
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C
But it's really your view that this is not any kind of determination on the merits. It's just a tweaking of the status quo.
- [23:44]
A
I think that's absolutely right. I mean, the fact is that we had a one paragraph order that in some ways was sort of screaming with all the things that it didn't say. And I truly do believe, you know, that, you know, the court is a careful conservative, you know, lowercase C sort of conservative. Although, you know, we can talk about whether or not it's that's, you know, other kinds of conservative. That's still sort of left to be decided in this case and others. But I do think there was a way in which the court decided that when they wanted to hit the pause button, and this was what the pause button meant to them. And so now, you know, we are absolutely eager and even more determined than we were before, if that's even possible, to get this case litigated and fully, you know, presented on the merits. Because now, unfortunately, the harm is being done in a daily way, in a way that it had not been while those injunctions were in place.
- [24:33]
C
And there is this one funny little wrinkle that I think our own Mark Stern at Slate caught right on the day that everybody was announcing that all the injunctions were dissolved, that there was in fact still a Maryland injunction in place. Right. And as of this recording, that's still not quite resolved. Right. It's still enjoined because there's one remaining injunction that the court did not set aside.
- [24:58]
A
That's right. There was a case in the District of Maryland that was not yet up on the Court of Appeals. So it was not part of the Justice Department's filing in the Supreme Court asking for that leapfrog that we talked about previously. And so the fact is we do still have one of the nationwide injunctions in place. We have other proceedings that are working their way through the court. But I think it's very interesting to note that right after the Supreme Court decision, I think within that first 24 hours, DoD itself recognized that that injunction was still in place, that they intend to abide by it. And, you know, we don't know exactly sort of what is going through the mind of every single person in DoD, but I suspect that there are many people in DoD who are more than happy to sort of slow walk this because, you know, this is not the kind of move that I think really serves our military, serves our national interests. And so I suspect that there are many folks in, you know, the Department of Defense who are quietly disappointed to see us really trying to roll back the clock on this. And I hope that it's only a short term bump along the road.
- [26:02]
C
Assuming the Maryland injunction goes away, what changes? As I understand it, broadly speaking, the transgender folk who are already serving can serve, but anyone who seeks to transition or to serve openly now risks being discharged. Is that about the state of play going forward?
- [26:26]
A
That is right. And we obviously are going to need to wait and see what it looks like for our servicemembers who have already come out. You know, the policy on its face, you know, claims that they will be sort of grandfathered in and not suffer adverse consequences. But as a practical matter, you know, the fact is they are now being told, you know, we'll let you serve, but we really think you're unfit, by the way. I mean, the sort of the hit to sort of morale and really the offensive nature of that statement, I do think runs the risk of not only sort of hurting morale, which, of course, is, you know, the justification that has been used for the ban. I think that the fact that we will be in this circumstance now for the months to come is going to be very, very challenging, not only for our servicemembers themselves, but for the other folks in their unit who want to focus on the mission and do not want to be sort of bogged down in this kind of political nonsense.
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C
I should have asked this up top, Sharon, but how many transgender troops are currently serving?
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A
There are different numbers, I think. You know, we know that there are sort of somewhere in the thousands. But part of why I hesitate to actually sort of give a firm number is that one of the things that this whole process has demonstrated is that there are men and women who are in the process of beginning that transition. So it's impossible to know for sure how many individuals. It is not, you know, any kind of, you know, overwhelming number, but it is a substantial number. And the talent that we would lose if these men and women were not allowed to serve is significant.
- [28:02]
C
I think that's what I wanted to give you a chance to just give me some faces and some stories. Tell me, tell me about some of the folks that we may not know about who are. Whose lives really changed last week.
- [28:16]
A
There are just such incredible stories. And I find myself, you know, thinking about how hard they are fighting to serve a country that, to be clear, is overwhelmingly behind them.
- [28:31]
C
Right.
