Kimberly Atkins Store (3:53)

Wow.

Barb McQuaid (3:54)

Well, that is interesting. You know, I think my favorite kind of museums. I love presidential libraries and museums. I think it all started with Gerald Ford, which is in Ann Arbor. Ford actually has two. He's got one in Ann Arbor and one in Grand Rapids. One's the museum and one's the library. But whenever I travel, if there's a presidential library or museum anywhere near, I will rent a car and drive long distances to go to one. I've been to both Bush museums and Lyndon Johnson, all in Texas. Jimmy Carter, John F. Kennedy, Bill Clinton. I was on a book talk this summer in LA and I went to the Nixon Museum which was very cool. So that is one of my one of those lifelong quests. I love the presidential libraries. Can't wait to see the Obama one that'll be open soon.

Joyce Vance (4:38)

That'll be fun. We should all go together.

Barb McQuaid (4:40)

Yeah. Road trip.

Joyce Vance (4:50)

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Kimberly Atkins Store (5:13)

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Barb McQuaid (6:30)

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Kimberly Atkins Store (7:29)

Find the link in our show notes.

Joyce Vance (7:40)

Well, so let's dive right in and talk about the pre election litigation that's going on because there are lawsuits everywhere. Republicans are suing everywhere and they are losing everywhere. They are alleging fraud and these are largely lawsuits brought by the RNC or other Republican entities. But the reality is the lawsuits are meritless and the emperor has no clothes on in this regard as they lose lawsuits one after the other. I have got to ask as a lawyer, you know what's going on? These lawsuits, some of them are borderline frivolous. So why do they keep filing them? Why don't we start with that question, that sort of high level question. What's the strategy here for losses over and over? Kim, what do you make of it?

Kimberly Atkins Store (8:27)

Yeah, so it is fealty to Donald Trump trying to using whatever levers that these folks have cast as much, you know, disinformation and false claims of fraud or false claims that there needs to be more accountability or that citizens are voting so that it can pave the way, frankly, for when Donald Trump invariably declares if he loses, that the election was rigged. It gives some. It gives folks a little more. There, there. The majority of the lawsuits that Republicans are filing, I don't actually think that they'll win. And the majority of rules they are trying to implement that Democrats are in turn challenging and winning, striking a lot of them down. I don't even think they thought that those rules would stand up, but they're doing them in order to create some sort of faux factual record of a need to clamp down on election security when this is a solution without a problem.

Joyce Vance (9:36)

Yeah, I think that's exactly right. In fact, I expect what we'll hear if Donald Trump loses is this narrative that he only lost because the courts permitted people who weren't eligible citizens to vote. And I think it's worth reiterating that's not true. There's no evidence of that. That's just the fake narrative. That's this election cycle's big lie. You know, Barb, what do you think about what you see going on strategically with all of this litigation?

Barb McQuaid (10:02)

Yeah, I heard someone say, and I think this is so true, that all of these lawsuits designed to challenge voters eligibility to vote in the upcoming election are press releases disguised as lawsuits. It really is just an effort to sensitize the public that there are a lot of fishy rules and that kind of laying the groundwork, as you said, for Donald Trump to later claim that the election was rigged against him. And it's a really dastardly plot, if you think about it, because it is consistent with the Russian agenda to undermine public confidence in free and fair elections and in democracy overall. So in many ways, this is a real threat to our national security. But, you know, it is really Trump's M.O. if you think back to some of the things he's done. Remember when he asked President Zelensky in Ukraine to announce an investigation into Joe and Hunter Biden, he said, just make an announcement about the investigation and I'll take it from there. And the same thing he did with the U.S. department of justice in the 2020 election when he said to leaders at the Justice Department, just say there fraud and leave the rest to me and Republican members of Congress. All he needs is sort of like a germ of legitimacy and then he will amp that up to claim that the system was rigged. And, you know, people will believe it because they've been hearing about all these lawsuits. But I'm really feeling very bullish about the courts. In 2020, the courts held when 61 out of 61 lawsuits that challenged the election on the merits, on the substance, ruled in favor of the elections and found no fraud. I feel good that that same thing is going to happen again. And these lawsuits, I think are just designed to sort of sensitize the public. So be vigilant when you hear about these lawsuits. Don't be persuaded that there's any fraud afoot. Our Secretaries of state know what they're doing. If you have any doubt about our elections, I invite you to work as a poll worker at your local polling place and you will see just how much integrity there is in the system.

