213: Pardon Me

Summary

Podcast Summary: #SistersInLaw – Episode 213: Pardon Me

Release Date: December 7, 2024
Hosts: Joyce Vance, Barb McQuaid, Kimberly Atkins Stohr
Guest: Jill Wine-Banks (absent this episode)

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1. Introduction

In this episode of #SistersInLaw, hosts Joyce Vance, Barb McQuaid, and Kimberly Atkins Stohr delve into pressing political and legal issues. Despite the absence of Jill Wine-Banks, the trio engages in a robust discussion covering President Joe Biden's recent pardon of his son Hunter Biden, the Department of Justice's investigation into the Memphis Police Department, and a pivotal Supreme Court case challenging Tennessee's ban on gender-affirming care for transgender youths.

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2. President Biden’s Pardon of Hunter Biden

Overview: The episode opens with a deep dive into President Joe Biden's controversial pardon of his son, Hunter Biden. The hosts analyze the legal and ethical implications of this move, addressing whether the pardon was appropriate and its potential impact on the rule of law.

Key Discussions:

• Legality and Appropriateness:

  • Barb McQuaid ([09:45]) articulates her stance, stating, "I do not think Hunter Biden would have been charged with these crimes if his name was John Smith." She emphasizes that the charges against Hunter were unusual and likely influenced by his high-profile status.

  • Kimberly Atkins Stohr ([12:04]) shares her professional perspective as a former prosecutor: "In my 20 years as a prosecutor, I recall using that charge exactly one time, and it was against someone we believe was very dangerous."

• Selective Prosecution Concerns:

  • Barb McQuaid ([15:09]) argues that Hunter Biden's prosecution was not solely based on his actions but was influenced by political motivations. She highlights the lack of similar prosecutions for others, suggesting a bias rooted in his family’s political standing.

• Presidential Clemency Power:

  • Joyce Vance ([16:38]) reflects on the broad scope of the pardon, expressing concern that while Hunter Biden is now absolved, it muddles the principle that laws should apply equally to all citizens: "I just don't know that the President took enough time to explain clearly to the American people his reasoning for it."

  • Barb McQuaid ([19:49]) clarifies that President Biden was within his constitutional rights to issue the pardon: "The Constitution expressly gives him the ability to pardon people. Whether or not we think it was a good exercise of that power, he was well within his power."

Notable Quotes:

• Barb McQuaid ([16:11]): "I think where I sort of settled is that Hunter Biden is now taken care of. What I would love to see from the President is him using his clemency power for good in other ways."
• Joyce Vance ([22:51]): "I totally agree, which is why I wish he explained it more. I think explanation would have gone so much farther."

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3. DOJ’s Investigation into the Memphis Police Department

Overview: The hosts discuss the Department of Justice's recent report uncovering systemic issues within the Memphis Police Department. This follows the tragic death of Tyre Nichols during a traffic stop, highlighting broader concerns about excessive force and racial discrimination in law enforcement.

Key Discussions:

• Tyre Nichols Case Recap:

  • Kimberly Atkins Stohr ([36:00]) provides a summary: "Tyre Nichols was stopped in a traffic stop, and the situation escalated unnecessarily with excessive force, leading to his death three days later."

• DOJ Findings:

  • The DOJ report reveals that the Memphis Police Department employed excessive force at a disproportionately high rate against Black individuals, beyond the Nichols case.

• Scorpion Unit’s Role:

  • Barb McQuaid ([37:25]) criticizes specialized task forces like the Scorpion Unit, comparing them to historical units that fostered an "us versus them" mentality: "We're just about trying to beat up the bad guys, and it's such a bad incentive."

• Consent Decrees and Enforcement:

  • Barb McQuaid ([39:23]) expresses concern over potential changes in DOJ's enforcement of consent decrees under new administration leadership, warning that reductions could leave discriminatory practices unchecked.

  • Joyce Vance ([43:49]) clarifies the role of consent decrees as reformative rather than punitive measures, emphasizing their importance in addressing systemic discrimination.

Notable Quotes:

• Barb McQuaid ([43:16]): "This is the exact same thing [as miscegenation laws]. It was meant to protect the people who are not trans kids so that they feel better about themselves."
• Joyce Vance ([44:24]): "It's a reminder to everybody, hey, we're here. And we may not have the resources to do this in every police department across the country, but you'd best watch yourself."

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4. Supreme Court Case: Tennessee’s Ban on Gender-Affirming Care for Trans Youths

Overview: The episode covers the Supreme Court's recent oral arguments in a case challenging Tennessee's law banning gender-affirming medical treatments and surgeries for transgender minors, even with parental consent.

Key Discussions:

• Case Details:

  • Joyce Vance ([53:25]) explains that the lawsuit targets the prohibition of hormone treatments, puberty blockers, and gender reassignment surgeries for minors, arguing it violates the Equal Protection Clause by discriminating based on sex.

• Legal Nuances:

  • The challengers differentiate between medical treatments accessible to cisgender youths and those restricted for transgender individuals, asserting that denying such care to trans youths constitutes unconstitutional discrimination.

• Supreme Court Dynamics:

  • Joyce Vance ([56:16]) predicts the Court will uphold the Tennessee law, anticipating a decision along the lines of "6 to 3" or "5 to 4," with justices like Amy Coney Barrett likely siding against the challengers.

  • Barb McQuaid ([61:03]) emphasizes the importance of equal protection, relating the case to historical precedents like Loving v. Virginia, which struck down laws banning interracial marriage.

Notable Quotes:

• Joyce Vance ([61:03]): "She very poignantly pointed out that there is not a lot of difference between this and the miscegenation laws that were in place before Loving v. Virginia."
• Barb McQuaid ([61:23]): "We are having this conversation because Donald Trump has made it clear that he intends to pervert the criminal justice system and use it as a tool against his political enemies."

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5. Audience Questions

a. Can Biden Pardon the Undocumented to Protect Them from Deportation?

• Kimberly Atkins Stohr ([70:55]) responds: "No, because the pardon power is about pardoning somebody for a crime against the United States. When it comes to deportation, those are typically handled as administrative matters."

b. Does the President Have the Ability to Overturn or Pardon a Civil Action from the Federal Court?

• Barb McQuaid ([71:16]) clarifies: "The Constitution gives the president the right to grant pardons in criminal cases. It does not apply to civil cases."

c. Do Revenue Bills Originate in the House Include Tariffs?

• Kimberly Atkins Stohr ([72:15]) explains: "Yes, revenue bills include tariffs. However, existing laws have delegated authority to the executive branch through the Treasury Department to levy tariffs without necessitating new action by Congress."

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6. Conclusion

The episode concludes with the hosts reiterating the importance of understanding the breadth and limits of presidential powers, the need for accountability in law enforcement, and the ongoing battles within the Supreme Court that shape the landscape of civil rights in the United States.

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Notable Quotes with Timestamps

• Barb McQuaid ([09:45]): "I do not think Hunter Biden would have been charged with these crimes if his name was John Smith."

• Kimberly Atkins Stohr ([12:04]): "In my 20 years as a prosecutor, I recall using that charge exactly one time, and it was against someone we believe was very dangerous."

• Barb McQuaid ([15:09]): "Selective prosecution means I treated you differently from other people who are similarly situated."

• Joyce Vance ([16:38]): "This makes it harder for me and us to sit here and talk about how important the rule of law is."

• Barb McQuaid ([19:49]): "Whether or not we think it was a good exercise of that power, he was well within his power."

• Barb McQuaid ([37:25]): "Instead of being part of the community to protect public safety, it's all about, you know, we're gonna beat up the bad guys."

