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A Tale of Two Comeys, SPLC Strikes Back, and a Voting Rights Act Eulogy
00:59:16
James Comey is indicted over an Instagram post, Maurene Comey gets a significant courtroom victory, and SCOTUS further dismantles the Voting Rights Act.
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Foreign.
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Welcome back to Main Justice. It is Monday morning, May 4th. I'm Andrew Weissman, and I'm here with Mary McCord. And, Mary, we were just talking about where I am and where you just came back from. And one day we should do a sort of like, in the three years that we have been doing this, knock on wood, we have yet to miss a week. And sometimes, of course, there's been more than one week, but that's because we take our equipment everywhere. And so I feel like one day it's going to be like I'm at the top of Mount Kilimanjar, right, doing this podcast. And the others be like, really? Because I'm in Antarctica. We were both in Europe last week in different parts of Europe. But as long as the Internet's working, it's fine.
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Sometimes that's a little sketchy and we have to turn off video.
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Exactly. Sometimes we can't see each other, which is like in case we sound discombobulated. Normally when we can't see each other and sort of read off of each other, it's even worse. But thank God we have the greatest production team so that they can stitch it together and make all of our sort of gaffes and ums and ahs sound a whole lot better.
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Yes, that's right.
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There's a lot to cover this week. There's a little bit of interesting and good and I sort of thought a sort of fascinating decision. And there's a lot that we really need to dig into that is very, very troublesome.
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Yes. We will start with what I am calling a tale of two Comeys. We have the indictment, the second indictment of James Comey, the former FBI director, this time for an Instagram post that showed a picture of seashells on a beach in North Carolina spelling out 8647. And he was now indicted for making a threat against the President of the United States.
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Can I just tell you one quick thing about that? So you and I were in Europe last week, and I almost took a picture of this and sent it to you. But on a beach in Europe, in the middle of nowhere, I mean, really nowhere, somebody in the sand had scrawled out 8647.
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Good. That you did not use interstate and intercontinental means communications to transmit that, because that's also one of the charges. Right.
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So crazy.
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Yes. We will talk about how messed up this indictment is and how I don't think it will ever, ever pass muster because he did. Was First Amendment protected. So we'll dig into that the other Comey in the Tale of Two Comeys is James Comey's daughter, Maureen Comey. And here's where we have a little bit of good news. Even though she was fired in I think, in my opinion and yours, in retaliation for essentially her father being a daughter. Yes. Because she was the daughter of James Comey and you know, the perception of her own political positions, she has prevailed against a motion to dismiss her civil lawsuit challenging her firing. And that means the government moved to dismiss and the court said no. Doesn't mean she has won the case. But the case moves forward. And we'll talk about that and we'll
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talk about why that's such like it may seem like it's a one off. It's not. This is like a really big deal.
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Yes.
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If this is to be upheld and it's the wave of the future, we're going to explain why this is a huge deal for the federal workforce.
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That's right. And then we will move on to really a follow up of last week's discussion of the indictment of the Southern Poverty Law center splc. Because the SPLC filed two very, very interesting motions right after the indictment that, you know, ask for the court to provide the grand jury transcripts because there are reasons to believe that the government might not have faithfully and truthfully presented information to the grand jury. And also to get some remedy for false statements made by the acting Attorney General Todd Blanche and other members of the administration about SPLC's conduct.
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The alleged false statements, just to be clear. Because that's right. It'll be, you know, Todd Blanche is going to be have a chance to. And the government on his behalf will have a chance to respond. We'll dig into that 100%.
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And then we will talk about the real tragic, tragic decision by the Supreme Court last week in Louisiana v. Calais. This is a case that now completely gutted Section two of the Voting Rights act from the civil rights era. And in my read, and I read it pretty carefully, and I'm sure you did, too, it's going to be near impossible for minority voters to ever make out a violation of Section 2 of the Voting Rights act, which was designed to implement the 15th Amendment that prohibited discrimination against people in voting.
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Yeah. I will give you the one hypothetical which is, I mean, this basically someone's going to have to be incredibly stupid in order to actually create a case that people can successfully challenge.
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That's right.
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And I have to say this is one where I think we should give a link in our show notes to the decision. But I highly, highly recommend the dissent by Justice Kagan. I mean, it's so sad to read it, but it is beautifully, beautifully written. And it is written for everyone.
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It is.
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You do not have to be a lawyer steeped in the Voting Rights act to understand what GSA to say about the history of blacks in this country, the history of the fifteenth Amendment to the Constitution, and then the Voting Rights Act. It is a beautifully written story that I really highly recommend to everyone. Because, you know, as much as I'm sure we're going to do it justice, it's really worth reading her take on what the Supreme Court has accomplished and puts this decision in that context in terms of the sort of nail on the often in terms of the rights of minority communities to vote in this country. I was so moved by it. Just before we started, I went back and reread it because it's great.
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Yeah, agree. Shall we dig in?
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Yeah. So should we start with James or Maureen? These are the two Comeys, father and daughter and dealer's choice. Mary, what do you want to start with?
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Let's start with James and then move on to something good. And I will say, remarkably, these two things happened on the same day. Comey was indicted and his daughter won against a motion to dismiss. So just what are the odds of that? Kind of crazy.
