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Green & Red: Podcasts for Scrappy Radicals
Civil Rights Attorney Ron Kuby on Flag Burning “This executive order means absolutely nothing” (G&R 417)
00:54:25
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- [00:00]
A
Welcome to Green and Red Scrappy Politics for Scrappy People, a regular podcast on radical environmental and anti capitalist politics. Brought to you by Bob Bozanko and Scott Parker.
- [00:22]
B
Welcome to the silky smooth sounds of the Green and Red podcast. I'm your co host Scott Parkin in Berkeley, California today. And as always, I'm joined by Bob.
- [00:32]
C
Bozenko in Niles, Ohio, in between the beautiful metropolises of Youngstown and Warren.
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B
There you go. Today, as many people know, Trump has been issuing a number of executive orders since he's come back into office. One of those that he put out a week or two ago was around flag burning. In the late 1980s, there were two Supreme Court cases that legalized flag burning on First Amendment grounds. And so what we're seeing now is Trump rolling back our civil rights that paved the way for whatever is authoritarianism. And so joining us to talk about that and a number of other things is Ron Kube, who is a criminal defense and civil rights lawyer based in New York. He was partnered to late great William Kunstler. He's a well respected legal commentator and commentator of many other things. Ron, welcome to the Green and Red podcast.
- [01:27]
A
Well, thank you so much for having me. It's a pleasure to be here. Here. William Kunstler, by the way, was lead counsel on those flag burning cases. And I was a little baby lawyer at the time, without any gray and indeed without any facial hair. But I was adorable back then.
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B
Yeah, you still are.
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C
You're still adorable.
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A
Yeah, well, you know, people differ.
- [01:50]
B
Maybe, maybe as we kind of start talking about some of those cases, maybe you could just start off a little bit with telling us a little bit how you got involved in representing First Amendment cases around flag burning and got to know William Kunstler and that sort of background.
- [02:06]
A
William Kunstler had been my hero when I was just a very young person. I watched as a very young person his conduct in the Chicago 7 trial and watched the way in which he was able to take legal cases and legal defenses in political cases and, and give voice to the politics of the defendants inside the courtroom. That was something that was extraordinarily new in American trial work. There are a couple other lawyers who tried it, most notably, you know, Clarence Darrow in the first half of the 20th century. But for our generation, it was something we had never seen before. I mean, most lawyers are just there trying to get their clients off and you know, most of the time that's fine, but when you have political clients, they didn't do what it is they did in order to beat the rap. They did it in order to make, you know, a larger, more powerful point about, you know, God and man and law, as the prophet Dylan would say, and did say, in fact. So why do a defense that is at odds with their politics? I mean, you can go back to the trial of Christ, and certainly a good criminal defense defense lawyer practicing in front of the Sanhedrin would have made a very compelling case for excessive exposure to the desert sun, creating a kind of temporary insanity on the part of Jesus. And he's much better now, and that would have been a good defense. But, you know, history would have been very different had that defense been used. You get the idea. So I'd always admired him. I went to law school wanting to be like him, and through a series of incredibly fortunate, serendipitous things, I was able to intern for him in 1982. We got along quite well, and I joined his office when I graduated from law School in 1983.
- [04:12]
C
One of the things that we were talking about when we discussed this earlier was the Flagburning case. And that's a springboard, I think, to bigger things. But I believe the initial case with the Supreme Court came out of Dallas. Right, correct. And, and, and it's been kind of upheld and didn't even at one point, Anthony Scalia kind of defend it.
- [04:32]
A
Antonin Scalia ultimately did decide that that was the correct ruling.
- [04:38]
C
So it's been. It's been a kind of an established law for quite some time now. Established rule for quite some time. All right, right.