• Kimberly Atkins Stohr ([36:00]): "Tyre Nichols was stopped in a traffic stop, and the situation escalated unnecessarily with excessive force, leading to his death three days later."

• Joyce Vance ([56:16]): "Neil Gorsuch did not say a single word during the entire argument... that isn't where his head is at."

• Joyce Vance ([61:03]): "She very poignantly pointed out that there is not a lot of difference between this and the miscegenation laws that were in place before Loving v. Virginia."

• Barb McQuaid ([72:15]): "If your question is really, can Trump put these tariffs on Mexico and China and Canada without a new action by Congress, the answer is yes."

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Note: This summary captures the core discussions and insights from Episode 213: "Pardon Me" of #SistersInLaw, highlighting the legal and political analyses provided by the hosts. For a comprehensive understanding, listeners are encouraged to tune into the full episode available on Apple Podcasts or other platforms.

Transcript

[Kimberly Atkins]

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[Joyce Vance]

Welcome back to Sisters in Law with Joyce Vance, Barb McQuaid and me, Kimberly Atkins. Store Jill is away this week, but we miss her and she will be back soon. You guys know the gift giving season is here and I can't think of a better gift than one of the many things you can find at the Sisters In Law Merch store. We are restocked on everything just in time for the holidays. I'm probably not jonesing for a T shirt at this moment when the temperatures are starting with the numbers two or three, but those hoodies are warm and comfy, I can attest. So go check it out right [e-mail] merchant and we do have a show to do today. We'll be talking about Biden's pardon and all the reaction to it. We will be Talking about the DOJ's investigation finding big problems with the Memphis Police Department. And we will talk about arguments at the Supreme Court in a challenge to Tennessee's ban on gender affirming care for trans youths. But before we get to all that serious stuff, like, the wildest thing is happening right now in my household, which is these little chew antlers which Snickers really loves. I bought her one a couple months ago and she loved it and she chewed it and she didn't even make a dent in it. So, you know, there's no way she ate it whole. But it just disappeared. We couldn't find it. We thought, you know, maybe it fell behind the couch or something. We looked all around, couldn't find it. And I thought, fine, I'll just get her another one because it does keep her occupied and she does get anxiety and chewing is good for her. And then the second one disappeared in days. I'm like, okay, she's totally hiding them somewhere. Like, we have torn the house. The house has been cleaned from top to bottom. You've torn this house apart looking for these antlers. And it costs like 30 bucks apiece too. That's not the point. But I'm like, I'm gonna find these antlers even if I'm gonna find them and I'm gonna donate them to a shelter because she's not getting them back. But I just thought it was like this. Snickers is probably sitting thinking, like, these dumb humans will never find. I just thought, is there something like if one of your kids or pets or something, like, hid something weird in your house? Or if there have been some other household mysteries that are particularly funny to you? Barb, let's start with Snickers.

[Barb McQuaid]

Oh, yeah.

[Kimberly Atkins]

Oh, yeah. Well, not like that. And I know Snickers knows what's going on.

[Joyce Vance]

She totally does. She seems to be looking.

[Kimberly Atkins]

Chuckling, you know, when you're, like, looking all like, sucka. We had something kind of similar when our kids were young. All four of them did this when they were young, but one in particular, you know, when kids first learn how to walk, they usually walk before they can talk. And so at, you know, eye level. For a toddler, picking something up and then moving it somewhere else and then being unable to tell you about it is kind of commonplace. And so our number two child walked really early. Like, you know, most babies walk about, like, I think, 12, 13 months. He was walking, like, eight months. I used to say he's the shortest person on the planet who is walking. He was. But he would pick up my keys, which I typically leave on top of my purse, like, in our back hall by our mudroom, or the remote control that we would typically have on, like, a little coffee table in the living room, and, you know, walk around the house with it. And we'd find it in places like the garbage can or a drawer, all kinds of crazy places. So we really had. Not only do we have to keep an eye on them, like, you know, baby gates by the stairs and all the typical things, but, like, all the little household things they would pick up and throw away. And then one last thing, the funniest thing with the room control also, he would hold it up to his ear and mouth like it was a phone, because he had seen us with these devices and did not understand the difference between the remote control and the telephone.

[Joyce Vance]

I have something to say to not be able to talk yet, but I gotta tell people. Or maybe he thought y'all were watching too much tv.

[Kimberly Atkins]

Maybe. There you go. Maybe so pay attention to me.

[Joyce Vance]

Oh, my goodness, what a value, Joyce.

[Barb McQuaid]

You know, I love that, Barb. It reminds me that when our oldest was about that same age, he would hide stuff in his diaper, which sometimes had mixed results. I mean, it was like the joys of parenthood abounded.

[Kimberly Atkins]

But I just did a spit take with my coffee. Did you see?

[Barb McQuaid]

I mean, I saw Your reaction, Robert, bless his heart. He was such a sweet baby. We don't really have people who hide stuff in our house, but my cat Harry, my main coon cat, who's now 18 years old, bless his heart. Harry used to be quite a hunter in his youth. And he would express his disapproval for Bob, who he apparently thought was not a good provider, by bringing me offerings of food. You know, he was like, mom's looking a little bit skinny. I'll go out and catch her, you know, a little squirrel or whatever and bring it to her. And one time he brought a little chipmunk inside, but it was not dead. And he proudly laid it at my feet and it began to run through the house. And you guys, I am such a great wife. As Bob began to chase it, to try to catch it so he could take it back outside instead of offering assistance, I pulled out my little iPhone, I think it was my very first iPhone, and videotaped Bob chasing the chipmunk through the house. And he's so pissed by the end of it, he turns around and he looks at me and he's like, you know, you could be helping. But I did not help. I videotaped. It's a family favorite.

[Joyce Vance]

Oh, my gosh. I'm sure you play it each year.

[Barb McQuaid]

Every year, honey. So there's a lot of turmoil in the world these days. You know, we try to empower you, our listeners, with knowledge, but sometimes the stress gets to all of us, especially when things are out of our control. That's why we are such big believers in the power of meditation with calm. Calm can help you restore your sense of balance and peace when you're surrounded by chaos. And since I've started using it, it's been a while now, finding my center has been much easier. I was never great at meditating before. Calm challenges and stresses feel more manageable instead of feeling like massive obstacles.

[Joyce Vance]

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[Kimberly Atkins]

Yeah. You know, I like these alternatives too to breathing exercises, which always convinced me that I'm going to stop breathing. But with Calm, there's lots of great stuff like sleep stories, sleep meditations and calming music that will help you drift off to restful sleep quickly and naturally. It's so relaxing. It's the perfect end to a stressful day. But when you're feeling feeling overwhelmed, we recommend you try their grounding exercises too. These short guided sessions use sensation, movement and breathwork to help you relax and reset. Calm Even has powerful expert LED talks designed to help you handle grief, improve self esteem, care for relationships and more.

[Joyce Vance]

CALM puts the tools you need right in your pocket and can help you dedicate a few minutes each day to live a happier, healthier life. Stress less, sleep more and live better with Calm. For listeners of our show, Calm is offering an exclusive offer of 40% off a Calm premium subscription. Just go to calm.com sisters go to calm.com sisters for 40% off unlimited access to Calm's entire library. Again, that's calm.com sisters and you can also find the link in our show notes.

[Kimberly Atkins]

Well, he said he wouldn't and then he did. On Sunday, President Joe Biden pardoned his son Hunter Biden, who was scheduled to be sentenced this week in one of his criminal cases. First, Joyce, let me ask you, you wrote about this pardon in your substack civil discourse this week and you had some interesting views about these charges. Let's start there. Do you think that Hunter Biden was proper charged for the gun crimes and the tax crimes with which he was charged?

