Leah Littman (5:33)

Yes. So the significant upshot of the Insurrection act is it provides an exception to what's known as the Posse Comitatus Act. Um, that is the law that generally forbids the federal military from engaging in order, ordinary law enforcement. Basically, it prevents the federal government from deploying troops to arrest people for a violating federal law, or, you know, an immigration offense, or you name it. So right now, you know, we have already seen the disastrous effects of these surges of deployments of ICE officers, CBP officers, HSI officers. And the concern is, what if you then add on or replace them with the federal military, which isn't, you know, trained to do ordinary law enforcement. They're not necessarily trained in how to de. Escalate situations. And so that is, I think, the practical on the ground effect of invoking the Insurrection Act. It allows the President to use the military in ways that he has thus far not and basically been prohibited from doing.

Alex Wagner (6:45)

I have to ask, because when he says he's going to invoke it, what does that mean? Like, is that. Does. Is Congress anywhere involved in any of this?

Leah Littman (6:55)

So the Insurrection act is an act. It's a law. And as a law, it lays out the circumstances and conditions under which the President can invoke the Insurrection Act. There's really an open question about whether courts can review the President's determination that the prerequisites for invoking the Insurrection act are indeed satisfied. There's also the related question of if they can review that determination, will they give the President deference? That is the benefit of the doubt and all of those kind of related questions. And historically, you know, the Insurrection act is so rarely used. The most significant precedent we have on it actually comes from an opinion of the executive branch, the Department of Justice, you know, back from the civil rights era. And what that memo concluded is the Insurrection act is really designed to allow the President to deploy the military when state and local officers are affirmatively engaged in or facilitating the private violence that the President is concerned with. So think about, for example, the segregationists of, you know, the Jim Crow era, who attempted to block, you know, together with private mobs, students from going to integrated schools. Those are the circumstances in which presidents are historically invoking the Insurrection act and as a legal matter, are thought to have the authority to invoke the Insurrection Act. And there are Precisely zero circumstances on the ground that suggest Minnesota is anywhere near approaching that situation. Instead, all of the evidence is state and local law enforcement are trying to de. Escalate the situation.

Alex Wagner (8:47)

Yeah, right.

Leah Littman (8:48)

Allow federal law enforcement to do their job, but also enforce state law in the process. And there's just no indication that they aren't capable of doing so either.

Alex Wagner (8:59)

I guess one of the things you mentioned that, you know, it's a law and therefore may be subject to judicial oversight. Who would have standing to sort of sue to stop the President from invoking the Insurrection act, would the state of Minnesota.

Leah Littman (9:16)

So I think a bunch of different entities. One would be the state of Minnesota because we have already seen the injuries to the state from the mass deployment and surge of ICE officers. Businesses in Minnesota have shut down. Hospitals are limited. State public services are feeling the strain. It is more difficult for the state to enforce state law given the violations that the federal officers themselves, you know, are engaged in. So it's clear that this surge and deployment, you know, injures the state. So the state is one possible entity. It is also possible, you know, that individual citizens or religious organizations or other groups that are being harmed by, you know, the targeting of different communities and the obstruction of public services in the state could also sue. So those are two. Yeah, different categories.

Alex Wagner (10:08)

We sit here, we're recording on Friday 16 January, and Minneapolis and St. Paul Public Schools are offering virtual learning, I think, until mid February, because there's so many children and parents who are terrified of going to school. And one would assume that they would have standing to say, hey, this, you know, whatever. Ramping this up, if you do invoke the Insurrection act is causing great harm to our children's education.

Leah Littman (10:29)

Exactly.

Alex Wagner (10:31)

And nobody hates a school closure more than the right wing. So that would be an interesting moral conundrum for them. I mean, the last time, I believe, an American president invoked the Insurrection act was George H.W. bush during the LA riots. Right?

Leah Littman (10:43)

Yes.

Alex Wagner (10:43)

How did that happen?

Leah Littman (10:46)

It was actually at the request of state officials. So he had their consent. So this is an instance where the state is basically saying, we don't have this. Can you help us out? And that is consistent with the tradition that the Insurrection act reflects, which is not using the federal military to overpower state law enforcement when they can handle it.

Alex Wagner (11:04)

Oh, imagine that. The invitation of the state back when.

Leah Littman (11:07)

Invites were when consent mattered.

Alex Wagner (11:09)

Yeah, exactly. But prior to that, it was kind of. I was looking at a timeline, thank you, USA Today, of when it was most invoked. And it looked like the 1870s was kind of the high watermark for the invocation of the Insurrection Act.

Leah Littman (11:22)

Exactly. What's going on in the 1870s. It's literally the aftermath of the Civil War, the continued rebellion of the former Confederate states. So, yes, the Insurrection act is used at that time.

Alex Wagner (11:35)

Unbelievable. I mean, as I said, we're recording this. It's important to timestamp the recording because the situation is so kinetic and new videos emerge. It feels like every day. I mean, just a few days ago, there's a video of federal agents seen on video dragging a woman from her car, doing a protest and throwing her to the ground as they try and clear the streets. And I'm reminded, as these videos come across the transom of the words of the governor of Minnesota earlier this week, who said, if you see ICE agents, hit record.

Leah Littman (12:06)

Which is.

Alex Wagner (12:07)

Which is something people are doing, and props to them, because that's not without some potential peril. But I wonder, you know, if you're a layperson and you're living in one of these neighborhoods or even if you're not, what levers exist for people outside of government to hold ICE accountable beyond their camera phones?

