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- [00:13]
Jill Wine Banks
Welcome back to SistersinLaw with Joyce Vance, Barb McQuaid, Kimberly Atkins Storr, and me, Jill Wine Banks. And don't forget, we love seeing you in our T shirts and other merch. So check out our merch store. It really will look good on you and it'll make us really happy. Just go to politicon.com merch now let's get on to the show where we're going to be discussing some really important topics today. The first will be Trump's cabinet appointments, unusual as they are, and Jack Smith's filing in the 11th Circuit in connection with the Mar? A Lago documents case. And finally, we're going to talk about will this Supreme Court be a check on Donald Trump? But before we get to those heavier topics, I want to talk about the new Blue Sky. We're all there now and we're hoping that all of you are going to follow us there. But let's talk about it. Kim, you want to go first?
- [01:14]
Barb McQuaid
Yeah.
- [01:15]
Kimberly Atkins Storr
So I'm in the midst of a social media break, but, you know, I had a lot of people asking me, like, why aren't you on Blue Sky? All the cool kids are going to Blue sky now. I'm like, okay, I'm still figuring, figuring out how to use threads, but okay, like I'm, you know, I'll drag me off. So I do have a space over there, but I'm still figuring out how to use it. Barb, you get you're, you seem to be a pro. Give us some tips.
- [01:38]
Joyce Vance
Yeah, I don't know if I'm a pro, but I did sign up for Blue sky this week and it really feels like, you know, the early days of Twitter that people are there, they're sharing, they're engaging. And it's, you know, minus the toxic stew of that seeing on Twitter these days or X or whatever it is. So I really like it. And one of the really nice features are these starter packs. Have you seen this? Where? And in fact, our producer created a starter pack for all the Politicon hosts, including us. So you can just search for that starter pack. We'll put a link to it in the show notes. And you can either follow everybody in the starter pack or if you open it, you can click the individual users you want to follow. It's been a great way to find, you know, journalists, national security experts and other people that I like to follow.
- [02:27]
Jill Wine Banks
And Joyce, what about you?
- [02:30]
Barb McQuaid
So, you know, I think I have a different view than a lot of people about the whole Twitter meltdown. My view is you don't ever give up space in the public square. And I don't have any intention of letting a bunch of ugly trolls saying nasty things in the responses make me stop trying to speak truth to power on Twitter. I think it needs to be done. But boy, is Blue Sky a nice refreshing place to go. I'm there and I'm on threads as well. I think that they all have very different characters. I had started out thinking I would post the same things every place, but they're not. They're really different. And Blue Sky I find to be a very cerebral space. There are a lot of academics. There aren't as many news people there yet, but they're coming. I've had a lot of really interesting conversations with other legal academics, political scientists, sociologists who are sharing their expertise. But I think it does have that early Twitter feel too, because there are a lot of people. Like this morning a woman that I didn't know showed up in my feed asking for support because she'd been sober for 11 days, which I thought was wonderful to see. Folks share pictures of places that they're traveling or walks with their dogs, and it really does very much give you the feeling that you're still part of a very worthwhile country full of cool people.
- [03:50]
Jill Wine Banks
I agree with you. Joyce and I have just gone there. I am definitely learning how to use it, but it seems very easy and very sort of self explanatory. So Kim, don't worry about it. You'll get to use it when you feel like you're ready to engage. Again, I'm still on threads and I agree completely about staying on X because I don't want it to be a silo of crazy right wing people. I think it's important that there be people there that someone might accidentally read and go, oh well, let me look into that. I think facts matter and that we have to keep putting the facts on all of the social media. So I post on LinkedIn, Instagram, I don't do TikTok very often, but everything else I do Facebook X and now Blue Sky. I've pretty much given up on Mastodon. And there was one other I was on for a little while because I never got much engagement, but I'm hoping to hear more from people so that I can have really good conversations there. So thank you Blue sky, for creating yourself.
- [05:07]
Barb McQuaid
This episode of SistersinLaw is brought to you by Wild Grain. Now that the holiday season is here, it's an amazing time to start baking delicious homemade favorites with family and friends. Luckily, wild grain is here to make you look like a baking expert without the stress.
- [05:23]
Jill Wine Banks
If you're not familiar with wild grain, it's the first bake from frozen subscription box. For artisanal breads, pastries and pastas, Wild grains boxes are fully customizable to your tastes and your dietary restrictions. In addition to their classic variety box, they recently launched a new gluten free box and a plant based box that is 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. Delicious smells emanating from your oven and delicious taste in your mouth.
- [06:02]
Joyce Vance
You know, I am the laziest cook ever and the laziest baker ever. And so I am loving wild grain. It is incredible how quickly it can go from the box to our table. Whenever I have guests over or my kids are home, the first thing I think of is pulling out a little wild grain. The color and the flavor come alive. Have you guys tried those chocolate chunk cookies? They smell so good. I've got some in the freezer right now and I'm going to, I'm going to break them out when the kids come home for the holidays. The aroma of fresh bread and pastries coming from the oven, like, wow, mom, are you actually baking something? They're stunned, but it's delicious. And the smell, you know, emanates throughout the house. Wild grain items are delicious. They're super high quality and take it from me, really easy to make. Thanks to wild grain, the holiday season is going to taste better than ever. I already know those apple cider donuts are going to be a big hit.
- [07:03]
Kimberly Atkins Storr
Yeah, you know, I love wild grain year round, but at the holidays they're especially great because literally I've used several different products. The bread, the cookies, and it's always a big hit. People rave about it and there really is something for everyone. You really will want to try it all. I suggest sampling, just, you know, give yourself some time. Try everything because it's all really good. Impress your guests with minimal effort. This holiday season, Wild grain is offering our listeners $30 off the first box, plus a free item in every box. When you go to wildgrain.com sisters. You heard me. You can now get 30 bucks off your first order, your first customized box with you go to wildgrain.com sisters or you can use the promo code sisters at checkout. And as always, you can look for the link in our show notes.
- [08:05]
Joyce Vance
We have got ourselves some Cabinet picks, don't we? Marco Rubio for Secretary of State, Tulsi Gabbard for Director of National Intelligence. I saw George Conway made a joke that the FDA head would be Hannibal Lecter, because that seems to be what it's getting to. I wanted to talk a little bit about some of these nominees. Some are more well known than others. First, Jill, you spent time working in the Department of Defense and I wanted to ask you about this Pete Hegseth. What do you think of this pick based on what you know about him?
