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- [00:00]
Kimberly Atkins
Foreign. Welcome back to Sisters in Law with Joyce Vance, Barb McQuaid, and me, Kimberly Atkins. Store. Our sister Jill will be back next week and we miss her already. You know, we keep selling out of our resisting T shirts, so we have restocked. You can go to politicon.com merch to get your resistance T shirt. I'm wearing mine right now. I love it.
- [00:37]
Barb McQuaid
I get comments on it, can't attest.
- [00:40]
Kimberly Atkins
And so you can get yours, too. Now, we have a lot of show to get to, so let's get to it. This week, we're going to discuss the unconstitutional, very likely illegal, most certainly immoral effort by the Trump administration to disappear student activist Mahmoud Khalil Trump's continued attack on private sector lawyers that he has grievances with. And the Supreme Court taking up a case on conversion therapy and what that means for the fight to protect LGBTQ rights. But before we get to all that, Joyce has some news. What's happening, Joyce?
- [01:23]
Joyce Vance
I do have news. Yesterday, Penguin Random House announced the launch of my first book. So there was a lot of excitement. I'm so grateful to everyone who pre ordered the book. And as I'm learning, I don't know very much about the book industry publishing, and I'm hoping Barb and Jill are going to educate me. But pre sales are very important, so I will make that shameless request that you go to Amazon, Barnes and Noble, or even better yet, your local bookseller and pre order the book. It's called Giving Up Is a Manual for Keeping a Democracy.
- [02:01]
Barb McQuaid
And tell us about the name. Where does the name come from, Joyce? Giving up is unforgivable, by the way. We need to say that as many times as possible. So giving up is unforgivable. That's the name. Where does that name come from, Joyce?
- [02:14]
Joyce Vance
You know, it actually was something that Joe Biden said in a speech that perfectly encapsulated my thoughts after the election. Cause y'all remember that moment, right? We were devastated when Kamala Harris lost. And I think more to the point, it was less about politics and more about the idea that democracy would be doomed under a Trump 2.0 administration. And I heard from a lot of people who were saying things like, I'm disengaged. I'm disheartened. There's nothing else that I can do. I've done everything that I can. Our system doesn't work. And I. I'll confess, I had a moment or two like that very early on, but pretty quickly my spine stiffened and I thought, this is not true. Donald Trump cannot outrun democracy. And so instead of writing a book about Donald Trump, who, honestly, I'm sick of, and I know we have to talk about him day in and day out to stay up to date on legal news and analysis, I wanted to write a book about democracy itself and where it was strong and why we should believe in it and what we could do to become that sort of more perfect union that we always talk about in speculative terms. I wanted to do it in a very real way. So I try to use history and law to talk about all of the potential we have to become something. Kim, you say this a lot to become the country where Donald Trump is not inevitable.
- [03:38]
Barb McQuaid
And may I ask you a question, Joyce? Here's the question. I hear so much from people I meet and know and friends. Do you provide actionable items about what people can do? Because I think many people feel quite helpless and what can ordinary people do to help take back democracy?
- [03:57]
Joyce Vance
So I think that's the most important thing. The most important part of the book is thinking about what can we do? What can we do individually, what can we do together? And I'm reminded, you'll forgive me, I'll tell a story that I think I've told before, right? This is the story about the governor in Maine at the time, Angus King, and the governor of Minnesota at the time, Jesse Ventura, who some of y'all may recognize as a former wrestling star. And they had this bet when they were governors about which state could have the highest voter turnout. They didn't care about who you were going to vote for or what party you were with. They just wanted you to vote. They created that pro voting culture that leads both of those states to still to this day have really high voter turnout. And I think that's the question. What can we do as individuals to create a pro democracy culture in this country instead of democracy being something we just take for granted? So that's what I'm devoting the majority of the book to. And it's been really fun. I've talked to some interesting people, read a lot of interesting history, including the Federalist Papers, which not nearly as boring and wonky as it sounds. I hope we can bring it all to life in the book.
- [05:06]
Barb McQuaid
Yeah, sounds great.
- [05:07]
Kimberly Atkins
Joyce, you are a law professor, you're a podcaster, you write, you have a new puppy and you're putting out a book. Like, how is that? Like, I'm tired just thinking about all that. How do you do all these things, Joyce?