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So maybe should we just put the James Comey's new indictment in perspective just in case everyone is not aware, James Comey had been indicted for allegedly lying to Congress when he gave a sort of videotaped. It's like a deposition. He had testified before before Congress, but he was actually at home during COVID It was Covid. Right. And so that is why he was indicted in Virginia, actually, because although Congress was in D.C. he was in Virginia. So he ends up being indicted there. And people at that time thought that that case was tenuous for a whole variety of reasons that we went into. He made a series of motions, but one of them was the improper appointment of the U.S. attorney in that district. People remember that was initially it was a Trump 2.0 appointed U.S. attorney who by all accounts had grave concerns and did not want to bring this case or the Letitia James case or one or both at least. Right. And lost his job over it. He said he resigned. Donald Trump says he was fired. Either way, it was because he didn't want to bring the case. Reports were that then Attorney General, General Pam Bondi and Acting Attorney General Todd Blanche both went to bat for him. And yet nevertheless, he was ousted. And then Lindsey Halligan was put in that position. And various challenges were made, one by James Comey to her appointment, and that prevailed. And so that was on a procedural ground, even though there were lots of substantive grounds that had been raised, most prominently vindictive and selective prosecution. But the court never needed to reach that because it was dismissed on that procedural ground that is now pending on appeal. The government has appealed that. So the case is, for the moment, dead. But if the government were to win that Lindsey Halligan was properly appointed or that somehow the indictment should stand, nevertheless, it would go back, and that indictment would then be subject to all the other kinds of motions that James Comey
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has made, including vindictiveness. Right. And selectiveness.
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Exactly.
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And as relevant to what we're going to talk about with splc, a judge in that case, when he was looking at the vindictiveness motions and other motions to dismiss before this ruling about Lindsey Halligan being, you know, unlawfully appointed, did raise questions about Lindsey Halligan's presentation to
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the grand jury because she went in alone.
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That's right. And there were things that came out that she said that seemed like maybe improper statements had been made. And so that was in the process of being litigated. And the judge there did allow the defense to see those grand jury transcripts so that the defense could rely on those as necessary in a motion to dismiss. So that's relevant to what we'll get to with respect to splc. But this indictment, super short couple of pages, two counts. And I just want to go through the language a little bit because I want to then talk about the First Amendment. Right. So the first count is alleging a violation of a specific statute that's about threats against the President or vice president or president elect. And it alleges, and this is important, that James Comey did knowingly and willfully make a threat to take the life of and to inflict bodily harm upon the President of the United States. Then it explains what he did in that he publicly posted a photograph on the Internet social media site Instagram, which depicted seashells arranged in a pattern making out 86, 47, which a reasonable recipient who is familiar with the circumstances would interpret as a serious expression of an intent to do harm to the President of the United States.
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And presumably, there's no allegation that James Comey created the seashells, that he found it while he was walking on the beach and then took a picture of it and posted that for people who are not in the know. And this is relevant to what we're going to get to. People are probably, before they saw this, if they just saw the numbers 8, 6, 4, 7, that's like, we broke it into 8647. But let's just remember it's 8, 6, 4, 7. So some people are going, is that his pin? Like, what is that? 8, 6, 4, 7. And so the theory is that 47 is a reference to the number of Donald Trump's second presidency. He's the 47th president of the United States. And to 86, and this may be even the bigger stretch, 86 means to kill under the government's theory, not to depose, not to impeach, not to remove, but to kill. So to 86, that's one where I have to say the first thing I did is I went to the dictionary because I thought, am I missing something that the kids know? Because I used to say, like, let's 86 that. Right?
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Like, get rid of that. Deep six it. Throw it away.
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I thought of 86 as deep six.
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Deep six. Me, too.
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And so I went to various dictionaries, I went to Wikipedia type things. I went to the Internet thinking, okay, I'm too old, I must be missing something.
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Yeah.
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And I'm not. The only thing I got was like, as a fourth possible definition, I love this. Said 86 can mean to, like, exterminate. But it said, but only when it's in context with other words. Like, in other words, that it was like, you know, you were saying something like, I think it's so important that this person be killed that we need to aid it. Like another sense had to have other words to explain it, because it is not its natural meaning that you might, if you even thought 47 means the president, that 86 just could be impeach or just vote against him, or like, essentially you just. It's like an opposition, but this is a threat to the life. Now, this is one where Donald Trump's family immediately accused James Comey of doing this. And James Comey, at the time, took it down and said, I had no idea that's what it meant, and it's certainly not what I intended.
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Right.
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So that's sort of the record. And that was about a year ago. A year ago, yeah. And so then this comes racing through, and I have to say, to my mind, it is part of the me, me, me, me, me, which, by the way, could also be a title for this show, which is. Which is Todd Blanche needing to show, like, don't put anyone else in as The Attorney General, because I'm willing to go as low as possible to keep this job. Because this is one where to say it's a stretch is unbelievable. And I know, Mary, you now want to talk about the First Amendment and what the Supreme Court has said. A true threat. That's the key word. What is a true threat that the Supreme Court has said is sufficiently clear and real that in other words, it's a true threat that you can criminalize it and it doesn't run afoul of the First Amendment, Our right of free speech.
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Yeah. Because otherwise there's lots of language that could potentially be perceived as threatening, but lots and lots of that language is protected by the First Amendment.