- [08:42]
Jill Wine Banks
So I'm holding my nose. So if I sound funny to all of our listeners, it's because all of these appointments are risible. I mean, it is just unbelievable. And honestly, the headlines describing Pete Hegseth, who I love that Nicole Wallace had to have spelled for her while she was on air because she couldn't pronounce his name. And the headlines describe him as a veteran and a Fox host. He's been a Fox host for more than 10 years. And his being a veteran, he was a major. Yes, it's worthy service. I applaud his service. I thank him for his service. But that's not who he is. He is nothing more than really a Fox host. And his qualifications are non existent for this important job. He would be supervising more than a million active duty members and that says nothing about all of the civilians and contractors who work for the department. He has no past management experience. Yes, as a major he supervised small groups, but nothing in the numbers that we're talking about now. And it just seems really strange to me that he could become the Secretary of Defense. Plus he has some views that really disturb me. He has said women have no place in combat. You can imagine that my senator, Tammy Duckworth has responded to that. But I would also like to point out that while I was in the Pentagon under President Carter, we made skills based decisions on whether a female could hold a position in the army not based on gender, but based on whether they could have the qualifications. And you can't tell me that women don't qualify for combat or for any other position in the military based on skills. They've been in those roles for over 10 years. And the mere thought that he would have the view, although not surprising given J.D. vance's position and points of view to eliminate roles for women in the military. So I'm really distressed about his being there. He also was very active in getting a case or the punishment for a case dismissed against the Navy SEAL who was charged with really horrendous crimes now, he was committed, but he was demoted as part of that, and it was reversed by Donald Trump at the urging of Hexis. So I just think that there's a lot of reasons why he should not be confirmed and that we have to look at things like the rules of war have to apply. And he doesn't think that's true. So he's not qualified. I hope that they won't evade confirmation by going the recess appointment route, which I hope we'll talk about in more depth, because it's a horrible way to go, as would be acting. But basically, yes, he's a bad appointment.
- [12:06]
Joyce Vance
Well, you know, the hits just keep coming because the day after we got Pete Hegseth, we got Matt Gates announced as the Attorney General nominee. He is, of course, a congressman from Florida. I saw that in a newsletter I subscribed to from Crooked Media that day. Their headline line was Gates of Hell, which is, I think, pretty, pretty much sums. Sums up the nomination of Matt Gates. Joyce, you spent time at the Justice Department. What do you think of this pick? And please tell me that this is all just a ploy to get Matt Gates out from under his ethics probe for alleged child sex trafficking, which was just about to reach completion, just about to result in a public report. And once he got nominated, he immediately resigned from the House, which meant that that ended that investigation. Do you think that's what this is all about, or do you think that he really is a serious nominee for Attorney General of the United States?
- [13:06]
Barb McQuaid
Yeah. So it's possible that all of these things can be false. Right. But the timing on Gates resignation and the nomination is just way too coincidental to be anything other than suspect. This was a ploy designed to give him. Him an easy exit from Congress before the facts about his sexual trafficking of a minor and his drug use were released by the Ethics Committee that was prepared to vote today, Friday to release what folks are saying behind the scenes was a very damaging report about Gates. Now he's out from under that. But look, let, let me make a plea. This is an outrage nomination. This is Donald Trump trying to get everybody light their own hair on fire and run around and talk about how horrible he is. And I think we need to just resist that temptation. We shouldn't treat this like a legitimate nomination. It isn't. I think we should just say that and move on, because it's, it's not just that Gates isn't qualified. I mean, he isn't qualified. It's that his nomination is Donald Trump making a full frontal Assault on the Justice Department. I think that's how this needs to be characterized. That, of course, is consistent with Donald Trump saying all along what he intended to do. The deep state is buried at the Justice Department. He's not a fan. Now he's got himself a nominee who, if he was confirmed, which I don't believe he will be, by the way, he would sort of just run the department asunder, limb by limb. That's what Gates is all about. So I have got some super conservative friends, still Trump supporters, and they're also lawyers. This nomination was a bridge too far, even for them. Our chat group sort of erupted into expletives, which has never happened before in the last eight years. But they were really stunned. And where they retreated to was, well, he won't get confirmed, but, you know, Matt Gaetz won't get confirmed isn't enough for me. He's not a serious AG pick. Trump isn't seriously interested in running the United States government. And we should use this as an example that lays that bare. Gates has barely practiced law. He's never been a prosecutor. His only experience with the Justice Department is as the target in a criminal investigation. He doesn't have good judgment. He doesn't have temperament. That's all important stuff if you're going to be the Attorney General, because you have to manage 115,000 employees and 40 plus components worldwide. Some of the agencies, DEA and FBI, have overseas offices. And your day starts early with national security and other high priority concerns, and it ends late. I mean, it is a job that you have to devote 105% of your attention to. But some of it, you know, is high school stuff, right? When you're managing that many people, people not heads, and as the head of the institution, you have to resolve that. You also have to make very serious decisions about cases that should go forward. And Matt Gaetz just absolutely can't do that. So it's clear that he's there to burn down the Justice Department. I think you're right, Barb. I think it's just a ploy. Because the House Ethics Panel was set to vote today. They would have released that report by all reports. And by resigning, he takes that possibility away. I know that this distresses some people, so I think we should expect. Explain it. The House Ethics Committee only has jurisdiction to issue reports about its members. So once Gates resigns, they no longer have any authority to issue a report about him. Now, Senate Democrats are calling for that report because they say they need it in order to evaluate his nomination. And I think that means that we will see him find an excuse for quietly withdrawing his name.
- [17:06]
Joyce Vance
Boy, I hope you're right, Joyce, because I agree with you that he's in it just to burn it down. The Attorney General of the United States is an incredibly important job. It is a job for a grownup. And Matt Gaetz is just a troll. And the idea that you would put this incredibly important responsibility in the hands of someone like Matt Gaetz is, I think, an act of contempt by Donald Trump, a contempt for the government. He's not a serious person. And so I am hopeful that you are right about that.
