204: A Nothing Burger

Summary

Podcast Summary: #SistersInLaw Episode 204: "A Nothing Burger"

Released on October 5, 2024 | Host: Politicon | Participants: Joyce Vance, Jill Wine-Banks, Barb McQuaid, Kimberly Atkins Stohr

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Introduction

In Episode 204 of #SistersInLaw, the Politicon team delves into pressing political and legal issues, anchored by insightful discussions and sharp analysis from Joyce Vance, Jill Wine-Banks, Barb McQuaid, and Kimberly Atkins Stohr. This episode, titled "A Nothing Burger," navigates through the complexities of Georgia's anti-abortion law, the intricacies of election interference cases, and anticipates significant Supreme Court deliberations.

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Holiday Cheer and Community Engagement (00:00 – 02:40)

The episode begins with the hosts sharing their enthusiasm for Halloween, discussing neighborhood traditions and creative decorations. Barb McQuaid highlights her neighbors' inventive skeleton displays, which she humorously categorizes under the hashtag #skeletoncrew. Kimberly Atkins Stohr shares her family's challenges with decorations due to a damaged tree, emphasizing the importance of making their home festive to attract children.

Notable Quote:

"I love seeing the costumes of the kids. That's my favorite."
— Jill Wine-Banks [05:02]

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Georgia's Anti-Abortion Law Ruling (07:09 – 22:44)

The conversation shifts to Georgia's contentious anti-abortion law, focusing on a recent ruling by Judge Robert McBurney that struck down the state's six-week abortion ban. This decision cites the violation of the Georgia Constitution's rights to liberty and privacy, emphasizing that the state’s interest in fetal life should only override these rights post-viability.

Notable Quotes:

"The six week ban just makes no sense when put against the right of someone to have control over their own body."
— Kimberly Atkins Stohr [10:10]

"This is a case that has to proceed, including those charges."
— Barb McQuaid [39:49]

Jill Wine-Banks critiques former President Donald Trump's stance that delegating abortion regulation back to the states solves the issue, arguing instead that it creates a fragmented and dangerous landscape where women’s health and rights are inconsistently protected.

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Election Interference and Trump's Immunity Case (30:48 – 48:28)

The discussion intensifies around Jack Smith's unsealed 165-page brief in the election interference case against Donald Trump. The hosts dissect whether Trump's actions during the 2020 election campaign qualify as official conduct warranting presidential immunity or if they constitute private misconduct impermissible under recent Supreme Court decisions.

Notable Quotes:

"If he were out of office, he could have done all of those things. So it isn't like, you know, when Harry Truman drops the bomb. Only a president can do that."
— Barb McQuaid [35:15]

"This is just Donald Trump blowing smoke. And I fear that if people in the media aren't quick and vigorous in debunking this, that he will get a little bit of traction."
— Jill Wine-Banks [44:18]

The panel highlights the detailed evidence presented against Trump, especially in his interactions with former Vice President Mike Pence, arguing these actions were separate from his presidential duties and thus not protected by immunity.

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Supreme Court's Upcoming Term and Key Cases (52:55 – 63:43)

The hosts preview significant cases on the Supreme Court's docket for the upcoming term:

1. Facebook and Securities Laws (Barb McQuaid):
   Examines whether Facebook's disclosures about data misuse during the Cambridge Analytica scandal were misleading to investors, challenging the adequacy of corporate risk statements.

2. Ghost Guns Regulation (Joyce Vance):
   Focuses on the Bureau of Alcohol, Tobacco, and Firearms' rules regulating ghost guns—firearms without serial numbers assembled from kits—and their implications for federal firearms law.

3. Smith v. Oklahoma (Kimberly Atkins Stohr):
   Discusses the case of Richard Glossop, a death row inmate facing execution despite evident trial flaws, pondering whether federal courts can intervene when state courts provide insufficient remedies.

4. Gender-Affirming Care in Tennessee (Jill Wine-Banks):
   Explores the legal battles over bans on gender-affirming care for minors, scrutinizing whether such bans violate the Equal Protection Clause of the 14th Amendment.

Notable Quote:

"This will be argued in November involving Facebook and the securities laws... it raises a larger question of whether corporations can describe real harms as hypothetical in their filings."
— Barb McQuaid [52:55]

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Listener Questions and Legal Clarifications (63:43 – 73:24)

The episode transitions to addressing listener-submitted questions, providing clarifications on complex legal topics:

1. Becoming an Elector vs. a Delegate (Jill Wine-Banks [64:27]): Jill explains the constitutional qualifications for electors, differentiating them from delegates, and outlines the selection process within party structures.

2. Federal Law on Citizens Discussing Policy with Foreign Leaders (Kimberly Atkins Stohr [67:44]): Kim elucidates the Logan Act, a seldom-enforced federal statute prohibiting private citizens from lobbying foreign officials on U.S. policy matters, highlighting its rare prosecution history.

3. Legal Terminology in Indictments (Barb McQuaid [69:29]): Barb clarifies why certain charges, such as "sexual abuse," might be used instead of more specific terms like "rape," emphasizing prosecutors' adherence to statutory language to meet conviction standards.

Notable Quote:

"The principle that you don't file new things right before an election does not bring to a halt as much as Donald Trump wish it did."
— Kimberly Atkins Stohr [41:54]

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Conclusion

Episode 204 of #SistersInLaw offers a thorough analysis of pivotal legal battles shaping the political landscape. From the rollback of restrictive abortion laws in Georgia to the nuanced discussions surrounding presidential immunity and election interference, the hosts provide listeners with a comprehensive understanding of these complex issues. Additionally, the exploration of upcoming Supreme Court cases underscores the ongoing impact of judicial decisions on everyday lives.

Notable Closing Insight:

"This distinction between candidate Trump and President Trump... exposes that this is clearly about the campaign, not the work of the presidency."
— Joyce Vance [35:15]

Listeners are encouraged to engage with the topics discussed and stay informed about the evolving legal and political dynamics in the United States.

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For more episodes and insights, follow #SistersInLaw on Apple Podcasts or your preferred listening platform.

Transcript

[Jill Wine Banks]

With the five dollar meal deal at McDonald's, you pick a McDouble, or a McChicken. Then get a small fry, a small.

[Kimberly Atkins Storr]

Drink and a four piece McNuggets. That's a lot of McDonald's for not.

[Barb McQuaid]

A lot of money. Price and participation may vary for a limited time only.

[Joyce Vance]

Oh, hear that?

[Unknown]

Ah. Okay. Thank you.

[Joyce Vance]

Etsy knows these aren't the sounds of holiday gifting.

[Kimberly Atkins Storr]

Hmm.

[Joyce Vance]

Well, not the ones you're hoping for. You want squeals of delight? Happy Te.

[Kimberly Atkins Storr]

How did you. How did you know?

[Joyce Vance]

And spontaneously written songs of joy.

[Jill Wine Banks]

I so happy. Oh yeah.