- [28:31]
A
We have the data indicating that upwards of 70% of individuals, when asked in a poll, recognize that trans men and women should be able to serve. Right. So, you know, I hope that there is comfort that they find in those numbers. But the fact is that, you know, they are now facing additional uncertainty. And we have individuals like our plaintiff, Ryan Karnosky. You know, he's 24 years old. He has a background in social work, wanted to serve because he has a family background in the military and understood the deep pain and trauma that men and women who have been serving abroad were bringing home and wanted to be able to. To use his talents as a social worker to be able to help in the military. And now, you know, his career is on hold. His ability to apply those talents to serve the men and women of our armed forces is being put on hold indefinitely because there are individuals who have, you know, their particular anti transgender worldview that they are trying to promote out of the White House. We have, you know, men and women in all of the different services. Katie Schmidt has been a staff sergeant in the United States army, and she's currently stationed in South Korea. You want to talk about someone who is truly, you know, putting her body on the line for this country. She's served for over 13 years, and again, now she's being told, you know, that as far as this country is concerned, you know, the policy will be that yet maybe we'll let you keep serving, but you should know that you're on fit. And again, the notion that she is willing every day to get up and serve and put on her uniform in the face of these kinds of statements coming from the commander in chief is really just such a testament to how deep her commitment is. And the commitment of all of these individuals to serve our country and to believe in the Constitution and to believe in these principles, even when they aren't necessarily playing out in real time in the way that we think they should.
- [30:19]
C
I just want to be super clear that these lawsuits don't go away. You are not fighting about the injunction anymore. In fact, I think you all have just right withdrawn on this question of the injunction. But you are going to trial, and these cases will presumably fight through discovery and get to trial. And I wonder if I can't help thinking, Sharon, about the ways in which the marriage equality. Those trials were so instructive. They were such teachable moments in terms of fine, we'll get the data on the record. We'll get all the information out there. We will debunk the junk science. In a strange way, do you hold out the hope that this is the way we're going to change hearts and minds is having this litigation just play out? And I understand it's an uphill struggle to get the information you want about the genesis of the policy but is there a way in which you think of this as an opportunity to really tell your client's stories in a way that could make this longstanding animus sort of reveal it for what it really is?
- [31:33]
A
I mean, it is unfortunate that between now and when that day comes, the ban will be in place and the harm that it causes will continue to occur, which is why it was so disappointing to see those injunctions set aside. This conversation with the American people is a winning conversation for us to be able to put forth the stories of the men and women who wish to serve sacrificed so much in order to defend our Constitution. You know, these are our clients and stories that anyone would be honored to tell. And you're absolutely right as well. To the extent that there is an attempt by the other side to make up facts and to rely on junk science, we are more than happy to put the science on trial because the science is absolutely definitively and for many years has been on our side. And the ability to put that story forth as well, again, is going to make it harder and harder for individuals who want to try and deny transgender people equal rights in this country. You know, any ability to speak with any level of credibility. And then, frankly, you know, I do think it's also important already, you know, we have seen so many servicemembers, former commanders, you know, speak up about the fact that, you know, this is not what the military wanted. You know, this is not, in fact, actually something that supports unit cohesion, national security, military readiness. I look forward to the day where that full story is able to be told, because we know at the end of the day that even though, as you said, you know, we are facing, you know, sort of a difficult challenge. And the plaintiffs always have a challenge when they are trying to challenge a policy of the government in court. But when it comes to sort of telling the story, there is. There's no finer group of men and women that we would be happy to represent.
- [33:15]
C
Sharon, before I let you go, I want to give you a chance to just talk about. This doesn't happen in a bubble. This isn't just Donald Trump tweeting. This is of a piece with a whole bunch of different moves that the Trump administration has taken to rescind protections for trans kids in the schools, trans workers in the workplace. This is. This is not a one off. Right? This has been, in some sense, a juggernaut of different actions taken really quickly in the Trump administration to try to reverse what was painstaking history on your part.