- [17:36]
Jill Wine Banks
And Barb, it's an insult to the Department of Justice that we all.
- [17:40]
Barb McQuaid
That's a really good point.
- [17:42]
Joyce Vance
Yeah, absolutely. Absolutely. Well, it goes from bad to worse because then the next day. But wait, there's more. It's like, remember the old ads for the Ginsu knife? But wait, wait, there's more. Because the next day, President elect Trump nominated Robert F. Kennedy Jr. To be the Secretary of, Wait for it. Health and Human Services, an anti vaxxer in charge of the nation's healthcare. Kim, what do you think we can expect. Yeah, Kim, what do you think we might expect from an rfk? Hhs.
- [18:19]
Kimberly Atkins Storr
Oh, ffs.
- [18:21]
Joyce Vance
That's what I think.
- [18:24]
Kimberly Atkins Storr
You know, gosh, I mean, we can just start this discussion setting aside the fact that this appointment may have broken the law. Right. If what RFK Jr said is true is that Donald Trump promised him HHS to support him to get his endorsement. That, ladies and gentlemen, is a violation of federal law.
- [18:47]
Barb McQuaid
I don't know, maybe it's just log rolling, according to this Supreme Court. That might be.
- [18:52]
Kimberly Atkins Storr
Am I. Well, certainly attorney. According to attorney.
- [18:55]
Jill Wine Banks
It's a gratuity, not a bribe.
- [18:57]
Kimberly Atkins Storr
The only thing I will disagree with Joyce's wonderful statement about Matt Gates, by the way, is the fact that he won't get confirmed. I'm not going to make a prediction.
- [19:12]
Barb McQuaid
Don't take that away from me. Don't take that away from me. You know what?
- [19:15]
Jill Wine Banks
I gotta bet you a lot of money on that.
- [19:18]
Kimberly Atkins Storr
We have seen Republicans talk about what they wouldn't do before and then guess what? They did it. So I'm. I don't know. I'm not ruling out. So I'm going to go fully through the parade of horribles. I can go. Not fully, but I'm going to take RFK as if this is a real thing. One person who I often learned to turn to during the pandemic is Dr. Peter Hotez of the. Yes, of the at Baylor. I believe that's where he's from. And he's wonderful. And this is what he said about RFK Jr. Quote, he is one of the most prominent anti vaccine activists in the United States and globally. And he has been at this for 20 years, which is true. I remember covering an event with a bunch of anti vaxxers back in the early 2000s and there were a lot of parents and let me say they were there. They were. They really thought that this, what they were being told was true and they thought that vaccines were the reasons for their kids suffering, but it just wasn't true. And RFK Jr. Was there. He was like the speaker. He has been in the conspiracy theory, anti science medical world for a long, long time. He is a deep believer in this. So I think what makes him more dangerous than some of the other appointments is that they're doing it for the politics. Right. Matt G. Doing it for his own, to cover his own hide. Whereas I think RFK really believes in the damage that he's about to do to the agency that oversees our insurance coverage regulations, pharmaceutical regulations, the administration of vaccines and recommendation. I mean, he's got his hands in a whole lot. So let's start with that fact. He was pushing this conspiracy theory back then that thimerosal caused autism. Zero evidence of that. And by the time that this reached a crescendo, thimerosal wasn't even being used in vaccines anymore. So it's just something that's not true. But he still talks about it to this day. He has backed all kinds of debunked, unverified treatments, like advocating for raw milk. Hello. Raw milk is dangerous when you don't know what you're doing. You know, I realize there's a way, and Joyce can tell us that you can do this safely, but no, absolutely not. Okay, good.
- [21:47]
Barb McQuaid
So dangerous.
- [21:49]
Kimberly Atkins Storr
It's just so dangerous. And one of the things that it can, you can catch through that is avian flu, which there's been a case of in North America. And I feel very uneasy at the prospect of another, you know, epidemic, if not a pandemic upon us that this guy will be at the wheel because he also said that the COVID vaccine was deadly and that you should not take it. That saved lives. Like, honestly, one of the few things associated with the pandemic under the Trump administration that went right was Project Warp Speed to get that to that private public partnership that allowed the private folks, the doctors, the people who knew medicine to get that out and available to the public as quickly as possible. That would not happen again under rfk. So I feel. I mean, I can talk about so many other things. The fact that he thinks that drinking certain kinds of water makes kids gay or transgender, the fact that he thinks antidepressants cause mass shootings. I can go on and on, but it's bad news.
- [22:56]
Joyce Vance
Well, on that happy note, we await the choices, the nominees.
- [23:02]
Kimberly Atkins Storr
We laugh to keep from crying.
- [23:03]
Barb McQuaid
Yeah, true. It's why we're all taking this surreally, because if we took this seriously, this would just be the episode where we cried for the whole podcast.
- [23:11]
Kimberly Atkins Storr
But you know what, though? I think people would not have thought that Ben Carson would run hud, but guess what? He did. Like, this is why I feel like we do need to take it seriously, right?
- [23:22]
Joyce Vance
Oh, yeah.
- [23:23]
Jill Wine Banks
So maybe Trump is doing this to make Ben Carson look good. It's certainly. Well, it certainly makes Marco Rubio and Burgum look good. They're such normal.
- [23:35]
Barb McQuaid
I think you're right. There's a method to that madness.
- [23:38]
Jill Wine Banks
Yes.
- [23:38]
Barb McQuaid
You know, because Trump's nominee for the number two position at DOJ is Todd Blanch, his lawyer. People would have been up in arms about Todd Blanche if Matt Getz wasn't the nominee. If Todd Blanche becomes the eventual AG nominee, people will be like, praise Jesus, Hallelujah.
- [23:56]
Joyce Vance
Yeah, because, you know, he's Trump's lawyer, but at least he's a lawyer. Jill, can you just help us, like, level set. What is the normal, ordinary process described in the Constitution that we have seen for centuries for the confirmation of presidential appointees? How does that basic system work?