- [04:44]
A
It's been established. It was established in 1989, and it was re established in 1990. Again, five to four decisions. But after those two decisions, it stopped being an issue in America. So let's sort of go back in the time machine, if we can, to that period of time. The Republican National Convention in Texas was where Joey Johnson, of the Revolutionary Communist Party, a small Maoist group, but with a lot of support in the arts and among musicians and other artists, burned an American flag at the RNC and was arrested and indicted under the Texas law that prohibited desecration of the American flag. And that case wended its way through the lower courts until finally the United States Supreme Court took the case. And Joey Johnson, being a very political person, wanted somebody who was a political lawyer to argue the case. That is, in most of these cases, what you see from establishment First Amendment lawyers, and I don't mean any disrespect to those lawyers, since they've carried on the bulk of First Amendment defense for a Long time. But what you tend to see is I despise the message, but I will defend to the death his right to do it. And in a flag burning case from an estate establishment lawyer, you would get a lawyer to talk about how despicable it was and divisive and horrible and how much everybody hates it, but it should be protected by the First Amendment. And while Kunstler was never a big fan of flag burning, frankly, neither am I as a form of protest, for all the reasons everybody can think of if you just give it a moment. Neither was he one of those sort of gung ho, let's all die for the flag kind of guys. He was an infantry major during World War II, got at least one Bronze Star and two Purple Hearts. So the type of patriotism that proves itself in arms for the country was well established as to who Kunstler was. And he was First Amendment radical, so is a perfect fit. And that case, of course, went to the Supreme Court. The argument was very political. And Kunstler talked about all of the other forms of flag use in the country that can be considered desecration by someone from the little cocktail toothpicks with the weenies at the grill. At which point he was told by Justice Rehnquist to move on to all kinds of other depictions of the flag, how the flag code mandates burning and all of these kinds of things, and the use of flag burning as a form of political protest around the world. And around the world, there was a lot of that going on in the 1980s, as many countries were attempting to shake off both colonialism and what we now look back and call neocolonialism, much of which the United States was responsible for. So the images of American flags being burned was something very much, dare I say it, seared into the American consciousness, which created in America at the time one of these periodic moral panics. So after the first Supreme Court decision establishing the indisputable First Amendment right to burn a flag, the concern continued. And the Senate decided they are going to create a new flag burning law called the Flag Protection Act. And this was not going to describe the flag as a sacred object, because the Supreme Court made it clear we have no sacred objects in America that are immune from protests in secular society. Makes sort of perfect sense. So the Senate passed, I think, unanimously, although I could be wrong about the Flag Protection Act. And the senator who sponsored that bill, who corralled all the votes, was none other than. Okay, work with me here. I'll give you three guesses. One, he was from Delaware.
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C
I was I was going to say that Joe Biden.
- [09:37]
A
Yes, yeah, yes, good old Joe Biden. You know, always a day late and a dollar short on pretty much everything. He was the guy that sponsored that. In fact, he came to the oral argument. I remember seeing him in the gallery. The Senate senators have special seats, seating in the Supreme Court when that case was argued, and again, the decision was five to four. Flag burners won. And that was kind of the end of it. Everybody had had their say. We moved on to other things in America. So when Trump brought this back, a topic that frankly was not on anybody's Facebook page or radar screen or social.
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C
Media.
- [10:24]
A
We were all pretty surprised. This is settled law. But as with so many things that Donald Trump does with these executive orders and other kinds of, of executive branch leadership, it's hard to know from the reporting is this actually real or is it just kind of trolling? And it's always very hard to figure out, partially because I don't think he knows the difference between what's real and what's trolling, and partially because it takes a level of expertise to dig into these executive orders and figure out just what they are and what they're not. Happily, when it comes to legal stuff, I have that expertise, and I can assure everybody that this executive order means absolutely nothing. It is utterly and totally without any operative legal effect. So we can go back to worrying about the things that, that we should be worrying about, like how the immigrants outside are being rounded up or how our student friends are being denied visas or being stripped of their green kids, or, you know, how the planet is being burned down. You know, we've got plenty of other things in our anxiety closets which are absolutely full to overflowing. We can remove flag burning repression from that closet and put it in the no problem closet.
- [12:10]
B
So I, I noticed, I, I noted right after he issued that executive order that there was a veteran protester who went to the White House, J. Cary, I believe is his name, who went and burned a flag immediately, I guess, to, you know, test the limits. And he was arrested. But looking at the news, he wasn't actually arrested for desecrating a flag or anything related to that was all like, you know, setting a fire in a public place, sort of minor charges.