- [33:57]
A
Literally from day one, we saw attorney General Jeff Sessions sort of turn the Justice Department into a weapon aimed at the heart of LGBT people, but transgender people in particular. And you're right that one of the first things that he did, along with the Department of Education, was rescind life saving guidance for trans students across this country, ensuring that they would be able to have a fair and safe access to education, and instead decided that they would sort of use that power to try and marginalize and turn back the clock truly on the progress that we have made. And as you've noted, you know, there have been many other places in which, you know, this kind of attack is. Has happened. We see, you know, the Justice Department trying to sort of rewrite the law and write LGBT people out of the law. And then obviously, we know from reports from the last fall of agencies literally trying to write transgender people out of existence by coming up with made up definitions of who men are and who women are in a way that would deny the existence of trans people. And so there is such a grand disconnect, such a huge gap between the world that we are living in and the world that this administration is trying to reimpose upon us, that it is a scary time to be an LGBT person. And particularly for trans men and women, you know, the family members, the kids, you know, it is very difficult to try and find silver linings in this moment, but I do see silver linings. I see silver linings in the sense that the brazenness of the attacks is drawing people out of their complacency and helping them recognize that we all have a responsibility to speak up when individuals are targeted in the way trans people are being targeted by this administration. We see parents of kids, you know, becoming, you know, sort of armchair warriors and walk in the halls of Congress speaking out about not only these policies, but whether it's anti transgender judges or other ways in which, you know, their kids safety and livelihood is being thrown, like I said, as red meat to someone's political base. So I hope that we are going to use the energy that is being inspired in this moment as a force that will keep us moving forward. Even if, you know, in the short term, we are going to continue to take some body blows from this administration.
- [36:25]
C
Sharon McGowan is the chief strategy officer and legal director of Lambda Legal, which is. Which brought one of the lawsuits challenging the transgender service member ban. Sharon, thank you for all the many, many ways that you give voice to these arguments which we don't always hear clearly enough. Thank you.
- [36:41]
A
Thank you so much, Dalia. I really Appreciate the chance to be here with you today.
- [36:44]
C
I want to take a moment to talk to you about our membership program, Slate Plus. If you are hearing this, you are listening to the regular version of Amicus, which is awesome. Thank you. But if you sign up for Slate plus, you get to enjoy this show commercial free. And you get access to bonus segments and extended versions of your very favorite Slate shows. It's only $35 for your first year and you can sign up for free for two weeks to check it out first. And this is important, by signing up for Slate plus, you will be supporting not just this show, but really all of the journalism we do here at Slate. We know you value our work and our coverage. Now we need it more than ever. Sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus and thank you. Back to the show. We are going to turn now to check in on the longest running legal soap opera, certainly since Watergate, but the longest running one on this show, and that is the Mueller probe. Again, last, last time we talked to Asha Rangapa of Yale Law School about what a counterintelligence probe even means. Today we're gonna talk with Joyce White Vance. She is the former U.S. attorney in the Northern District of Alabama. She actually did a ton of really interesting work on prisons and crime and civil rights. And someday, Joyce, I wanna have you on to talk about it. But right now, Joyce teaches law at the University of Alabama School of Law. She's a former frequent contributor on NBC and msnbc. And you might remember her from our live show at the ACLU last summer. So, Joyce, welcome back to Amicus.
- [38:26]
B
Thanks for having me.
- [38:27]
C
And I think we should start with Roger Stone. I know it was a week ago and that's like 170 years ago in Mahler time. But let's just start with the arrest and the raid. It's still in the news in some small part because it's now the narrative has torqued into this, oh, this poor old man. And he was sort of sitting defenselessly at home in his wheelchair and, you know, he was almost killed in an overzealous raid and somebody tipped off cnn. And, you know, I'm laughing. But Senate Judiciary Chairman Lindsey Graham is now demanding that FBI Director Chris Wray brief the Senate on this arrest. The, quote, the number of agents involved, the tactics employed, the timing, whether the FBI actually tipped off the media. So this isn't going away, this story that the entire indictment and arrest are somehow illegitimate. How worried should one be that this is where the story's gone?