- [24:17]
Jill Wine Banks
Normally, it's really a simple system, and it is a part of our fundamental checks and balances as envisioned by our founders and as we have always lived with it, is that the President gets to nominate whoever he wants, and that then it goes to the Senate for their advice and consent, and it goes to a Senate committee first that does some investigation. And in a normal process, there would also be an FBI investigation for background check and for security clearances. And then it would go for debate on the floor of the Senate and a vote. And then after the inauguration, there'd be confirmations. And there is very little examples of a nominee being rejected, because in general, the Senate believes that the President was elected and elections have consequences, and he gets to have the staff he wants. But there have been three cabinet nominees that were rejected. That's three since 1900. So it's obviously pretty unusual, but it is sometimes necessary, and that's the normal process.
- [25:36]
Joyce Vance
Okay. So, Jill, thanks for explaining how it's normal to work the usual way. Kim, there is some concern that Donald Trump has said he would bypass that normal confirmation process that we just heard all about by using recess appointments. What are recess appointments? How does that work?
- [25:55]
Kimberly Atkins Storr
Yeah, and you can totally tell this is something that he like just learned about because he became immediately obsessed with it because he was all caps, Recess.
- [26:03]
Barb McQuaid
So true, so true.
- [26:06]
Kimberly Atkins Storr
Some lawyer somewhere, Todd Blanche said something about it. Yeah, this has been on his mind. So, yes, a recess appointment is something that's allowed under the Constitution as a way to bypass the process that Joe just laid out. Now, it's only done. It was not meant to be done in normal course, but it does make sense if there is a time, say we're at war or something and the President needs to fill a vacancy, but Congress is not convened. But you can't just leave this, you know, you can't leave the head of the Pentagon open in the middle of war. So you put in, you allow a recess appointment when Congress is not able to convene. The Supreme Court upheld this, but said that it's only really meant to be used if there is a recess of sufficient length and if the Senate is actually unable to come together for deliberation. Not just because it's unusual, it's inconvenient, but they, they really can't do it. So it really, the Supreme Court tried to limit the extent to which recess appointed appointments had been used. Donald Trump says Constitution, schmonstitution. I'm going to want to put something in office and I don't need a Senate telling me what to do. So, yeah, he has signaled that he not only wants to do that, but that he wanted everyone in Senate leadership to promise to do that. I don't know if th kissed the ring, but we shall see.
- [27:34]
Joyce Vance
Yeah, I'm really worried about this because this is one of those really important checks and balances we have in our system. Even though Republicans have the majority in the Senate, I think they've got 53 now members and that should mean fairly easy passage for most of Trump's appointees. I think that they will check a really crazy one. And if they're bypassing this process, they're really just saying we are seeding our responsibility of advice and consent to just let Trump do whatever it is he wants. So this is a real red flag for me that there is any consideration that they would bypass this.
- [28:09]
Kimberly Atkins Storr
Certainly not only is it a red flag for the Senate, but it's basically Trump Saying, hey, I'm going to nominate people. So crazy.
- [28:17]
Joyce Vance
Yeah. Right. Here's a test.
- [28:18]
Kimberly Atkins Storr
Don't even want a Republican led Senate to vote on their confirmation.
- [28:22]
Joyce Vance
Yeah, yeah.
- [28:23]
Jill Wine Banks
And confirmation only takes a majority vote and he has a majority in the Senate. So that's what. They can't pass a confirmation. Then that person should not be in office.
- [28:35]
Joyce Vance
Yeah. Oh, God.
- [28:37]
Kimberly Atkins Storr
Well, so this is, there's nothing else to do.
- [28:41]
Joyce Vance
This is a really important thing. This is like, you know, the canary in the coal mine. Right. We send the canary down and if it dies, it means the air is no good for the rest of us. This is if, if the Senate bows down to Trump on this, I think we're in big trouble. So this is really something to keep an eye on in the coming weeks. Okay, so we talked about recess appointments, Joyce. There's also this idea of acting officials. And Trump has said in the past, I love actings because they too do not need to go through the confirmation process. There are some limits, though. Their time in office is limited and there are some restrictions. We, our listeners may recall that Sally Yates served as the acting Attorney General at the start of the last administration. Of course, she was fired when she stood up to Trump and refused to enforce and illegal order, for which I will be eternally grateful. But you can just, can you just tell us basically how acting officials work? Because that's a little more restrictive than this idea of recess appointments.
- [29:38]
Barb McQuaid
Yeah, I mean, it's similar to recess appointments in the sense that they're both common sense mechanisms for continuity of government. Sometimes you're going to have someone who will resign or die. You won't have a presidentially appointed Senate confirmed replacement waiting in the wings to take over their job. So you need to someone who can fill in for that period of time. This is just routine change of administration kind of stuff. Here's the problem. Usually for an acting, you have the person who's left, their second in command will take over for them. That's sort of what this is predicated on. When a U.S. attorney leaves, their first assistant takes over until there's a new Senate confirmed nominee to go into place. But you will recall that Trump busted this norm during his first term in office. He permitted people to stay in these acting positions much longer than the Vacancy Reform act permitted them to. And sometimes there were people who were only questionably qualified to take on these jobs, I mean, in the legal sense who maybe didn't ring the bells, who were permitted to go into them. And so we really can't have any assurances that Trump will use this in the way it's intended to be used. I think to the contrary. We have every reason to believe that he will use this as another mechanism that he will say to people, oh, look, I'm following the law, when in fact he'll be violating it. I mean, this is very much his M.O. right now. And we shouldn't use lose sight of the problem here, which is that Trump wants people who aren't qualified by any standard other than personal loyalty to him to hold these offices. So he has to do whatever he can do to skirt a legitimate confirmation process. When somebody's got whatever, he's going to have 53, 54 seats in the Senate, more than enough to confirm any nominee he wants to put up, even somebody who's marginal. Right. When he's worried, it's because he's putting up nominees like Matt Gaetz and Tulsi Gabbard who just do not ring the bells for serving the American people. That's why he's going to make these what really is meant to be sort of an emergency, sort of a procedure. He's going to make that the usual process, not the exceptional one.
- [31:54]
Joyce Vance
Yeah, I think that we really have to keep our eyes on these things. Well, we'll end it there. But things for our listeners to be watching for, to see if they follow the normal course or if we are treading in some dangerous territory.