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C, E, G, Our current President of the United states, language that makes 86, 8647 look like child's play. Do you remember, Mary, when in the first time he ran for office successfully against Hillary Clinton, when he alluded to people who were supporters of the Second Amendment may be able to take care of an issue?
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Yes. How is that not a threat?
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Their definition, if they're. Again, I'm not saying that it meets the truth that I'm saying if their definition of true threat encompasses 8647, I do not see how that is not way over the line compared to 8647.
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Yeah. And I'm going to come back to that in a second.
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Okay.
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So what the Supreme Court has said is that a true threat encompasses, and this is a quote, statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. It cannot be an expression made in jest. It cannot be hyperbole. It cannot be too general or too vague and not concrete enough. Right. And there's all kinds of examples of attempted prosecutions being rejected on First Amendment grounds because a statement was made as a joke. Right. Or hyperbolic, particularly in politics. The standard also is a standard. And this, this is a new Supreme Court case from a few years ago because there had been a controversy over whether the test is did the speaker intend to make a threat or would a reasonable listener perceive it as a threat? And the Supreme Court sort of split the baby on this. But I think in a way that is much closer to the person intending to make the threat than the reasonable person's perception of it. Because what the Supreme Court said is that prosecutors need to prove that the speaker was at least reckless, meaning aware that others could regard his statements as threatening violence and deliver them Anyway, so you don't have to prove he specifically intended them. But let's keep this in mind with respect to James Comey, aware that others could regard his statements as threatening violence and deliver them anyway. So first point here, this context we've talked about, he's walking on the beach, he sees these seashells, he takes a picture, he pops them up on Instagram. When he hears that people are saying, I should say people, like you said, I think Trump and his family and Those around him, oh, 86 means kill. This is a threat. He takes it down. He sits for an interview with the government, explains, I didn't know that it was to kill. He had, I think, the same sort of understanding that we have, like, it's to deep six something, get rid of whatever. But there's lots of ways to get rid of a president, right, other than killing him, like impeachment, like the things that you made clear of. So I think just contextually, there's almost. There's no way to say that this was something where James Comey either specifically intended it to be perceived as a threat to actually kill the president, or that he was reckless in delivering it. And I think the proof of this, frankly, is what Todd Blanche said on television, where he said when he was asked, so 8647 gets posted on social media all the time, are all these people going to get prosecuted? And he said, no. And he said, this is actually such a common thing. There's no way we would prosecute all those. Such a common thing. He then alluded to, there was an investigation here, lots of other evidence. Well, really, what other evidence that would contextualize what James Comey meant when he took a photo of seashells that he did not even place on that beach and posted them to social media? How is that night ingest our hyperbolic. And doesn't it also show the selectiveness of this prosecution?
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Yes. So two things. Yes, it shows the selectiveness because it's like, oh, why him and not others? And if it was a true threat, you can imagine why you might say, well, this is going to mean more because he has such a loudspeaker, he has a megaphone. But here, the combination of the fact that it's so tenuous and that's charitable to say it's so tenuous. Yes, I think really, really feeds into why him. And I think that's where Maureen Comey's firing feeds into the selective prosecution claim that James Comey has, I mean, this idea that they are eradicating anything Comey root and branch, and that they being the US Government through Todd Blanchett and Donald Trump. The other about the Supreme Court case about true threats is, and I read it the same way you do, which is that there has to be an intent and whether it's knowing and intentional or reckless, which the Supreme Court allows. Both.
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Both.
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Which goes to what, subjectively you have to prove. It also has to objectively meet the test of being a true threat. And that's where I can see the court saying under no set of facts. The reason it can be dismissed now is under no set of facts, even if you could somehow prove the subjective element, which I agree with you, to say it's highly doubtful, again, is is charitable.
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Charitable, yeah.
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But there's no way it objectively meets that. And I think that there's no way that this supreme approves that. Even the Supreme Court, where, you know, we're going to talk about the Voting Rights act case, but with that, I still don't think in this situation it's going to stand, which is we just sort of alluded to Maureen Comey. She was fired. And it's important to note that the letter she got is really similar to the letter that we talked about with our wonderful, wonderful guest. Kind of feels like a year ago, but I think it was just two weeks ago. I think two weeks ago she got what's called an Article 2 letter. Well, so apparently did Maureen Comey. So Maureen Comey, by all accounts, got the same letter. And this becomes very important to a decision by the district court judge here that Maureen Comey, like many, many people, including our guest, got a letter that just said, essentially, you're fired. And our basis for firing is Article 2 of the Constitution, meaning we are not giving you a cause. We are not saying that you committed some wrongdoing and we're inciting some statutory congressional basis for your removal. Instead, the government's theory is that everybody who works in the executive branch is reporting to the president. And the president, under the second article in the Constitution, has the power to just remove people at will with no cause. And so that becomes really critical because the letter just says, I'm removing you because I can. And there's, there's no allegation that Maureen Comey did anything wrong whatsoever. We'll take a break, but before we do, sort of tee up sort of exactly what happened to her and why this decision so important. Before I do, any last thoughts on the James Comey indictment?
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So last thing, because I find this also just, I don't Know, almost amusing, even though this is such a horrible thing, which is they added to the indictment. So the indictment has the count I read about threats of a president. Then it has a second count which is using interstate communications. Right. The Internet, to make a threat. Okay. By then it has a forfeiture allegation that sort of like any proceeds of this crime or anything used in this crime, you're forfeit. And we're like, what's he gonna forfeit? His phone?