[Barb McQuaid]

Yeah. So I don't. That has been my considered opinion since he was first charged. I do not think Hunter Biden would have been charged with these crimes if his name was John Smith. Right. And it's pretty easy to understand. So there are the two charges, the gun charge and the tax charge. The gun charge actually comes from a statute that federal prosecutors use all the time. It's a time that criminalizes possession of firearms by certain categories of people. And the one that we use it for is people with a prior felony conviction. It's sometimes used for people who don't have legal immigration status who are found in possession of firearms. Hunter Biden, though, was charged under the provision for people who are addicted to or who use illegal drugs and possess a firearm. Pretty easy to understand why prosecutors don't charge this very often. Something like 10% of the population acknowledges struggling with addiction. Lots of people have guns. So, you know, you'd be using all the resources of the justice department to go after people who present little if any threat to their communities. I mean, we can talk about guns, but there is a second amendment in this country. And so those sorts of charges are used, I mean, almost never. And when they are, it's for someone who is really posing a danger to the community. Hunter Biden had this gun for a matter of days before it was disposed of. Charge would not have been brought if his last name wasn't Biden. The tax charge is a little bit closer. This is a criminal charge for someone who didn't pay their taxes. But Hunter Biden in this situation did pay his back taxes, and he paid penalties and fines. And almost always in that situation, a person who goes ahead and makes that payment when they're confronted is let off with those civil and administrative penalties. They are not inconsiderable. Right. He had to really, I think, go back and pay everything he owed and then a great deal, including interest. And so it's unusual to see someone charged in this situation. Typically, the justice system says that they have made compense when they pay what they owe, they're no longer defrauding the public. I think all in. You know, the president was correct when he said this case was brought in an effort to break my son.

[Kimberly Atkins]

Yeah, I agree with you, Joyce, and let me chime in on that a little bit. You know, you mentioned in the first instance about the gun charge being used only when you perceive someone to be dangerous. In my 20 years as a prosecutor, I recall using that charge exactly one time, and it was against someone we believe was very dangerous and was planning to commit a mass shooting. But we did have evidence that he had possessed a gun while using illegal drugs. And so we had a charge that we could use to arrest him and then get him into the criminal justice system, get him mentally evaluated for competency and get him the help, treatment, intervention, whatever it was we needed to protect the public. So it was a tool. And sometimes that strategy is called the Al Capone theory of prosecution. I'm going to use whatever charge I have to protect the public. Just as Al Capone was convicted of tax charges because it was difficult to prove that he had been involved in these gangland murders and kidnappings and other kinds of things. And same with regard to the tax charges. And I know, you know, for our listeners, people might say, well, was he guilty or was he not guilty? He's guilty. He was convicted by a jury, and he entered a guilty plea to the tax case. But the point you're making, and the point I agree with, is that most times prosecutors are not going to use their scarce resources to go after such a low priority case. In my former office, we had the resources to bring about 1,000 cases a year, and for every case we took, that meant there's some other case we're not going to take. And so as a result, we had something we referred to as prosecution guidelines. And we said, ordinarily, before we're going to take a case, it has to meet this certain threshold or it has to be this kind of crime. And all of the agencies we worked with knew what our thresholds were, and so they knew we weren't going to take these kinds of cases, so they didn't investigate them in the first place. I do want to say one other thing, if you will indulge me, and that is I am hearing this argument that judges already found that this wasn't selective prosecution or vindictive prosecution. Therefore, Joyce, you're wrong when you say he was targeted for political reasons. I would say those are apples and oranges, because selective prosecution and vindictive prosecution are different from what we're talking about, which is an inappropriate exercise of discretion. Selective prosecution means I treated you differently from other people who are similarly situated. Now, can you find other cases where people were charged with this? Yes. And so he's going to fail there. Vindictive prosecution means I charged you only to retaliate against your exercise of some known legal right, like you took an appeal and your sentencing got reversed. And so now you're back in court, and this time I'm going to seek a more serious sentence against you to get back at you and retaliate for your exercising your legal right. That didn't happen here either. And so those motions were properly denied, but that doesn't mean that these charges were charged in the way anyone else would have been charged. So that's my view. What do you think about that selective versus vindictive prosecution point, Joyce?

[Barb McQuaid]

Yeah, I mean, I think it's a good one. I might be a little bit more aggressive than you on this one. I think I would have been willing had there been convictions and had there been a normal administration about to come into power so that these cases went forward, I probably would have appealed on the selective prosecution theory. I don't think that Hunter Biden's lawyers were given access and discovery that they needed to make out those potential claims. And I think that there was a lot of indicia that that was the case. But leaving that aside for a minute, I agree with the apples to Orange's point. I mean, these are legal defenses that have to be proven to a very high standard. That's not what this is about. This is about a common sense assessment that we can make from looking at the incredible laser beam focus on, you know, it was Hunter Biden. Hunter Biden. Hunter Biden for months on Capitol Hill and in the news and in this guilty plea agreement that fell apart. And, you know, it was really amazing how as soon as Joe Biden was no longer the nominee, all of a sudden it was like Hunter Biden's screen just disappeared.

[Kimberly Atkins]

Who's Hunter Biden?

[Barb McQuaid]

Yeah.

[Kimberly Atkins]

So interesting. Well, Kim, let me ask you about this particular pardon because it sweeps far more broadly than just the gun and tax cases that we've been talking about. Not since Watergate have we seen such a broad pardon. Where is Jill Winebanks when you need her?

[Joyce Vance]

Right.

[Barb McQuaid]

No kidding.

[Kimberly Atkins]

But tell us about this pardon and your view as to whether this is an overreach by Joe Biden.

[Joyce Vance]

Yeah. So this, unlike how it's been made to seem on social media, this is actually a complex, complicated, complicated case in which there are big pros and cons on each side. I think, yes, it's broader because I think the issue is, the concern is that Republicans have proven a propensity to use Hunter Biden as a whipping boy and that he wants to protect him and his family from that on an ongoing basis. Basically, this is an effort to get Republicans to leave him alone, I think. But this is really complicated stuff. Right. I mean, I struggle with this pardon because I have been spending the better part of my career, particularly as a lawyer and also as a journalist, trying to support and protect the rule of law and the idea that laws apply to everyone. And yeah, Biden, Hunter Biden pleaded guilty to one of these charges and was found guilty on another. And laws should matter. And I think just wiping them clean in this way, especially when it's somebody who. Yes, he was. I echo everything that Joyce said. She's absolutely right. This prosecution would not have been brought but for the fact that he's Hunter Biden. But he also gets this benefit because he's Hunter Biden. Right. And so that's why for me, and I get it, this is complicated. The president wants to protect his son. He wants to keep Donald Trump from prosecuting political enemies or other people that he wants to go after. But at the same time, he did Say that he wouldn't. And at that point, he was making a rule of law point then. So for him to back down after this loss, I just don't know that the President took enough time to explain clearly to the American people his reasoning for it and why he still believes in the rule of law, but that this is an exception. And I think when that happens, things get cloudy in a way that we can't afford in this moment in time for our rule of law. So I think where I sort of settled is that Hunter Biden is now taken care of. What I would love to see from the President is him using his clemency power for good in other ways, which includes people who are facing harsh punishments that don't fit their crimes, people for whom it would be a great tool in them after they've paid their price for their crimes to reestablish their lives, people who don't have high name recognition like Hunter Biden. If Joe Biden, in these final weeks of his presidency, uses that power for them, that's important. And that would be a great example of the criminal justice power of clemency. But I'm really torn. I understand why he did it, but I still worry that it makes it harder for me and us to sit here and talk about how important the rule of law is.