- [32:17]
Jill Wine Banks
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- [32:50]
Barb McQuaid
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- [33:54]
Kimberly Atkins Storr
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- [34:27]
Joyce Vance
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- [35:31]
Barb McQuaid
Well, today was supposed to be the day that Jack Smith was going to file his final reply brief in the eleventh Circuit appeal of the classified documents case, but alas, it wasn't meant to be. He asked the court for and received an order giving him until December 2nd to go ahead and finalize the appeal in front of the court. You'll you'll recall what's going on in this case, the classified documents case. It was dismissed by Judge Aileen Cannon. She said Jack Smith's appointment as special counsel wasn't constitutional. We've discussed that issue before. There may be some value to the Justice Department in actually getting a decision from the 11th Circuit instead of letting the bad law that she has rendered stay standing. So we'll find out more when Smith files his reply brief or whatever sort of notice he intends to file with the court on the second. But obviously, this case is far more important than just that discrete legal issue about the appointment of special counsels. I mean, what we're talking about now is the future commander in chief taking over government again, with no accountability for mishandling classified documents, no accountability for obstructing justice. And so I have questions for my sisters, because I'm sort of on the ledge on this one, y'all. Kim, let's start here. If Smith dismisses the case, which I think he's very likely to do, it's possible that the AG will release his final report and make that public. The AG has been very good about releasing special counsel reports. He said he's committed to that sort of transparency. I think he would do it again. But the case still gets dismissed. Trump is never going to trial with your journalist hat on. Do you think it's valuable for the report to be released, or is that just an empty gesture at this point?
- [37:21]
Kimberly Atkins Storr
I mean, listen, I'm always going to say it's valuable, but I think we need to be realistic about what kind of impact it'll have. Right. I'm thinking about the final report of the special committee in the investigation into January 6th. In that moment, it felt like such a thing, right? Like such a change in. Yeah, the air, the energy. And at the end, what. How much did it matter? I don't know. Little, if at all. So, yeah, transparency is great, but I think the bigger impact of all of this is I'm thinking about the, you know, the former National Guardsman from Massachusetts, Mac Jack. Jack Texiera, who was sentenced to 15 years in prison for mishandling classified documents. And we have someone else, different case, different facts, but who also mishandled classified documents, and he's going to be in charge of all of them. It's. I think that's what the biggest impact. That's what the legacy of this is, no matter what's released or not released.
- [38:28]
Barb McQuaid
Yeah. Okay, so it's clear that Kim will not be talking me off the ledge today.
- [38:35]
Kimberly Atkins Storr
So, look, Barb, lots of room here, though. George.
- [38:37]
Barb McQuaid
Yeah, it's a big ledge. There are many of us out there on it right now. Barb, we're lawyers, right? All four of us are lawyers, but with our DOJ backgrounds, I mean, we're used to thinking about this stuff pretty rigidly as lawyers and crafting legal strategies. And so let's move on from Kim's comments and talk about whether or not there's a world where failed lawsuits can help, even on the political side of things, to protect democracy. Are there reasons from a national security standpoint, which is your area of expertise, to make as much info about Trump's breach public as possible? I mean, I'm going to just start with this assumption. The national intelligence communities in other foreign countries that partner with us, they know precisely what happened right behind the curtain. They know what's going on. They understand what they're walking into in a second Trump administration. So with that thought on the table, is there still value for us in the United States understanding what happened here?
- [39:39]
Joyce Vance
I think so. You know, the worry I have is if this criminal case goes away and is never resuscitated, which I'm not certain is the case, by the way, because although a sitting president can't be charged with a crime, remember, this stuff is not protected by immunity. This conduct occurred after Trump left office, and the reason it was dismissed had nothing to do with the merits. It was because Judge Cannon found that the special counsel regs were unconstitutional. So this case could come back. And I would argue, if I were the prosecutor bringing this case when it comes back, that the period for the next four years should be told from the statute of limitations so that the case can be brought again. So I would not concede this case yet. However, it is certainly going to be at least paused. The Department of Justice will likely dismiss it. They'll probably try to dismiss it with prejudice in an effort to kill it so that it can't be resuscitated. But I do think there's a concern that it could become the norm that a former president is untouchable, that a former president gets to take stuff from the office. I mean, this isn't. This isn't like when you leave a hotel room and you take the towels. This is not that I've ever done that. But maybe the mini shampoo, you know, I was gonna say maybe the little shampoo. I've used it. They're not gonna use it again.
- [41:02]
Kimberly Atkins Storr
Right, Right.
- [41:03]
Joyce Vance
It's okay. Yeah. Not the. Not the little bath towel or the bathrobe either, Kim. Even, you know, the fuzzy rope. You can't take mine. But, you know, imagine if Donald Trump, like, kept Air Force One and said, this is mine. I was the president, and it's mine. That's what he's attempted to do with these documents. And the documents aren't just valuable for. Because they're pieces of paper. It is for the incredibly sensitive information. They contain our nation's secrets. And much of that information, Joyce, I believe this is what you're hinting at, was shared with us from other foreign governments. If they think that Trump is just going to take all of the secrets they share with us and store it in some bathroom at Mar a Lago, they are not going to share with us anymore. And that sharing is critically important. It was an Australian diplomat, they say, I believe it was probably Australian intelligence who shared with us that information about George Papadopoulos spilling the beans in a bar, a wine bar in London, about the fact that Russia had stolen hacked emails from the DNC and it offered to share it with the Trump campaign. We're not going to get the benefit of that information shared with us from our allies in the future if they don't think Donald Trump is going to be careful with them. And if you were Great Britain or Australia or Canada or New Zealand, and you know that Donald Trump is back in office, do you think they're going to share their information with us going forward? I don't think so. I think they'll be very reluctant. And so I think it's important ultimately that Trump be held accountable in some way. And if the prosecution can't be revived at the end of his administration, then I think that there needs to be some way to send an important message that this is not okay. And we will not tolerate any employee doing this in the future, including the President of the United States.