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The shells.
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The shells. Like, what on earth is your forfeiture? You put, like when you've got a big narcotics trafficking indictment or a money laundering indictment. Right. And it's like, you need to forfeit all the fruits of your unlawful activity. But what are the fruits here? Anyway? I was just like scratching my head on that.
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Given the outlandishness of this indictment, what I can see them doing. I'm glad you're sitting down, Mary. I can see them saying, well, you use this to promote yourself, to promote your books and your Internet presence and all that. So to extent that there's any money that you've obtained, I mean, how they're going to tie that to 8647 is beyond good luck. Right, Right. I mean that, to me, that's where they're going.
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Maybe.
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But by the way, that forfeiture claim is the kind thing that goes to trial after.
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Yes.
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Sort of the liability phase, as everyone heard, Mary. And I don't think that's ever happening. So, like, I don't think the Fortitude claims like a particularly weighty thing for him to worry about. But I agree. Talk about sort of. This is one. Mary, if you want to know how out of control this Department of Justice is, it's this indictment.
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I say 86 this indictment.
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I think that is a good title. Okay, let's take a break and come back and we'll finish up with Marine Kobe.
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Sounds good.
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Welcome back. So we ended with Maureen Comey. She is fired. She gets the Ark to letter. She files a lawsuit in federal court that's critical. She does not go to this administrative body called the Merit System Protection Board, which usually hears claims by federal employees, like Department of Justice employees who are fired, where they can claim retaliation or wrongful termination. And she has her main suit as a federal case. Now, she did file in what's called the mspb, but she made it clear that she's doing that just in case that's where she had to be. So she didn't want to be precluded, but she really Said, I want to be in federal court. And what the government has traditionally been doing when people, people have sued in federal court saying they want to be heard by a federal judge, not by this group of MSPB people now very much hand selected by Donald Trump, where things can take forever. And also, like, one, you may not get your rights adjudicated for a long time, and two, they might not go your way given sort of how it's
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been configured because he fired all the people appointed by Democratic presidents and put his own people in on the same
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theory of Article 2. And so she filed in federal court. And the government has consistently been saying, no federal court for you. You have to go to our hand selected administrative judges first. And that was the issue that was teed up in front of Judge Furman, who is a Southern District of New York judge. Mary, I think I have now completely teed it up for you. Like, what did he do and why is this such a big deal?
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Yeah. So it's interesting too that you said the government has consistently said you have to bring your claim if you're a fired federal employee in front of the Merit Systems Protection Board, mspb, because actually in some of the early claims by other people, not Maureen Comey, the government took the position in front of the MSPB that, oh no, this is the wrong place because you got fired under Article 2 of the Constitution, not under the Civil Service Reform Act. And then when they bring their case in federal court, in comes the government saying, oh, no, no, you need to file this before the mspb. So this is one of the things that Judge Berman points out in his opinion, this change of positions that the government has done. And you know, we've seen that and we talked about it in other contexts.
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Right. Once they put the new staff in, they changed back to go to msp. That was initially they were trying to figure out which forum is going to be better. Absolutely.
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And so the real heart of this is the judge saying, well, is this the kind of case, you know, Congress definitely has the authority under its Article 1 power of the Constitution to sort of make laws that will then channel various things into different ways of getting judicial review. Right. And that doesn't always have to mean you get to go straight to federal court. Congress can create things like the Merit Systems Protection Board for adjudicating at that administrative level, claims of employees being fired without cause, things like that. And Congress can do that. But what Judge Furman is saying is like the question is, did the statute that Congress passed here, civil Service Reform act, when you are fired pursuant to Civil Service Reform act, you take your claim to mspb. Is that what this firing was? Or when the firing is under Article 2, is that completely separate really from the Civil Service Reform Act? And he goes through the Civil Service Reform act, and that act does cover firings that are made for inefficiency and other forms of cause. And he says, look, there's just nothing in this firing of Maureen Comey that shows any cause at all. The letter to her, like you indicated, said, and this is a direct quote from the letter, pursuant to Article 2 of the United States Constitution and the laws of the United States, your employment with the Department of Justice is hereby terminated and you are removed from federal service effective immediately. And he goes through this and says, that's not what Congress was talking about when it passed the statute, the Civil Service Reform act act that channeled claims to the mspb. And I guess we should back up just a smidge to make clear, in case people don't know. Maureen Comey was an Assistant United States Attorney in the Southern District of New York for 10 years. She had prosecuted some very significant cases, including the Ghislaine Maxwell case, the Jeffrey Epstein matter, Sean P. Diddy Combs, and she had been just assigned a high profile case one day before this Article 2 firing. So, you know, her allegations are she was fired in retaliation, as we said at the top of the show, for, you know, being her father's daughter and her perceived political affiliation.
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B
And just like our guest, I mean, this is one where there's no allegation by the government, there's none, no zero, zip of any wrongdoing. In other words, for all of her saying, I think I was fired because of, of my perceived political affiliation or because I'm the daughter of my father, that's never been countered. In other words, there's absolutely no claim otherwise. And so that gives it so much more force. And so this is really petard hoisted. Yes. Which is that if you're going to rely on the Constitution as the ground to fire someone, well, then the judge here is saying the Constitution that that claim, that the Constitution gives you the authority to do this, this is not one that Congress said has to be brought before an administrative proceeding. That is one that the federal courts are uniquely positioned to hear and essentially should be hearing, absent Congress making it absolutely clear that it should go somewhere else. I think Judge Furman has a really good argument. I'm not going to be surprised if this gets appealed and dragged out. But Judge Furman right now, until there's a stay and it somehow gets stopped, he has set a status conference for the parties to be heard about next steps in the case, which would presumably be discovery.