[Barb McQuaid]

Oh yeah.

[Joyce Vance]

Hmm. Okay, this song needs a bit of work. But anyway to get those reactions, make sure everyone on your list feels heard with handmade, hand picked and designed gifts from small shops on Etsy. Gifts like personalized jewelry, custom artwork, cozy style items, vintage pieces, and home decor to celebrate all of your favorite people and their specific kind of special. For original gifts that say I get you, Etsy has it.

[Unknown]

Welcome back to SistersinLaw with Barb McQuaid, Jill Wine Banks, Kimberly Atkins Store and me, Joyce Vance. Don't forget to check out the new T shirt at our merch store. It's the perfect vibe for any season and especially for right now. We have so much enjoyed seeing people wearing them out and about. Go to politicon.com merch to get yours this week we have a lot to discuss. We've got Georgia's anti abortion law which has been in the courts this week, Jack Smith's filing in the D.C. election interference case about presidential immunity. And it's time for our Supreme Court curtain raiser. It's almost the first Monday in October, which means the court is going to be back in session. But before we get to the serious stuff, y'all, I've noticed that it's that time of year again and Barb is posting on social media about her neighbors who get very creative for Halloween. You know, if I had a lot of time on my hands, what I would love to do is just elaborate outdoor decorations for every holiday. And as it is, even without enough time, I try to get a little bit done too. So I want some advice from y'all on what you like. Barb, tell us about your neighbors and what they do, what the annual tradition is and do you try to live up to it at all?

[Barb McQuaid]

Oh, yeah, no, no chance. They are the hall of fame. Yeah. In my neighborhood I actually like will deliberately go out and walk past their house each day to see what they do. They change it some years every day or at least every few days. And they've got an assembly where they'll have one set up like a hair salon where they're doing the hair.

[Unknown]

But wait, what is it? What do they put out?

[Barb McQuaid]

Skeletons. Skeletons in various poses. And they're really funny. I usually post them on X with the hashtag skeletoncrew because I think they're just so funny. And their debut Entry for the 2024 season is a couple of skeletons barbecuing with the dog skeleton and the cat skeleton on the barbecue with a sign that says they're eating the cats and the dogs.

[Unknown]

Strong start. Oh, that's amazing. Well, Kim, what are your favorites? What do you like to do?

[Kimberly Atkins Storr]

Well, I love Halloween decorations, but unfortunately, one of the trees that we used to hang things on ran into some rough times, and a big chunk of it had to be taken away. So we had to get creative this year and try to come up with something else. I admit that we are a little behind the eight ball here, and we haven't quite figured out exactly what they'll be, but we'll get something up. Cause I definitely want the kids to stop by. And if you. You know, I find when our house is festive, that that attracts more kids. Although Snickers has her costume ready, she is dressing up as Arisa's peanut butter cup.

[Unknown]

Aw, Snickers.

[Barb McQuaid]

Is that cross dressing?

[Kimberly Atkins Storr]

Since her name is Snick, she's sure nobody will recognize her.

[Unknown]

Jill, what are you gonna do? What do you like to do?

[Jill Wine Banks]

Oh, I don't know, but I'm gonna have to think about dressing Brisby as Snickers. Either the dog or the candy bar.

[Kimberly Atkins Storr]

Oh, my God, that would be great.

[Jill Wine Banks]

I'm gonna think about that.

[Kimberly Atkins Storr]

I mean, you could put Snickers in a Dalmatian.

[Jill Wine Banks]

My cousin once dressed her dogs. My cousins, male and female, dressed their dog, who is a Weimar runner, who has sort of the same body as a Dalmatian. As a Dalmatian. By putting on a T shirt. White T shirt with black spots on it. That was the perfect one. And Snickers would look great in a T shirt with a glass.

[Unknown]

Wait a second. Bella wants to get in on the action too. Can Bella be a Dalmatian?

[Jill Wine Banks]

Bella could be a Dalmatian and then Brisby. Well, gee, then would he be Snickers or would he be Bella?

[Unknown]

Or.

[Jill Wine Banks]

I don't know. A friend just sent me a article from, I think, the Wall Street Journal about, you know, the collar of shame that dogs have to wear when they've had surgery and can't lick certain places. Yeah, these horrible cones. But they're now making them beautiful. They made. There's one collar that looks like a ruffle and another that looks just like a Dalmatian. So if you put it on a Dalmatian, it just looks like a Dalmatian head. So I don't know, maybe I'll have to buy one of those and just dress Brisby that way. I, of course, dress as Brisby. I have my Dalmatian mask, and I wear that with a pair of onesie pajamas that are white with black spots. So I'm all set for answering the door and scaring my visitors. I love seeing the costumes of the kids. That's my favorite.

[Barb McQuaid]

I'm scared just listening to that description.

[Unknown]

You know, I've got two things this year so far. One is our pumpkin. You know, I don't know if y'all have seen this thing on TikTok where people give pumpkins to their chickens. And the chickens, if you sort of like trace a face, just do the lines, but don't cut it out on a pumpkin. Supposedly they would peck it out perfectly and you would have a beautiful pumpkin. So I put two triangles for eyes and a big, huge grinning mouth and gave it to the chickens. And y'all, it is so creepy. The chickens sort of went at it and sort of did the eyes part way and the mouth part way and it looks so spooky and creepy that I'm afraid it's going to scare the kids. But they really did. They got inside of it and ate the guts out of that pumpkin. I have very little work left to do. I do have this little traditional circle of five dancing witches. It's just fabric hanging, but it's very clearly witches that I put on our front yard. And Bob, my husband's, been making fun of it today and saying that it's the coven of witches that are voting for Kamala. So I think I'm gonna actually make it a little sign.

[Jill Wine Banks]

Just. Hey, Joyce, I have two pins that are witches against Trump. This goes back to the witch hunt days when I had a lot of witch pins, but I also had witches against against Trump. I'm gonna start wearing those for Halloween. That's what I do. Which is against Trump.

[Kimberly Atkins Storr]

I bet there's already been a witches for Kamala call.

[Unknown]

Well, there's certainly been everything else, right?

[Kimberly Atkins Storr]

Well, abortion care is again being offered in the state of Georgia. That's after a judge struck down that state's six week abortion ban. But this ruling came too late for Amber Nicole Thurman and Candy Miller. They both lost their lives in Georgia because they didn't have access to abortion care when they needed it while that ban was still in effect. Barb, this ruling striking down the ban was by a trial judge by the name of Robert McBurney. Our listeners may remember Judge McBurney from the early days of the Georgia phony election scheme, election fraud trial against Donald Trump, or the indictment against Donald Trump. It never went to trial yet. But he is back again with a decision that really slapped down on no uncertain terms, this ban, saying that it forces women to, quote, serve as human incubators for five months leading up to viability. And he also said, quote, the state has seized upon a point on gestation that has political salience rather than medical or moral salience. Tell us your thoughts about this ruling, Barb.