Joyce Vance (12:06)

You know, I think that point is so important because a lot of what's going on here, in addition to creating this post election narrative, it's this threat of voter suppression, right? You shouldn't go to the hassle of going out and voting because your vote's not going to count anymore. There's, there's so much fraud going on. And I'm sure that y'all like me are hearing those threads often put forward by well meaning people who suggest that your vote won't get counted anyhow. So we really all need to push back on that. People wouldn't be trying so hard to keep you from voting or to keep your vote from being counted if they didn't know how important and how valuable your vote was. So let's all do our civic duty and ignore the narrative. And that takes us, I think, straight to all the cases we've been watching get decided. You know, Kim, you wrote a great column this week talking about the entire landscape. Do you want to talk a little bit about the Georgia cases where a Republican majority Supreme Court just rejected efforts to to impose new rules by refusing to hear this case before the election. What do we need to know about Georgia and how important is it for the overall election?

Kimberly Atkins Store (13:13)

Yeah, so the fact that there has been, and I full disclosure, am sitting in Georgia as we record this podcast. It is a crucially important battleground state. And here the state's Supreme Court, which is majority Republican, made permanent the temporary rulings we talked about in past podcasts. Remember, the election board in Georgia tried to impose new rules requiring hand counting take place for every ballot that was cast in a machine that would have delayed the certification of the result by a good bit. They wanted to be able to delay or even deny certification of the presidential vote. If they thought there was anything fishy chi going on and they didn't specify whether it would actually be proven fraud, whether a court would have to decide it. No, they just wanted to be able to say so themselves. We think there's fraud and stop the whole thing. They wanted to impose these rules. And first, as we talked about two trial level judges halted them. And the Supreme Court basically said, okay, no, we're not going to take this up on an expedited basis as Republicans wanted to. The appeal. So the appeal is being heard, but it's being heard in the ordinary course, which means it won't go to argument or briefing or anything before the election. And I think that is the right move, given that you are not supposed to implement new rules in the weeks and months leading up to an election. You're supposed to leave things as the status quo. So the current order in place in Georgia directing election workers to proceed as if these rules were never put into place for this election stands. And we've already heard from the Republicans, by the way, Republicans in charge of counting the vote, right. The Secretary of State, the governor, we've already heard that they expect this to be a fraud, free and fair election. So I'm going to believe them.

Joyce Vance (15:21)

Yeah, I mean, I think that's right. You know, I've talked with poll workers coming out from training, especially first time poll workers who say, wow, I have so much confidence in our elections now that I've been through the training. I sort of think maybe we should all go out and volunteer so we can all get the training and have this granular understanding of just how well run our elections are. Because there's this notion about certification. Right. These are officials overseeing the process. And that's not the case. The votes have already been tallied and retaliated. There's opportunity to challenge and to make sure the vote is correct. These are just the folks to whom those results are being handed. And state law in every state across the country says that certification is mandatory. They don't have any discretion to go back and look behind the results. And yet that's this crazy theory that MAGA is circulating, I think, because that's the same theory that they used in 2020 to try to derail certification on January 6th. And now that the Electoral Count act has been amended, we've got the ecra, the ECRA which has made it clear that that can't happen at the federal level. They're trying it again at the state level. So I for one, Kim was very appreciative of your piece, and we'll put that in our show notes so everybody can take a look. Barb, there's also a little bit of litigation going on in your home state and elsewhere. There are serious challenges to people who vote from abroad being permitted to vote. Right. This is sort of crazy talk because it also applies not just to Americans who live abroad, but to military members who are serving overseas and their families. What's going on with these cases and how did this become a part of the RNC strategy?

Barb McQuaid (17:07)

Yeah, you know, again, it is an effort to, I think, create this false narrative of fraud that non citizens are voting. But in fact, these lawsuits are failing, which, as we predicted they would. But just recently here in Michigan, there was a lawsuit filed by Republicans, very similar one in North Carolina, asking them to reject the ballots of some overseas voters and set them aside until they can confirm the eligibility of the voters in this case. The Michigan judge who dismissed this case called this lawsuit an 11th hour attempt to disenfranchise voters in the November 5th general election. And so under Michigan law, citizens who live outside the U.S. whether they are service members or other U.S. citizens living abroad, are covered by the federal law that says that they can vote even if they live outside the United States and have never resided in the United States, but they have a parent or guardian or spouse who was last domiciled in Michigan and eligible to vote in Michigan as long as the citizen has not registered or voted in another state. So if a service member marries someone abroad, or if they have a child who turns 18 while they're abroad, that person can vote in the state where their parent is registered to vote. And so, you know, that's why the judge said this is an effort to disenfranchise voters, because if they can't vote here, they can't vote anywhere. And North Carolina, same thing. The judge there has said there's no evidence that this is a basis for voter fraud. This was enacted in 2011 with bipartisan support. And suddenly we are seeing Republicans trying to target this law and strike it down. There is some evidence that there are more Democrats who are overseas voters than Republicans. But I think more than anything, this is just again, an effort to sow doubt in the election and find some basis to claim that the system is rigged. So, you know, even this one, they'll lose as they should. But then if and when Donald Trump loses the election, they'll wave this around and saying, you know, foreign people were allowed to vote.