[Kimberly Atkins]

Yeah.

[Barb McQuaid]

So can I just say that I agree with what you said. I just want to put one little asterisk at the top for people who may not be as familiar with the pardon power as we are, which is just this minor gloss. What Joe Biden did was within the law. The Constitution expressly gives him the ability to pardon people. I think it's important to put. Whether or not we think it was a good exercise of that power, he was well within his power.

[Joyce Vance]

The point I was making, the points.

[Barb McQuaid]

You make are really smart. Yeah.

[Joyce Vance]

The law, as opposed as it applies to Joe Biden's ability to do this. Of course he has. Presidents have broad pardon power. I meant the fact that Hunter Biden, even if this was a selective prosecution, he committed these crimes. Yes. Most people don't get treated this way when they do commit these crimes. But there was a crime that got committed, usually for clemency. People have to express contrition and say that they. Biden didn't really do this. Throughout the prosecution, he sort of contested he didn't. And it doesn't necessarily meet those. They have to do their time. They have to express contrition and say those things didn't happen here. And that's Why I said, I wish Joe Biden had done a better job explaining it.

[Barb McQuaid]

Yeah, absolutely.

[Joyce Vance]

Because those principles are important. And that's what makes me wary, because I think a lot of people are taking this pardon to say, well, heck, yeah, if Trump doesn't follow the rules, we shouldn't either. And I don't believe that.

[Kimberly Atkins]

Yeah, I think both legally and as a matter of, I don't know, judgment, it was the right call, and I think not. And the sweeping nature of it, because we've got a president coming in who has pledged to go after his political enemies. And how better to get back at Joe Biden than to go after Hunter Biden? And the reason for the breadth, I think goes back from 2014 to 2024 is, you know, all of that investigation before Congress and by the special counsel about Hunter Biden's conduct with the Burisma Board in Ukraine and Ukraine and China. Now, they found nothing. They found no evidence despite very vigorous investigations. And so I don't think there's any there there. But, you know, a prosecutor could make Hunter Biden's life miserable just by investigating him. So I think that's why Joe Biden thought it important to do this. But the one thing I really don't like, and here's where I think I agree with you, is for months he said he wouldn't do it. No, no, no, no, no. And then he does it. And I think that's a bad look politically. I mean, what do you guys think about that? Like, just, you know, I know you can't undo what you've said in the past, but if there was ever any possibility you were going to do this, maybe circumstances have changed and that's why he thought it was necessary. Maybe he changed his mind. But I think the flip flop is what feels really bad to me.

[Joyce Vance]

I totally agree, which is why I wish he explained it more. I think explanation would have gone so much farther, something beyond that simple statement that he made just to explain that reasoning. Cause. Yeah, I agree with you totally.

[Barb McQuaid]

I agree, too. Ellie Honig, our friend, legal commentator over at cnn, I thought pegged this right. He said Joe Biden could have said from the get go. Look, I'm looking at the issue. I'm examining it. I'm following it closely. I'm a big believer in the criminal justice system. And then we wouldn' be here. I mean, I will. Let me just defend President Biden, something I don't always do. So I'll do it here. I think things changed and the things that changed were Donald Trump's suggestion that he would nominate illegitimate candidates to lead the Justice Department and the FBI, people who have publicly said that they believe in the revenge prosecutions that Trump campaigned on, that, I think, is sort of a. A game changer.

[Kimberly Atkins]

You know, maybe it went something like this. We know this decision was made when the family got together over the weekend for Thanksgiving in Nantucket. Maybe Hunter Biden walked in, stumbled and bumped into Joe Biden, and said to him, pardon me. And the president misunderstood what he meant. Okay, all right.

[Barb McQuaid]

Bad. Very bad.

[Kimberly Atkins]

So Kim raised the interesting point. Maybe the way Biden should be thinking about using his clemency power is to use it for mercy for other defendants, maybe without famous names, but who may be deserving of some mercy in the criminal justice system. Joyce, you may remember that when we were in government, President Obama had a clemency program focusing on nonviolent defendants in drug cases who were serving lengthy, mandatory minimum sentences and who would have been sentenced to something shorter under current law. Other advocates have argued that President Biden ought to go further and commute the death sentences of other defendants who are on federal death row. What do you think about that?

[Barb McQuaid]

Yeah, I'm a big proponent of that. You know, I started working in this area actually before we were appointed as U.S. attorneys, when the laws regarding sentencing crack cocaine changed. And I was the appellate chief in my office during the Bush administration. And for months, I mean, probably for eight or nine months, I had made a decision that we would consider each of those cases as they came up for requests for clemency or pardon, for commutation or pardon in the appellate division. And we sat down around a table and considered each of those candidates, often speaking with the judge, with people who were impacted before writing recommendations. And I'll tell you, the lesson that I learned from that process was that people who were given a second chance did really well. You know, one of the arguments that was used against giving these people commuted sentences and quote, unquote, early release that was in line with the new sentencing rules was, oh, they'll just go out and they'll rob a convenience store and, you know, hurt people to buy drugs. Well, guess what? They didn't. The statistics suggested that they were really very appreciative of the second chance that they'd been given and moved forward. So during the Obama administration, as you say, we worked hard on pardons. It was a day one objective for the president. There's an office of the pardon attorney that sits in the Justice Department. Petitions for a pardon are made to that office and they review them. And so I've taken up for President Biden earlier. Now I will criticize, I think that his administration did not get engaged in this work early. There's a huge backlog. For instance, there are 3,000 people in federal prison who are there because they committed nonviolent possessory marijuana offenses. Those people, every one of them needs a good look for a pardon. You know, some of them may have other criminal history. They may have violent criminal history. They may have behaved in prison in ways that's disqualifying, but those people deserve serious consideration and others. And I don't think this administration has done the work they could have done. You know, There are still 30 plus days on the clock, and you can do a lot of work in that period of time. So I would tell the folks in the pardon attorney's office, you know, cancel your Christmas vacation and let's get on with doing just.

[Kimberly Atkins]

Yeah, unless anybody thinks like this is just opening up the prison doors and letting out dangerous people. In the Obama administration, to qualify, people had to have served already 10 years in prison to qualify for the program, but they might have been sentenced to mandatory 40 years or mandatory life for a drug delivery case. And so those are some pretty harsh sentences that, I don't know, correlated to their objectives in protecting the public or deterring crime.

[Barb McQuaid]

I mean, we should say that this is not about saying that people were wrongly convicted. Right.

[Joyce Vance]

People were fairly convicted, that they accepted responsibility for it.

[Barb McQuaid]

You know, so you actually don't have to, although often people would in their petitions. I actually, I won't, like, bring up old, sad history. There was a public corruption case in my district where the defendant got a pardon without what I thought was appropriate acceptance of responsibility. But we can quibble. The president has that power.

[Joyce Vance]

It's about doing justice. Normally, the process through which clemency applications are processed, and these are the factors that are considered by the. By the president and the folks who work on clemency and justice on the way there. So I should say that, yes, it's not a requirement, but it is something that is usually considered.

[Barb McQuaid]

And, you know, so, Kim, it's fascinating. Every administration writes its own criteria. I mean, you would think that they would be static across administrations. Primarily they are, but we don't know what it'll look like with the Trump administration coming in. And something that fascinates me is criminal justice reform is really one of the few areas where there's still bipartisan consensus. Maybe we'll see Donald Trump aggressively use the pardon power. I'M not going to be a fan when he pardons all of the January 6th rioters, but, you know, if he were to use it for some of these non violent offenses where people have been significantly over sentenced, maybe that would be the small silver lining to what's about to descend on.