[Barb McQuaid]

Yeah, so this is one of those six week abortion bans that abortions are illegal after six weeks, which, as we've discussed before, is often a time before many women may even know they're pregnant. But the judge really drew an important line here. And remember, he's interpreting the Georgia Constitution. So now that this has all gone back to the states, every state is a little bit different both in terms of what their legislators want and what their constitutions provide. And so what Judge McBurney wrote is that this is a violation of the Georgia Constitution's rights of liberty and privacy and drew the line that if there's a state's interest in protecting the life of a child, that right can only trump a woman's right to her own liberty and privacy. After that fetus has reached a level of viability where it can survive outside the womb. And so to ban at six weeks, the judge said, was, was arbitrary and violates the mother's right of liberty and privacy. So it's a strong opinion wrote in strong language. And if that is what the Georgia Constitution provides, then in that state, then the six week ban is illegal.

[Kimberly Atkins Storr]

Yeah. One thing I thought was really interesting about this case is that it considered the rights of the mother and the liberty of the mother right in a way that Dobbs never did. Dobbs was only about the fact that, oh, the premise that there is this privacy right that emanates from the Constitution at all is wrong. And the woman, the person carrying the fetus throughout the entire opinion in Dobbs is an afterthought, if a thought at all. And it was really interesting. The contrast in reading this decision, which focused very, did not dismiss the rights of a newborn once they're able to be a newborn out in the world, did not dismiss that at all. But saying, look, you have to balance two different things. And at six weeks, this is a collection of cells, like just by actuality, this is a collection of cells that cannot live as an independent being outside of the womb, actually for months. And that this six week ban just makes no sense when put against the right of someone to have control over their own body. I just thought that was fascinating. Jill, your thoughts on that, as well as the fact that Donald Trump continues to say, well, he solved the abortion issue by sending it back to the states. So it's all solved now. Even in Georgia, one state, it's banned and then it's not. And then it's banned and then it's not. And I say at least two confirmed cases, right, of women dying. We may not know. We have no idea how many women lost their fertility while this ban was in place because they couldn't, they suffered some complication from a pregnancy that they couldn't get treated. You know, talk about the mess. We're two and a half years after Dobbs and is it solved like Donald Trump says it is?

[Jill Wine Banks]

Kim, this is such a good point of discussion because of course, we are two and a half years after Dobbs and we have a bigger mess than ever before because every state is handling this differently and almost every state legislation is in contrast to what the people of the state want when it goes to the people in a referendum on whether they want to have abortion bans or not. Choice prevails every single time. And so we are not moving toward what the people want. And by creating a state by state mess, you have not only, as you said, a minimum of two people who have died as a result of the abortion ban in Georgia, and there are probably more. I'm hoping that people listening now will start reporting unfortunate outcomes from the abortion ban in Georgia. As of today, it's back. I don't know for how many days. The last time Judge McBurney ruled that the ban was unconstitutional, it lasted eight days before it was appealed. And the Supreme Court of Georgia put it back, allowed it to continue. So I don't know how many days this one will last. And it's a miracle that the abortion providers in Georgia have immediately gone back to providing abortions in this interim period. But we're going to get to a point where all of them are forced to close, all abortion providers are forced out of business and in fact, where no doctors know how to provide abortions because medical schools aren't allowing it and because doctors who want to provide this service are refusing to go to states where there are these serious bans so that even in the life of the mother, which some states allow, even though they've banned abortion completely, they won't be able to save a woman's life because they won't be there. And you can't get to a state, particularly in the south, but in many places you can't get anywhere quick enough to have the procedure that you need to save your life or to save your future medical, for example, the ability to continue to have children. So I think we're way worse off now with this going back and forth and having it supposedly in the hands of the state who have taken extreme positions. I want to compliment Judge McBurney's opinion here. I highly recommend that everyone read it. I think let's put it in our show notes a link so that you can read it because his language does not mince words. He is terrific. And also, Ruth Marcus wrote a piece that quotes some of the highlights that are really strong language that says this is ridiculous and that women are not going to go back to the Handmaid's Tale and that no one you know, it sounds like Tim Waltz. It's none of your business. It's up to the woman to decide.

[Unknown]

You know, can I just underscore something that Jill is saying since I live in Georgia's neighbor state, Alabama, and yes, there is reporting in the news on women who have lost their lives. What people who I think maybe live in other parts of the country where abortion is still available may not understand is that people cannot tell their stories. And I will tell you, I had a conversation with a very close friend who lost a baby recently, only lost the baby after having to wait in the hospital for days until she got sick enough that they could perform a quote, unquote abortion. It was a baby she desperately wanted and lost. Abortion actually is medical care. The abortion procedure is the procedure used to save a woman's life when she is going to otherwise die. And I also know an obgyn who's in his 70s, sort of the poster child for the conservative white southern male who a couple years ago is the person who really educated me about the fact that abortion was medical care by telling me how outraged he was that the procedure, which was essential life saving care for many of his patients, could not be taught under some of these laws. And he was almost in tears talking about it. And I think the politics has overtaken common sense and care for women. I'm so glad Judge McBurney wrote this opinion.

[Jill Wine Banks]

But we have to also point out that it is a fear that doctors legitimately have that they will be prosecuted if they cannot justify the life of the mother being at risk. Not just the health, not just the future reproductive capabilities, but it has to be that she's about to die. And. And that's the problem with these laws. And it's really important that doctors should have clearer guidance on what is allowed and what isn't allowed, but that it should be a medical judgment that isn't subject to second guessing by legislators.

[Kimberly Atkins Storr]

Yeah. You know, I was in St. Louis over this past weekend, and I passed a Planned Parenthood clinic with, you know, the requisite yellow tape around it and people who are wearing vests that say that they are escorting people inside. And I thought about it. It's like, oh, wow, in St. Louis, if you can't get to St. Louis or neighboring Illinois, because across the river is Illinois to the west, that's probably the last, because I know that's the only county that has abortion care left. In Missouri, you go to the west for hundreds and hundreds and hundreds of miles, and you cannot get an abortion. And just standing there and thinking about that, that. That is like the closest point to so many people. Just. It, you know, it was just outrageous. It was just outrageous to me. Joyce, this law in Georgia has been put on hold before and then reinstated, and now it's on hold again. Again. It's gonna go back to Georgia's highest court, where eight of the nine judges were appointed by the Republican governor. What can we expect? I mean, is it just gonna get reversed again and then what?

[Unknown]

Yeah, well, speaking as one incubator to three other incubators, of course Georgia is going to, you know, the Supreme Court will reverse. Right? You guys, you didn't even laugh. I mean, I was trying to break.

[Barb McQuaid]

Up the mood here a little bit.

[Kimberly Atkins Storr]

It gives me a minute, but I got there.