- [12:36]
A
Somebody who wrote the executive order had a law degree and used it, so which is, is rare these days from, from the Department of Justice. And I, I hope that person hasn't been fired already. So the executive order gives the federal authorities absolutely no power whatsoever. It, it instructs Pam Bondi, our Attorney General, to bring to the attention of state and local authorities episodes of flag burning that could be punished under content neutral laws. So basically says, hey, AG Bondi, if you see some flag burning that can be prosecuted for something else other than, than burning a flag, let the state and local officials know. And what that generally means is when we talk about something that's content neutral in the law, it simply means you don't have to look at the content or the statements or expressions being made in the conduct to determine whether or not it's unlawful. So it is unlawful to set fires in the middle of the street? No, nobody's arguing otherwise. Really. And, and just because you use a flag to do it doesn't mean you get away with it. Hey, burn it. I got a constitutional right to burn a flag. Well, yeah, but you don't have a constitutional right to set up fire in the middle of the street. Similarly, let's take a more extreme example, you decide to strangle somebody to death with an American flag. That is not an expression of your constitutional rights because it's the crime of murder, which is content neutral, whether you do with an American flag, an Israeli flag, or just the old fashioned wire around the throat. So this executive order means absolutely nothing in terms of operative legal effect. I mean, in terms of the tone it sets, I don't know. I mean, it makes, as you said in the introduction, it makes us all fear for our First Amendment rights as this country slides down into some form of fascism or as I prefer, some sort of Orban style authoritarianism. And it does make people fear that. But I think it's also really important that people understand, again to quote Dylan, what is real and what is not. And this is not real designating tren al Rua, or however it's pronounced, a foreign terrorist organization that's invaded the United States. That's real and that has an operative legal effect. This does not, I don't want to.
- [15:31]
C
Say flag burning is irrelevant because it concerns people and this is very emotional issue. Right, liberals. Oh, we got to preserve the flag. But something that, and I just retired after 30 years as a professor that does bother me deeply is, is book banning and, and kind of curriculum attacks. Have you seen anything like this since you've been practicing this kind of nationwide scourge, especially in certain states like Florida and Texas, where I was for 30 years, where certain books are being banned now in Texas, the, the state is taking over curriculum and content. And you know.
- [16:03]
A
Well, again, you know, it depends what you mean by Quote, unquote, like this. If you will recall, during the Reagan era, there was this huge concern with on screen pornography, televised sexual explicitness. There was this again, this mini, mini moral panic around, you know, what children were being exposed to on TV and on the screen. And we have to crack down on this and all of that. And that of course resulted in a lot of discussion and angst and symbolic gestures, but that too passed. That was kind of like this. There was, oh, who can forget Tipper Gore. Just to show this is not a partisan issue, particularly, although it's Republicans who are doing it now. Tipper Gore and her whole idiotic campaign against violence in rap lyrics, although she was perfectly fine with, you know, violence in country western lyrics, which, you know, I adore. I shot a man in Reno Just to Watch him Die. Right. And Cocaine Blues. Right. Can't forget the day I shot that bad bitch down. You know, all these great hits from Johnny Cash and the other. She didn't have a problem with those. She had a problem with rap lyrics. And again, they were talking about banning them and there was campaign against stores to not sell them and put warning labels on them and all that stuff. And we survived. So if you take any one thing and ask, have we ever seen anything like it in the Post World War II era, what we'll sort of call the modern era of constitutional law. Yes, we've seen things like this. Have we ever seen all of these things together at the same time? No. No, we haven't. Or I haven't.
- [18:18]
C
I guess in my case, what I've seen for the first time in the last few years is that professors are caving and capitulating more than they ever have just at the suggestion of this. Even tenured professors are afraid. And that's the part that I think is. Is different based on, you know, my four decades really in academics.
- [18:38]
A
So was it different in the, during the Red scare in the 50s and early 60s?
- [18:43]
C
I'm not quite that old. But on the other hand, we had Ellen Schrecker on not long ago who said she thinks this is worse than McCarthyism.
- [18:50]
B
Okay.
- [18:51]
C
I mean, I don't know.
- [18:52]
A
We can debate that and I think it's a reasonable discussion. But the notion that, that the government has never before, you know, engaged in some sort of a witch hunt under a guy of fighting something and, you know, went after unions and academia and Hollywood and everybody else. I mean, they did. That did happen. Then the guys was communism. Now the guys is anti Semitism. You know, even if you're Jewish, especially If you're Jewish, I mean, you know, do we not make the best anti Semites? Why should we be deprived of that? So again, we have seen these things before individually, we've never seen all of them together. And it's incumbent upon all of us to do what we can in our many spheres. I mean the one, I won't call it a silver lining, but let's call it a copper lining in all of this repression is that it has an impact on so many people from academia to unions. ADU and probably can find out probably isn't good for zebras either frankly, that we all can play some sort of a role in fighting back against it, trying to protect the things we care about and trying to preserve, as George Bush would say, or persevere, as others would say.