Leah Littman (12:24)

I mean, I guess I just want to emphasize the power of the camera phone because in the short term, you know, it is possible that those cameras could provide evidence in state criminal cases, you know, against officers or in civil litigation against them. But even if that doesn't happen. Happen in the short term, I hold out hope that they would be useful in some sort of accounting for what is going on once we make it through this and whether that is, you know, some equivalent of a truth and reconciliation commission, you know, where we acknowledge, you know, what the Trump administration was doing and the harms, you know, that caused different communities.

Alex Wagner (13:03)

And in the future times when he's. Exactly. Power. And we kind of wake up from the fever dream. Ooh, Leah, keep talking about that.

Leah Littman (13:09)

I'm manifesting. It's one of my New Year's resolutions. Right on. You know, I don't want people to feel like, oh, I just have my camera, my camera phone. Like, is it even worth it? You know, I do think that that is important. Like, you should do that. You know, beyond that, I think it's tough. You know, public shaming sometimes works. We've also seen the videos, right. Of the Minnesota Nice approach, which is calling ICE officers now fucking Nazis and telling them to get the fuck out of here. Yeah. You know, I'd have to think that if you go to work every day and people are screaming at you.

Alex Wagner (13:50)

Yeah.

Leah Littman (13:50)

You stink. Get out of here. Maybe that's a deterrent, right. To continuing with that job. Now, of course, they are being way overcompensated, and, you know, they're allowing anyone in, so it's unclear, you know, what effect that will have. But, you know, public shaming, you know, that sometimes works. I think another thing is, you know, calling state, local, and federal representatives because they are in a position to potentially bring litigation, you know, in the event that Democrats retake Congress to hold hearings. Right. To pass laws that actually would limit the ICE practices, you know, that we are seeing. So I think continuing to express to, you know, political representatives that this is an issue that matters and that there are things you can do about it that's important. And then beyond that, you know, this isn't really holding people accountable, but I do think there are ways that we as a community can support one another and protect the people who are most vulnerable. Whether that is neighborhood patrols, whether that is churches delayed delivering food, you know, whether that is agreeing to help someone take their kid to school, you know, or run errands for them. There are many different ways that, like, we can all step in and provide, you know, some sort of safety net. Right.

Alex Wagner (14:58)

It's not just. It's not just trying to minimize the power and terror of ice. It's also trying to strengthen the resolve and resilience of the community itself.

Leah Littman (15:06)

Yeah.

Alex Wagner (15:07)

You mentioned they're not trained. And that, I think, is like something that is quite clearly. And it's obvious when you look at these videos. ProPublica has some essential, really urgent reporting this week about ICE agents using banned chokeholds on American citizens.

Leah Littman (15:23)

Yep.

Alex Wagner (15:24)

And I would assume that, you know, because that is explicitly banned in the DHS policy guidebook or whatever it's officially called, does that then make it easier for those families and those victims to. To take their case against ICE to court? I know we're gonna get into the difficulty of civil suits with federal agents in a second, but just using explicitly banned maneuvers seems like it opens up a portal that maybe doesn't always exist.

Leah Littman (15:54)

Yes, that's certainly going to be helpful persuasive evidence in the event you can actually get a court to hear the merits of your claim, that is also potentially helpful in defeating a defense of qualified immunity, which you are oftentimes very strong, and whittle out a bunch of meritorious suits. But showing that the officers are in violation of a policy that they are supposed to follow can be helpful in overcoming that defense. So, yes, it's helpful. It's just not the full solution to all of the obstacles to that kind of litigation.

Alex Wagner (16:33)

Yeah, I mean, we're going to get to J.D. vance's assertion that ICE has absolute immunity. But I do, you know, like, I do wonder when you see these people being abducted and detained and arrested and violently thrown to the ground in establishments like the one I'm talking about, the chokehold video that is part of the ProPublica reporting happens in a restaurant supply store. A lot of this stuff happens right around or actually inside businesses. And I wonder from a legal standpoint, whether business owners have more agency in preventing ICE from acting so aggressively or maybe stopping the raid entirely. I mean, how would that.

Leah Littman (17:10)

How does.

Alex Wagner (17:10)

What. What can happen in that space?

Leah Littman (17:13)

Sure. So, you know, a business owner can restrict entry onto their premises. So some businesses post signs, you know, ICE officers aren't allowed in with an administrative warrant rather than a judicial warrant. You know, we have also seen ICE just frankly, overpower, you know, individuals and barge in, you know, without warrants and whatnot. But that's not to say, you know, business owners can't at least, you know, say, this is the policy, you know, we're not allowing you in without some sort of judicial warrant. You know, another thing that they can do and just to.

Alex Wagner (17:42)

Just to stop you for one second, often ICE doesn't have warrants. Right. They're just randomly picking out places where it feels like there might be undocumented residents hanging out, looking for work or actually working. Right. So that's not nothing that business owners can say. You can't come in here without a warrant because that slows the process down.

Leah Littman (17:59)

At the very least. Right, exactly. And slowing it down is hugely helpful. And then they can also refuse service to ICE officers. Right. No cookies for you. You know, that also, you know, is going to minimize traffic in the store and so that, you know, it's something else that they can do.