[Unknown]

I mean, this is super depressing. Georgia's Supreme Court, very political, very conservative. You know, these folks will not let Judge McBurney's law stand. I gotta say, McBurney's opinion reminds me of another one, one that was written by an 11th Circuit judge when Roe vs. Wade was still the law. And he started it by writing that there is constitutional law, and then there is the aberration of constitutional law relating to abortion. And once I read that sentence, I knew something bad was coming. And he said that the standard DNA process that's used for abortion should be called dismemberment abortion. Because the method, you guys, I'm going to quote from the opinion, the method involves tearing apart and extracting piece by piece from the uterus what was until then a living unborn child. What that panel. I'm getting to a point, I promise, that panel in Alabama wrote that it couldn't limit abortions in the first trimester. But Judge Carnes wrote that that was only because, quote, in our judicial system, there is only one Supreme Court, and we are not it. That 11th Circuit panel expressed a lot of regret about having to, quote, unquote, protect abortions. Well, look, that's no longer the law. Right. And the Georgia court will not face that constraint, and they will be able to do what they want. That 11th Circuit opinion that reflects the prevailing mood in places like Georgia and Alabama, and Judge McBurney got it just right. He wrote, Georgia has seized upon a point in gestation that has political salience rather than medical or moral salience. And that's what's going on here for too many people. Sadly now, judges, this has become a debate about the politics of abortion and not about women's rights and access to healthcare. This, you know, this moment where abortion is legal again in Georgia is not gonna last.

[Kimberly Atkins Storr]

It's just so difficult. And even, you know, watching the vice presidential debate this week, when you had one candidate who was saying, well, you know, we won't need abortions if women are happy and they feel supported and they can have what they. But at the same time, when it comes to paid leave, he's like, oh, no, let's not do, you know, let's not do that. These are these states that are treating bunches of cells. And look, I am. I am not pro abortion. I would love it if we had circumstances that made them less necessary. But sometimes there are none. When someone's life is in danger, when it's a medical procedure that's needed, that's not a choice. That's medical care. And I'm not downplaying life in any one bit. But all these states that are creating personhood when it's a bunch of cells in a cluster implanted in a uterus are not imposing mandatory child support at that point that this cluster of cells is six weeks old. They are not ensuring that this child has valuable education from the point that they are there. They can't start saving for college at the point that it's disingenuous is what I'm saying. If they really wanted to treat these as Children that need support, they're not. Not in any way. If they wanna support the mother at that point when it's six weeks, they're not. They're not doing it at all. They're trying to take away the aca, which treats pregnancy as a preexisting condition. I mean, it's so dishonest from a policy point. Go ahead, Barb.

[Barb McQuaid]

Yeah, I just wanted to amplify the point that you're making when you're done, which is, you know, if only these politicians cared as much about children who are born as they do about unborn.

[Kimberly Atkins Storr]

The ones that we all can agree are children.

[Barb McQuaid]

Right?

[Kimberly Atkins Storr]

Let's talk about the kids that we.

[Barb McQuaid]

All agree are kids. Exactly.

[Unknown]

Yes.

[Barb McQuaid]

But one point I also wanted to make about watching the debate because I shared with you, like, just this inner rage as I'm watching and listening to J.D. vance. There is, you know, because I've written a book on this, everything in my world has to relate back to disinformation.

[Unknown]

But there's a Tuesday night certainly did.

[Jill Wine Banks]

It did.

[Kimberly Atkins Storr]

That was a great example.

[Barb McQuaid]

But there is a tactic that I saw J.D. vance use, which is this thing that's called the part whole fallacy. And so when talking about a woman's right to choose and reproductive health, what JD Vance wants to focus on is, you know, the idea that there are abortions in the ninth month when the baby is being born. And at that point, an abortion is occurring. I don't think that's occurring anywhere, but it's certainly not the vast majority of abortions. And so because he describes that as being some grisly procedure, we should eliminate the whole right whatsoever. And that is really false thinking, this idea of the part whole fallacy. And so it's a debater's trick and it's something used to paint the most horrific example of this thing you can think of and then argue why it should be completely eliminated.

[Jill Wine Banks]

And can I just add that I'm sure you've all seen the ad that Melania Trump recorded saying that she totally supports the right of women to choose and that it cannot in any way be limited. And I am shocked by the blatant attempt, one, I believe, to sell books. Her book is about to come out next week. And whether this is also a disinformation ploy to try to convince people who are undecided or thinking about they really don't want to vote Democratic, but they can't vote for Trump because they hate his democracy stance and because they're for choice, is that what this is all about. I mean, the ad is so. It's just repulsive.

[Unknown]

Oh, this is such an old political strategy, right? I mean, having your cake and eating it too. And that's just exactly what this reeks of. And Barb, to your point, this notion of these sort of nine month abortions, I mean, there is a personal tragedy behind those stories. These are babies that are born with horrible conditions where, I mean, I bet we have listeners who've been through these situations and I've been through one. And I just think this use of women's lives and women's stories in such a cavalier fashion is really damaging. What it speaks to, to me is just the utter lack of regard for women. I mean, y'all, you know, I have no intention of being a second class citizen. I am not going back. It's not just a slogan. And that's really what this is about.

[Jill Wine Banks]

Equal Rights Amendment.

[Barb McQuaid]

This episode of Sisters in Law is brought to you by Wild Grain. So this fall, treat yourself and your loved ones to sourdough bread, fresh pasta and artisanal pastries from Wild Grain. You won't want to miss the seasonal items they have this fall. Rumor has it they have a small number of Wait for it Sisters Apple Cider donuts.

[Jill Wine Banks]

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[Barb McQuaid]

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[Kimberly Atkins Storr]

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[Jill Wine Banks]

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[Unknown]

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[Barb McQuaid]

Well. Before we start our next segment, I did want the group to acknowledge my headwear today. I am wearing the Detroit Tigers baseball cap in homage to our gritty Tigers, who are not only in the playoffs, but have eliminated the Houston Astros to move on to the next round. So we here in Detroit are rejoicing.

[Jill Wine Banks]

Let me just say that Chicago helped you out and so I am now rooting for you.

[Unknown]

Oh, thank you.

[Jill Wine Banks]

I'm rooting for the Tigers.

[Barb McQuaid]

Thank you, Jill. Yeah, the historic number of losses. Thank you, Chicago White Sox.

[Unknown]

Well, you've got a big week coming, right, because Michigan plays Washington this weekend. The game I'm looking forward to.

[Barb McQuaid]

Yeah, it's been a happy, busy time here as a Detroit and Michigan sports fan. So all good. Well, I want to talk, folks, about the brief filed by Jack Smith this week. It was actually unsealed this week by the court on Wednesday in the January 6th case. It's 165 pages. And remember, this came in response to the Supreme Court's July decision holding that official conduct of a former president is immune from criminal prosecution. So the court also remanded the case to the trial court to decide whether any of the allegations in the indictment are immune from prosecution. Kind of one by one going through them. And so the trial court, in turn, entered a scheduling order directing the government to submit a brief listing as evidence and arguing why the alleged conduct is prosecutable and not immune under the court's decision. And so the facts, I suppose, are largely the same story we heard in the congressional hearings during the summer of 2022. But we did get some new details, and I'm wondering your thoughts about whether any of the facts or arguments were particularly important or revealing. Kim, what did you think?