[Kimberly Atkins]

All right, well, I have one last question I want to ask you about President Biden's use of the pardon power. Recently there was a column in the New York Times by Michelle Goldberg and the headline was, Trump's FBI Pick has an Enemies List. Biden Should Pardon Everyone on it. And so there are other commentators who are saying that President Biden should grant sweeping blanket pardons for some of Trump's critics, like Liz Cheney and Jack Smith, in light of, of Trump's vow to go after his political rivals and what Michelle Goldberg is referring to as Cash Patel, who's been nominated to be the FBI director, wrote a book called Government Gangsters that has a list of what he calls members of the deep state. And it has people like Jim Comey and Alexander Vindman. What are your thoughts about that, each of you? Do you think that Joe Biden should do that to protect them, or does that in some way suggest that they've done something wrong? What do you think?

[Barb McQuaid]

I mean, this is fraught, right? It's really fraught.

[Joyce Vance]

It's just so hard because it's like these are things that go against your gut, right? These, these, they go against your gut, but you understand where they're coming from. And it just makes me wonder, how the heck did we get here? I mean, we know how we got here, but. Yeah. Is there more hard questions? I don't have a cl. I don't think that. I think this, like Bart, like Hunter Biden pardon is an issue where you can put a lot of things in the pro and con lines. And this is heavy stuff. And I'm glad it's not my job to decide this.

[Barb McQuaid]

You know, I'm in the middle of writing a column about this. I'm sort of working out my views in the process of writing. But I'll tell you something, one place where I land very firmly is this. We are having this conversation because Donald Trump has made it clear that he intends to pervert the criminal justice system and use it as a tool against his political enemies. And I think we should not get drawn so far into talking about the pardon that we forget that, you know, the pardon questions are difficult because there's some suggestion that accepting a pardon constitutes an admission of guilt. There are some people who will be unwilling to take pardons. Other people will be deeply and legitimately concerned about their safety and about their families and will seek pardons. I think it's very individualized. But we should always remember that we are here because of Donald Trump, not because these people did anything wrong.

[Joyce Vance]

Amen.

[Kimberly Atkins]

Yeah. I think the fear, of course, is that this just kind of creates this precedent that on your way out of office, you just get this blanket pardon to everybody. But didn't Trump already kind of do that in the last administration when he pardoned Paul Manafort and Mike Flynn and Steve Bannon and all of those people? So Donald Trump has been a real disruptor in terms of justice norms. And I think when you're trying to navigate that kind of reality, it sometimes causes, you know, it may call for different types of decisions than we've had before. Well, we've all been victims of ID theft at one time or another, I venture to say. I know sometimes when I had jury trials with ID fraud, ID theft, one of the questions the judge would ask the jurors is, how many people have been victimized by this? And it was almost every hand that would go up every time, because it really does hit all of us. We're glad that this podcast is brought to you by Aura, because it's crazy out there. Hackers may have executed one of the largest data breaches in history, potentially compromising every single Social Security number. Another 2.9 billion plus records were stolen in an attack on National Public Data, a company that provides personal information to employers, private investigators, staffing agencies, and others conducting background checks. The stolen data includes full names, addresses, dates of birth, Social Security numbers, phone numbers, and even alternate names and birth dates. Even more alarmingly, reports suggest that the hacker group responsible put this information online for free.

[Barb McQuaid]

Well, that is sort of distressing, especially as we enter the holidays with all of the holiday shopping. Look, if safeguarding personal information wasn't a priority before, these incidents serve as a critical wake up call. And the risks to personal security have just never been more severe. That's why we're thrilled to be able to partner with Aura. Aura offers comprehensive protection by monitoring the dark web for users, phone numbers, emails, and Social Security numbers. And then it delivers real time alerts if suspicious activity is detected. Additionally, in the event of a worst case scenario, Aura provides up to $5 million in identity theft insurance to give you and your family a robust safety net.

[Joyce Vance]

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[Kimberly Atkins]

Yeah, well, you may remember this was in the summer of 2023. Tyre Nichols was stopped in a traffic stop and there was video of all of this, there was dashcam video and he was driving incredibly recklessly. So the stop is not problematic. But what happened according to the report is when they first stopped him, they escalated the situation by using a taser on him when it seemed unnecessary. They saw that as excessive force. And then he ran from them. And when he ran, they chased him down. And not only did they use sufficient force to capture him, apprehend him, which they're allowed to do, they used excessive force to punish him. They kicked him, they punched him. And then when he was, you know, asking for his mother and needed help, we saw officers on camera just sort of milling around without rendering help to him. And he died three days later. And so this led to this investigation and this finding that the Memphis Police Department uses excessive force and discriminates against black people. And in particular, as you asked about this Scorpion unit, you know, when I read about this unit, I thought, how could people not know what a bad idea this is?

[Barb McQuaid]

Yeah.

[Kimberly Atkins]

What could possibly go wrong? You know, so often you would see these. Maybe you both have seen these things, these law enforcement task forces with some very aggressive sounding name. You know, we're going to call ourselves Dragon, and it's some acronym for something. It really creates this image of, like, machismo. And in this Scorpion unit, some of the things they said is this unit was used what they called a saturation strategy, where they're just sort of driving all around the city. Their goal was to target drugs and guns and violent offenders, but their biggest goal in the measurement of success was their arrest numbers. So the statistics were, how many people did you arrest? Not necessarily. How much did you reduce crime? And so they had an incentive to arrest as many people as they could, and they used force against unarmed people, excessive force. Rather than trying to de. Escalate violence, they would often escalate violence. And so this unit was disbanded after Tyre Nichols death. It reminds me of Kim, you know, your Detroit history. Remember, like, during the 1967 rebellion riots that we had in Detroit, there was a unit called Stress and Stress, same thing. It's like some acronym. We're gonna stress the criminals. And it was this idea of, like a show of force, occupying army. You know, I think the idea is some sort of deterrence, but instead it becomes this like, us versus them mentality. Instead of being part of the community to protect public safety, it's all about, you know, we're gonna beat up the bad guys, and it's just such a bad incentive. So that's what prompted this investigation, and that was the finding with regard to Tyree Nichols.

[Barb McQuaid]

Yeah. Just call yourself criminal cops next time instead of Scorpions, right?

[Kimberly Atkins]

Police service. You know, the police protect and serve, honestly.

[Joyce Vance]

Oh, my gosh. So, Joyce, we've talked about a lot of federal investigations into police department practices and consent decrees, but help us better understand the role of the DOJ's Civil Rights Division here, currently under the leadership of Assistant Attorney General Kristen Clark. What are you worried about in terms of what may happen when a new administration comes in?

[Barb McQuaid]

How long do you have? So, look, I'm pretty worried about this. I'm a fan of the consent decree process, and I'll tell you why. But I'm old enough to remember that under Jeff Sessions, the Justice Department severely restricted enforcement of consent decrees. And if the new administration takes that same view, it means departments with substantial patterns and practices of discrimination will go unchecked. You know, one of the big, largely unspoken reasons that the Civil Rights Division uses consent decrees is it's sort of like a reminder to everybody, hey, we're here. And we may not have the resources to do this in every police department across the country, but you'd best watch yourself and check yourself, because if not, DOJ does have a profile here, and we will come after you. And look. Go ahead, Kim.

[Joyce Vance]

Well, I was gonna say, and it's important to say that a lot of these cities, it's called a consent decree. Like, they will realize, like, oh, man, there's a problem here. And they often welcome this review and the recommendations as to how to make their police departments better. This isn't a punishment. It's a reform essence.