Alex Wagner (18:15)

Well, that's. That's meaningful also, because last night there was a report that ICE officers arrested workers at a Mexican restaurant after the ICE officers had just eaten at the Mexican restaurant, as if kind of like they wanted, like, I don't know, tacos and, like, went in, had the tacos and were like, you know what? Why don't we grab some migrants here as. As long as we're done with our barbacoa.

Leah Littman (18:37)

Yes. So that too. Right. Isn't meaningless. Just saying.

Alex Wagner (18:42)

To make their lives more unpleasant.

Leah Littman (18:44)

Exactly, Exactly.

Alex Wagner (18:45)

No cookies for you.

Leah Littman (18:46)

Slowing it down.

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Alex Wagner (21:52)

You know, as we talk about sort of what's happening on the streets, there's also the reality of what's unfolding behind closed doors. And I think if you have been disturbed by the treatment of both American citizens and non citizens alike on the streets of Minneapolis or another major American city, there is reporting out this week about what's going on in ICE detention centers. That is very alarming. 2025 was the deadliest year for ICE in two decades. There were 32 deaths in ICE custody. There have been several just this year alone. And we're on the 16th day of January, what checks are supposed to be in place as far as detention. And I would assume this is all subject to congressional oversight.

Leah Littman (22:38)

Yes. So congressional oversight is supposed to be one check. That's why we've seen representatives show up to ICE detention facilities. Right. And demand to inspect them. That's also why this administration is pushing back on that, because they don't actually want any oversight. They don't want it to come out. You know, what is happening in the, these detention facilities and detention centers. But congressional oversight, congressional hearings, you know, if Congress sees something going on, they can yank back ISIS funding and say, look, okay, we are not going to give you this money unless you offer, you know, the following protections, you know, for people who you are arresting, detaining and stopping. So congressional oversight and you know, Congress actually exercising oversight powers, whether that is limiting funding, conducting hearings and whatnot, those are all possibilities.

Alex Wagner (23:26)

But does if you're, if you're in Congress, can you not go to an ICE detention center and demand to get let in?

Leah Littman (23:33)

So that is what the law says, that is part of an appropriations rider. And yet. Yet the administration has refused entry and indeed is prosecuting, you know, one of the Democratic representatives, Lamonica McIver, who showed up to an ICE facility and attempted to engage in some, you know, she was initially refused entry. There was a skirmish involving, you know, Newark Mayor Ras Baraka. She was subsequently let in. And then afterwards, you know, they are charging her with assaulting an ICE agent.

Alex Wagner (24:05)

Which is like, up is down, down is up. We are officially through the looking glass when you talk about the tactics. I mean, we were talking about Congress's role in all this and the fact that they're not trained. And I just feel like that's another subject for Congress. Right. Like, if we want ICE agents to receive proper training and, I don't know, not use ban chokeholds and like, use the most extraordinary and extreme measures to detain people who are largely peaceful. Like, what. What does that look like? It. Does it just have to be, you know, House Republicans and Senate Republicans agreeing that this is un American and this shouldn't happen and doing something legislatively about it or what? What?

Leah Littman (24:43)

Well, hopefully, you know, after January 2027, you know, it doesn't look like that. And, you know, Democratic controlled House and Democratic controlled Senate, you know, could pass funding restrictions, ice, you know, so long as ICE doesn't institute training and certain protections. Now, the president is likely to veto it, but. Right. I still think it is important to, like, press the case for. Look, we are just trying to ensure that basic principles of due process are being followed and that we are not housing people. Right. In these grotesque conditions. You know, there was a report, a medical examiner concluded that one of the people in ICE detention, he ruled his death a homicide. So, you know, that has to be the sort of thing that politicians, you know, find worth fighting for and they are willing to continue to appear at these facilities and, you know, if and when they get a majority, you know, they attempt to provide some oversight and then also some accountability, you know, and actually allowing potential litigation against ICE officers to go forward.

Alex Wagner (25:39)

And yeah, we still. I mean, the person who was reportedly killed was, I believe, strangled to death, but also had a sort of violent criminal record, which makes it not okay to kill him in jail under federal custody. But it does make it politically more complicated for Democrats to rush to his defense, I think, or anyone to rush to his defense. Not that that is warranted necessarily, but it makes the calculus a little bit more complicated. I mean, big picture here, like, as we look at the state of Minnesota. Right. I mean, what legal recourse does the state actually have here? And let me just drill down on that a little bit more and say could in theory, because this is something that's been floated in multiple interviews I've heard with the mayor, Jacob Fry, if not the police chief. Can the local police in Minneapolis go after ICE agents?

Leah Littman (26:30)

Yes. You know, federal officers are not allowed to violate state and local criminal law. Now, prosecuting those officers is difficult because what happens is they argue as a defense that they were merely carrying out their federal duties. And when, you know, state law, a state criminal statute conflicts with a federal statute authorizing an ICE officer to do A, B, or C, the federal law is going to win out. But that just means those cases come down to was the ICE officer acting within the scope of their powers? Were they doing things that were reasonably necessary to carry out their responsibilities? I think from videos it is clear they are going to way beyond that. But that's just part of what makes those cases difficult is they are often litigated in terms of was the officer doing something that is reasonably necessary to carry out their duties. And it's not often that you have, frankly, this brazen or this widespread of federal officers so systematically going beyond the scope of their duties. And so the fact that we haven't seen that many state prosecutions of federal officers, that's just because historically, you know, the federal government doesn't behave like this.