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That's right.
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My favorite thing, because here it's going to prove up, I think her claim that there's no basis whatsoever to have fired her, no cause to have done it, in which case, like how are they going to what they're going to have to say what is the instigating reason? And I think they're going to hide behind just saying, we're not giving you a reason. We're just saying we could do it. But that doesn't explain explain why her and not anyone else.
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That's right.
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B
And so the claim of retaliation is, I mean, it's going to be front and center. I should say a similar issue about the power of the president with respect to the executive branch, not the same issue is pending in the Supreme Court with this issue of the president saying with respect to other types of executive branch employees that he has this unilateral power to get rid of people. And there may be language when that decision comes out that is relevant to this, which is essentially the current government is saying we do not have to respect the civil service rules at all. That to me is the big picture here is like as great as I think Judge Furman's and important as the decision is this idea that the civil service rules can just be eradicated unilaterally by the president, which is, I think, think what this administration is doing is so detrimental to the public, regardless of whether it is a Democrat, a Republican, independent and everything in between in the White House, that the civil service is what keeps career people apolitical. And that is the thing that you hear the current administration talking about weaponization that happened under the Biden administration and we talk about weaponization that is happening now. Of course, I think we are totally right and I think it's proved that that is what's going on. And also shouldn't be a tit for tat. I mean, if there was weaponization going on before, even if there were, that doesn't justify it now. But it's the civil service rules that are one of the key bulwarks to that not happening. And having career people like a Mary McCord and like a Sunitha in government just doing things based on whether it is righteous or not, meaning are the facts there, there and is the law there and is it a case that should be brought even if you do have the facts in the law. And so with that, Mary, this is maybe a really good segue to the thing that you talked about, which is that there's been some ongoing developments in the Southern Poverty Law Center. They have filed two motions before the judge who is overseeing that case. And what are the two motions that have just been made? They have not been fully litigated yet. So we don't have the governance position. We certainly don't have the court's ruling. What are they claiming?
- [31:59]
A
Sure. So one is a motion to disclose the transcript of the grand jury proceedings, and one is a motion to. And it's called to address the government's materially false statements and to enforce rules prohibiting further prejudicial, extrajudicial statements. That sounds like they're asking for a gag or order. It's not exactly what they're asking for. And these are somewhat related, and they're interesting reads because they make it very, very clear that before the indictment of splc, there are exhibits to each motion. They learned early this year that SPLC was under investigation. SPLC's lawyers met with the U.S. attorney's office in the Middle District of Alabama where this indictment was brought, bought SPLC's lawyers, provided documents to the U.S. attorney's office, thousands of pages of records about their informant program. Remember, SPLC got charged with wire fraud for allegedly defrauding donors. It had had a program that's been discontinued for at least three years, I think, of paying informants for information. And the allegations were that instead they were paying to fund hate and violence and to actually fund people who did things like organize the Charlottesville Unite the Right Rally and things like that. And we're going to come back to that because SPLC says this is false. But SPLC went to the government, said, here are all the records. Here is specific instances where we provided information that came directly from our informants to the FBI. And the FBI took action. And they. They talk about a specific instance of one of their informants providing information about somebody who was a prominent member of a white supremacist organization who had committed crimes, who was applying for a security clearance in, I think, Philadelphia. And the evidence that the SPLC provided to law enforcement was used not only to block that clearance, but ultimately to develop a criminal case that resulted in the person being charged. Charged and being sentenced for that. Right. And they gave other examples. They provided this all to the U.S. attorney's office before the indictment. And they said to the U.S. attorney, and they have letters from the attorneys to the U.S. attorney we don't think you should be investigating our prosecuting or indictment. But if you go in front of the grand jury, we expect that you will comply with Department of Justice guidance that says says you should be providing this information, this exculpatory information to the grand jury and certainly should not be making any false statements to the grand
- [34:40]
B
jury on this issue of the government should present exculpatory evidence that's been presented to them. What the government has to rely on here is that under Department of Justice internal rules, they say that sort of material exculpatory information, information that's substantial, not sort of negligible, will be under Department of Justice rules presented to the grand jury. To be clear, the Supreme Court of the United States has not required prosecutors to present exculpatory evidence to the grand jury. Long story about that decision, I disagree with it for a whole variety of reasons. But here the argument is that you have internal rules and you should have done it under internal rules and presented that. To be clear, that won't be a legal claim in the sense that that alone won't be sufficient because if you say you didn't present exculpatory information, the government's going to come back and say we don't legally have to, even if our internal rules do. But why this is like the law is complicated. You cannot mislead a grand jury.
- [35:49]
A
Exactly. And you can't make a false statement here.
- [35:52]
B
Here. That's sort of the gist of the claim is not because they can't just say, oh, you had to present this. It's that by not presenting it and then making statements, you are essentially misleading them about what happened here. And I think that may be a very strong argument here.