[Barb McQuaid]

I mean, it isn't. It isn't. But. But, I mean, I think that's a good point. And it's interesting when you know that, for instance, some of the cities that have had consent decrees, you know, it's not all Ferguson, Missouri, it's Seattle, right? Which is not a place that we think of as a bastion of hate. But their department had a consent decree. And so what happens is in cases where the department can prove a pattern or practice of illegal conduct by a local or state agency, DOJ encourages, encourages the operative verb here, the jurisdiction to enter into a formal agreement known as a civ consent decree. We just call them consent decrees. And it's actually entered as a court order and overseen by a judge. And it means that the jurisdiction has agreed to improve its practices. DOJ often will offer technical support or other financial resources to help the department improve. And so this insurance of independent judicial review and the approval for the decree means that the department really has to uphold its obligation to fix the problems if necessary. The consent decrees allow for or prompt remedial measures if the department breaches. And so the amazing thing about this, right, is because this is a civil standard, you know, it is difficult to prove a criminal case, even in a blatant, you know, what I would call a blatant homicide like the death of Mr. Nichols? Civil standard. When you sue a department for these pattern in practice issues, and that means that by and large, state and local law enforcement, when they're encountered with this situation, they will go ahead and enter the consent decree because otherwise they're going to lose in court. It's going to be expensive. It's going to be embarrassing. Oh, look, DOJ is extending the hand. They get to look like the good guy and play a role in fixing their own programs. So I think, unfortunately, depending on the pleasure of the next attorney general, this could all be gone. And by the way, it's not just police excessive forces cases. The civil Rights Division under Kristen Clark has launched a really impressive portfolio of prison cases. Pattern and practice of discrimination in prison. Those cases too are jeopardized by this.

[Joyce Vance]

And I want to say, like when I said people, it's usually not the police departments and certainly not the police unions. And when I say that we often see people after a consent decree in a city welcoming the effort. It's usually mayors, city councilors, people who have heard from those in their constituencies, elected officials who know that it is maybe not the best look to fight the DOJ when it comes to trying to fix discrimination in their police forces. I just want to be clear that what I was talking about.

[Barb McQuaid]

Yeah, I mean like you haven't lived until you've seen a police chief try to pretend he's happy about the consent decree, right?

[Joyce Vance]

Oh, 100%. No, no, no, no, it's not that. But there have been in situations. I would also do one minor correct to you as somebody who is from Missouri by marriage. Now, Ferguson is in Missouri, not Missouri. Those are.

[Barb McQuaid]

My mama was born in Missouri and she said Missouri. But I have recently been told authoritatively that that is very old school. My mom's generation. No, it's still true. Now it's Missouri, not Missouri.

[Joyce Vance]

No, it's still Missouri still exists. It's just in the western part of the state, Ferguson. Oh, that's great. Just outside St. Louis. That is Missouri. Kansas City and other places like Sedalia, where my father in law is from. That's Missouri.

[Barb McQuaid]

This is an awesome geography lesson. I love this.

[Joyce Vance]

Anyway, back to no extra charge to.

[Kimberly Atkins]

Our viewers for that.

[Joyce Vance]

Well, I just want. One other quick point I wanna make about the Memphis case is that I know some people will see this and say, well, you know, the Memphis Police Department is, I think 50% more than 50% black. The officers and the police chief there is black. How is this racial discrimination? Y' it's in the system. If there is a system which many, if not most police departments are based upon, that has institutional racism in it. Even if the individual officers are the ones through which it is carried out, it's still racism. If police departments treat black people, black men, different, proportionally than they do everyone else, it doesn't matter. It's because there is this longstanding idea that black people, particularly black men, create a bigger threat, are more dangerous than other people. And remember, the use of force standard is subjective. It is based on an individual police officer. So if police officers treat black people as more dangerous and are more likely to pull out a Taser, a Firearm, a baton, whatever. For them, it's still systemic, even if the entire police force is black. Like, that doesn't make the difference here. And that's worth pointing out in this case. So I wanna ask you guys one last question. Question one interesting thing I found in this report is that it said that prosecutors and judges told the DOJ the police officers don't seem to understand the constitutional limits on their authority. Holy mothballs. Like, that is crazy. That was really shocking to me. What do you think the solution to that is? How can a police officer with the ability to use deadly force not know where the Constitution limits that officer's authority?

[Kimberly Atkins]

So I'll start this one. You know, when I was U.S. attorney in the Eastern District of Michigan, we had a consent decree with the Detroit Police Department, and excessive force was one of the issues they had there. And when they really turned the corner, certainly training is a big part of this. The reason this is illegal is because it violates the Fourth Amendment right against illegal searches and seizures. When you are taking someone's liberty, when you are beating them, you are seizing them, you are seizing their body. So training is certainly part of it, so that people understand how much force you can use. And typically, you're allowed to use one level of force more than the suspect is using. But if a suspect is just engaging in verbal abuse, that's different from somebody who is posing a threat to yourself or to the public. But I think the biggest thing that I saw, what really made a difference was leadership. When there was a police chief who cared about, they were able to get it done. There is a county sheriff I've worked with named Jerry Clayton, sheriff of Washtenaw county, where Ann Arbor is. And he had a great phrase. He said, culture eats policy for breakfast. And so you could have policies and you could have training, but it was really all about culture and having a good leader who expressed that culture, walked the walk and made sure people understood, we're not out there to bust heads. We are out there to keep the peace. And so de escalation is the way we should approach our jobs, not immediate escalation with the use of force.

[Barb McQuaid]

So, you know, they must teach police chiefs at training to say that culture eats breakfast for lunch every day. Because my chief, who I adored, A.C. roper, used to say that too. And I have the same response, Kim. I mean, I think this training is required, right, Barb? I forget what it is. Is it four months for a person to become an agent at Quantico, to become an FBI agent? I mean, Training is short in many police departments. Officers are underpaid and need only have a high school education in order to get the job. So training does matter, right? Explaining constitutional principles is important, but it's culture and it has to be top down. If the people at the top of the organization are just doing it in a routine check, check the box way, then you've got problems. It has to be a day in and day out commitment to a culture of service and an understanding that police officers job is to protect the civil rights even of people when they're in an uncomfortable situation. That's something that has really been permitted to evaporate in law enforcement. And I'm not being critical here because I get that police officers have difficult and dangerous jobs, but they have to do that job in, in a way that serves the constitution and people. And perhaps a big part of that is valuing their service and making sure that they have decent jobs with a decent paycheck.

[Joyce Vance]

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[Barb McQuaid]

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[Kimberly Atkins]

No, we don't.

[Barb McQuaid]

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[Kimberly Atkins]

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[Barb McQuaid]

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[Kimberly Atkins]

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[Barb McQuaid]

So y'all, we are back to Supreme Court season and on Wednesday, the Supreme Court heard oral argument in Skirmetti, a case about access to medical treatment for transgender people. The issue involves a Tennessee law that limited treatment options for transgender youth even when they had parental consent. So Kim, let's make sure we understand the precise contours of this case because I think in many ways it's been presented as something that it is not. The lawsuit doesn't challenge the entire law, correct?

[Joyce Vance]

That is correct. So the ban in Tennessee bans both medical care for minors, only for gender affirming. So things like hormone treatments, things like puberty blockers, medical care that would help youth, adolescents primarily who are trans, and it also bans surgery. So gender reassignment surgery for minors is also banned. This challenge is only to the medical treatments. And there is a difference that a very important legal difference, a legal reason why the challengers took this path.

[Barb McQuaid]

What was the precise issue that the Supreme Court took up and who were the parties in the case?