- [42:58]
Barb McQuaid
You know, this is the box Trump puts us in. I mean, it's pretty clear what the path forward should look like. Anybody, whether it's the president or not, who mishandles classified information should be accountable. But by virtue of delay and having a judge who he put on the bench after he lost in 2020, Trump has come out of this one without any accountability. And, Barb, as much as I hear what you're saying about preserving the case so that it could be tried at the end of his term in office, I don't think that that will happen. And really, the thing that troubles me the most is that if that case is still hanging over his head, I'm not sure that Donald Trump will leave office when his time is up this go round. I mean, none of this is a problem with our Constitution or our laws or us. The fact of the matter is that Donald Trump, who is a crook and a criminal, lured far too many of our fellow citizens into voting for him. And here we are. So I'm making the ledge Ever bigger. I'm sure more of you are out on it with me now. I have one more shot, Jill, maybe you can help. There are reports already that Trump is bypassing security clearances for some of his prospective appointees. And I'm curious what you make about that. You've got a lot of national security experience. It feels to me like national security maybe is not a priority for this new administration. Convince me otherwise or just make the ledge bigger.
- [44:24]
Jill Wine Banks
Make the ledge bigger. I'm out there, I'm joining. I mean, all of these things are terrifying to me, every single thing we've discussed today. And I've, I did a Just the facts episode where I said that I had gone from, you know, anxiety before the election to depression after and then to saying, no, I can't give up. I'm going to keep working. And now I'm in a state of total despair because I think that the Republicans have outsmarted the Democrats, that they have planned and plotted evil, terrible things and they're getting away with it. Whether it's talking about recess appointments to undermine checks and balances that are so fundamental to our democratic way of life, or bypassing security clearances. He did it in his first administration for his son in law who was having some problems and wasn't going to get cleared. He said, okay, I don't care. I'm giving him clearance. And that is one of the consequences of elections. The President has that power and he doesn't care. He does not care about whether any of his nominees will pass the security clearance that you and Barb and I all went through. In order to even, I mean, when I first got out of law school and went to the Department of Justice, I had to have a security clearance. That was as a baby lawyer, a GS lawyer.
- [45:57]
Barb McQuaid
I was on the phone yesterday doing that for one of my students. Right. Regular people still have to have security clearances.
- [46:03]
Jill Wine Banks
Exactly. And so, I mean, it's really scary that this wouldn't be a priority. And we've already mentioned that other countries may not share information with us because they know that he could violate it. He shared with the Russians in his first weeks in office in the Oval Office. He shared Israeli intelligence. It has to make other countries think twice before they share anything that could give up their, you know, the important things to them, not just the information, but their sources and methods. Those are things that no country wants to give up. So it's a really bad idea to be bypassing security clearances. And somehow somewhere there has to be someone who's going to stop him. And all of the people who might have stopped him in the first administration are not going to be back in a second. And the loyalty to him, not to the Constitution, is the only test for who he's appointing and who he will talk to. So we're going to have to find ways around that to protect America.
- [47:16]
Barb McQuaid
You know, I was going to ask y'all a last question, and I just don't have the heart to. I was going to ask you whether with two failed federal prosecutions, Donald Trump beat the rule of law. But I'm not going to do that right now because clearly we're at a low point. Instead, I am going to say this and ask if you all agree or disagree. I mean, this feels a lot like rock bottom, right? I mean, it does feel to me like Donald Trump beat the rule of law. I have nonetheless not given up hope that we can come back from this. I'm already seeing civil society groups, groups of lawyers, groups of medical professionals who are banding together and starting to talk about what are we going to do. And I'm listening to people who are very candidly saying we may not have the courts on our side. We may have to do this differently this time. And thinking about what that would look like. And I'm reminded that there are other countries that have fought their way back from autocracy. It's not pretty. It's not perfect. It's sort of an all hands on deck exercise. But I just want to say that even though I don't feel great, I'm prepared for the fight that's ahead and committed to it. I mean, I said in our live show at the 92nd street, why that I had no intention of leaving the country. I probably won't even be smart enough to leave Alabama. I intend to fight for democracy. I think it's worth it. How are y'all feeling?
- [48:39]
Joyce Vance
Absolutely. And I think there is room for a lot of activity here to push back against things, you know, certainly is. We always say elections have consequences. A president is entitled to nominations to advance his policies, but he's not entitled to violate the law. Well, I guess at least when he's outside the scope of his official activity, duties is defined by the Supreme Court. But he has to, you know, he takes a duty to support and defend the Constitution. So when he does things that violate the Constitution, I think other agencies have a responsibility to push back. I just wrote a piece today in Bloomberg asking please, for our former colleagues and friends at the Department of Justice to stay. I know There will be some who are inclined to leave because of what they see as perhaps efforts to abuse the Department of Justice. But people inside who uphold the rule of law are going to be really important going forward. I think we're going to see lawsuits from state attorneys general. I think all of us have a role to play in pushing our members of Congress to hold Trump accountable and to insist on pushing for the rule of law. So there's a lot of important work for citizens to be doing.
- [49:52]
Jill Wine Banks
I agree with Barb completely and think that the election in two years is a crucial one in addition, because I think we're going to see the failed and bad consequences of this election and that it may be possible that there will be a Democratic House and Senate that can hold Donald Trump in check in ways that no one else can. The Supreme Court immunity decision is one that makes it impossible for even states to bring cases against a criminal president while he's in office, and maybe even after because of how far they went in terms of the evidence that can be used. So I think it's up to the voters. We're going to have to get busy. And it's up to all the groups like the American Constitution Society, the aclu, the Lawyers for Democracy. All of these groups are doing their part to build defenses to what's happening.
- [50:56]
Barb McQuaid
Kim, what do you think? I mean, it feels to me like the big tent is sort of a fragile coalition and very shattered these days. And that's what happens to people after a political loss. Can we get it back together and move forward?
- [51:08]
Kimberly Atkins Storr
Girl, I don't know. I mean, I was just going to say the end of this. I hope all y'all are right. But we'll see. That's all I got.
- [51:27]
Jill Wine Banks
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- [53:55]
Joyce Vance
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- [55:19]
Kimberly Atkins Storr
So one question that we've been hearing a lot since the election is whether this Supreme Court, with its conservative supermajority that Donald Trump helped build, be a check on his next administration. Of course, all of us of the, you know, our generation know that there are three branches of government, right. All of our listeners know at least, and they are meant to be checks and balances. On the other. Well, will the head of the judiciary, the top court, stand in Trump's way if he starts moving in a illegal way? Again, I'm dubious. But you know what, I want to chat with my sisters in law because I get it. There are some reasons to think that they might. You know, the Supreme Court did a lot of slapping back at the Biden administration, for example, because, and they don't like the administrative state, so maybe they'll give Trump the same medicine. Then on the other hand, immunity decision. Like they don't really, they had a chance to really hold Trump accountable and they not only didn't do that, but they actually expanded his power. So, Barb, let's start with you. Do you think if Trump starts going completely ham on the Constitution, on law and doing things, do you think that this particular Supreme Court will or won't stand in his way?