- [20:30]
C
Let me just kind of follow up because one thing that I think and I thought about this, you know, COINTELPRO and the, the attack on Christian groups in the 80s and the central American solitary, so forth, there's kind of a distinction between what the state does and what private institutions do outside of the state. And so Even in the McCarthy period, a lot of the, the problems came not really from the government, it came from the unions and the universities and so on. And so often the government can say we didn't have anything to do with this. It was, you know, and in the universities, most of the time it's coming from the dean and the provost and the, you know, whoever legally is. That kind of make it harder to attack, easier to how. What's the distinction between the state coming after you and your employer, let's say, coming after you?
- [21:16]
A
Well, it's a huge distinction because the First Amendment. And let's just sort of go back to Constitutional Law 101, which of course many people never took. The First Amendment protects against actions by the government. Now I know that's not in the words. The words is Congress shall make no law. But without going into the whole history of that, let me just say when the government is acting against you for your speech, they're violating your First Amendment rights. When private companies decide you are no longer worthy of their brand or you're simply bad for business, they fire you. You have no First Amendment protections. Visa against private action. I mean, if the government, if the cops come in and drag you out of your home because of something you posted on Facebook and that's protected by the First Amendment. If your significant other comes in and throws you out of your shared home because of something you're looking at on your computer that's not protected by the First Amendment.
- [22:31]
C
What about Columbia and Harvard kicking students out for allegedly being anti Semitic? How does that fit in?
- [22:39]
A
So as in the McCarthy era, the government set the tone for what was going on. You had the House of UN American Activities hauling people before it, asking them if they had or had not. Have you now or have you ever been a member of an organization, da da, da, A communist. And people were put in this terrible bind of either saying, yes I was, but I don't believe in it anymore, I'm so sorry, or admitting they were and facing the possibility of prosecution and certainly the possibility and the likelihood that they would be blacklisted or refusing to answer, just taking the Fifth Amendment. And in fact there was a term for them. They were called Fifth Amendment Communists and treated the same way by Hollywood, by unions, by private businesses, by, you know, various units of state government. And they were blacklisted and unable to, to work. So you have a similar dynamic here going on with. Even before Trump was elected, the House Standing Committee on Labor on Education in the Workforce, led by the execrable Virginia Fox, was issuing subpoenas and having public hearings. And it was where Elise Stefanik, I don't know if people remember this, she had her sort of shock shining moments that actually managed to get parodied on Saturday Night Live because it was so ridiculous of embarrassing the presidents of Harvard, Penn, MIT and Columbia, I think, and leading to the resignations of many of them. And that really sort of got the ball rolling and Trump amplified that. But fighting the government is expensive and the government has many, many levers of power that it can use against you and has been using against universities. Now are these unconstitutional? The answer is yes for some, no for others, and probably for a bunch of others. But it takes time and resources and they can afford to just keep coming and that's what they're doing. So universities have found it easier to capitulate and carry out what the administration is demanding on their own. And there's very little recourse. I represented a student involved in the so called Butler hall takeover at Columbia University. This came earlier this year after Trump had gotten elected and demanded that there be significant penalty which they described as expulsions or multi year suspensions, which was be very rare to have done before this. And that's essentially what Columbia did. I mean my client managed to get through with probation, but she had a great lawyer.
- [25:58]
B
You are listening to the silky smooth sounds of the Green and Red podcast. Please check us out on Facebook, Instagram and Twitter. If you're watching this on YouTube, please hit that subscribe button. And if you're listening to us on your favorite audio platform, please give us a rate and review. It helps us with the algorithms. And if you really like what you're hearing, please go to our patreon patreon.com greenred podcast and become a patron or make a one time donation by going to our website@greenandredpodcast.org and hitting that support button. One question kind of getting this to a little bit of the sort of rollback of civil rights around this increase or surge of illiberal authoritarianism is like things like the flag burning executive orders. It's very symbolic and like you said, really means nothing. It's red meat probably for his base, if anything, which is why I think he does a number of the executive orders. Others have much more significant impact, but just in the, in the sort of greater view of it. What, what is really at stake here? This, this is where we're seeing the rollback of these institutions and these protections that we have for him. Concentrating power.