- [05:23]
Joyce Vance
Yeah, I mean, it's Such a good question, right? I have no fricking clue. No, seriously, I took some great advice from my good friend Barb McQuaid. Early on, Barb told me that she got up early in the morning, went straight down, wrote, didn't let anything interrupt, didn't look at social media or anything else, and got her writing in. And so my goal is to write a couple thousand words every morning and then to spend a little bit of time at night cleaning it up. But thank you, Barb. That schedule works really well for you.
- [05:56]
Barb McQuaid
Yeah, so that's a trick I learned from Toni Morrison, who did that, you know, get up very early before her day job started to do her writing. So good luck. We can't wait to read it. Thank you. And again, it is called.
- [06:08]
Joyce Vance
So the name of the book is Giving up is a manual for keeping a democracy.
- [06:21]
Barb McQuaid
Well, like it or not, spring cleaning season is here, and we've resolved that the scent of your laundry should not smell like the chemicals you use to disinfect your bathroom. That's why we want to tell you about laundry sauce. They're premium scented laundry pods that don't just clean your clothes, they elevate them. So say goodbye to that stale, overused detergent scent and hello to the luxurious perfume quality freshness that lasts. I've been using an alpine scent, and I feel like I'm in the crisp mountain air.
- [06:53]
Kimberly Atkins
Yes. Like you're skiing and you're, you know, doing your thing. Yeah. You know, I'm fairly picky about my laundry products because, you know, I love clothes. I'm, you know, former fashion designer, so protecting the fibers and all of that is important to me. And I really, really like. I really like laundry sauce. I'm a big fan. Not just because it smells so good. I've been using the Italian bergamot. Is it bergamot? Bergamot.
- [07:22]
Joyce Vance
Bergamot.
- [07:23]
Kimberly Atkins
Bergamot.
- [07:24]
Joyce Vance
I say bergamot. I don't know if I'm right or not. Anyway, it's a plant I grow.
- [07:30]
Kimberly Atkins
Really. It smells like fresh citrus fruit, and it's really, really pleasant. But laundry sauce isn't just about smelling incredible. It's engineered for performance. These highly concentrated pods are packed with the cleaning power of bioenzymes that obliterate stains from muddy hikes, backyard barbecues, and that inevitable iced coffee spill. But it also leaves your clothing intact. I feel really comfortable putting my garments in with that, even my silks and my cashmeres. So spring is all about fresh starts. And laundry sauce even revives fabrics to make Your favorite pieces look and feel brand new. And now for a limited time only, our listeners get 20% off your entire order when you use Code sisters@laundry sauce.com. that's 20% off your order@laundry sauce.com with promo code Sister Sisters.
- [08:28]
Joyce Vance
So I'm all in on on Laundry Sauce. In fact, I redesigned my entire laundry room around it because something that you don't really think about is how pretty the little packets of the soap are. You know, they're sort of like encased in something biodegradable that's clear. And so I ended up putting mine in big glass jars on top of my washing machine. And it looks really pretty. It motivated me to sort of reorganize everything down there, which maybe sounds a little bit silly, but my laundry room, which used to look pretty ugly, now looks really nice.
- [08:59]
Kimberly Atkins
And even my just be careful that nobody eats them because they really do. They look and smell so good that somebody may pop one in their mouth. Don't. Don't do that.
- [09:08]
Joyce Vance
They are very, very pretty. And my husband, who has always been a very committed user of a certain brand of laundry soap, has made the switch because they're so convenient. You just lift up the jar, toss the pod in. There is no mess, there is no hassle. You're in no danger of running out because you know exactly how much you have. So I'm delighted that we've been able to make the switch to Laundry Sauce. My clothes are cleaner. They smell great without it being too much. And although I am personally a fan of the bergamot, I'm looking forward to also trying the Egyptian rose. That just sounds so tempting. My laundry room smells great. Our house smells great. And even my oldest child, whose laundry I on occasion break down and do, even though he's a 30 something, he seemed happy to have clean clothing coming back. So don't wait. Find the perfect scent for you. And for a limited time only, our listeners get 20% off your entire order. When you use code sistersandrysauce.com that's 20% off your order@laundrysauce.com with promo code Sisters. After you purchase, they'll ask where you heard about them. Please support our show and tell them we sent you. It's time to make laundry day the prettiest day of your week. The link is in our show notes.