Joyce Vance (19:22)

Yeah, it marries up so nicely with Trump's anti immigrant narrative throughout the campaign. Right. I think his people who are inclined to believe that there are hordes of violent criminals flooding our southern border or at least that they do it every two or four years around the time of the election, that those people will suddenly rush into the country and register to vote, exposing themselves to criminal prosecution. I mean, none of this makes sense. Which makes it a very Trumpian sort of excuse if he loses the election. So I think you're sort of dead on point there. So lots of pre election litigation going on. What do you all think happens in the post election period? Does this case or does this election end up getting decided in the courts? Kim.

Kimberly Atkins Store (20:06)

So I think the chances are not great that that happens, but not zero either. Okay. So recall, I know Bush v. Gore is brought up a lot and I'm asked frequently, could this be another Bush v. Gore situation? It could be a situation that goes to the Supreme Court. I'll put you, I'll put it that way. Remember that Bush v. Gore happened in part because Florida's election procedures were a mess. They used new butterfly balloting that didn't really work. The machines weren't working properly. Remember the hanging chads and the pregnant chads and the, all of that stuff. That's not going to happen again because we do now have some safeguards that have been put into place that it won't go to the Supreme Court just because the process was such a disaster. But there are some potential unknowns. You know, I think there could be challenges to certifications. It could be close enough that there needs to be some sort of determination made. We do know that the Supreme Court has not really front loaded its docket in a way that it normally does at the start of its season. There is some conventional wisdom that they're keeping a bit of powder dry in case they do have to take up election challenges. If Donald Trump wins, it's not out of the realm of possibility that somebody might try to renew the 14th Amendment disqualification challenge that the Supreme Court said tossed away in the primary, but specifically said that, that, you know, if somebody wanted to challenge in the general, that wouldn't be. By that previous decision wouldn't be binding. All kinds of little possibilities, but I don't think they're very great. Also a very, very minute possibility would be because of the third party challengers if no one gets to 270. But that, and that would mean that the. This is so weird.

Joyce Vance (22:03)

Oh God, don't even manifest this one.

Kimberly Atkins Store (22:05)

The election will be thrown into the House. It's a possibility too. I think that's also small. So there could be some shenanigans. I think it's very, very low probability, though.

Joyce Vance (22:14)

You know, I think this is an important point, right? I mean, there are some things that we know might happen and that the lawyers are preparing for. Campaign lawyers, the civil rights groups that traditionally litigate these issues on behalf of their clients. There's stuff you can prepare for and then there's just the black swan events. You know, that phrase comes from this idea that scientists thought it was impossible that black swans existed until they suddenly discovered them in post election litigation. You know, we think about the possibility the a black swan event will occur. Something like the hanging chads that nobody's prepared for, but by definition, you can't prepare for a black swan event. And so if that happens, it happens. I think something that gives me a lot of confidence in the outcome of this election is that people are very well prepared. When you talk to the folks, often our friends and neighbors who are running elections across the country, they are prepared to conduct free and fair elections. And when you talk to the folks who litigate to protect those elections, they are prepared. And the Harris campaign is projecting a lot of confidence that they too believe that there will be a free and fair election here. So that gives me some confidence. Barb, what about you? You've already said you think that the courts will hold in this election.

Barb McQuaid (23:33)

I do. And you know, the other thing I want to emphasize is the amendment to the Electoral Count Act. I think that is something that is also going to give us some benefit, some defense. If they try to steal the election this time, they at least have to come up with a new plot. Because last time the goal was to get, you know, the vice president to say, oh, I'm so confused. I received two sets of electors from a number of states. I don't know what to do. I must reject them and go. I guess I'll count the rest. And it looks like Donald Trump is the winner.

Joyce Vance (24:06)

Hooray.

Barb McQuaid (24:06)

Or to say, if the Democrats objected to say, well, I guess we better send this back to the states and see if they want to send a new slate. We'll ask their legislatures. That can't be done because the Electoral Count act makes it clear that the vice president's role is simply to open ballots and count them. Of course, this time around we have Kamala Harris as the vice president. So she might be in the position as we have seen before in history, like John Adams, counting the ballots and naming herself the president. So that has happened before in the history of the country. So that gives us, I think, a little bit of extra assurance. They've got to come up with a new scheme. This one is the old one isn't going to work this time. And I think, you know, it's not. Again, people have to work. This isn't going to happen magically. But I think as long as people get out and vote and that there are, you know, good lawyers working to ensure the integrity of the process, that things are going to be fine.