[Joyce Vance]

Yeah, so the parties are. The challenge was originally bought by people in Tennessee, trans individuals, their parents, their families, who sued to challenge this law, alleging that it is a violation of the Constitution's equal protection clause because it discriminates on the basis of sex. Essentially, their argument is, in this case, this law as it applies. And this explains why they're only challenging the medical and not the surgical. It takes people and discriminates against them on the basis of sex. Which means a young person, for example, who is being treated for cancer and wants to use puberty blockers so that they can preserve. Serve their fertility after the cancer treatment, would still be allowed to do so if they were not transgender. But if they're transgender, they cannot. And the challengers are saying, look, similar to how the Supreme Court ruled in a statutory case which held that transgender people cannot be discriminated against. Federal laws, under federal laws that prohibit against people for discrimination on the basis of sex, discrimination on basis of someone's sexual orientation falls under that. So these challengers were saying, well, let's keep that same energy when it comes to a constitutional claim like the one that they are saying, so that they would not treat someone differently because they are not trans than when they are trans. Now, obviously, when it comes to the surgery, that argument doesn't hold. Right. Because only trans people would be getting this. There's nothing to compare them to. But when it comes to medical treatments, it's clear that other people can have access to hormones, puberty blockers, all the things that are being used here, but they're only denying it to trans people, and that that violates the Constitution. It seems like a sound argument to.

[Barb McQuaid]

Me, but, I mean, it really does. And I think your explanation of it is really perfect because it helps us see how nuanced the lawsuit was. Right. They sort of, whether they agree or not, they sort of spot the argument about surgery, and they say, but look, if a cisgender kid could get puberty blocks, then we can't deny those to trans kids and uphold equal protection principles. It seems straight up. And, you know, so this is the Tennessee law, Barb. It's not limited to just Tennessee. Right. I mean, the Supreme Court's decision, when it comes down, it's going to impact a number of other states, too.

[Kimberly Atkins]

Yeah. I think there are something like 26 states that have laws prohibiting transgender medical care. And so if the Supreme Court is to say, hands off, there is no constitutional right to this. Each state gets to decide its policy and its laws on these things, then that means all of those 26 states will be able to enjoy that same protection. And I think we could even see other states who didn't know what the status was or who are watching decide that they too, want to have these kinds of laws. So I think it's going to apply to Tennessee, to the 26 states involved, and maybe, you know, we start to see some others decide to be more aggressive in this area once the lay of the land becomes a little bit clearer.

[Barb McQuaid]

Yeah. So, Kim, let's talk about the lay of the land. I mean, we both listened to the argument, and we've both suggested that it made a lot of sense, the government's argument, but based on the argument itself and what you heard from all of the justices, not naming any names, but samples, how do you expect this case is going to come out?

[Joyce Vance]

Yeah, I expect that this law will be upheld. I think It'll either be 6 to 3 or maybe 5, 1 3, with Amy Coney Barrett doing some sort of concurrence dissent type of thing that she tends to do. But I think the law will be upheld. It's really interesting because that statutory case and just a little bit of law school for listeners, when you have a challenge to a statute, which means a law that was passed by Congress or a state legislature, that gets a different analysis than a challenge based on a constitutional right. So there was a case called Bostock, which we've talked about, in which the Supreme Court, in an opinion written by Justice Neil Gorsuch, said that Title vii, the federal law, a statute that prohibits discrimination in the workplace place based on gender, also applies to LGBTQ folks if you're discriminating against them because they're lgbtq. Because essentially, if somebody who, let's say you have a person who is treated differently than another person and the only difference is their gender identity, that is gender right. And I think that that was the right decision. So this is basically testing that in the same way under an equal protection challenge, but the same idea in a constitutional challenge here. Neil Gorsuch did not say a single word during the entire argument, including when Sam Alito, during arguments, basically swatted away that precedent like it was just a little annoyance, like it was some sort of fly. And Gorsuch, I think if there was an argument to be made saying, well, no, let's consider a little bit more how this statute might, how this decision based on a statute might apply in this case, at least the rationale that would have been the time to do it. His silence to me, spoke volumes that that isn't where his head is at. Also, I mean, one of the things that happened during this argument, and you guys, it's on the Supreme Court's website if you want to listen to it yourselves. But really, the most important thing that, say, Justice Brett Kavanaugh seemed to want to clarify is just like, no matter how this case comes out, we'll still the band's trans kids from playing sports in school. Right? Like, yeah, yeah.

[Barb McQuaid]

That was the painful part of the whole argument. Right. Was when he asked that, and I'm like, that is not the issue in this case.

[Kimberly Atkins]

No, but you know what he's all about. He. He always wants to remind you, you know, I coach my daughters in basketball. I like. I love women. I'm not a sexist. I don't abuse women.

[Joyce Vance]

But I don't want. I don't want trans. I will be happy to throw trans kids under the bus when it comes to playing sports in schools. So I don't expect him to be the most sympathetic to the arguments being made in this case. So, yeah, I don't think the outcome will be what I would like.

[Barb McQuaid]

I mean, this should be a clear equal protection decision because of the strategic choice that the plaintiffs made to take surgery off the table here. It's just I can't wait to watch them contort themselves to screw these kids over. I mean, I can. I hope that they won't, but, boy, it's gonna be bizarre to watch this one evolve.

[Joyce Vance]

And I can't wait for Justice Jackson's dissent, because she very poignantly pointed out that there is not a lot of difference between this and the miscegenation laws that were in place before Loving v. Virginia. That's laws that outlawed marriage between people of different races. Because this law is not about, as Tennessee claims, protecting children and making sure that they are not harmed from the unknown consequences of these treatments. No, it's to protect the people who are not trans kids so that they feel better about themselves. The same way that these miscegenation laws were meant not to protect people like me, who, gosh, I could face such terrible things in the world by being married to somebody who was outside of my race. It was to the other people who didn't want to see people like me and my husband. It was meant to protect them. And this is the exact same thing. And I cannot wait for her. She's gonna Spitfire.

[Barb McQuaid]

So I have to ask you a question on that basis. If you could only have one Shiro in the room. Would it be Justice Jackson, or would it be Solicitor General Elizabeth Pelogr? You only get one.

[Joyce Vance]

Oh, yes, ro. Sonia Sotomayor, who was also dropping fire in there. That's hard.

[Kimberly Atkins]

Well, I'll start and take Justice Jackson, because I heard her say, in a slightly understated way, I'm a little concerned and nervous here when I hear you other justices saying, gee, maybe we shouldn't wade into matters involving medical care that's beyond our ability to comprehend. Are you kidding me? Like, you're willing to wade in on other things, like abortion? No problem. Like, what was that for, Bristow?

[Barb McQuaid]

No problem. But we are so lucky to have all of them as our sheriffs.

[Kimberly Atkins]

I agree.

[Barb McQuaid]

I gotta say, we shouldn't choose between. There are bad things in this era, but there are also some rays of light out there. So, Barb, when do you think we're gonna get a decision? And what's the state of play for young transgender people who are impacted by this law until that decision is handed down?

[Kimberly Atkins]

Yeah. Unclear. You know, they're sort of like the cable television installers of the justice system. We'll get you an opinion anytime between tomorrow and July 1st. So you need to just wait around at home. Cause we'll be delivering it sometime in that range, so no telling. You know, it's usually the real close ones, the five fours that come out late. Late like that late June, July. And as Kim said, I'm not sure we're going to see this one be that close. I think there will be some dissenters. I think we'll see at least three dissenters here. So I think, as I said, really, it could be anywhere between in a few weeks to many months down the road. But as you point out, the really tragic thing, I think, is the kids who are left in limbo during this time. We don't know how they're going to decide. Meanwhile, if you're a fan family living in Tennessee or any one of these other 26 states where this care is banned, what are you thinking about? Right? I mean, what do you do? How do you care for your child in a way that makes most sense within your family and within your doctor's care? Because now you don't get to make those decisions anymore. The state gets to tell you what you can and can't do. And so I think if you're in one of those states, you need to prepare yourself that this could be a band that sticks. And if you're in a state where they don't already have such a law, but might be inclined to pass one, you too might be in danger. So, you know, these are hard decisions like, should we move? Should we move our family? Should we go out of state to get this care? These are really just awful choices to force families to make.