Alex Wagner (27:51)

Those were the before times, Right, when you didn't have basically Trump's masked thugs out there just ripping people from their cars and places of work and places of worship and hospitals. Okay, let's talk about the aftermath of the shooting. Right, because an interesting thing happened at the U.S. attorney's office. Six federal prosecutors resigned the this week over the Justice Department's handling of Renee Good and her case, and specifically the Justice Department's push to investigate Becca Goode, who is Renee Goode's wife, at the same time refusing to open an investigation into the ICE agent who shot Renee Nicole Goode. First of all, your just reaction to that, and what legal grounds do they have to just have such an asymmetrical and unusual pursuit in terms of their investigation?

Leah Littman (28:42)

That was so galling to read. I mean, I cannot imagine being a person who was willing to move forward with an investigation into the widow of the shooting victim rather than the person that shot her. You know, this is very much part of, of their campaign to dehumanize, you know, their victims. It doesn't really matter who the victim is. If you get in their way, their view is you've lost all of your rights, you've lost your humanity, and they can just tar and feather you with whatever label strikes them as convenient, and they will lie their way through it and use the full force of the federal government to try to do so. That was one of the more horrifying, I think, things that has come out about this administration and an administration that finds new horrors every hour of every day. And, you know, for me, during the first Trump administration, the child separation policy was one of the more just horrific, grotesque policies. And I remember thinking at the time, anyone who was involved in that should never again be welcome in polite society. That hasn't panned out.

Alex Wagner (30:03)

No. Stephen Miller still there.

Leah Littman (30:06)

Certainly hope that this time around, like anyone who thinks it is remotely appropriate to use law enforcement powers against the widow rather than the ICE officer. Like, they just cannot be eligible for any future position of authority. You know, as far as, you know, the, like, legal questions of how can they do this? Not to take it all back to the Supreme Court, but to take it all back to the Supreme Court. You know, in the court's absolutely horrifying immunity decision in Trump versus United States, they went out of their way to affirm that investigative and prosecutorial functions were the core exclusive power of the executive branch and president. President. And so exclusive to the president. Congress can't pass laws that limit the president's exercise of those functions. And in that very case, there were allegations that the investigations were shams, that the threatened prosecutions were for improper purposes. What did the Supreme Court say? That doesn't matter. That doesn't make them beyond the scope of the president's power. So. So I guess it's not that surprising after you have the Supreme Court tell Donald Trump you can use your federal law enforcement power to target anyone you want for any reason that he would go ahead and do that.

Alex Wagner (31:32)

I mean, just the Roberts court coming back to just make things just a little bit worse every single fucking time. But six federal prosecutors resigning from the case. These were career prosecutors. One of them was the acting U.S. attorney who was appointed by Trump. Trump and is involved in another case that Trump is really obsessed with. But first, just what are the implications of the case moving forward if you lose, like the six top people in the office who are supposed to be put pushing the investigation forward, I mean.

Leah Littman (32:00)

Hopefully that slows it down. So that's one potential benefit. You know, a second potential benefit is something we've seen play out in his effort to install his former personal lawyer, slash insurance lawyer, Lindsey Halligan. You know, into a position of authority, which is, if it's only dumb hacks that you can find to do the job, they're not going to do it well. And so it's quite possible that any attempt they might make at actually doing a prosecution or securing an indictment wouldn't fly because it stumbles on their inability to dot their I's, cross their T's, and read. And then, you know, the final kind of thing it might do is it just colors the public atmosphere and potential assessment of a claim of, like, vindictive prosecution. Right. If, like, all the career prosecutors resign because they're uncomfortable handling this case, that's pretty good evidence to the judge that this case stinks.

Alex Wagner (32:57)

Oh, that's really interesting. I mean, also, if the whole point of the investigation is to have sort of the final word on what really went down, this is a great way to engender public confidence in the report. Psych. No, it's not. It's like the very opposite of that. Nobody is going to take this and say this. This is a genuinely, like, nonpartisan independent report that's, you know, seeks to find the truth. This is a tool for Trump to, you know, act politically in. In his own favor. Joseph Thompson, who's the U.S. acting U.S. attorney for the State of Minnesota, who just resigned because of the way the DOJ was prosecuting this case, was also the lead prosecutor in the. I think it's the Feeding Our Future case, where 58 people were convicted in a scheme to steal $300 million from government child nutrition programs. There are still 20 more def. Defendants who are awaiting trial. Trump is, I actually think, in addition to George Floyd and that unfolding in Minnesota, the involvement potentially of Somali immigrants in all of this, the sort of racial underpinnings that, that sort of color the dynamic in. In Minnesota right now. He loves speaking ill of, of immigrants and brown people, and they're both there in, in Minnesota. I mean, I think that's. This case is in many ways why he's been most recently attracted to the state. And now the guy that pursued the case that was leading the investigation has left. Does that derail that case a little bit?

Leah Littman (34:25)

I mean, tell me. And it's gonna slow it down.

Alex Wagner (34:27)

I mean, not that. Sorry, just not that I'm a fan of fraud. It's just the. The way in which there's clear partisanship that's like the judicial system is being employed for partisan political gain. And, you know, entire communities are being painted with a broad brush in really deleterious way. Really in a really bad way and in a really divisive and cruel way. That is the not good part of this case. Pursuing justice for fraud is a good thing. But yes, sorry to my original question, how does that affect the pursuit of this case and the prosecution in this case?