Joyce Vance (24:59)

Well, I'm sure we'll be revisiting the topic of this election litigation every week between now and the election, which is like one week, right. And then after the election. And look, I think the last thing I want to say is this, don't be concerned if we don't have a final vote on the evening of the election. We don't know is this going to be a blowout because people go and vote, you know, for Dobbs and other reasons, or is this going to be razor thin majorities like some of the polls are suggesting. If the, if the vote is razor thin, then we will see many states like Georgia, where the final vote won't be decided until Friday when they count provisional ballots and when uocava, that's the military, voters from overseas and other overseas ballots are counted. So it could be a matter of days, not. Not a matter of election night or even the following day. That doesn't mean there's fraud. That means every American's ballot is being counted. So I never get tired of hearing compliments about my skin. It is such a confidence booster, and I'm pretty sure I know why I'm getting them before I garden or do anything else outdoors in the Alabama heat. Yes, it's October, but it is still hot down here. I use One Skin's OS One Face SPF Protect and Repair to fight back against sun damage. Whether I'm at home or traveling for vacation, I feel great knowing my skin will be ready for anything the elements throw at me. And I especially love that One Skin's regimen works fast and the formulas feel amazing. When anyone asks if I really love One Skin as much as I've said on this show, I say absolutely. And I'm certain that if you try it, you'll be a big fan, too.

Kimberly Atkins Store (26:44)

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Kimberly Atkins Store (28:52)

And Kim, don't forget the link in our show notes. Sometimes protecting civil rights requires civil courts. A great example is this week's defamation lawsuit filed by the exonerated five against Donald Trump. These are the men who were charged, convicted and served sentences ranging from seven to 13 years in prison for the brutal 1989 Central park jogger attack. Problem is they didn't do it. DNA and other evidence proved someone else did. But that hasn't stopped Donald Trump who took out a full newspaper ad right in the aftermath of that attack calling for those men to be put to death. He sense insisted on their guilt and he even criticized New York for entering into a multi million dollar settlement for their wrongful convictions. So Barb, what does this defamation suit allege?

Barb McQuaid (29:58)

Oh man. So let's, let's go back in Time a little bit. So this, you know, jogger in Central park is attacked in this horrific fashion. Originally, these five young men are charged in the crime. They were ultimately exonerated and someone else confessed to the crime. So these five men, sometimes referred to now as the exonerated five, did not attack this person, did not kill anybody. And that has been clear now for decades. What Donald Trump said at a rally was, quote, they admitted, and they pled guilty, and they said they pled guilty that they badly hurt a person, killed a person ultimately, and they pled guilty and then they pled nothing. Not guilty.

Kimberly Atkins Store (30:44)

Okay, first of all, she's alive. The, the, thankfully, the sexual part did not die.

Barb McQuaid (30:49)

No one died. They were teens at the time. It's a, it's a terrible tragedy in every way. Right. It was awful that this woman got attacked. It was awful that these teens were arrested. You may recall back then that Donald Trump had purchased a full page ad in the New York Times calling for the reinstatement of the death penalty against them. Now, I, I don't, I don't approve of what he did then because they were entitled to due process. But at the time he believed they were guilty, but now knows better. And so, you know, in a case like this where the standard is going to be actual malice, he's, he's actually got actual malice. He actually must know better that none of these things are true. And yet he's willing to do it to bait people and to divide people. So they filed a defamation suit because they said their reputations has been harmed by these false claims made to 67 million people. And so that's the basis of the lawsuit.

Kimberly Atkins Store (31:42)

Yes. And he, even in the debate he was talking about this, which is just unbelievable. Joyce. So as Barb hinted, these are well known people, they've been thrust into a public controversy, very much against their will, but there they are. So how do you think this is going to play out with the higher burden that they have to prove in a defamation case? Because they are public figures.

Joyce Vance (32:06)

Yeah. I mean, they're arguably public figures, which means that they would have to meet the actual malice standard that Barb mentioned. That means that Donald Trump knew what he was saying was untrue or that he said it with reckless disregard for the truth. That's a high burden. And a lot of the time it prevents success in a libel case. Not so much here. Right. I mean, it's just going to be hard to maintain that he didn't say this with absolute knowledge of falsity. So at least on that point, I think their chances are great.

Kimberly Atkins Store (32:39)

So, Barb, speaking of defamation, defamation cases, a judge ruled that election workers Ruby Freeman and Shay Moss, from right here in Georgia, where I'm sitting right now, they will get Rudy Giuliani's New York penthouse and some other assets. In the past, we wonder if Giuliani. Yes, we can celebrate that.