[Kimberly Atkins Storr]

Yeah, I think overall, you're right that there were no new, particularly new overall revelations. But the amount of detail that this brief shows really lays bare any argument, I think, that Donald Trump can make that he was acting in his official capacity in all of the areas that this brief lays out. I think it was really smart. Now, we know Jack Smith took out everything with respect to his communications with the DOJ and any actions taken with respect to the doj, because I think you can clearly say a president, as the head of the executive, anything that an agency he addresses that is under the executive does, and any communications in that feels like an executive function, and that would be immune. But other things, including his conversations with Mike Pence, who. Mike Pence's notes were very salient here. It makes it clear that it really wasn't. Look, elections have nothing to do with the president. The president has no role in the running, investigation, overseeing of elections, aside from what the DOJ might do in investigating claims of election fraud and doing things for that. But the DOJ has already been taken out. But this is focused on what Donald Trump was doing in his capacity as a candidate. It really focuses on the things he did with respect to the states. The president has zero. Zero role in how states administer elections. So there's nothing official about that conduct. It is nothing official in saying when your vice president is being threatened, his life's being threatened, to say, so what? It is nothing. Executive to sit in the dining room in stew while you're watching Fox News for three hours seeing if the coup is gonna be successful. So everything. When you're reading this brief, if you think about the role of the president, which is how I read it, it makes it seem to me that none of this should get tripped up by that Supreme Court decision that gives immunity for official actions. None of this is official. It's an unofficial mess.

[Barb McQuaid]

What do you think, Joyce? What was your reaction to.

[Unknown]

So I'm very much in agreement with everything that Kim said. I think she's right on the money. I have a little bit of a contrarian view about how people have been talking about this brief in the media. I mean, I think the facts are interesting. Jack Smith spends 80 something pages laying them out in more detail than we've seen before. And that's sort of very interesting. It sort of feels like we're getting some of the tea. But I think focusing on the facts sort of misses the whole point of this brief because this is about legal argument. Right. How far does presidential immunity extend? Can Smith bring all of his charges and use all of his evidence? And so in the context of the question that the judge is being asked to determine, you know, I am with Kim. I think the most interesting thing is what we see about Mike Pence in this brief. There's maybe even some suggestion that Pence. Pence might have given them direct testimony. It's tough to know because some of the information could have come from his staff. But I think Pence is where Smith is on the most legally insecure ground because the debate is about core official activity. The Supreme Court said in their decision in the Trump immunity case that core official activity is absolutely immune. That's why they threw out the DOJ conversations. I fear that they will use that, that same analysis to throw out the Pence allegations. And so I think the best argument that Jack Smith has is this one. Kim is talking about this distinction. This is so common sense and so obvious. Right. The distinction between candidate Trump and President Trump. And the more detail they have from Mike Pence, the clearer it becomes that this is candidate Trump acting. Now, look, that might not keep, you know, five or six and the majority from telling Jack Smith no when this case goes back to the Supreme Court. But I think the level of detail we now have will really expose that just as political, just political playing. If the Supreme Court does that again, because this is clearly about the campaign, not the work of the presidency.

[Barb McQuaid]

Yeah. And if you think about each of these allegations, Trump could have done them even if he were not the sitting president at that time. You know, the false slaves of electors and calling legislators and trying to pressure them. There was nothing about his duties as president that implicates those things at all. If he were out of office, he could have done all of those things. So it isn't like, you know, when Harry Truman drops the bomb. Only a president can do that. That's the official conduct. So I completely agree with you there. Jill, how about you? What was your reaction to this filing?

[Jill Wine Banks]

So I agree with both Kim and Joyce and disagree a little bit with Joyce. And let me do this in several parts. One Is I think the facts were incredibly important in terms of establishing that this was private conduct of candidate Trump and that as you were just saying, Barb was not in his role as president, that none of it, or as Kim pointed out, the president has nothing to do with the elections that are overseen by the states, so it can't be official conduct. I personally think that even the conversations with DOJ should have not been in category one core responsibility, for which there is absolute immunity, but should have been in rebuttable. That means that their official, because he's talking to his own staff, but that it's rebuttable if you can show that it has no impact on the conduct of the office of the president, which in this case, I believe is exactly the case in all of the remaining charges. And as I say, I would have wished that there was a higher court than the Supreme Court so that you could say they're wrong and I gonna prosecute for his attempt to misuse the Department of Justice, which I think should have been criminal. I think that they did a very good job in this 165 pages of laying out that this was private conduct, that he was dealing with private attorneys, that his own White House counsel was excused from the room when they started having discussions that were clearly about this, that his campaign paid for the rally on January 6. There are a million examples in this. But I also found it very moving when they were talking about conversations with Pence, which I agree with Joyce, that is the hardest one. But I think it will prevail because it is clear he's talking to his running mate, not to his vice president. He's talking to the president of the Senate, not his vice president. When he's asking the president of the Senate to take actions that only the president of the Senate can take, which isn't his vice president's role. But I was very moved by the attempts of nice Mr. Pence candidate. Pence talking to his running mate, trying to say, you know, take a bow and treat this as an intermission, not a defeat. You can run again in four years. View it as that you took a dying Republican Party and saved it. So he was trying to make him feel good about this, to talk him off the ledge, as we often try to do for Kim, and to make.

[Unknown]

Him accept Kim is a much smarter and more reasonable human being. I feel the need to point out.

[Kimberly Atkins Storr]

Trump is on a different ledge.

[Jill Wine Banks]

Yes. Well, yeah, his ledge. But anyway, I was touched by that conversation where he's trying to make him do the right thing by making him feel good about, oh, you saved the Republican Party and you can do this again and you'll win in the future. But it also shows he knew that he lost. And so I think the brief is really, really good and very worth reading and very readable. It's not in legalese, it's stuff you can read. And whether you think that the facts are important just to show the public what the facts are, or whether you think the facts are important to show that these things fall within the category of not official conduct, it is important to know the facts that are laid out there.