- [39:24]
B
So Roger Stone, who is the self described master of dirty tricks, no surprise that he would come out with a false narrative about his arrest. You know, I have to say, I rankle every time I hear this described as a raid, because it's not a raid. What it is is an arrest warrant that's been approved by a federal judge and a search warrant in which a federal judge has found that there was probable cause to believe that there was either evidence or fruits of crime at the location to be searched. So this isn't the FBI going off like jackbooted thugs. Stone is just building his own narrative here, hoping that the public will donate to his defense or whatever it is he hopes. The reality is this was a raid, a search warrant, an arrest that was executed in response to someone who had threatened a witness. If you read the indictment, you see where Stone tells someone he's trying to encourage to commit perjury, prepare to die. So this is someone who the FBI had plenty of reason to believe would be interested perhaps in destroying evidence, possibly in being a danger, and they acted appropriately with the number of personnel that they needed to effect the arrest and to complete the search.
- [40:40]
C
And is it worth flagging also that Roger Stone's initial story was that they were perfectly polite and respectful and only later changed it to this was an incredibly assaultive and violent arrest. I mean, I don't know why we would hold him to either of those narratives. But it is worth saying that the second story is new.
- [40:57]
B
It was a really interesting moment when Stone came out after the arrest and he was already protesting. He'd been processed out. But he takes. And there's this moment, and it's clearly a moment of candor where he stops in the middle of his narrative and says, but the FBI, the agents, were extraordinarily polite to me. You know, what do you make of something like that? Agents are trained to treat people properly. They aren't in any way trying to act inappropriately in this situation. I will say that there's a larger issue here. This is not to say that we shouldn't consider the criminal justice system and whether we need to engage in a thoughtful process about how arrests are made and whether there's implicit bias that sometimes impacts those situations. I don't think that the entirely appropriate arrest of the president's friend of 40 years is the triggering mechanism for concerns about federal arrests.
- [41:52]
C
Okay, let's talk about the Stone indictment. On the one hand, it's very revealing. Right. Everybody focuses on paragraph 12 where it says that after July 22, 2016, the release of the stolen emails, a senior Trump campaign official was directed to contact Stone about any additional releases and other damaging information. So that's the kind of red flag line. To the extent there is one. It seems like it's creeping right up to this possible line of minimum campaign finance violations, maybe some kind of collusion. But. But then the indictment never quite gets there. Right. It never quite takes us into the like, boom, this is it. And you suggested on Twitter that Mueller actually had good reason to limit the charges he brought against Stone. Can you talk a little bit about why you think this didn't kind of go for the 12 rather than it went for the solid four and a half?
- [42:53]
A
Sure.
- [42:54]
B
The question I think everyone's wondering about is why isn't Stone charged with conspiracy on behalf of the campaign to conspire with the Russians to impact the 2016 election? And there are a number of different possibilities. It could be that Mueller came up empty handed that in fact there wasn't any sort of conspiracy, or it could be that he believes that there was a conspiracy, but he lacked sufficient proof beyond a reasonable doubt, admissible evidence to charge it. I suspect that what we're actually seeing here is that this is a building block piece and that he wanted to see if there was any possibility that Stone would cooperate, however unlikely that might look. He wanted to go ahead and do the searches and for whatever reason decided they needed to be timed along with the arrest. The reason to not charge the conspiracy now is that once you charge the conspiracy, and we're sort of seeing this play out with the Concord case right now, you're entitled as a defendant to all sorts of discovery. Mueller may have wanted to protect that information a little bit longer, to keep what he actually knows out of the public domain and certainly out of Roger Stone's hands.
- [44:01]
C
So just in plain English, had he charged the larger, the largest, then suddenly the defendant is entitled to see everything. And Mueller's trying to keep everything close to his vest until he absolutely has to reveal it. That's the best theory you have?
- [44:18]
B
Yeah. I mean, it's maybe not quite that broad, but you do have significant obligations as a prosecutor to turn over information to a defendant once they're charged. And that could be information about who all the co conspirators are and what they did. And it would let Stone and whoever he shared with understand just how good the Mueller operation is at acquiring this evidence. If I was Mueller, I Might want to hold that close until I was ready for the end game, whatever that end game might look like.
- [44:51]
C
And Joyce, that's probably the exact same logic that applies. Winstone doesn't tell us the name of this senior Trump official. Right. It's the same, effectively the same play, which is I'm not telling you one iota more information than I have to, even though clearly Mueller knows who that is.