Barb McQuaid (33:01)

For me, we can think we should.

Kimberly Atkins Store (33:05)

In the past, we wonder if Giuliani might be judgmental proof because of all of his debts. Were you surprised at the way the judge ruled in a way that ensured that the lady Ruby and her daughter get something?

Barb McQuaid (33:20)

Yeah, I was pleased to see it. You know, there is a rule that a person in gets to keep their domicile, you know, their home. So if the penthouse were his only home, they would not. The judge would not have made him homeless. But if he has a place to live and a penthouse, then you're giving up the penthouse. I just hope that Seamos and Ruby Freeman will have like Instagram Live or something from the penthouse, like having a big party or something. I think that would be really splendid. I mean, he very, very badly defamed them about their role in the Georgia election, falsely accused them of stuffing ballots. And in fact, these were very honorable volunteers and poll workers who were working on behalf of the people. And he even said, remember, look, here's where they pass a flash drive like it's a vial of cocaine, when in fact it was like a mint candy. I think that was just so despicable. And so, and then they were harassed and threatened and, you know, quit their jobs and all kinds of things. So I think this is a great way to hold someone accountable for really ruining someone else's life. Yeah.

Kimberly Atkins Store (34:30)

And listen, I'm celebrating this very much, this ruling, but it's also important to know what the Lady Ruby said afterwards, which is, you know, this is a win, this is important. But it's important to remember they had to. She had to leave the home that she loved and she can't go back. Like, this isn't making her or her daughter whole.

Barb McQuaid (34:50)

Right.

Kimberly Atkins Store (34:51)

It's just some justice. So, yes, we celebrate, but still realize that this was still just upended their lives in a really, really unbelievable way. So, Joyce, when it comes to Trump and election related cases, the civil judgments seem in my eye to be more successful than the criminal ones. When we think about Eugene Carroll as a defamation case, Dominion Voting Systems, not against Trump, but against these right leaning media organizations that were just spewing lies about election fraud on their part. What do you make of this civil justice that we're seeing being way ahead of the criminal justice justice?

Joyce Vance (35:31)

Yeah. I mean, you know, strangely, I wrote a piece about this a couple years ago for the Washington Post suggesting that that might be the case, that the civil cases might move more quickly, and that the judgments from the state court cases might be really telling. But there's something else, you know, about civil cases beyond these big judgments that I think really do. Apparently, for people like Donald Trump and Rudy Giuliani, real accountability comes when you make them pay millions of dollars and when you make them give up their penthouses, that's the language that they understand. But also in these civil cases, there is civil discovery. And I'm sure that you guys both remember in the Eugene Carroll lawsuit how devastating it was when Robbie Kaplan, E. Jean's lawyer, took Donald Trump's deposition. And there's just this in incredible moment where he is shown a picture of Eugene Carroll around the time of the rape, and he misidentifies her as Marla Maples, his then wife, at the same time that he's saying, oh, E. Jean, Carol's not my type. I. I think that these civil cases do something very subtle. They expose the lies in a very real way that we are not seeing in other venues. So I, for one, am looking forward to Donald Trump's deposition in this case. It certainly won't happen before the election, but when it does happen, I think it will be a moment and it may provide these plaintiffs with, you know, not full justice, as you say, but with a measure of the justice that they so richly deserve. This episode is proudly brought to you by LOLavy, an award winning hair care line founded by the fabulous and iconic Jennifer Aniston. With fall here, it's time to reassess your hair care routine so your hair can reach its full potential. You can't control the weather, but with lolavie, you can control your scalp health. The new exfoliating and detoxing scalp shampoo is a two in one game changer. Bioengineered to clean and nourish your scalp, it combines the power of a scalp scrub and a clarifying shampoo featuring a unique blend of activated charcoal powder, bamboo extract and gentle aha's to get rid of the gunk weighing down your hair and leave your scalp clean and perfectly balanced. It even has vegetable ceramides and B vitamins to soothe irritation and reduce flaking, as well as ingredients like alfalfa sprouts and pea peptides for thicker, fuller looking hair.