Leah Littman (35:05)

So at a minimum it's gonna slow it down, right? Cause if you change out right, all the prosecutors who all of a sudden have to get up to speed on the case, familiarize themselves with it, they are going to have to take time to do that. But second is what you were just saying is this further politicization of the Department of Justice is going to undermine public confidence in that case, even though there are very serious real allegations of fraud that deserve to be held accountable. But when destroy public confidence in institutions like doj, that doesn't go away even if you know the stopped clock occasionally has a meritorious case or two that it pursues.

Tommy Vietor (35:56)

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Jon Favreau (37:47)

Okay.

Tommy Vietor (37:48)

Especially when enjoying a few drinks. Yeah, that's my problem. When I'm enjoying a few drinks. I'm not living in the moment.

Jon Favreau (37:52)

I'm not effortlessly present.

Tommy Vietor (37:53)

I was thinking about something else.

Jon Favreau (37:54)

Listen, I don't know what this copy says, but if you have a drink of alcohol without taking a Zbiotics first, you're crazy.

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Jon Favreau (38:09)

Yes, it works. I have so many of them in my house. When I've come over to John's house and I've forgotten to take one, I'm like, hey man, can I borrow my Zbiotics off you? And he's like, of course you can. He opens a drawer and there's hundreds of them sitting there.

Tommy Vietor (38:20)

Yeah. And the worst part of zebiotics is my memory for not remembering a zbiotic. So I've taken care of that by. I have a couple in my bag. I have one at work.

Leah Littman (38:28)

Work.

Tommy Vietor (38:29)

Sometimes you drink at work? Yeah, the way it is, you know.

Jon Favreau (38:32)

Yeah.

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Alex Wagner (39:21)

Then there's the case itself, you know, independent of who they're interviewing and who they're harassing, whether it's Renee Goode's widow or her child or any of the other people who are family members of the victim here. There's the fact that the FBI is shutting out men of Minnesota police and their investigative agencies. The FBI taking over the entire investigation. How unusual is that from a legal perspective?

Leah Littman (39:48)

Perspective? It's very unusual, at least in cases like this where there's just no reason to suspect that, you know, the state law enforcement apparatus is compromised. Right. Or somehow engaged in the commission of the crime. You know, it's state and local law enforcement that have primary responsibility for investigating crimes. You know, the vast majority of people who are detained and have criminal convictions have them by virtue of state and local law and state and local prosecutors. So these are individuals who have, have more experience and more familiarity with a locale. You know, the people who are potential witnesses, the communities. And so it is not common to just entirely exclude. Right. This very helpful, you know, array of experts who have expertise and perspectives that you lack. And you know, the lack of cooperation between state and federal law enforcement, you know, was also one of the signal flaws that led to the creation of the Department of Homeland Security. The idea was, you know, they would ensure, sure, there would be continued cooperation and communication between state and federal authorities. But obviously that proved inconvenient at this moment. And so they just dispose of, you.

Alex Wagner (41:00)

Know, that project that's so insane. I forgot. Of course, like all my 9 11, 911 happened 120 years ago. Yeah, of course, DHS was created to solve that problem and it's just been recreated single handedly by the Trump administration. But I mean, when you screw over the people that need to be helping you and the people whose files and evidence you need, that's probably going to hamstring the FBI's investigation.

Leah Littman (41:23)

No? I would think so. But again, they're not engaged in a serious investigation. You know, they are just engaged in an effort to try to find some way to smear Renee.

Jon Favreau (41:36)

Good.

Leah Littman (41:37)

And to come up with heavily doctored footage, you know, that suggests the ICE officer, you know, wasn't at fault. And so they probably don't really care. I mean, they definitely don't care about actually uncovering what happened because if they did, they wouldn't have have released real time statements that already stated their predetermined conclusions. They wouldn't have excluded these law enforcement officials, you know, from participating in the investigation. So all of their behavior today just suggests they don't really care.

Alex Wagner (42:08)

What's the timeline, do you think, for this investigation? I mean, I can't remember. I mean, with high profile cases like this, what, what is.

Leah Littman (42:17)

What. What.

Alex Wagner (42:18)

What kind of month turnaround are we looking, looking at?

Leah Littman (42:22)

I really don't know. I'm not sure that there is like any sort of like standard across high profile cases. You know, it probably depends on, you know, whether they feel like they have spoken to everyone on scene, whether they have collected all available video. So it's a little bit hard to know exactly, you know, what it might take. I mean, part of it is also going to depend on some of these high profile cases often involve hate crime charges, and those often take longer because they require uncovering additional evidence of motive. And so, you know, could it be again, that they are looking for some evidence related to that? I don't know. That could prolong an investigation. So it's a little difficult to say, like we should expect it to be, you know, wrapped up within this window.

Alex Wagner (43:05)

Or that something tells me it's not gonna be done on an expeditious timeline. Yeah, I mean, there's one thing that I find very hard to swallow and that it is sounds like, you know, first of all, the trauma itself was so profound. Right. Renee Good is shot through a windshield and killed in front of her family. And then her family, her widow, is now the focus of a federal investigation, which is also known as a federal smear campaign. Right. And the government has so much power in this scenario, and yet Renee Goode, the family of Renee Goode, has so few, has very little recourse to seek justice from the federal government and from. From ice. Why, first of all, why is that?