- [10:35]
Barb McQuaid
Well, the US Government is attempting to deport a former Columbia graduate student named Mahmoud Khalil. He was arrested last weekend at his apartment and placed in detention. He was a very visible and vocal leader of pro Palestinian protests on Columbia's campus last year. He's a US Green card holder, or lawful permanent resident. He's married to a US Citizen who is eight months pregnant with their child. On Sunday, lawyers for Khalil filed a petition for a writ of habeas corpus in federal court in New York to challenge the legality of his detention. But it turns out he had been transported to a federal detention center in Louisiana. Well, let's pick up the story there. Kim, let me start with you. You attended journalism school at Columbia, so I imagine you have been following this story closely. And the first thing I want to do for our listeners is to define our terms. What is a writ of habeas corpus?
- [11:35]
Kimberly Atkins
This is a great question. So habeas corpus is a Latin phrase that translates to present the body, which basically means it's a petition for the government to actually state why someone is being detained. You cannot arrest and detain someone indefinitely or even for a short period of time. Time for no reason. That's something that the government cannot do. They have to give a reason to the courts as to why this detention is warranted, whether they believe that this person has committed a crime that usually is done with a criminal complaint or whether they present some specific security threat in some way. And again, the government would actually have to make some showing that that has happened here. None of that has happened. He has not been accused of committing a cr. Was no other presentation since he was detained. And it was only, it seemed to me, following this, maybe somewhat a little after the fact, when Marco Rubio said, well, no, there's this archaic federal law that allows us to detain suspected terrorists. But again, no proffer was made about exactly how Khalil met the standard of being that kind of a terrorist. So this is a very important thing for his legal team to do.
- [13:03]
Barb McQuaid
Yeah, and one thing that I think makes this especially interesting is that he's a green card holder, lawful permanent resident. And so typically, people with that status are entitled to due process before there can be an adverse action taken against them. And so I think that's what makes this case more interesting. There's been reporting, I don't know how accurate this is, but that when the ICE agents arrested him, they said, you're being deported. And. And he said, but I'm a lawful permanent resident. I have a green card. And the reporting from him and his family was that they looked really startled, the agents, when they heard that. Like what? Well, we have a warrant, so we'll sort it out later. I don't know if that's accurate or not, but I do think that really does perhaps make this case different, because you may remember when Trump enacted his first travel ban in 2017, it applied not only to non citizens coming into the United States, but also to green card holders who do have those due process rights. Ultimately, that travel ban got watered down to exclude those people.
- [14:10]
Kimberly Atkins
So the Supreme Court rejected it. They didn't just do it on their own. The Supreme Court was like, no, they had to try three times before they got one that's done.
- [14:17]
Barb McQuaid
Yeah. And it was that lawful permanent resident part that really Sally Yates balked at when she was the Acting Attorney General. And that really made a difference in that case. I will be curious to watch and wait to see whether that makes a difference in this case, which, of course involves some different laws. Well, Joyce, what is the government's basis for arresting and seeking to deport Mr. Khalil in terms of their representations and then whether you think that that carries any water?
- [14:45]
Joyce Vance
Yeah, you know, I read that same reporting that you did, Barb, and I assume that the source of that reporting would have to be people who were present who weren't representatives of the government. So I'm thinking probably his wife and if there were any bystanders. And it caught my attention, too, because according to that reporting, the initial approach was they said, your student visa is being revoked. At which point his wife responded, and he responded, you know, I'm a green card holder. And that was what surprised them. Right. It's much easier to revoke a student visa for a number of different reasons than it is to mess with a permanent resident. And so I wonder if the government has not been caught flat footed here and if that doesn't end up tainting all of these proceedings. You know, usually deportation proceedings for a permanent resident follow prosecution for a crime. Right. Or at least an arrest on very serious charges with solid evidence. Because the burden of proof in deportation hearings, it's not proof beyond a reasonable doubt, that very high standard that we're used to in criminal cases. But it's still a very high standard. It's clear and convincing evidence. And so typically, that means a criminal situation. Here they're holding Khalil pursuant to 8 U.S.C. 1227 a, 4c, which provides that an alien whose presence or activities in the United States that the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences to the United States can be deported. So this is a much loosey gooseier sort of a provision. There are no charges against Khalil, there do not appear to be any charges in the offing. And so we don't have to agree with Khalil's views to understand that he is being held, in essence because the government didn't like his speech, wanted to make an example of him for whatever reason. And I suspect that a federal judge is not going to look kindly upon this when push comes to shove.