[Barb McQuaid]

The one thing I would add, you know, just looking at this through a prosecutor's eyes is, as I read it, I was really keen on looking for evidence that was new and different from what we saw at the January 6 congressional hearing. And I did see some things that make it appear to me two things. One, it's clear that prosecutors were using the grand jury because they've got verbatim quotes and search warrants because they've got quotations from text messages, email messages, voicemail messages, and Mike Pence's handwritten notes. So. So those are things to get the content of those things requires a search warrant. And unless someone turns it over voluntarily. And so that seems like important additional evidence. The other thing that I would note is because at trial, it's going to be a very different proceeding than we saw at the congressional hearing. You know, some of the criticism about the congressional hearing was there was no one on the other side to cross examine any of the witnesses, and there was no jury to decide whether they've proved their case. That's not gonna be the case at a trial. There will be vigorous cross examination. They must prove the case beyond a reasonable doubt, and all 12 jurors must agree unanimously that that standard has been met. And so this additional evidence of Donald Trump's knowledge that he had lost the election and his intent, and these messages, these texts, verbatim texts, which are such powerful evidence, I think, shores this up and makes it look like a very strong criminal case. Let me move on to another issue that has been swirling out there. Donald Trump yesterday complained that the very filing of this brief violated the Department of Justice's 60 day rule that they can't file anything close to an election. It's election interference. I suppose they could have. You know, Judge Chutkan is the one who unsealed it, although it was the government's position that it should be unsealed. I suppose the court could have just waited until November 6th to unseal the brief. What do you think of that argument? I'll start with you, Kim.

[Kimberly Atkins Storr]

It's a nothing burger. I mean, this was not a new charge that was filed. This was not even the superseding indictment that was filed at this point. It's a filing in an ongoing case. The principle that you don't file new things right before an election does not bring to a halt as much as Donald Trump wish it did bring to a halt ongoing litigation. It just doesn't. And that's what this is. And, you know, I'm sure you guys as prosecutors will talk more about how this works. It is all of his delays that got us to this point in the first place. So now that's really rich for him to say. Well, the timing of this is election. Interface, please.

[Jill Wine Banks]

Yep.

[Barb McQuaid]

What about you, Joyce? You've acted under this policy before. What's your thought?

[Unknown]

Yeah, I mean, according to Donald Trump, there is no time when you can prosecute. Right. No matter when you try to do it, there's.

[Kimberly Atkins Storr]

How about never is never good for you.

[Barb McQuaid]

Right.

[Unknown]

Never, never. And of course, what you have to do is understand why this rule exists in order to understand why Donald Trump doesn't make any sense here. The whole point of this rule is to prevent DOJ from influencing the outcome of an election by doing something that puts new information in front of the public. You indict a candidate or you execute a search warrant at their. And all of a sudden, people are like, oh, my God, is that person a criminal? Maybe I shouldn't vote for them. And when that happens so close in time to an election that the candidate doesn't have the meaningful opportunity to respond. Well, that's something that DOJ decided years ago was a really bad idea and that it shouldn't do. That's obviously not what's happening here. This is the government filing a brief that they have been ordered to file by a court in a preexisting case, which, by the way, Donald Trump has for four years been telling people why he is not guilty on these charges. There's no surprise here. There's nothing. That's election interference. This is just Donald Trump blowing smoke. And I fear that if people in the media aren't quick and vigorous in debunking this, that he will get a little bit of traction. So now all of our listeners know this is nonsense, and that's exactly what we should call it, nonsense. Unless you prefer to use stronger term.

[Barb McQuaid]

What about you, Jill? Willing to use stronger terms?

[Jill Wine Banks]

I definitely prefer stronger terms. But I don't think we're a show that should use the words that I would like to use.

[Barb McQuaid]

We have to leave them alone.

[Jill Wine Banks]

Maybe, maybe with just some initials. Work your first name Barb and your newly adopted last name Kim. Would that do if we said that? Anyway, I think that both the answers are correct, that this is nonsense, that it is political. If the judge had done something different, this is how things go in the normal course of litigation. When it gets sent back to the court, the court has to act on that and has to act in a reasonable amount of time. She did not. Judge Chutkan did not rush to judgment or rush to any action. She did it in the normal course and the filing was correct. And I think at some point we are going to talk about the order of the filing. But to me, the order is perfectly sensible because the Supreme Court really ordered that this be looked at and said here's what the prosecution needs to prove. They need to show that that these things are prosecutable, that they aren't in the immune category one or immune category two, or that if it's in two, that it is rebutted by sufficient evidence. And that's what the prosecution did in this 165 page brief. And so I just don't think there's anything there in this and that it is completely proper to have had this come out. Now, in Watergate, there was one indictment that was withheld because we got too close to an election. And that's a new act of indictment. It isn't filing papers in an ongoing case.

[Barb McQuaid]

Jill, I wanted to raise just one other thing separate from this In a Donald Trump case. You flagged this for us that today, Friday, Donald Trump filed his brief arguing that the two obstruction counts in this January 6th case should be dismissed based on the Supreme Court's decision in the Fisher case from June. You may recall that the court in Fisher held that the obstruction of justice statute applies only in cases where there's some element of documents, altering of documents, destruction of documents, et cetera. What is Trump's argument here in this new filing? And do you think it flies?

[Jill Wine Banks]

I don't think so. I think it is one that you could have seen coming. I'm surprised that it came today as opposed to weeks or months ago when Fisher was first decided. But I think it's an interesting argument. I think that it will be rebutted very well by the special prosecutor saying that in this case that's not what's involved. His argument is that you have to actually destroy documents. The law that is being used here was one that was passed in the wake of Enron where they were shredding documents to avoid them being discovered. And here you have more a question of they put in danger the box of ballads that was to be counted. And had they been able to breach the room sooner, they would have. And if also if staff hadn't been smart enough to rush out of the room with the actual box of ballads, we might have had a very different outcome because those were the original submissions. And it seems to me that this is a case that has to proceed, including those charges.

[Kimberly Atkins Storr]

And it also belies the fact that even the Supreme Court, before it handed down that decision, Amy Coney Barrett from the bench was like asking the state this would, I'm paraphrasing a little bit like this doesn't apply to, I don't know, phony elector schemes. No. Or creating new documents or trying to, to change the documents. If it was anything charging out of that, that would still be okay. Yeah, that's okay. Just checking. So he's got no chance he's gonna throw those charges out when you've lost Barrett. That's not happening, you guys. Autumn is a time to think about renewal. That's why I recommend taking a moment for self care to reconnect with your body. And for me that means going all out when it comes to an everything shower routine. Using Osea, I've started incorporating their new Andaria Algae body wash and its iconic all natural uplifting citrusy scent. It takes me away like I'm on a tropical paradise every single time.

[Unknown]

It feels like the Andaria algae body wash infuses your shower with the healing power of the sea. And you know, it's sort of fun. We love reading this ad because we love Andaria and the algae body wash and the other products. But really you just need to try it for yourself. One try is all you need to know because the formula is so nourishing. It's got the nutrient rich Andaria seaweed, glycerin and oil blend which makes it go on great. Combined those ingredients give you a gentle plant based cleansing experience with a revitalizing all natural scents. Plus the pH balanced hydrating formula doesn't strip your skin and it will leave you feeling soft and renewed.

[Jill Wine Banks]

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[Barb McQuaid]

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[Jill Wine Banks]

Next Monday, October 7th. As always happens on the first Monday in October, the Supreme Court starts a new term after their summer recess. They ended last term with some real bombshell decisions on gun, an abortion pill, regulatory power of federal agencies and the immunity case we just discussed. But this October 2024 term has a lot of blockbuster cases on the agenda too. So I wanted all of us to pick one case our listeners should pay attention to and explain its importance. So Barb, I want to start with you.