- [36:10]
A
And I think they go a little further than that in their motion to seeking the grand jury transcripts because they're saying what you said. They do not argue that Supreme Court precedent requires exculpatory. But they're saying is given that exculpatory information and given the public statements made by Acting Attorney General Todd Blanch, the President of the United States, that are false statements or alleged to be false statements, we're going to talk a little bit more briefly about those. They are concerned. They think this raises enough of a inference that some false statements or at least misleading statements were made to the grand jury, that that's why the grand jury transcript should be revealed. And the key point of this is because this is part of their motion to ask for some sort of remedy for the false statements being made. Is Todd Blanche Claiming in an interview on Fox News that the government didn't have any information to suggest that SPLC had shared information it learned from the informants it paid with law enforcement. And this is what he actually said. He said, there's no information that we have that suggests that the money they were paying to these informants and these members of these organizations that they then turned around and shared what they learned with law enforcement. And this is where SPLC says, look, we've provided all this information to the government even before the indictment. We can provide it all to the court as well about how we did provide law enforcement with information, the information I just talked about, as well as others. And that means the FBI did act upon that information. So that is just, just in their view, a false statement, which to them is why they raised the inference that we need to look at the grand jury transcripts. Because if that was told to the grand jury, that is a falsehood told to the grand jury. And in their other motion, we need some remedy for this because the government is out there saying this to the members of the public.
- [38:01]
B
It taints the trial jury.
- [38:02]
A
We've also now seen donor advised funds that people can ask for some of their charitable giving to be made to specific organizations. We've seen two major donor advised funds say, we are not going to make gifts to splc. And I think part of that is based on this indictment. And if there's a weakness here or a false statement, more than a weakness, they want to get some remedy for that. These are serious, serious allegations. And I'll be very interested to see how the government responds.
- [38:33]
B
I was fascinated by Todd Blanchett was pressed on this in the press. And one of the things he ended up saying was while we got information from the splc, we had no idea that it was part of their informant program. That falls into the who cares? The theory of the case here is that SPLC was actually trying to foment and help hate groups, and their goal was not to take them down, that the point of the informant program was to sort of run like a Ponzi scheme, which is we tell our donors that we hate them, but in fact, we really are promoting them so that we can keep on fundraising under Trump 2.0. I really have to say, Mary, one of the things that I have very much been reconsidering since I've been teaching is all these presumptions in the law that I think really have to be rethought because they do not anticipate and consider what happens if you have have an authoritarian executive. I understand that the law was like, we're not showing the grand jury transcripts because, like there's a presumption of regularity. But you know what, you and I had nothing to hide on that. If the cost here is that, yes, the defense should have to see what you said, what did the witnesses say, or at least what the law is.
- [39:53]
A
Yes.
- [39:53]
B
Second quick point on that. And this comes from the fact that I've done so many corporate cases in my life, and one of the things that I've learned is that even wonderful, wonderful, experienced AUSAs, federal prosecutors have never done a corporate case in their entire life. So they're just not aware of sort of how federal corporate law works in the criminal context. It could be the case here very much with the assigned AUSAs, with the U.S. attorney and certainly Todd Blanche, that they have no experience in that. Let them say that we do. But one of the quirks of federal criminal corporate law, in order to have corporate liability, which in the Southern Poverty Law center, they're an entity, they're not a human being, in order for them to be criminally liable under federal law, you have to be able to find one person who was acting on behalf of that organization. Typically it's an employee. It can even be a low level employee. But you have to show that that one employee had the necessary criminal conduct, that they had the actions and intent to violate the law, and that they were doing so at least in part to benefit the organization. In other words, you have to be able to say, oh, Mary McCord was the employee at the Southern Poverty Law center or the agent of the Southern Poverty Law center, who as doing these actions with the intent to defraud the donors. And that's the person from whom you can impute her conduct and her intent to the organization. If you do not have that person, you do not have corporate criminal liability. Yeah.
- [41:37]
A
So much more. This case we're going to be covering because it's very significant because as we talked about before, this is example, one of this targeting of nonprofits that this administration believes is sort of politically oppositional to them. And of course they are. Okay, shall we take a break and come back and dig into the Louisiana vs Calais decision?
- [41:59]
B
Sounds good.
- [42:11]
A
Welcome back. Well, I'm sure that unless you are living where there is no Internet, you will know that the Supreme Court issued a highly anticipated decision that we've been waiting on for some time, but really devastating decision to the Voting Rights Act. And interestingly enough, this is a case that had Originally been argued the last term of the Supreme Court on very sort of specifics about how Section 2 of the Voting Rights act should actually be applied. The Supreme Court then declined to issue a ruling. Instead put out an order seeking supplemental briefing and a new argument this year, this term. And the new question was to ask the parties to brief whether Louisiana's creation of a second majority minority district pursuant to the Voting Rights Act Section 2 violated the 14th or 15th Amendment. In other words, words, was the resulting majority minority district a racial gerrymander? This set up a clash essentially between the Voting Rights Act Section 2 and 14th Amendment law, as well as 15th Amendment law, Voting Rights Act Section 2. Just so people understand what it says, and I'm not going to read the whole thing, but it basically says that no standard or practice or procedure, and here we're talking about a redistricting practice may be imposed where, under the totality of the circumstances, the political processes leading to election are not equally open to participation by members of a class of citizens in that its members have less opportunity, and this is key than other members of the electorate, to participate in the political process and to elect representatives of their choice. So the way this works, and I think this is where Justice Kagan is so helpful, explaining how this has traditionally worked. So she gives an example of how this would preserve the ability for minorities, a member of a class of citizen, a minority, to have an opportunity that at least gets on par with the opportunities of others to participate in the political process. So she says there's a state, and sitting in the middle of the state is a single county in the shape of a near perfect circle, sitting in this rectangular state. The state is one with a long history of racial discrimination and its many effects, including in reds, residential segregation and political division. And then she says, the population of this circle district is 90% black. The rest of the state, divided into five surrounding districts, is 90% white. Voting throughout all those districts is racially polarized. Black residents vote heavily for Democratic candidates. White residents vote heavily for Republicans. And she says the Circle district thus enables the state's black community. So take it Back to Section 2. Members of a class of citizens, a black community, to elect a representative of its choice whom no neighboring community would put into office. In other words, none of those other five white districts were going to vote for the same people that the folks in the Circle district might vote for. And that is how the Voting Rights act creates, could act in the past to allow the creation of this majority minority district that enabled people to have an opportunity to get their candidate elected.