- [16:50]
Barb McQuaid
Yeah. And I'll say, you know, he said some things that I think many people will find very offensive about Gaza and Israel. But Marco Rubio Kim has said he's, of course, our Secretary of State has said this is not about free speech, regardless of what he had to say. He is instead relying on this federal statute that Joyce just recited. What's your view of the case?
- [17:17]
Kimberly Atkins
So, two things. Well, maybe more than two things. One, this is absolutely a First Amendment case. There is a. The Secretary of State should be aware that legally the Constitution trumps federal law. So even if there was a law that said you may arrest Mahmoud Khalil for what he says, the First Amendment will have something that says something to say about that if it violates that. And of course, as our listeners know, because they're very astute, the First Amendment protects a number of things, including the freedom to. To gather and to associate with others and to petition the government for grievances and the freedom to speak. And it seems that the activities, regardless of what you think of his position, fall within that. The First Amendment is basically, in part, a codification, a constitutional codification of the Voltaire quote. Right. I disagree with what you say, but I will fight to the death for your right to say it. That is a foundational principle here in the United United States that I think the Secretary of State should get familiar with, too. As I said, I don't think that this statute applies. I agree with Joyce to the activities here. They're claiming that he is associated with or a member of Hamas, which he denies. But again, it's the government who has to proffer that and to show evidence in support of that which they have not at this point, done. And this is also clearly, I think, even beyond that, this is clearly an effort to scare others. I think that is why they disappeared him in a way that his family and lawyers could not initially find where he was and whisked him off to a facility more than 1,000 miles away from his home. And President Trump warned in a true social post that this will be the first of many arrests and celebrated it. This is something greater and far more nefarious and it really should scare anyone if they can detain and treat a lawful US Resident this way. They can do it to anyone. And also a part of the reporting that you were talking about, about that arrest, the agent said to his wife and a US Citizen, if you try to interfere, we will detain you too. What?
- [19:50]
Joyce Vance
I mean, that's an eight month pregnant woman who's an American citizen who's committed no crime. I mean, if you're not outraged by this.
- [19:59]
Kimberly Atkins
Yeah, it's awful.
- [20:01]
Barb McQuaid
Yeah. You know, I think this is a really good moment to talk about constitutional interpretation. I hear so often people say, you know, the First Amendment says Congress shall make no law. I have an absolute right to speak. But there are ways to curtail that. We have a great First Amendment professor at our law school who says strict scrutiny is always the joker in the deck. So there is some scenario under which Marco Rubio, as Secretary of State, I can't even make myself say it. Marco Rubio, as our Secretary of State, could make this finding. Right. There's a federal statute. Congress has empowered the Secretary of State to exclude an alien, quote, unquote. That's the statute. And that means a non US Citizen whose presence or activities the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences in the United States. So he has to, again, I think because Mr. Khalil is a green card holder, lawful permanent resident, has due process rights, there would have to be some sort of court showing before he can be removed. You'd have to show that this process is fair. And so it may end up being that this happens in a classified setting. If there is information to indicate, for example, that Mr. Khalil is being directed and controlled by Hamas or is somehow affiliated with Hamas, he says no, there's no public information to suggest that it could be classified information, but an independent judge would look at that and make that assessment. So just because he has said things that are, you know, spoken out and exercises First Amendment rights does not inoculate him from deportation. But I think, as we've said, the Secretary of State is going to have a burden. There's also a requirement that the Secretary of State notify Congress about this. And I don't know that that has happened.
- [21:57]
Joyce Vance
He blew the notice requirements. He did not.
- [22:00]
Barb McQuaid
So that is all part of the due process here that needs to take place. So it may be at the end of the day, Mr. Khalil is excluded from the United States, but not before he gets due process on this.