- [45:11]
B
So I think that's partially DOJ policy. There's a policy against naming in an indictment someone who you're not going to indict, whether they're an unindicted co conspirator, a victim, a witness. We simply don't name names. What's so unusual here is this shift to the passive voice. This, you know, without saying individual one directed a senior campaign official, we just have this blank out of someone directed the senior campaign official, which really apparently shined a big spotlight on that and has led a lot of people to conclude it was the president.
- [45:44]
C
Joyce, I guess I wanted to ask, what did you make of Acting Attorney General Matt Whitaker's statements this week when he was talking about the Mueller probe wrapping up? Let's have a listen right now.
- [45:57]
A
You know, the investigation is, I think, close to being completed, and I hope.
- [46:03]
C
That we can get the report from.
- [46:05]
A
Director Mueller as soon as we as possible.
- [46:08]
C
Is that aspirational talk or is that some kind of shot across the bow, or does Matt Whitaker, in fact, know that this entire investigation is about to wrap up?
- [46:19]
B
It was inappropriate. Folks at DOJ shouldn't talk about ongoing investigations. And particularly here we have an acting attorney general who received advice from career ethics officials that he needed to recuse from this case. He declined to do that. And now he's out in public talking about the case itself. So who knows what to make of that. I'm sure that he hopes that the Mueller report will be issued soon. I think Mueller will issue it when he's good and ready for it to be completed.
- [46:47]
C
And do you have some spidey sense of how close we are? I know that there's, you know, people making proclamations about mid February, early March. Do you have any just. I'm not asking you to spitball. I guess I am asking you to spitball. Do you have some sense choice of what we're looking at or no?
- [47:04]
B
So I've learned that it's really a bad idea to have a crystal ball in this case, but it doesn't look to me like the investigation is close to complete. A search warrant has just been executed The Stone case has been declared complex by the parties, which means it'll take a little bit longer to do. There are these discovery issues in Concord. It looks like there's a lot of work left to do. Maybe Mueller is in the process of transferring some of it over to U.S. attorney's offices. That's not clear. But it's. If I had to bet on this, I would say this does not all wrap up in February.
- [47:39]
C
You mentioned this, but let's spell it out for a minute because we learned in a court filing on Wednesday that evidence that had been gathered by Mueller was obtained by Russians, leaked online, possibly in an attempt to discredit the whole inquiry. And this is, I think, Mueller just saying out loud that lawyers for Concord Management and Consulting, which is this Russian company that allegedly funded some of the hacking, is they're leaking documents. I couldn't decide when I read this. Is this a big deal or a very big deal or a tiny little deal? What's your thought?
- [48:14]
B
My instinct is that this is a very big deal. What happened here was you had 13 Russian defendants, none of whom showed up in the United States to be arraigned and in essence, to be tried in US Courts. They're all safely at home back in Russia. There were three corporate defendants. One of them entered an appearance, much to everybody's surprise. And then it became clear that they were doing that because it permitted them to get discovery, which is a defendant they're entitled to. And there were concerns about how that discovery, that information that Mueller was providing about what was going on in that case would be used. So he got the court to enter a protective order saying that that information had to be held at the American law office of this Russian corporate defendant and it had to be held offline. And lo and behold, we learned that it somehow surfaced that there was a company whose Internet address reconciled back to Russia and that they were trying to make it public. But what they were trying to do was to they sort of souped what they had. They took legitimate stuff, sort of went through the files and made it look as though the Mueller investigation was a sham, as though it didn't really have anything. Their little scheme didn't really come off. But Mueller is now pointing to that effort to say that there shouldn't be any dissemination of discovery back to Russia, where it could be put to further bad use. I think that this is a fascinating situation, not the least because there's an American law firm that's involved in this. There's no word on whether they are complicit in this scheme in any way, or whether they themselves have been somehow victimized. But there's a lot more to learn about this situation.
- [50:01]
C
Can you guess at what the signal is that Mueller was calling out? I mean, is it simply the signal that, like, even if you're an American law firm, I am going to call you out? And is it just a way of sort of tuning up counsel in this case?