- [56:39]
Joyce Vance
Yeah, it's a good question. You know, I think that I don't have a lot of confidence in some of the justices. I think that this court is extremely conservative, but I don't know that they are necessarily Trump supporters. So, you know, if you look back at some of the cases that the court decided in the last administration, he has, you know, an overall losing record before the court. As you pointed out earlier, the only president since the 1930s to have an overall losing record before the court, and he, you know, he lost, as you also noted, that protection for dreamers in immigration, they ruled against him in putting an immigration question on the census. And I think that they're not going to decide on things where I think he goes completely rogue and lawless. I do think that they're likely to advance his agenda. You know, the president has a lot of power when it comes to deporting immigrants. And so I think, you know, it took three tries last time to get it right with his Muslim ban, and he ultimately got that right. So I think we're going to see a mixed bag. I think that to the extent he wants to do things that are aggressive but lawful, I think they'll probably support him in that space. But I remain Hopeful that, you know, I think Alito and Thomas are a lost cause. I think they're going to be lap dogs. I think Gorsuch and Kavanaugh are not much better. But I think Roberts and Barrett show glimmers of hope that they care about the, you know, legitimacy of the court. And they do have some principles, even though they are very conservative. So I think that would be enough to get a 54 coalition together to stop Trump from some of his worst instincts.
- [58:37]
Kimberly Atkins Storr
Yeah. Jill, what do you think? Do you think that this court will stand in Donald Trump's way if it comes down to it?
- [58:42]
Jill Wine Banks
I, you know, sort of like you, I'm dubious. And I think, in general, I would have to say, given their ruling on immunity, on not following past precedent, I mean, they've sort of abandoned stare decisis. And also because Trump is threatening to ignore whatever they say anyway, they may not want to get ignored. And the only thing that makes me hopeful, although I think they are driven by their objective. You know, they have a political goal, and they're sort of twisting the law to fit that, which means they won't protect us. But there is some chance, I think, that Barbara's right, that both Roberts and Coney Barrett are not lost forever. Coney Barrett has been surprising, particularly as to some of her rulings. And so there is some hope, but I think it's pretty minor, and that if I had to answer will or won't, I'd say won't. One of the hopes is they do care about their reputation, and they are at such a low. Although every time I say, you know, you can't get any lower. Yeah, you can.
- [59:59]
Joyce Vance
I mean, yeah, it turns out you can.
- [60:01]
Jill Wine Banks
I thought for sure that I'm gonna grab your, you know, you know, what was gonna be the end of his possible election the first time, and it obviously wasn't. And it's gotten worse and worse and worse. So I don't know that even their care about the reputation of the court will stop them from letting him do his will.
- [60:25]
Kimberly Atkins Storr
Yeah, Joyce, that's an interesting point. And our friend Steve Vladek wrote a piece in the Times where he talked about the Supreme Court and having its power from the faith of the people. Like, that's where it gets its authority from. In terms, you know, they don't even enforce their own. They don't even enforce their own rulings. Often it's the executive that has to enforce the ruling. So it's really, if they don't have the people, then they don't have any power at all. Do you think that the justices will keep that point in mind as they take up they enter into the Trump era?
- [61:02]
Barb McQuaid
No, absolutely not. I think that they'll have been emboldened by this election. I think, you know, even John Roberts, the former centrist, lives in this bizarre bubble where he too has been co opted by some of Trump's views. I mean, you know, he lives in sort of the ivory tower of the Supreme Court where they believe they're under attack. And for God's sake, he took no steps to try to do anything when it came to light that Justice Alito's wife was flying pro 1-6-Rioter flags outside their home. So, look, this court is going to have to earn my trust. I, I mean, I am just no longer voluntarily offering it. If they want me to believe that they have integrity, then they are going to have to show me. Because when you say that it's okay for a president to order Seal Team 6 to kill a rival, that that's immune conduct, you've gone too far for me. You know, maybe the example, maybe the hypothetical that should have been offered at oral argument was whether Trump could have ordered SEAL Team 6 to kill off a Supreme Court justice because he wanted to replace them with somebody who was young. You know, maybe that's the opportunity that was missed. But this court's gonna have to make a believer out of this girl if they want my trust back. I do, though, have confidence in the lower courts. I believe that there are some judges and even some courts of appeals that will try to do the right thing. You know, Trump succeeded in large part through delay. Well, maybe delay is going to be on our side this go round. That's a pretty slender thread to hold onto, but it's all I've got.
- [62:33]
Jill Wine Banks
You know, Joyce, you mentioned something that really motivates me to speak up here, which is when we're talking about what our listeners can do, please write to your representatives to make sure that they use the remaining time to confirm every pending judicial nomination. Because there have been some judges who've stood up and been good, but there have been some really bad ones. You know, obviously we've been talking about Judge Cannon and what she did, but there's a lot of others. Kacmeric, for example. And so it's really important that there be fewer vacancies for Donald Trump to fill. He's got four years and people are going to resign, retire, die. And so he's going to have plenty of opportunities to fill the courts with people who will do his bidding. And we have to stop that by getting in the ones who have already been cleared by committee. They should get a vote and we should be able to fill some of those vacancies. That's really important. It's now time for the part of the show that we really love, answering your questions. It's so hard for us to pick just three questions to answer because you send us really thought provoking questions that always make me think, boy, that's a hard question. And if you have a question for us, please email us@sistersinlawoliticon.com or tag us on social media using SistersInLaw. If we don't get to your questions during the show, keep an eye on our feeds throughout the week. And remember, we're now on Blue sky as well as all the other sources. But just keep looking because we sometimes answer the questions that we didn't get to in the show. So let's get to the questions. Our first question comes from Tamara in Colorado, and I think it would be perfect for you to answer. Kim Tamara, ask how would a national abortion ban affect states that have abortion protections written into their state constitutions?