- [27:13]
A
You know, the, the, the thing is we have no idea how this is going to end and when this is going to end. And you watch everything from the dismantling of public health institutions, which as an older person, I have a problem with. You know, these young people, they'll, they'll figure it out. But you see that to issues of, of gerrymandering to try to create a permanent, you know, white Republican majority to the 180 degree turn in the Justice Department responsible for enforcing civil rights, going from enforcing laws that disenfranchised historically marginalized people to enforcing laws that have historically benefited the white and wealthy and powerful. So there's this whole seemingly endless parade of horribles. And we spend a lot of time thinking about what is next. And with respect, I think that's the wrong approach. We don't know what is next. We like to latch on to fascism because we know how that ended, right? We all saw the movies. Our parents and grandparents lived through it. We won. Nazis defeated. Fascists hung up on piano wire in the middle of Rome. Okay, so we like those images because that means we won. But I don't think those are accurate. Historically. I think there's very little, there are very few data sets that we have and we don't know what's next. So instead of speculating about all of that, like we're down the slippery slope or what's going to happen when, or what happens if Trump does this, let's just come to grips with trying to do something about what is actually happening now. And maybe if we succeed in mitigating some of that, in protesting some of that, in fighting back against some of that, we won't have to worry about, you know, the ultimate horror.
- [29:49]
C
You know, one of the things that I think is problematical right now is that so many of these things have a legal response, right? We're going to sue them, we're going to go to court. You have a court system now which is, you know, pretty much dominated by Trump and his people, especially the higher. Well, at the lower levels, Trump loses much of the time. But at the higher levels at the Supreme Court, you know, it doesn't matter. How do you approach things when you're going into a situation knowing that at the end of the day, the power dynamic really is against you.
- [30:20]
A
You try to, I mean, if you're looking to structure your legal arguments, you try to do it based on authority and precedents that the conservative super majority championed not so very long ago, which doesn't mean they can't abandon it, but they are less likely to do so. Let's just take one example. These orders to cities and states that they must enforce immigration law, they must turn their police forces into ICE agents, they must work with ice, and the penalty for that is defunding your whole city, every anti crime program, and indeed everything that is now being litigated. And you say, gee, how's the Supreme Court going to decide this? And the answer is they decided it in our favor. We weren't us then, we were them then, but they decided it now in our favor. Not so very long ago when the majority talked about the anti commandeering clause of the 10th Amendment. And that case arose in a context where I think it was the Clinton administration, it may have been the Obama administration wanted to enforce the Brady Bill. The Brady bill, of course, requires background checks and all kinds of other, you know, bureaucratic apparatus before you can walk into a gun shop and walk out with a gun and shoot somebody. And there weren't enough federal authorities to do that. So the threat was made that municipalities and states that refused to enforce the Brady ban were going to be defunded. And the Supreme Court said, no, you can't do that. You cannot turn state and local authorities into many federal agents. You cannot commandeer them for federal purpose. Very emphatic, and it may have been Scalia who wrote the majority opinion, but very, very emphatic and ringing defense of, of federalism in the proper role of state versus Federal authorities. So you approach these issues with that rather than some, rather than liberal terrorists.
- [33:00]
B
I have a few questions. The sort of like, move off of this, which is you. You live in New York. I saw that you used to co host a radio show with Curtis. Sliwa. Sliwa. I don't know if I'm pronouncing that correctly.
- [33:15]
A
Doesn't matter. Yeah, the guy with the red beret who's now 71 years old, looking like a thumb with a red condom on top. Who did I mention is running for mayor of the city of New York as a Republican?
- [33:28]
B
Double digit. Double digit in the polls. My question is around the mayor. Well, is around New York politics. I have a mayor raised question in a minute. But I'm kind of curious about like, you know, Trump is also threatening to send in a surge of ICE agents and send the military in. In Chicago, we see where the governor and the mayor really sort of standing up to Trump, at least rhetorically at this point. How complicit do you think Eric Adams will be if that happens? Like what's going to happen there? And maybe this is a little bit too much of asking for a prediction.
- [34:03]
A
Oh, no. I mean, look, Eric Adams is now wholly owned subsidiary of Trump Incorporated. He will do what Trump tells him to do, the way Trump tells him to do it, while acting like he's not doing that, you know, which fools some people and doesn't fool other people. But he is currently polling 9%. That is, he's polling below in a Democratic city. Right. With 6 to 1 advantage. He is actually polling at about half of what the crazy vigilante guy wearing the red condom on his head is pulling. Okay, so what he does will be whatever Trump wants, but that's not going to be good for what the billionaire class wants in New York City. And we'll ultimately see whether Trump prevails or the billionaire class that just wants people to chill and not have fights in the street and not have these armed confrontations with the National Guard. They just want calm so they can continue to make money off the working class and make money off of undocumented workers. So I have no idea how that's going to play out. But I do think that ICE coming to New York in the back of the pickup truck filled with National Guardsmen is not going to go over well in New York City. Judge just declared it unconstitutional in Los Angeles. So, you know, we'll deal with that if it happens.