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Barb McQuaid (40:00)

Well, unlike Kim, nobody mistakes me for Jennifer Aniston, but I still love Lolavie products. You can check them out@the lolavie.com website and as our loyal listeners, you'll get an exclusive 15% off your entire order when you use the code SIL15 at checkout. That's 15% off your order at L O L a v I e.com with promo code SIL15. Please note that you can use only one promo code per order and discounts cannot be combined. Those are the rules. After you purchase, they'll ask where you heard about them. And please support our show by telling them that we sent you your hair will thank you. Look for the link in the show notes. Well, Ruth Ben Guillot, as you may know, is an NYU history professor who researches and writes about authoritarianism. She's also a contributor on msnbc. In fact, she hosted my very first book talk about my book in New York City because I extensively quote her excellent book called Strong Men. It is a really eye opening treatment of the similarities between Hitler, Mussolini, Stalin, Putin and Trump. Last month she was invited to speak at the U.S. naval Academy about how authoritarians throughout history have abused the military. But she recently found herself canceled. Contrast that with the situation with the talk in August at the U.S. military Academy at West Point by none other than Elon Musk, who did a fireside chat there as a so called thought leader. So I know that free speech on campus has been a hot button issue for decades and you know, some corners decry cancel culture and political correctness and there are others who are concerned about harassment and bullying and exclusion. But first, let's look at the history here, Joyce. How did it come to pass that the U.S. naval Academy ended up disinviting Professor Ben Guillot?

Joyce Vance (42:09)

Yeah, so you know, as you say, the academy's history department invited her to speak about her work. This is the annual Bancroft Memorial Lecture. And Ruth has, after all, written a book about what happens to the military when authoritarians take power. She would seem to be an ideal speaker when her invitation gets withdrawn. It's clearly not about her scholarship, it's about politics. And she even clarified saying that the lecture she was going to give had nothing to do with contemporary America. She had no plans to mention Trump. It was just a strictly nonpartisan event at the Naval Academy. You know, she, like all of us, understood the mission. When you're speaking in that environment or at a not for profit, you're not talking about politics. And that was not her intent. But here's what happened. She announced in her sub stack, by the way, she writes an excellent substack that I would encourage everyone to subscribe to and read.

Barb McQuaid (43:10)

Agreed. So do you, Joyce. Civil discourse and hers. Lucid is excellent. So I want to plug both of them.

Joyce Vance (43:15)

So I am a huge subscriber of Lucid and Ruth is in fact right now while we're taping, so unfortunately I'm missing it, hosting one of her excellent in person events. And in lucid, she does connect Trump to fascism. She's very clear about it. But that wasn't what her talk was going to be about because she announced that she was giving the talk on Lucid. Some folks got there, as we say in the south, got their panties in a wad. And those folks included Representative Keith Self, who is a West Point graduate. He is a Republican congressman from Texas and he wrote to the superintendent and demanded an explanation. And then one day later, all of the Republicans on the House Armed Services Committee joined in. So you know what this is? This strikes me as being advance obedience to a wannabe dictator. Something that, that Ruth warns against. In her writing and her speaking, she talks about how we sometimes self impose the will of the authoritarian on ourselves. And here we have it happening in real time. Project 2025 says that the service academy should be scrubbed of any sort of, you know, tint of anyone who's deemed insufficiently pure of thought. And that's what we're seeing in real time. Of course, there were no concerns about Elon Musk keynoting convocation at the Army Academy in August, but here we are in 2024.

Barb McQuaid (44:44)

Yeah. So Kim, what do you think about members of Congress getting involved in this debate? You know, they have the power to fund the military. Does that make it more or less appropriate that they're getting involved in deciding who should be Speaking at the U.S. naval Academy?

Kimberly Atkins Store (44:56)

I think that the role of the members of Congress in this moment, in this very clear moment, is to say, dear Naval Academy, you are publicly funded. Which means that you doing content based cancellation of someone is a prima facie violation of the First Amendment and cut it out. You cannot do that. I mean, we talk a lot about the, the First Amendment and culture and cancel culture. A lot of people who are claiming to be victims of cancel culture calling out cancel culture talk about the first Amendment. And then the vast majority of those circumstances has nothing to do with the first. We are talking about private actors or people on private spaces like Twitter or other platforms saying we want to moderate con content in order to stop the spread of disinformation or something like that. And that's not even the First Amendment because it only involves the government. This is the Naval Academy. You cannot do this based on what a speaker says. I'm not saying that no public organization can ever cancel an event or something for safety reasons or something else. This appears to be based on what she is going to say and whoever, whatever powers that be at the Naval Academy clearly not wanting to upset a presidential candidate that violates the First Amendment. That's a no go. Like that's the very first bill in our Bill of Rights. Like this is so clear Congress, every member should be standing up and screaming that this is not okay. And that's really the only real place for them to have a role here. But it's an important role that all 535 of them should be having.