Leah Littman (43:55)

Yeah, so as we were kind of previewing earlier, there are a bunch of obstacles that, again, getting back to the Supreme Court, the Supreme Court has created to actually sue federal officers for violating your rights. Now, Congress, you know, in the aftermath of the Civil War, passed this law called section 1983. It's a general civil rights statute. And that's the law that allows you to sue state and local officers who violate your constitutional rights. That's what's called a cause of action. Like it is the legal authorization to bring suit. Congress has not passed a similar law that allows you to sue federal officers for violating your constitutional rights. So, so what happens then? Well, back in the good old days, you know, the Supreme Court stepped into the breach in a case, Bivins versus six unnamed agents of the FBI. The Supreme Court said, when your rights are violated by a federal officer and you don't have another remedy, then you can sue those officers for damages. You know, the Bivens case was, you know, some law enforcement officers who break into a guy's house, you know, ransack it, force him to stand naked, and then they don't try him for anything. And oftentimes, when the government violates the Fourth Amendment, they do so in the course of obtaining evidence that they use at your trial. So what's your remedy then? It is asking the court to exclude that evidence. That remedy isn't available if you're not charged with a crime. And so in Bivens, the Supreme Court said, for people like Bivins, it's damages or nothing. And in that circumstance, we recognize that courts have the authority to afford traditional forms of relief, like damages. So that used to be the case. This court hates Bivens. They have basically limited it.

Alex Wagner (45:48)

And precedent. I'm just kidding.

Leah Littman (45:49)

Right? And precedent, the law, the rule of law, accountability for government officers. The list goes on. Democracy, multiracial democracy. How long do we have? And they've said, you know, unless you are suing a federal officer for a constitutional violation that basically is on all fours, and exactly like one of the three prior cases where we have recognized a Bivens cause of action, you're out of luck. And so, you know, because we are seeing this unprecedented surge in immigration enforcement, engaging in unprecedented constitutional violations, there aren't prior Bivens cases that say you can sue an officer under these circumstances. Even though, like Bivins, you know, for Renee Nicole Goode and her family, it is Bivens or nothing.

Alex Wagner (46:38)

Why did Congress not pass a law that. That matched a law that was passed in the post in the Reconstruction era?

Leah Littman (46:46)

So I think there are several different explanations. One is, so long as the Supreme Court was, like, filling in the gap, it was just a less pressing need because there weren't this slew of cases, constitutional violation after constitutional violation, where the court was saying, you have no remedy, you can't sue the officer. So I think that's part of it. And then honestly, kind of like the lead up to the supreme court overruling Roe vs Wade, people failed to appreciate the direction that the court was headed in. Right? Like, they didn't see where the court was going when they actually had the opportunity to do something, you know, when they had the super majority in the Senate, you know, and could have passed, you know, so federal protections for abortion rights, federal protections for individuals whose constitutional rights are violated. By federal officers. So that's the kind of, you know, hindsight's 2020 sad aspect of the story. The positive spin I am choosing to put on it is as follows. This is one of those rare circumstances where Congress can easily fix something the Supreme Court has fucked up. All they need to do is just pass a law, amend 1983 and say applies to federal officers too, and that fixes the problem. Right.

Alex Wagner (47:59)

That was actually the op ed by two law professors this week who suggested that the Congress should pass something called the Renee Good Civil Rights act, basically to account for the gaping hole that exists in our judicial system, which makes it very impossible, I should say, in this day and age to sue federal officers for wrongdoing. I mean, so that would just be an act of Congress. So simple, so easy.

Leah Littman (48:19)

Lee. Yeah, I'll just snap my fingers. Or maybe if everyone in the world claps their hands at the same time, a Congress will appear.

Alex Wagner (48:27)

Oh, my Lord. Okay. I mean, that then gets me to a sort of a big question here because you've said to a number of answers, you have invoked the highest court in the land, the Supreme Court, and.

Leah Littman (48:41)

I think the lowest court in my estimation.

Alex Wagner (48:43)

But seriously, girl, pretty. For a long time, it's felt like the courts have been the bulwark against the Trump administration. Right. Especially in the immediate aftermath of Inauguration Day.

Leah Littman (48:55)

Right.

Alex Wagner (48:56)

They're preventing executive overreach, the hollowing out of federal agencies. But that I think thinking that the courts are always there as a fail safe doesn't really hold up. I mean, New York Times report recently found that that Trump's the. The appellate judges that he has picked have ruled in his favor 112 times compared to the 13 times they have ruled against him. So give me your sort of like big picture analysis on how the courts are functioning here in terms of where they've slowed or blocked his agenda and where they've ultimately given him a hall pass.

Leah Littman (49:31)

I think the federal trial courts have done a really admirable job in generally trying to hold the president and the administration accountable to the law. And I think it's no accident that that that is why we have also seen the Supreme Court steadily narrowing the power of district courts, you know, to issue nationwide injunctions or to issue other forms of relief, you know, that would be effective against this administration. I also think it's no accident that we are seeing this administration put forward even more extreme nominees than they did during the first administration, you know, the ones who are voting for them, you know, 90 plus percent of cases, you know, who are some of the people they have appointed to the federal courts in the second term? Emil? Beau, you know, the guy who literally came up with a strategy of trying to evade court orders and allegedly reportedly said, we'll just say fuck you to the courts. That's cool.

Alex Wagner (50:23)

Cool, cool. No, that guy.