- [50:19]
B
You know, there could be a lot of different messages. It's interesting. One of the principals for this company, Concord, is Evgeny Prigozhin, who's often called Putin's chef. And so he's excluded, even though he's a defendant in this case, an individual defendant, he's excluded by this protective order from seeing any of Mueller's information, which means he can't participate in shaping the defense. I think perhaps Mueller is putting the individual defendants, including Prigozhin, on notice that if they were to somehow improperly access this discovery, that there would be repercussions. It's hard to know how that would work and what the signals really mean, but there seems to be some element here of Mueller saying, I've got some very sophisticated ability to learn about what's going on with this information and to look at what's going on in cyberspace. And so you need to stay within the realm of U.S. law in this regard. But I think you're right. He's also signaling to these American lawyers that he's watching them, that he's got eyes on them.
- [51:25]
C
Joyce, you wrote an op ed this week that essentially said, like, public, don't give up on Mueller. Don't give up on these institutions. Please don't let the entirety of the Justice Department and the FBI be tarnished. Do you have some sense that all of the talk of, like, these are just process crimes. These are just old guys forgetting stuff. If you don't believe in truth anyway, why is lying such a big deal? Is this somehow becoming salient? Do you have some sort of sense that the public is losing confidence in Mueller, in the probe, in. In the courts and the law?
- [52:09]
B
There was a poll that came out that led me to write that op ed that said that only 50% of the American public had confidence in Mueller. And what I think it's important to say before we know where this investigation will end up, he may never indict another defendant, or he may have more to come without regard to his outcome. I have confidence in the process that he's using. I think that his career track record, the way that they've conducted this investigation with no grandstanding, no effort to insert themselves and make the story be about the Special Counsel's office. They've given us guarantees that they're committed to getting it right, and that means getting it right for prosecutors. So when people talk about, oh, it's just a process crime, they're only lying. I think we should all be really shocked by that, by the notion that people close to the President of the United States lied about their connectivity with our country's age old enemy, the Russians. And somehow in this day and age, that's supposed to not matter. We really need to reconsider if we find ourselves in that place where we believe that lying, which Congress has indicated, which Congress has legislated and made a crime in these sorts of settings. We need to reconsider if we're starting to take that anything less than seriously.
- [53:35]
C
And my last question for you, Joyce, is not unexpectedly, the vote on Bill Barr as the permanent Attorney General got kicked back this week in no small part because Democrats have meaningful concerns about his supervision of the Mueller probe based on things he wrote, written and said. I wonder if watching this, you have the same concerns or if you have the sense that, a, my God, it's better than Matt Whitaker, who is not taking his own ethics lawyer's advice, or B, look, this is a lawyer's lawyer, and at the end of the day, he'll be fine supervising this probe. How sanguine are you, Joyce, about Barr taking over as AG?
- [54:27]
B
I think we have to look at Barr two ways. One is in terms of the Mueller investigation. You know, Barr is an institutionalist in many ways, who one would hope would stand up for the independence of DOJ and not permit improper interference from the White House. And many people believe that he will do just that. And then there's a second consideration, which is Barr as an Attorney General. And in many ways, he's indicated he will carry on, particularly in the area of civil rights, some of the dysfunctional policies of the Sessions Justice Department, including failure to support LGBTQ Americans, walking away from oversight of police misconduct. He's not at all committed to preserving voting rights for all Americans. So I think in many ways it's that area, not the Mueller investigation, that's more concerning as we look at an Attorney General Barr.
- [55:24]
C
Joyce White Vance is the former U.S. attorney in the Northern District of Alabama. She teaches law at the University of Alabama School of Law and is a frequent commenter on MSNBC and NBC and a writer of op eds. Joyce, I've really wanted to have you on the show for a long time, and I'm very grateful that you joined us.
- [55:44]
B
Thanks so much for having me me.
- [55:50]
C
And that is a wrap for this episode of Amicus. Thank you so much for listening. If you want to get in touch, our email, as ever, is amicuslate.com and we love your letters and you can always find us@facebook.com amicus podcast today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer of Slate Podcasts. We will be back with another episode of Amicus in two short weeks.