[Joyce Vance]

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[Barb McQuaid]

You know, the sunscreen really is great. Now I do not turn purple or metallic, but I sometimes turn like, you know, I mean, I'm a Jewish girl with Mediterranean skin. I sometimes turn a little bit pasty white with sunscreen and I really like this one. Whether you're on the hunt for the perfect gift or treating yourself, now is the time to try One Skin. With every new purchase of $125 or more this month, you will receive a free travel size product and it changes each week. So I think I'm going to order every week from now until the holidays. There's always a surprise gift waiting for you For a limited time. Save 15% with code SISTERS when you check out at Once Skin Co this holiday season. Invest in your skin's long term health because healthy aging is really a gift. You know, I never get tired of the compliments I've gotten since I started using One Skin. True story. Walked into the dermatologist for a skin check earlier this week and the tech said, your skin looks so good. What are you doing? And she wondered if I had gotten a peel. And I was like, no, it's. It's One Skin. It a confidence booster and I think I know why. I keep getting the compliments whether I'm out in the wind or warming up next to the heater. I use OneSkin's OS01 face topical supplement to fight back against dryness. And that means my skin is ready for anything the elements throw at me. I really especially love that One Skin's regimen has worked so fast and the formulas feel so good when you apply them. They're refreshing. And I am certain that you will be a big fan too if you try it.

[Kimberly Atkins]

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[Joyce Vance]

Okay, well, we now have reached the point in our show which we love the most, which is answering questions from our audience. If you have a question, don't forget to drop it to [e-mail] or tag us in the various socials. I am no longer talking to my but I'm on Bluesky and Threads. I know you can find the rest of us in various socials too, and we will get through as many as we can. So up first this week, we have a question from Curious. I like the name. Curious asks, can Biden pardon the undocumented to protect them from deportation? Ooh, that's a good question. Barb, what do you think?

[Kimberly Atkins]

Yeah, this is a great question and I think the answer is no, because the pardon power is about pardoning somebody for a crime against the United States. So that would be a federal offense. When it comes to deportation, those are typically handled as administrative matters. You are here without documentation which renders you deportable. Sometimes people are also charged with a crime for that. You know, my former office never charged a crime simply for being here, unless you had already been deported and had entered the country after an order of deportation and you had committed a violent felony or a crime of what's called moral turpitude. But it is not possible to pardon people from deportation. There are some things the president can do with his executive authority to defer deportations, as we've seen before with DACA and some other things, but that's not the kind of relief for which the pardon power is designed.

[Joyce Vance]

All right, and our next question is from Becky, who asks, does the president have any ability to overturn or pardon a civil action from the federal court? Specifically, is Giuliani dragging his feet in hopes of a Trump rescue? That's an interesting question, too. Joyce, what do you think?

[Barb McQuaid]

Yeah, I mean, it really is a great question because these are the things that as lawyers, we take for granted and don't always take the time to stop and explain, you know, properly. So, Ben, thank you for the question. The Constitution gives the president the right to grant pardons in criminal cases. It does not apply to civil cases. So, you know, presidents have this very broad pardon power that we talk about. It even includes cases that are brought in superior court in the District of Columbia or military courts. It doesn't expand to impeachment. It does not include state cases. It's only for federal criminal cases, and it is not for civil cases any place. So Giuliani, if he is waiting for a civil pardon from Trump, has sort of lost his path. Maybe he has already done that anyhow, but he won't be finding any support from that quarter in regard to Seamos and Ruby Freeman's very well deserved judgment against him.

[Joyce Vance]

And our final question comes from Steve, who asks, I learned in high school civics class that the Constitution says all revenue bills have to originate in the House. Does that include tariffs? Well, first of all, Steve, I love your civic education nerdiness. That warms my little nerdy heart. And the answer is it does include tariffs. But if the question is directed to ask whether Donald Trump has the power to levy the kind of terror tariffs he has promised to, the answer is yes, there have. You are right that such revenue bills have to originate by Congress, specifically in the House, and then it's passed to the Senate instead of the other way around before it's signed by the president. But in this case, there are several laws that are already in place that have delegated a lot of authority when it comes to tariffs to the executive branch through the Treasury Department. We know this because many presidents have done it before. Donald Trump is not the first president to have levied high tariffs. He did that in his first term. Keep in mind that those tariffs were kept in many of them. Not all of them were kept in place by Joe Biden when he came into office. Clinton levied tariffs. Bush. They all did under federal law that gives authority to the executive branch to do it. So if your question is really, can Trump put these tariffs on Mexico and China and Canada without a new action by Congress, the answer is yes. Thank you for listening to Sistersinlaw with Joyce Vance, Barbara McQuaid and me, Kimberly Atkins Storr. Jill will be back soon. Follow SistersInLaw on Apple Podcasts or wherever you listen. And don't forget to give us a five star review. You may not think it helps, but it really does. It jiggers the algorithm to make sure that others find our show too. And definitely show some love to this week's sponsors. Factor Calm, Aura, Honey Love and One Skin. Their links are all in the show notes and they are the reason we are able to bring you this podcast every week. So we really want you to support them. We will see you next week with yet another episode of SistersinLaw. He doesn't like surprises or his birthday so this will be awesome.

[Kimberly Atkins]

So by all means.

[Barb McQuaid]

Really sounds like my husband. Really sounds like I don't like surprises either.

[Kimberly Atkins]

Don't ever surprise surprise me. I don't like surprises. Some years I like to plan to.

[Barb McQuaid]

Process some year when we have time. I'll tell you about Bob's surprise 40th birthday party roast which included an appearance by the police officer who arrested him for drinking in public when he was 18 years old. Oh that's awful. Oh it was awesome. He shook everybody's hand on the way in the door. We blew up the arrest report. It was outstanding.

[Joyce Vance]

Joyce Awful.

[Barb McQuaid]

He was a week away from retiring when I tracked him down down and found him.

[Kimberly Atkins]

Remind me not to marry Joyce.

[Barb McQuaid]

Oh it was so great not doing it.

[Kimberly Atkins]

It was so great not doing it.

[Barb McQuaid]

My mother in law enjoyed it more than anybody else who was there.

[Kimberly Atkins]

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[Kimberly Atkins]

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[Joyce Vance]

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[Kimberly Atkins]

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[D]

Conditions 18 all right, we're all set for the party. I've trimmed the tree, hung the mistletoe, and paired all those weird shaped knives and forks with the appropriate cheeses. And I plugged in the Bartesian.

[Joyce Vance]

Bartesian.

[D]

It's a home cocktail maker that makes over 60 premium cocktails, plus a whole lot of seasonal favorites too. I just got it for 50 off. So how about a Cosmopolitan or a Mistletoe margarita?

[Joyce Vance]

I'm thirsty.

[Barb McQuaid]

Watch.

[D]

I just pop in a capsule, choose my strength and wow, it's beginning to.

[Joyce Vance]

Feel more seasonal in here already.

[D]

If your holiday party doesn't have a bartender, then you become the bartender. Unless you've got a Bartesian. Because Bartesian crafts every cocktail perfectly and in as little as 30 seconds. And I just got it for $50 off.

[Joyce Vance]

Tis the season to be jollier.

[Kimberly Atkins]

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