- [36:09]
C
You know, this isn't really a legal question, but we've often Talked about capitalists needing stability. Like in the summer of 2020, you saw these corporations actually kind of start flying Black Lives Matter flags and things like that. Right. But I guess it is kind of, from a legal perspective, the people like that ever reach out to people like you and say, you know, we don't really like you and we don't like the people you represent, but we need a stable society here.
- [36:33]
A
Well, they don't reach out to people like me, first of all, because there aren't a lot of people like me. I would argue there's only. Only me. And number two, I. I don't represent a constituency.
- [36:46]
C
Right, right. Right. I guess. I mean, do they ever kind of take that position where, hey, you know, we don't really like these folks who are doing this, but we need to stabilize society?
- [36:56]
A
Well, I will say this much about that. When it comes to me, there are a lot of people in law enforcement under successive administrations and quite high up when there is something that benefits them and benefits one of my clients, like not having everybody die in a shootout. Right. Which government doesn't want. I don't want. We have conversations about ways to make that work. And I assume in less fraught circumstances, the bourgeoisie in New York, the billionaire class, reaches out to those people that it thinks it can work with to cool things out. But they've reached out to Cuomo, they've reached out to Adams again in the mayor's race. They have been vociferous in being united against Mamdani, and it's kind of crazy. They're a victim of their own constant pandering about the evils of socialism. They've actually come to believe their own, which, if I can say that, I can assure you, whether you're on your left or the right, believing your own bullshit is a bad thing, a bad basis on which to make decisions. And they are making extraordinarily bad decisions.
- [38:28]
B
I think that someone once said that things go really bad when you start to smoke your own hash. So, you know, because it's interesting, talking about Mamdani, I saw where one of the, like, minor candidates dropped out, who was maybe a conservative Democrat, and said that Mamdani was a dangerous option. So he was dropping out of to as a. To help propel the Mamdani wave. I also saw where another Democratic operative said he called him a dangerous option, which almost is like a talking point, I guess, that they're putting out. And, you know, But Mamdani is like, when you look at polls, not the. Not the polls, you get in the texts from the Democratic Democrats trying to raise money. Is that even one on one with Cuomo, he's winning. And, you know, it seems like there's this spirit in the air. There's a sense in the air now where, you know, we want to see more of what he's talking about, which is really just pretty much like new Great Society liberalism, like, you know, city running grocery stores and things like that, which actually already have in cities like Atlanta.
- [39:29]
A
Right? Well, that's right.
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B
And affordability. Affordability.
- [39:34]
A
And affordability. I mean, what Mamdani brings to this race that nobody else does is a vision of New York, where the working class and the middle class are supported and of primary interest, rather than being in the pocket of the billionaire class. Recognizing though the billionaires are needed.
- [39:58]
C
The.
- [39:59]
A
Billionaires don't leave New York. We continue to have more and more and more of them. Every year there's an increase. And in the near billionaires, if you look at the prices of housing, astronomical. Somebody's with lots of money, they're buying these things. If people were fleeing New York or the. The specter of the hammer and sickle descending upon them was creating panic, you'd expect that housing prices would at least go down. No, none of that's happening. So. So a lot of this is just fear. And I think we've all heard this in New York so many times that we like Mamdani's vision. He is young and charismatic, and it's about time. As opposed to all of the, you know, Cuomo we've been through endlessly, and Adams, who. We're sick of somebody who's young, who's charismatic, who brings young people into the process. He's surrounded by older advisors, including people with lots of experience in government. Our city controller, Brad Lander cross endorsed with Mamdani, and Brad was my candidate. Actually, I didn't rank Mamdani one, I ranked him two. And so there's tremendous amount of institutional support or experience that is available to Mamdani if he in fact wins this race. Now, all three of the candidates who consider themselves to be viable, Adams, Cuomo and Sliwa, they all agree that somebody should drop out and that indeed, the one person facing Mamdani would be the best situation to save New York from Mamdani. The only problem is, yeah, they can't agree on which one.
- [41:53]
B
So.
- [41:56]
A
All of them want the other to drop out. And it's one of those, you know, lead on. They can't kill us all. Well, okay, but I don't Want to be first, like go first. So it's pretty comic. It's pretty comic. And it's a lot of fun watching them call on the others to drop out. The Republicans called on Sliwa to drop out. He said one of the very few same things. He said, why should I drop out? I'm pulling double what Eric Adams is pulling. He should drop out.