Barb McQuaid (46:44)

Yeah, you know, I work at a university and I can see how leaders of a university, on the one hand, want to bring in speakers who make their students think critically about issues, even if it makes them uncomfortable. On the other hand, I can also understand how events that are supposed to be there to celebrate the students, you know, like a graduation or an honors convocation or something like that, they might just want to avoid controversy so that everybody can have a nice time. Do you think it matters that this was a history lecture versus a graduation or an honors convocation? Or would you say that that's not a distinction that should be made, that people, you know at universities, you're going to have to confront uncomfortable information from time to time, and that's just the way, you know, higher ed should work? What do you guys think about that?

Joyce Vance (47:34)

I mean, I just want to push back and say what's uncomfortable about this? This is a noted historian talking about what dictators do to the military when they take power. Using historical examples. Donald Trump wasn't part or parcel of that speech. And this notion that we are going to not let people whose politics we don't agree with speak to our future military leaders, well, that's just reprehensible. I think this is inexcusable.

Kimberly Atkins Store (48:04)

And listen, it is important to your point that universities listen. Universities are a place where your opinions and your thoughts and your ideas are supposed to be challenged. You're supposed to hear the viewpoints of other people so that you can better understand your own. But when you are a public universe, you do not have censorship as a tool available to you. There was another situation at the University of Maryland, which tried to cancel all. What is it all like, viewpoint specific events on October 7th. And it's like, excuse me, no, you cannot do that. And we understand what they were trying to do. There is a way that you can impose rules to make sure that your students respect each other. Codes of conduct, admonitions against hate speech. All that stuff is okay. And you can enforce that on a day like that in order to protect your students. But when the ACLU filed a suit to block and successfully did block the University of Maryland from doing that, I saw all of these things on social media with people saying, well, there we go. I'm never going to contribute to the ACLU again. The ACLU supposed, hey, no, no, no, no, baby. The ACLU supports the First Amendment. Some of the key, most fundamental cases, case law that we have supporting the First Amendment for all of us had to do with the ACLU supporting the Klan. They've had to do with that horrible Westboro church who used to go to gold star funerals and spout the most vile stuff. Therefore they had a First Amendment right, too. It goes back to the saying, I may hate what you say, but I will fight to the death for your rights to say it. That's what the First Amendment is about. And it's been so twisted in the current context that people don't understand how important it is to protect it. And I hope that we can turn that around with our little podcast and make people think about this differently, because it's so important.

Barb McQuaid (50:04)

Yeah, you raised such an important point, Kim, about the difference between process versus substance. And I see it all the time. I don't know if people really don't understand the difference or they pretend they don't understand the difference. You know, the fact that the ACLU is defending someone's right to say something objectionable doesn't mean that the ACLU agrees with that line of thinking. Right. And I think people have a hard time differentiating those things. You know, when you argue. Like criminal defense attorneys who defend people of heinous crimes. Like, you love criminals. No, I love the Constitution. I want to make sure everybody has a right to a fair trial. So the process versus substance distinction is always so important. So I'm glad you raised it. Well, let's leave it there. And Ruth Bengiat, if you're listening, we hope you will give that lecture in some format where all of us can access it, whether it's in writing or on your lucid substack, or publish it somewhere. We would very much love to read it or hear it. So I must admit that I am enjoying the Wild Grain chocolate chip cookies that I have received in a package. They are so easy to make and so utterly delicious. I'm pleased to say that this episode of Sisters in Law is brought to you by Wild Grain 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 times they have this fall. Rumor has it they'll have a small number of apple cider donuts. Oh, my gosh, that's just dangerous. So get them before they sell out. Plus, Wild Grain makes a great host gift for all of your gatherings in the upcoming holiday season. Oh, that's a great idea. I can't even imagine how good the donuts must be. If you're not familiar with Wild Grain, it is the first bake from frozen subscription box for artisanal breads, pastries and pastas. Wild Grains Boxes are fully customizable to your tastes and dietary restrictions. In addition to their classic variety box, they recently launched a new gluten free box and a plant based box that's 100% vegan. Best of all, they take the hassle out of baking since all items bake from frozen in 25 minutes or less with no mess or cleanup. It's my kind of baking.

Joyce Vance (52:27)

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Kimberly Atkins Store (53:03)

You know, it's funny, you're talking about snickerdoodles. That's my nickname for my. That's my nickname for my dog. I call her Snicker. But I can see how it might be confusing with everyone talking about snickerdoodles around holiday time when I bake them and Snickers being really confused. So I hope she can handle it. Are you ready to bring all your favorite carbs right to your doorstep? That's where they belong, right? So be sure to check out wild grains so you can begin building your own body box of artisanal breads, pastas and pastries. And for a limited time, Wild Grain is offering our listeners $30 off the first box, plus free croissants in every box. This is not a drill. Free croissants when you go to wildgrain.com sisters to start your subscription. You heard me. Free croissants in every box and $30 off your first box when you go to wildgrain.com sisters. That's wildgrain.coms or you can use promo code Sisters at the checkout. You know where that link is in our show notes.