- [45:33]
B
And that hypothetical, that is how Justice Kagan started, where you have five districts which are majority white and you have one that is majority minority. The majority of the people are minorities. You would still, in the representative body, still be a minority. Just to be clear. Clear, like this is about, can you at least have one out of the six?
- [45:56]
A
That's right.
- [45:57]
B
Whereas what Justice Kakin says is, what if in my hypothetical, the five white groups divide up this central majority minority group into the other five, they split them up so that there's no way for those in that minority district to ever be a majority, that they're going to be gobbled up, and that you basically disperse their vote vote and dilute them into districts so that you don't even have one out of six, you have zero out of six. And so there is no voice for the minority. But it's not just that. It's no voice for the minority when we're talking about race. And it's embedded in the 14th and 15th amendment. In other words, this isn't just about minority, like the minority view. This is about minority people discriminated against based on a long history that is documented and is the reason for the 14th and 15th amendment and the reason for the Voting Rights Act. This is where the majority is saying, you know what, you can't use race per se, but you can divide anything for political reasons. So if you think that there's good political reasons and you think that it's good to have Republican districts or Democratic districts, that's totally fine. And say they say, oh, we're not getting rid of the Voting Rights act, we're just limiting it. In this new world that they say they have found, Congress hasn't found it, just the six justices, the Supreme Court have found it. And that's why this is very much viewed as sort of anti congressional, because Congress has never found that there's new facts on the ground. They still have the Voting Rights act and they in fact, have strengthened it at various times in its history. And so we're left in a situation where only if you had a tape recording of people saying, we are doing this solely on the basis of race, that is the only circumstance that I could see being able to still prevail. And you better have that tape recording, because if you could come up with any other reason, even reasons that are like the Venn diagram is so close that you can use a proxy for
- [48:14]
A
race, like political gerrymandering, as a proxy for racial gerrymandering.
- [48:18]
B
Exactly. And that is the fig leaf that the court says, and it's actually said in a prior case that Democrats and Republicans can use. Mary, can I just say one of the really big things that I'm worried about here is that because we're now seeing this sort of race to the bottom is that everyone's belief in the political system is so undermined by this in that it now is like, oh, it's all just politics and everybody can do things for the most outrageous reasons and everybody essentially, quote, is weaponizing. And the victims of this are minority communities. But I think also all of us in terms of the lifeblood of what it means to be in a democracy, 100%.
- [49:05]
A
And that's a lot of what is about Justice Kagan's decision. And I just want to go back to unpack a little bit what you said to let listeners know how did we get to here? So the majority was the six classic who we say, the six conservative justices. It's an opinion written by Justice Alito, who was in the dissent of a case a couple of years ago, I think just two terms ago, coming out of Mississippi that was about a majority minority district. And it's one which Justice Kagan said says we've just completely undermined that case, Milligan v. Allen. And essentially his dissent has become sort of the majority opinion here. But what he said is like going back to this question, right, about whether under Section 2 of the VRA, a member of a citizen group has less opportunity than other members of the electorate. So he says, so what that means is the baseline is the chance that's enjoyed by the non minority voters. So let's just say the white voters here year to secure the election of their preferred candidate depends on the voting preferences of others in the district, which depends on how the districting criteria was used. In other words, to figure out who you're comparing with, you have to figure out how was it districted. And what they say then is we told you in Russia a few years ago that political gerrymandering is perfectly okay. Now, that is not what they said. What they said is political gerrymandering is not something that is judicially reviewable by the federal court courts. If state constitutions or state legislatures want to bar it, they can. They didn't say it was perfectly okay. In fact, they even said it's kind of undemocratic. But Justice Alito writes it here. That's perfectly okay. So when the criteria permits political gerrymandering, including to protect an incumbent, that is okay. And that Means the opportunity of members of the electorate to elect their candidate is whatever results from these permissible districting criteria. And the minority voter is entitled to nothing less and nothing more than that. So as Justice Kagan explains it, here's what that means when we talk about our Circle district. To come back, how you went to the next step. The state legislature decides we're going to eliminate the Circle district and slice it into six pie pieces, allocating one each to six new, still solidly white congressional districts. And we're going to do it for political purposes, because our political goal here is to have Republicans elected in each one of those six districts and to preserve some Republican incumbent seats. What the majority says is that is perfectly fine because it was for political reasons and not racial. Unless, as you just described, Andrew, you got somebody on tape saying let's do this for racial reasons and say it's political. Who's going to do that? And so here's how Justice Kagan describes what happened. The state's black voters are now widely dispersed and unlike the state's white voters, lack any ability to elect a representative of their choice. Election after election, black citizens votes are by every practical measure wasted. Members of the racial minority can still go to the polls and cast a ballot. But given the state's racially polarized voting, and this does assume right, and it's a good assumption in Louisiana based on history, that there is racially polarized voting, voting they cannot hope in the way the state's white citizens can, to elect a person whom they think will represent their interests. That's the bottom line of this opinion. And what have we seen now already? Louisiana, immediately we are redistricting. Alabama, we're going to call a special session and redistrict. Tennessee, we're going to redistrict. This is what the result is looking like.