Leah Littman (50:25)

Exactly. Lifetime tenure. The guy who also attended a Trump rally after he became a federal judge. You know, there are also people that they have put up for the federal district courts who have described themselves as zealots on the issue of fetal persecution, the idea that the Constitution requires abortion to be illegal nationwide. So they are slowly transforming the federal courts, particularly the lower federal courts that have proven effective at checking this administration. So you're right. We can't count on the federal courts to always be there. You know, we have to take a belt and suspenders approach to thinking about our rights. You know, as we were talking about, Congress should have codified protections for rights, you know, not just relied on the idea that the Supreme Court was always gonna stick to precedent. And we also need to think about what these institutions should look like in the post Trump world because, you know, again, thinking proactively, we should think about how can we safeguard our institutions and, like, harden our democracy so that we don't slip back into this when we finally pull ourselves out in the after.

Alex Wagner (51:32)

Times when he's no longer president and there's a truth and reconciliation and we begin to rebuild our democracy. You'll hear a little bit more from Leah in one quick sec. But first, on the latest episode of my show, Runaway Country, I interview Michael Moore, the former chief of police for the LA Police Department, because he offers some very interesting and I'm going to say controversial perspective on how law enforcement is looking at the events of last week and understanding what exactly happened to Renee.

Leah Littman (52:03)

Nicole. Good.

Alex Wagner (52:04)

And then the bulwarks. Tim Miller joins me to question the parallel realities Americans appear to be living in despite ample video footage. And even in cases of life or death, we take visits from Earth 1 to Earth 2. Tune in to Runaway country wherever you get your podcasts or check it out on YouTube.

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Alex Wagner (54:42)

I just want to get your thoughts since I have you here as our legal eagle on some really high high profile cases that are making their way through the courts. On Tuesday, SCOTUS weighed in for the first time on trans athletes participating in women's sports. And for years most of those decisions have been Left to state and local organizations. Right. But the Trump administration is, is pushing to make the ban a federal issue, and some sources say the justices appear inclined to uphold it. I can't imagine the Roberts court. I know. What's your feeling on how that's gonna shake out?

Leah Littman (55:15)

I think the best case scenario is the justices say the state bans on trans girls and trans women, you know, participating in sports don't violate Title 9, the federal law that prohibits sex discrimination in, you know, educational institutions and services. That's the absolute best case. From there, it only gets worse. It's possible they will also say these bans don't violate the Constitution's equal protection clause. That would be worse because it would foreclose, you know, another potential claim that could be used to challenge these bans. The lower court in this case suggested they needed more evidence in order to weigh that claim. And so the idea that the Supreme Court will just go ahead and resolve it after the lower court said we need more evidence. Right. Should be some indication of how aggressive, oppressive right. They are inclined to be with respect to trans rights. And then still worse is the possibility. Oh, yeah. That they're not gonna do it in this case. But there's a possibility that some justice floats the possibility that Title IX itself forbids the participation of trans girls and trans women in women's sports. And so then it's not just that you can't challenge states where, you know, states have laws that ban trans girls and trans women. It's also that states won't be allowed to include trans girls and trans women. So that's the range of possibilities rooting for the first one real hard. Wow.

Alex Wagner (56:54)

It feels like this. The federal government has real leverage over states where this is being fought out. And the education department is also fighting Maine, California, Minnesota over efforts to cut off federal funding because those states allow trans girls to compete on girls sports teams. Right, That's. Those are. This is sort of a parallel situation.

Leah Littman (57:12)

It's a multi front litigation. You know, they are also targeting hospitals, you know, that provide gender affirming care and research universities, you know, they are targeting schools, you know, that again, you know, provide inclusive policies, you know, for trans students and trans athletes. So they are engaged in this all out war on the existence of, you know, trans people and their ability to basically participate in society.

Alex Wagner (57:40)

I mean, I feel like the connective tissue between what's happening with that group of people and what's happening with migrants and brown people in the country is just a sort of brutalization and a diminution of their humanity. And I. I worry that the impunity with which this administration is going after people they. They deem not worthy of belonging in this country, that. That is. Is going to give them licen. I don't know, legally be as. As aggressive as they possibly can be and shoot for the moon in terms of punishing or otherwise dehumanizing people that don't fit within their political agenda. I mean, that. That actually really worries me that they see what they can do in a place like Minneapolis and they're like, oh, yeah, you think we can get trans girls out of sports? Yeah, we're gonna do that. Plus. Plus.

Leah Littman (58:27)

Exactly. I mean, I think people have noticed this in the case of Renee and Nicole Good. Right. Like, it didn't really matter who she was. She's a white woman. She is now the enemy, you know, and they are just willing to lump in anyone who, again, they, like, harbor animus toward or who criticizes them or tries to stand in their way. Like, they will dehumanize all of those people and just, like, attempt to normalize the state violence, you know, against them.

Alex Wagner (58:55)

Well, and they're betting that the fact that Renee Nicole Good was a lesbian gives them a pass to torture her family in the wake of her death and smear her name and her story nationally with the full force of the federal government.

Leah Littman (59:10)

Right.

Alex Wagner (59:10)

And nothing's gonna stop them. In the same way that if you're an observer standing there with your camera phone and we've seen videos of this this week, they can push you down to the ground regardless of whether you're, you know, following the law and an American citizen and have every right to be doing what you're doing. There's just a sense of lawlessness that is held on the part of the law itself. It is terrifying, Leah.