Barb McQuaid (54:17)

Well, now comes the part of the show that is our absolute favorite. The part where we answer your questions. If you have a question for us, please email us at Sisters in law@politicon.com or tag us on social media using SistersInLaw. If we don't get to your question during the show. Keep an eye on our feeds throughout the week where we will answer as many of your questions as we can. Our first question comes to us From Eugene in St. Louis, Missouri, who asks, can you please explain how co equal branches of government work? If the president is equal to Congress and the judicial branch, how can the president ever be held accountable? That's a big one. Kim, you want to take that one?

Kimberly Atkins Store (54:57)

Yeah. I love this question so much because it lets me refer to the Federalist Papers because I'm such a nerd. And that's why if you read the Federalist Papers, they literally lay all this out. What it's called is checks and balances. They are co equal branches of government because each of them acts as a check on the other two. That's how it's supposed to work. So the fact that Alexander Hamilton, even if you didn't see the musical, believe me, Alexander Hamilton said if a president does something unlawful, if they're in office, you have the power to impeach and if they are out of office, they can be held accountable in the courts. He said exactly what Mitch McConnell said the first time and was correct. Both the judicial and the legislative branches are checks on the presidency. That's supposed to hold them accountable. And also in addition to that, the president is an elected branch, the executive branch is elect. So the American people also can hold the president accountable. So there's lots of accountability, including from the other two branches built into the Constitution, regardless of what the U.S. supreme Court said.

Barb McQuaid (56:08)

Next question comes to us from PN underscore Viva. We also got the same question from Robert J. Martin, tx, who asked whether Elon Musk is violating the law by giving money for people who are registered to vote for his lottery in so far in Pennsylvania. Joyce, what do you think about that?

Joyce Vance (56:31)

Yeah, I guess it's the million dollar question, right? You know, it is difficult to know until you see everything that there is to know about the conduct and what, what he's doing, whether this violates the law or whether it's what I would call lawful but awful. Clearly this is not good behavior, right? This is a billionaire giving folks a million dollars if they'll sign his petition supporting the first and the Second Amendments. It's really just a gimmick to get folks to register to vote and people that he believes will register and vote for Donald Trump. So there are federal laws and state laws that could come into play. Federal law prohibits paying somebody money to vote. How you want them to vote, vote or to register so you can vote that way, we now know that the Justice Department has written to Musk. The letter hasn't been made publicly available, but he was put on notice that his conduct might violate the law. That is an extraordinarily strident step for the Justice Department to take, especially this close to the election, if they didn't think that there was a violation. There are also potential state law violations. I think Musk has now written checks not just to folks in Pennsylvania, but also to folks in other states, including Wisconsin. So I think, you know, there's a good chance that we will see some form of legal action. Musk probably thinks that he's too big and too powerful to be held accountable. We'll see what the legal system can do.

Barb McQuaid (58:02)

Well, there you go. Our next and last question comes to us from Mary, who asks, does presidential immunity cover possible co conspirators or those who help implement otherwise illegal actions? Mary, this is a really good question and I think at the moment it is unclear. I think this is an issue that is likely to get litigated down the road if any of Donald Trump's co conspirators ever get charged with crimes. You know, right now they're named as co conspirators but they have not been charged. I think the answer is likely no, but I think you could make that argument right? I mean, if a president is immune and he conspires with others, aren't the others also immune? On the other hand, you know, immunity doctrine is usually to construe it narrowly and not to share it with others. And so if a president is immune, it doesn't mean other people who engaged in similar conduct is also immune. So I think the answer is we don't know. Probably not. I think we will find out at some point. But I also think the real danger is that a president could grant a pardon to his co conspirators. And I think that is where the problem is in this immunity for a president and all of his men. Thanks for listening to SistersinLaw with Kimberly Atkins Storr, Joyce Vance and me, Barb McQuaid. Follow SistersinLaw on Apple Podcasts or wherever you listen and please give us a five star review. It really helps others find the show. And please show some love to this week's sponsors, O Malibu, One Skin, Lola V and Wild Grain. Their links are in the show notes. Please support them because they make this podcast possible. See you next week with another episode. SistersinLaw.

Kimberly Atkins Store (59:44)

Miss you, Jill.

Joyce Vance (59:48)

You know, maybe now that my hair is longer people will confuse me with Jennifer Aniston A girl.

Barb McQuaid (59:58)

Spit an image. Joyce.

Joyce Vance (60:00)

You and me both.

Barb McQuaid (60:01)

Yeah, and if they confuse you, then they'll confuse me. So I'm all in favor.

D (60:06)

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