[Barb McQuaid]

Yeah. You know, there's an interesting case on the court's docket. It's going to be argued in November involving Facebook and the securities laws. And you know, I suppose maybe the public thinks securities laws are sort of obscure and not something that we ought to pay that much attention to. But I think it does control corporate behavior and to that extent I think it's a really important case. So it goes back to the Cambridge Analytica scandal. Do you remember this? This is when this company started by Steve Bannon working with trying to get scrape the private data of Facebook users. They access 87 million Facebook users. It was supposed to be available only for researchers. But Cambridge Analytica said it's for research, but there was no consequence when it wasn't. And they created all of these dossiers of voters so that they could send them micro targeted ads to nudge them toward voting for their preferred candidate. And so as a result of that scandal, Facebook has disclosed in its corporate disclosures that it said something like, there's a hypothetical risk that your data could be misused. Well, a group of plaintiffs filed a lawsuit saying it's not just hypothetical like it happened. You can't say it's hypothetical. You have to say there's a real risk or this happened before. We've taken steps to avoid it in the future. But this is not simply hypothetical. And so, so it raises this larger question of whether corporations, when they disclose risks as they're required to do in their securities filings, if there is a real harm that happened, can they just describe it as hypothetical in the filings or is that misleading to investors? So I just think it's really interesting because of not just what it might require for corporate disclosures in securities filings, but this idea of will this cause changes in behavior in the way Facebook and other social media platforms protect our private data, which I think is such an important issue. And they have so much control over our data that we just give away to them. And I think we are only just beginning to see all of the potential harms that can result. So this will be argued November 6th. I think it will be really interesting.

[Jill Wine Banks]

Fascinating choice of date for the argument, too. And Joyce, which case are you picking as one that you want to watch?

[Unknown]

Yeah, I mean, I think that this is an interesting term. I've been focusing on the ghost guns case, which is Garland Van der Stock, ironically Van der Stock. But it's a case about guns, but it's not a second amendment case, which I think is pretty intriguing. It's about the federal government's regulatory authority. The issue is whether the rule that was issued by the Bureau of Alcohol, Tobacco and Firearms about regulating ghost guns is concerned consistent with federal firearms law. And ghost guns are firearms. They don't have serial numbers. Usually the pieces are sold in a kit that people can assemble at home. And the solicitor General has argued that without this regulatory piece, they're really a serious threat to public safety. So one hopes that the serious voice in the room will be listened to. We don't really know yet, but the case is being argued on Tuesday. Will get some sense of where the justices stand on this one then. And y'all if I can just flag one more case. It's sort of related. Not really, but sort of, because the court has just added more cases to the docket. It issued the order following the long conference. And another gun case that I have my eye on was included in that. Smith and Wesson versus Mexico, which is a lawsuit by the Mexican government against US Gun manufacturers. They want their case to be able to go forward, arguing that the gun manufacturers had aided and abetted the illegal sale of guns to traffickers who brought them across the border to cartels in Mexico. So two really interesting gun cases on the docket now.

[Jill Wine Banks]

And Kim, what is your favorite case to watch this term?

[Kimberly Atkins Storr]

Well, I don't know about favorite because it's awful, but one case that I'm watching is one called Glossop v. Oklahoma, and it involves Richard Glossop, who has been on death row for decades. Despite all but being exonerated. He was convicted of first degree murder for in a murder for hire plot against his boss when he worked at a hotel in Oklahoma many years ago. Well, a lot of things went wrong with this case. First of all, there was exculpatory evidence that the prosecutor had that it did not turn over to defense, which we have learned from this podcast, is a big no, no. That's called a Brady violation. Also, the person whose testimony convicted Glossop, the person who actually was the shooter in this case, lied on the stand in a bid to try to get a more lenient sentence. And the prosecutors do this, too. That is what we call a constitutional violation. Richard Glossop has no business being on death row. He should at the very least get a new trial. But in this case, everyone, including Oklahoma, the prosecutors, nobody, nobody is saying that he should stay there. There's nobody on his side. In fact, the Supreme Court had to appoint a lawyer to argue the other side because the state doesn't even want to argue it. What's at issue in this case is a principle that says when there is an independent and adequate state law reason to uphold a conviction, federal courts have no jurisdiction. It means federal courts cannot go in with their own judgment and say, you know what? I really think that this conviction needs to be tossed out. And then the state can figure out what to do. If the state has a rule in place that on its own grounds, it decides that that is not available. And under quirk of Oklahoma law, Richard Glossop has run out of avenues of appeal. That's literally, it is a procedural glitch that is keeping him on death row. So the Supreme Court has to first decide, oh, can they even hear this case? And if they decide that they can't, even as clear as this constitutional violation is, even though I'm sure on the constitutional issue and on the Brady issue, it would probably be 9 to 0, it's unclear whether we can get five justices to say, you know, I think I would have left it alone. There was another case a couple of years ago where there was a slim majority that did say, okay, no, this is crazy that this is not an independent state grounds, we can come in and do justice here. So I hope that that can happen in this case. I also would be remiss since there have been other recent executions that have been in the news of people who were. Either the evidence exonerated them or it was a really flimsy case and they were put to death anyway. Most of those were men of color and Glossop is a white male. I see it's not a point of the issue in this case, but wow, this is the one that got to the Supreme Court to give it a look. I really wish that the Supreme Court could have given a look to some of these other people as well. And I wish the Supreme Court would take a look again as to why you're telling me that the death penalty is not cruel and unusual. I mean, even in Richard Glossop's case, he's been scheduled to be executed eight times. He's been given his last meal and rights three times. Tell me that's not cruel and unusual.

[Jill Wine Banks]

And this is all on the heels of the execution of another prisoner who was a long term death row inmate and who everybody, including the prosecutor, said was wrongfully convicted and Marcellus Williams. And so how we can go on in this. And also, I mean, there is a Supreme Court case, Bronston, that says that a misleading but not false statement is not perjury. And that seems relevant here that we have. We're talking about misleading and withholding exculpatory evidence. Clearly improper.

[Kimberly Atkins Storr]

Yeah. But as I said, I think that part of it is clear. It's this procedural issue. It might be that the court rules, oh, we can't even take a look at these cases, which is the court completely excusing itself from doing justice in a place where justice is crying out.

[Jill Wine Banks]

And I want to talk about one case, too, and I hope I'm going to pronounce this correctly. And I know you guys are going to correct me if I'm wrong. Scotty.

[Kimberly Atkins Storr]

Bingo.

[Unknown]

That's how I. Bingo.