Leah Littman (59:29)

I mean, it's absolutely terrifying. And the idea that there is no longer a consensus in this country that federal agents shouldn't be going door to door, car to car, hauling people out, throwing them on the ground and assaulting them. I mean, I would have thought, you know, before January of 2025, if you just showed anyone a video and you didn't tell them. Them, Right. Who the officer was and who the target was, everybody would say, we don't do that here. That's not okay. And now they have polarized this where, again, they are asking for permission from their ideological allies to engage in this kind of violence against anyone and everyone. And it is clear there is just no love. They won't stoop to in order to, you know, traffic in some ostensible justification, you know, for what they're doing.

Alex Wagner (60:31)

Let me ask you one more question, just as I think about this, because you're conjuring the specter of a future where there is no Trump administration. And I want to live in that future for just a moment. But if you're Kristi Noem or Stephen Miller, who's the, you know, sort of one of the architects of all of this, and it's like one could say, knowingly and willfully recruiting people who are either unqualified or uninterested in following the rules rules and violating the rights of American citizens. Like, are you hoping that Trump's is preemptively pardoning you before you, before he leaves office? And what is your expectation? Because so much of this feels like, okay, for now, you guys can do this because the circumstances are in your favor, right? But there is going to come a time for accountability and there is going to be come a time for the legal and judicial system to hold you responsible for, for the, the crimes that have been committed in the country's name. So, like, what's your expectation as far as Trump's exit and like, with this stuff in his rear view mirror, what's legally possible for him to do? I mean, I would assume everyone in the administration gets a preemptive pardon. What do you, what do you would imagine that scenario is like?

Leah Littman (61:39)

It's possible that that's what they are hoping for and that that's what they will get. But honestly, I also think they are telling themselves two things. One is that Democrats just don't have the spine. They don't have the backbone. They would never actually hold anyone meaningfully, legally accountable. I mean, you had to drag Merrick Garland's doj, right, for years in order to get them to potentially investigate Donald Trump's role in January 6th. And so I think they can look at past practice and be like, okay, we're dealing with these spikes, mindless people, you know, they're not actually going to do anything, so that's probably part of it. And then I think another, you know, more terrifying lens is they don't really imagine or see a world where Republicans are no longer in power. They are acting like they will have a stranglehold on power for the foreseeable future. And so they're just not bothering to worry themselves with the possibility of, of a regime that isn't controlled, you know, by someone like Stephen Miller or J.D. vance or, you know, whatever creepy weirdo, you know, is milling about with them.

Alex Wagner (62:52)

Well, I'm here to say that what we have seen, and part of the reason you see some, some semblance of a spinal cord in Congress is because the people, the citizens of this country are out there on the streets, people who are not normally out there with camera phones following a line of ICE officers as they inflict terror upon communities. They are enraged, they are engaged. I sound like I'm running for office, but they're there. You know, people have their eyes open to this stuff. And if the Trump administration thinks that the citizenry will go quietly into this good night, I think they got something else coming for them.

Leah Littman (63:29)

Yeah, from your lips.

Alex Wagner (63:31)

Oh, my God, Leah. It is such a joy. I mean, it's not a joy to talk about this stuff, but it is so helpful and understand. It's great, great to see you. But it's also so important to get a real sort of legal understanding of what's possible and what isn't possible, the challenges and also the opportunities that exist for all of us as we witness and bear witness to this insane chapter of American history. So thank you, my friend, for your time and your brilliance. And everybody should listen to strict scrutiny because it's the best.

Leah Littman (64:05)

Well, thank you. Happy to come back anytime. And if you are looking for something to call your representative about, call them about a Bivens fix. Call them about abolishing qualified immunity for ice. You know, you name it. There are specific asks you can make, you know, in order to build a movement around and to organize people around.

Alex Wagner (64:21)

Just we're going to put that at the bottom of the screen. Just call your representative and ask for a bivins fix. 1, 800. No, I don't know. It's not a 1, 800. It should be just to get to the switchboard, but you have to look up your representative's phone number. But do it because it's worth it because fuck, these are the times to make big calls. Leah, thank you.

Leah Littman (64:39)

Thank you.

Alex Wagner (64:40)

That is our show for today. Thank you, Leah Littman, for joining me. John, John and Tommy will be back in your feeds on Tuesday.

Tommy Vietor (64:49)

If you want to listen to Pod Save America ad free and get access to exclusive podcasts, go to cricket.com friends to subscribe on Supercast, Substack, YouTube or Apple Podcasts. Also, please consider leaving us a review that helps boost this episode and everything we do here at Crooked, Pod Save America is a crooked media production. Our producers are David Toledo, Emma Illich Frank and Saul Rubin. Our associate producer is Farah Safari. Austin Fisher is Our senior producer, Reed Churlin is our executive editor. Adrian Hill is our head of news and politics. The show is mixed and edited by Andrew Chadwick. Jordan Kanter is our sound engineer with audio support from Kyle Seglin and Charlotte Landis. Matt de Groot is our head of Product production. Naomi Sengel is our executive assistant. Thanks to our digital team, Elijah Cohn, Haley Jones, Ben Hefcoat, Mia Kelman, Kiril Pel Aviv, David Toles and Ryan Young, our production staff is proudly unionized with the Writers Guild of America East.

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Leah Littman (66:21)

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Leah Littman (67:15)

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