- [64:50]
Kimberly Atkins Storr
This is a really good question, and the answer is it depends. Because when you talk about an abortion ban, there's two ways that that can happen. One, which I think won't happen, the other, which I think will, and we'll see that. So the first way would be to pass a law banning abortion nationwide. I honestly don't think that that's even possible. I don't think there's enough support in the Senate, which, unlike for confirmations, you would need 60 votes to get past a filibuster. I cannot fathom any sort of abortion ban that would make it over that filibuster. Plus, Donald Trump, even though I don't trust him as far as I can throw him, said that he wouldn't sign one if that happened. So I just, for our purposes, I don't think that's what we should be worried about. What we should be worried about is the Comstock act, which is an existing law which the incoming administration and its supporters has already promised that they would use to its fullest extent to basically effect what could amount to, in many ways, abortion bans beyond where the bans happen on a state level, and that is from prohibiting anything, any medication, any equipment, any product at all that is used in the giving of abortion care or in any situation where abortion care may be necessary. So what you're doing is you'd be denying doctors the care that they what they need, the tools they need not only to safely perform an abortion, but also safely perform health care, period. Because there are so many other things. I mean, what would it be expanded to cover? Stirrups, examination tables, latex gloves? I mean, it's just. It really has the potential to really be problematic and at the very least, get tied up in litigation over the constitutional and statutory limits of this and all of that. So that's something that can impact all 50 states, every single state in our nation. So that is something to keep an eye on. That's the space that I'd worry about.
- [66:44]
Jill Wine Banks
We have another great question from Megan in North Carolina. And Barb, would you answer this one? Barb, Megan asks a question and says, this week, an Air National Guard soldier was sentenced to 15 years in prison for what was something that appeared to be holding confidential documents and disclosing them to foreign persons. Is this not analogous to what Trump did with the documents he stored at Mar? A Lago?
- [67:17]
Joyce Vance
Yes, I see some similarities. Thank you for noticing, Megan. Yeah. And this is why I think Trump's evasion of accountability is so problematic. I will note that there is a slight difference. What Jack Teixeira did, and for which he was sentenced to 15 years, was not only to retain government documents, he actually disclosed them on the Discord social media channel in an effort. I think he was just sort of bragging to his buddies, like, looky what I can do. I've got access to this stuff. Isn't that cool? And kind of showing off. However, by disclosing it, you know, that is a very dangerous thing, and it enables foreign adversaries to get a hold of that and just anybody who's not supposed to have it. What Trump did was to unlawfully retain them and store them in a way that left them susceptible to the eyes of others. We don't know if anybody actually took it. It does not appear that Trump deliberately shared the documents with anyone, as far as we know. So in the scheme of penalties, someone who discloses secrets to another is the worst people. Those punished most severely are those who deliberately share information with a hostile foreign adversary. You know that that's what the Rosenbergs were executed for. I'm giving Russia or some other country information. Disclosing it to the general public or to someone else who's not authorized to receive it, I would say, is the next level of egregiousness. What Trump did is below that. But it is still egregious to take and retain information that belongs locked up in a safe in A skiff somewhere, you know, a secure compartment so that it can be safeguarded and not released to the public. What Trump did was to take them without authorization out of the White House and then leave them in bathrooms and offices and bathrooms and other places, ballrooms. And so it is a crime. It is probably of a degree lesser than what Jack Teixura did, but certainly still, if anybody else had done it, would have been prosecuted and punished.
- [69:16]
Jill Wine Banks
I think that's the important part, Barb, is that anybody else would have been punished for that. And. And we should note that the ballroom and other places were in public spaces. These wasn't even his private residence. So our last question comes from Siri. I don't know if that's a real person's name or if it came from Siri, because I know she listens everything, have conversations. Yes.
- [69:43]
Joyce Vance
I. I mean, Siri is an adventure. Yes. I didn't understand that.
- [69:47]
Barb McQuaid
Oh, my God.
- [69:47]
Joyce Vance
Did you hear that?
- [69:50]
Jill Wine Banks
So, Joy, since you have conversations with Siri, I'm going to ask you to answer Siri's question. Does presidential immunity carry over to the people carrying out Trump's orders?
- [70:04]
Barb McQuaid
Yeah. You know, this is such a good question. The answer is no. Presidential immunity is just for the President. But wait, I mean, you heard my answer about my level of confidence in the Supreme Court. And I think that the next wave of what we will see is people trying to claim derivative immunity because of their interactions with the President of the United States. And an argument being made that Trump's presidential immunity is meaningless unless the people around him have immunity. Of course, Trump can always just make these people immune by giving them pardons. That at least helps with prosecutions in federal court. You know, we saw last week Mark Meadows tried to get his Fulton county prosecution moved to federal court, and the Supreme Court said no. So I think Meadows is likely the person who will raise this claiming that he is entitled to immunity. And we will all hold our collective breath and see just how far the Supreme Court is willing to go to give Trump an umbrella under which he can commit crimes with impunity.
- [71:08]
Jill Wine Banks
Good answer. Joyce. And I would point out that in addition to withholding or keeping the documents that we've been talking about, Donald Trump also obstructed the investigation or is at least charged with that. Thank you for listening to Sisters in Law with Joyce Vance, Barb McQuaid, Kimberly Atkins Storr, and me, Jill Wine Banks. Follow Sisters In Law on Apple podcasts or wherever you listen. And please give us a five star review, because it really helps others to find the show. And please show some love to this week's sponsors, Wild Grain, Blueland and Lola Vie. Their links are in the show notes and support them because they make this podcast possible. See you next week with another episode. SistersinLaw has anybody actually upgraded to 18 on the iPhone?
- [72:04]
Barb McQuaid
I resisted doing that. I found the new one.
- [72:07]
Jill Wine Banks
Okay, so I finally did it and it screwed up all my contacts. I said siri, call Victor Shi and instead it called Victory Gardens, which. Okay, so she misunderstood. Victory Gardens was actually the president of Roosevelt University, not Victory Gardens Theater. And when he answered, there was nothing. I mean, I had a great conversation. I'm glad I got to talk to Chuck Middleton, but he's not Victory Garden's theater. Sorry guys, we missed the bus when.
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