- [42:31]
C
You know, earlier you mentioned the use of anti Semitism in a lot of these, these circumstances now. And I, I don't think I've seen, you know, I've again, as a historian, I study this not as a lawyer, but I've never seen laws being crafted and repression being crafted in defense of a foreign entity. Like in the Cold War it was against the Soviet Union, against the Communist, against Castro, against that.
- [42:53]
A
There you go. You're referring to the Israel as a entity, so. But I can boycott trope accusing us of dual loyalty. You're an anti Semite. Conversation's over.
- [43:08]
C
I've been called that before. I've been called that.
- [43:11]
A
Well, they find out Jewish then I'm a self hating Jew.
- [43:13]
C
I guess then you're a self hating Jew. Right, but like I can boycott an American company, no problem, but I can't boycott Israel, an Israeli company. Right.
- [43:20]
A
You can boycott a Russian company in solidarity with Ukraine and.
- [43:25]
C
Right, right, right.
- [43:26]
A
You know that, I mean, is that new?
- [43:28]
C
Is that, you know, I kind of go back to like the alien institution acts, right. Written in France and all that kind of stuff. But this seems like a real kind of escalation and you would think legally that it would be like kind of laughed at, but it seems to have legs. Right?
- [43:45]
A
It's. It, it has gotten more traction than I would have believed possible and it is not something we've seen before in this degree. Look, let's face it, the state of Israel has always enjoyed widespread bipartisan support in the Republican and Democratic parties, no matter what it did, with the sole exception of when in 1956 France and England decided to use Israel to seize the Suez Canal and President Eisenhower had to call up and say, no, back, back, sit, stay. Which, you know, they did and everything was, was fine. They declared victory and moved on. So during, you know, post occupation, that is after the, the so called Six Day War, it took a while before sentiments in America started to change. And they began to change around the beginnings of the settler movement when the idea was to colonize Gaza and the west bank and eventually make these Israeli territory. And protests increased and they were beaten back pretty successfully in the 90s. And the O's and the teens. So there was no need to really use this very blunt instrument of calling everybody critical of Israel an anti Semite. And Israel's wars at that time were fairly short. So by the time you got together to look at the dead Palestinians, Israel had stopped killing them and everybody moved on. So this is unique. And it's also unique that so many people in the United States, otherwise liberal, are willing to see this as an existential crisis to the state of Israel, which, I mean, it's not. I mean, look, Hamas is a horrible group of people, a bunch of, you know, religious fundamentalists. They violate the rules of war. They commit war crimes. They, you know, I have no brief for them. But there is not now, nor has there ever been any danger of Hamas flying into Tel Aviv on paragliders, taking over the Knesset, and all this crazy stuff. That's an existential threat, and that's not here. So I have never seen this type of thing before. And when working with government, it has been incredibly effective at silencing dissent and making other people police themselves. And as my grandfather used to say, this is not good for the Jews. And if anybody legitimately thinks that Donald Trump and his whole far right neo Nazi group of pen pals care about Jews as Jews, they are deluded. Now, look, the Christian right cares a lot about the state of Israel because as part of their eschatology, Israel has to exist as a state to enable Jesus to come back. And then, of course, I hate to tell my Jewish brethren, but after he comes back, it's not good for us. We convert or die. The world is finally free of Jews. That's why they're supporting Israel. This is not so good. But the cynical folks among my people say, right, wait a second, let me get this straight. Christian, right? There's so many of you, and you're so rich, you'll support us until Jesus comes back? That's right. It's a deal. Such a deal. You know, it's like getting paid to be a dog walker after the Rapture. Okay, pay now. And I promise, since I won't be raptured, I'll walk your dog.
- [47:59]
B
I think we're. I think we're getting near the. The end of time.
- [48:02]
A
Well, if not, we should be.
- [48:05]
B
Yeah, like the Rapture. Like the end. I was gonna see. I have a question. I think Bob does.
- [48:09]
C
You want me to go or you go?
- [48:10]
B
You go.
- [48:12]
C
Yeah. This is. I'm kind of curious because, you know, there's an old saying in Texas and probably elsewhere That a grand jury and a died of ham sandwich. Right. I lived in Harris county, which was the death penalty capital of the world. Right. But recently the guy who threw the sandwich was indicted. And then today I just kind of caught it. Before we went on, there was another grand jury refused to indict a woman who I guess threatened Trump or something like that. And that's kind of unusual. Do you see kind of grand juries taking a more active role or maybe even jury nullification kind of stuff going on going forward? Because this stuff is so extreme and so far out there.