- [52:44]
B
So here's just some quotes from Justice Kagan where she says, I dissent then from the latest chapter in the majority's now completed demolition of the Voting Rights Act. I begin with some history. This, by the way, is the history that I really commend everyone to read. Yes. Both with what led originally to the Voting Rights act and with how the current Section two came to be. The point is not to deliver a eulogy for the law, though in truth, the courts step by step slaying of voting rights now makes one appropriate. Rather the object that's in other words, her object is to reveal how far today's decision repudiates past and rightfully still controlling congressional choices. So she then takes you through how the Supreme Court has overridden congressional choices here as making quote, findings of fact about how they're tweaking and ledger actually updating the law based on its conclusions about the need for the 14th amendment, the need for the 15th amendment, the need for the Voting Rights Act. To me, the really hard part of the majority here, I think, is they may disagree with the Voting Rights act, they may disagree with the 15th Amendment, but they are really putting their views of what the law and the rules should be because the Voting Rights act has been for decades and decades and decades the law of the land and repeatedly affirmed and strengthened by Congress in various ways that it's so hard to see this as not an out of control Supreme Court and to just tie it back to something you and I have talked about, which is an asleep at the wheel kill Congress.
- [54:38]
A
Yes.
- [54:39]
B
And so to me, this is where and it has nothing to do with party. Congress needs to be acting. Congress has the power to do something about it. And Congress has something to do with what's happening in what the Supreme Court decision is. And they can say, no, no, no, that's not what we found. And they have the ability to take action. And if they go too far, the Supreme Court does have a role to say they violated the Constitution. But here there are actions that Congress is simply not taking. And so you end up with an executive branch that is willing to take steps that are really outlandish. Being the only entity that possibly going to stop me is the Supreme Court. And here you have the opposite. You have the Supreme Court, in my view, taking an action where they know that Congress is not going to step in. At least this Congress is not.
- [55:30]
A
That's right. Right. And before we end, I just want to bring this down to some basics that people may not be thinking about. I think a lot of us immediately think about electing members of Congress when we think about redistricting. But actually the impact, even the greater impact, honestly goes all the way down to that local level. Who's going to be on your county board? Who's going to be on your school board? Who's going to be on your local utilities board. And there's a great article in the Washington Post from yesterday Sunday about Press Robinson. He is one of the litigants in this case a black man in Louisiana who way back decades ago when he was much younger, tried to run for school board and had no success. And he litigated under the Voting Rights act and prevailed. And he ended up serving on the school board for many years, more than two decades. He now got asked and recruited as this case pulled together to be one of the interveners for the minority residents of Louisiana. And he responds in this article to what this opinion is. He's had this legacy of activism and involvement his whole life at that local level that is so important. And he sees now his life's work just being thrown out the window by the Supreme Court, whose decision has made it so much more difficult. Difficult.
- [56:57]
B
And also, I mean, this is going to be my opinion. I can't think in my lifetime of a presidency that has been more racist and one that is overtly racist and way beyond dog whistles. And the idea that it's this Supreme Court at this time saying it makes it so despicable. And I'm white. I can't imagine how it would feel knowing just how overt some of the statements are that come out of this White House. Agree.
- [57:34]
A
And it's just sad. I mean, it made me sad. Reading it just made me really sad. The progress just seems to, you know, we've just backslided so much.
- [57:41]
B
But again, there's something people can do about it because voting still matters and voting for who you believe in, whoever that is.
- [57:50]
A
And voters do overwhelmingly approve of independent commissions to come up with the districting. And so hopefully that kind of push will prevail. And that requires people in the majority to want it as well.
- [58:02]
B
Exactly. Well, thanks everybody for listening. Lots of hard times, but it's great that if people are staying engaged. Remember, you can subscribe to Ms. Now Premium on Apple Podcasts and you can get this show and other MSNow Originals ad free. And you'll also get subscriber only bonus content. And a reminder, we are now available on YouTube so you can head to Ms. Now Main Justice. That's Ms. Now Main justice to listen.
- [58:38]
A
This podcast is Produced by Vicki vs. Galina and Donnie Holloway. Colette Holcomb is our intern. Hazik Bin Ahmad Fared and Mark Yoshizumi engineered this episode. Katie Lau is our senior manager of audio production and Aisha Turner is the executive producer for MSNow Audio.
- [58:57]
B
Search for Main justice wherever you get your podcasts and follow the series.
- [59:06]
A
Sam.