[Jill Wine Banks]

Okay, how about that? Even with my Midwest act. Well, It's a case out of Tennessee about gender affirming care and it's a complicated procedurally just like this other one. But the issue is really simple. It's whether the 14th Amendment, equal protection and maybe sex discrimination are involved in denying a sex affirming care and whether the court can say that it's deeply rooted in the nation's history and tradition. It sort of goes back to the gun control where they've said it's not deeply rooted in our history and so therefore we can't allow this particular regulation. But the question is whether bans on gender affirming care violate the equal protection clause of the 14th Amendment even after a young person is diagnosed with gender dysphoria. And the US Sued, the district court said that you can't enforce this law and which would have at least not as far as puberty blockers and hormone treatment. But they did allow the ban to go into effect on surgery and they said that it violated the parents fundamental rights. And that's what's at issue here. The 6th Circuit said the state likely is going to prevail because the right of parents to control is not deeply rooted. And that's what's going to be up before the Supreme Court. And I think it's one of those where many of the rights that we have enjoyed in the past are being whittled away. And is this another right that will be whittled away?

[Unknown]

Well, now it's time for our favorite part of the show when we get to answer our listeners questions. And this week, like really every week, y'all have some great ones. So we'll dig right in. If you've got a question for us, please email [e-mail] or tag us on social media using the hashtag SistersInLaw. If we don't get to your questions during the show, keep an eye on our social media feeds during the week because we'll try to answer as many of your questions as we can there. But we got some great ones this week. First up, Jill, you've got a question from Kathy in Vacaville, California. She wants to know how do you become an elector from your state or a delegate from your state? Are they one and the same?

[Jill Wine Banks]

Boy, that's such a good question because it can be confusing. And so the constitution in Article 2, Section 1, Clause 2 really doesn't say much about who can be an elector or the qualifications for being elector. It does say that certain people are disqualified from being an elector and that is anyone who holds an office of trust or profit under the US or who is a senator or representative, they cannot be electors. And that under the 14th Amendment, no one guilty of insurrection can be an elector, which is sort of interesting because they also can't be president, except for what the Supreme Court said in not allowing Colorado to bar Donald Trump from being on the ballot. So there's not much in the Constitution. And that's the qualifications for an elector. But how do you get to be an elector? And is it the same as being a delegate? And the answer is no. To be a delegate, you have to run for office and you are on the ballot. And some states, it's by name, some states it's just by whoever in the primary you vote for for the presidential candidate automatically gives the right to certain people who have announced and gotten enough petitions signed to be an elector. I'm sorry, to be a delegate. And those are the people who attend the conventions and cast their ballots to nominee the president of their party. But the electors are actually the only people who vote for the president. You, as a voter in the general election, vote for a candidate, and that's how you vote for the electors. And the electors are generally selected by the party of that candidate so that the Democrats and the Republicans select electors. And if their candidates wins the general election in that state, except for Maine and one other state where it's divided up, you can get more than one candidate, having electors in every other state, it's sort of winner takes all. And so you become an elector by the person that you have been selected by the party to represent, being the winner of that state's election. And you are then supposedly supposed to vote for whoever your state votes for in the general election. But there's never been a punishment really imposed on anybody who. And only a few people have ever done this. 99% of electors vote as they are charged to vote because they're party officials and they're party loyalists. So they vote for who the party selected and who won the election. But there have been a couple of faithless electors, but they were removed and a substitute was replaced. They weren't prosecuted. So you become an elector by being selected by your party and then by the candidate that you represent being elected by the people of the state.

[Unknown]

So we go from there to a question for Kim from Chris. Chris wants to know, isn't there a federal law that prohibits private US Citizens from discussing federal policy with foreign leaders? I cannot imagine who Kim is referring to.

[Kimberly Atkins Storr]

That is a great question. And the answer is yes. There actually is a federal law called the Logan act which prescribes exactly that, that a private citizen cannot be in communication with foreign officials about U.S. policy. The problem is some people call it a dead letter act, meaning that it's only been prosecuted twice and neither one led to a conviction. So people basically stopped bringing those charges. For example, with Michael Flynn, when he clearly seemed to violate that, he was not held accountable for that. Some people worry that it's unconstitutional because it penalizes speech. I don't think that that's true. I think there are lots of things you can't do and say. You can't divulge confidential doc, you know, secure documents, and that doesn't violate the First Amendment. So I would like to see it used more if for no other reason than to test that constitutional theory when it's challenged. But yeah, technically it is against the law. It's just not enforced.

[Jill Wine Banks]

And don't you think that Donald Trump, don't you think that Donald Trump violated it when he said, I'll take care of all this before I'm elected?

[Kimberly Atkins Storr]

Oh, he violates it every time he's on the phone with Putin, Jill. I mean, come on, let's be honest.

[Jill Wine Banks]

I know, it's just so pathetic.

[Unknown]

And our last question this week is for Barb from Professor Christina. Here's the question she asks. I have heard it said that Diddy is indicted in part for, quote, sexual abuse, close quote. Why aren't they calling it rape? Barb, what's the answer?

[Barb McQuaid]

Yeah, really good question. Because in fact, when these facts come out, I imagine that at least some of these acts will include rape. Perhaps, I guess we have to wait and see what the facts show. But my guess is the answer lies, Christina, in the statute itself, which is 18 United States Code section 1591. And the language of that statute is that it's a crime to use fraud, force or co coercion to cause someone to engage in a commercial sex act. And any sex act is sufficient to prove a violation of the statute. So it may be rape, but it need not be rape so long as it is a sex act. And so if you're a prosecutor, you don't want to make it harder to prove that you violated a statute than the language that the statute requires. So typically in a charging document, you will parrot the language of the statute because that's all you have to prove. Now, if the proofs should show that it was a rape, that would satisfy the sex act requirement. But if somebody you know along the way says, well, there was no penetration or wasn't technically a rape. It doesn't matter if it's sex act. And that's all that needs to be proved. So typically prosecutors will make sure they don't set the bar higher than they need to to obtain a conviction.

[Unknown]

You know, that's such a great explanation Barb, because so often on these technical legal issues folks can get the wrong impression. Something can hit them as being a little bit off. And I think reminding people that prosecutors job is to get their case across the finish line to make sure that they can prove beyond a reasonable doubt what they've alleged often answers those sorts of concerns. So thank you for that one. And thanks to all of you for listening to SistersinLaw with Barb McQuaid, Jill Wine Banks, Kimberly Atkins Storr and me, Joyce Vance. Follow SistersInLaw on Apple Podcasts or wherever you listen and please give us a five star review. It really helps others find the show. Show some love to this week's sponsors, Wild Grain and Osea Malibu. Their links are in the show notes and your support for them really helps to make this show happen. See you next week with a new episode, SistersinLaw.

[Barb McQuaid]

You guys, I met somebody at a book signing event who told me what a fan she is of Sisters in Law and she said she thinks SNL should do a spoof of our ads. She said, I know all the personalities now. I know all the things.

[Kimberly Atkins Storr]

That's funny.

[Unknown]

That's funny.

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