- [48:47]
A
Well, I did not see that coming. I mean, I trust trial juries, you know, the District of Columbia, you're going to convict, you know, throwing. And we still don't know what kind of sandwich it was. We talk about sandwiches, but maybe as.
- [49:02]
C
An Italian, I'm hoping it was a bmt.
- [49:03]
A
I hope it was meatballs.
- [49:06]
C
Yeah, exactly.
- [49:06]
A
Right. We don't know. I, I actually really wish his, his lawyer would come out and just tell us the type of comestible it was. This guy is a hero. There should be a sandwich named after, after him anyway.
- [49:18]
C
Absolutely. They can call it the Luigi. Yeah.
- [49:21]
A
That has somewhat more, more direct connotations.
- [49:25]
C
Yeah.
- [49:28]
A
So I never would have predicted this because grand juries can hear testimony that's done only by an FBI agent. Grand jury can base his indictment totally on hearsay. So we almost never get grand jury nullification. Nullification. We do get pedigree nullification around these things. So I'm not sure what happened here. I really don't. I, I know that I know Janine Pirro. And there was a time in which, while I deplored her politics, she was a reasonably competent district attorney. But, you know, time and age and Kool Aid K and other things can take its toll on someone. And nobody views her as particularly competent. And they're gutting the, the U.S. attorney's office in D.C. it's kind of funny. My daughter actually works in D.C. and it's hysterical that, okay, they're making all these arrests, they have nobody to prosecute them, and those people who are trying to prosecute them have no idea what they're doing. So they may get that together, but it's a useful cautionary tale when we talk about guardrails, grand juries exist. More importantly, trial juries exist. And you know, people are not going to. The government's not going to have its way on all of these cases. On the other hand, they just indicted a bunch of folks in the Eastern District of Washington, including A US army veteran for conspiracy to impede federal officials by force based upon an ICE demonstration where somebody let the air out of some tires of a car and a few people threw things at cops who were in full armor and stuff. So they're not going to stop trying. The good news for people like me is the jurisdictions where they are most likely to attempt that kind of repression are the very jurisdictions where the juries are more likely to fight back against it. Yeah.
- [51:40]
B
Also where you have a, a dedicated group of lawyers, like here in the Bay Area, a dedicated group of lawyers who have been doing civil liberties and political work for a long time, I think is also important.
- [51:51]
A
Yeah, we're important.
- [51:53]
B
Yeah, yeah, exactly. That's, that's.
- [51:55]
A
Yeah.
- [51:57]
B
My last question is, you know, talking about all the flag burning and First Amendment stuff. Is it still legal to burn a Trump flag?
- [52:06]
A
The answer is, for now it is. As I am speaking to you now, tomorrow morning, we'll have to see.
- [52:18]
B
I think we'll just leave it at that. Tomorrow's another day, folks. We've been talking with Ron Kuby, criminal defense attorney, civil rights attorney, about flag burning and lots of other stuff.
- [52:31]
A
Radio talk show host. You just got a number, right?
- [52:33]
B
Radio talk show host too, going on.
- [52:35]
A
For a while in a hopefully reasonably entertaining vein, interrupting everybody and, and such. So I just want you to know, that's all. Talk radio training, that's not how I act in court usually.
- [52:47]
B
Well, you should be, you should, you should be active if you like what you hear. And please check the Green Red podcast out on Facebook, Instagram, Twitter, Blue Sky. Subscribe to us on YouTube. And if you like us a lot, go to greenredpodcast.org hit the support button or become a patreon@patreon.com backslash greenredpodcast.
- [53:08]
A
And if you like me a lot and you want to hire me, don't. I am way over subscribed. Find somebody else. But I love you.
- [53:18]
B
And yeah, if you're doing protests in New York, you may see, you may see Ron there and he's a great attorney as I've had experience with in the past. So, Ron, it's been really great talking with you today. Hopefully we can have you on again sometime soon because this was great.
- [53:36]
A
More fun than these things tend to be actually. So it's been my pleasure. I get invited lots of places, but I seldom get invited back. So if you want me back, I'll come.
- [53:46]
B
Oh yeah, we would love to have you back anytime. And everyone else out there make a lot of trouble and misbehave. And we will talk to you again soon.
- [54:00]
A
Sam.