- [22:09]
Kimberly Atkins
And that's Just part of what due process requires. Right. Because if you are a legal resident in the U.S. the process for deporting someone is much different than the process of removing somebody who is not. Who does not have that legal status. It requires an immigration proceeding. It requires a lot. You can't. I mean, there is. Under the due process standards that are in place in the United States, they should not just be able to whisk him off, and it should not require a federal judge to say, do not deport him until we let the process play out. I mean, Barb is absolutely right. There are exceptions to First Amendment protections, but there are also a host of protections under law that are in place that have to be followed, rules that have to be followed before any. You even get close to deportation.
- [23:05]
Barb McQuaid
Yeah, that's so much of what this administration has been about, isn't it, Kim, that a lot of times they do have the right to do some of the things that they're doing, but they're not following the law in terms of the process. And the law is all about process. So that's a big part of this. Well, speaking of process, Joyce, I have a question for you. Why do you suppose the government moved Mr. Kalillo from his home in New York to Louisiana?
- [23:30]
Joyce Vance
So I think that the government has made it very plain that they wanted to remove Mr. Kalil from a friendly jurisdiction. Of course, friendly simply means judges who are committed to upholding Mr. Kalil's rights. And I think it's interesting in this regard to note that Judge Furman, who pulled the case almost immediately, ordered the government to not deport Mr. Kalil, which would have then permitted the government to make this argument that the court had no jurisdiction. I mean, you know, the government wanted a friendlier place. So where better to take Mr. Kalil than Louisiana, where there happens to be a pretty substantial ICE detention facility ready and waiting, and, oh, it's conveniently located in the 5th Circuit, the Trump administration's favorite circuit. So I think that. That that's what's going on here. This is gonna backfire on the government, though, because Mr. Kalil's lawyers will be able to argue that they did this for disingenuous, malicious purposes. And I think it will end up making their case stronger.
- [24:37]
Barb McQuaid
Kim, it appears that journalism students who are not US Citizens at Columbia have recently been told to avoid speaking out or writing about certain topics like Gaza or Ukraine or Mr. Khalil, so that they can graduate in a couple of months without any trouble from the Trump administration. Oof. What do you Think about that advice.
- [24:58]
Kimberly Atkins
Yeah. So I saw this story. It was reported in the New York Times. And what it seemed to be happening, which the meeting that it referred to, is the kind of meeting that news organizations across the country have been happening, have been having since November 6th. Right. Because Donald Trump has been so antagonistic toward the press, threatening them, saying that they should be arrested, all sorts of things, that this presents a new, serious threat to journalism. And there are newsrooms across the country that are meeting with their journalists, their executives and lawyers just to understand what their rights are, be prepared, and also just ensure that they are upholding the highest of journalistic standards, which will be in these cases, the literal get out of jail free card in some of these cases. Right. That you're doing your job, you're doing it diligently, and that nothing was afoot. So this kind of meeting between students, professors and attorneys sounds like it was something like that. Given the antagonism that has been expressed by the Trump administration toward college campuses in particular, and knowing that the meeting in itself is not bothersome. I wasn't there. I wasn't in there. I do know the dean of Columbia's journalism school right now. His name is Jelani Cobb. He is an esteemed, wonderful journalist, very smart man, someone who I've known for many years. I've talked to him about Columbia and about, not about this, but I do know that he deeply believes in this institution and in the institution of journalism. So I believe that the quote from this story might be him telling these students the same thing that I've been told and other journalists have been told too, which is, you are a high profile target. Know that you are, and keep that in mind with your activities. Right. I did not take that to be a gag order on journalists, which, frankly, the student journalists at Columbia and at also other schools, Harvard and elsewhere, have done a tremendous job in reporting on what has been happening on their campuses for the past year or so. They have really been on the front lines and often scooping the other major news organizations. And so they have been doing that job. They have not shown fear before. I know more. This to me feels like an attempt to use caution and just to reinforce the dangers that students face, particularly international ones, according to the story, because they have, again, if you don't have, if you have just a student visa, that's very much easier to revoke. And so I think he was talking about the reality. I'm going to give him the benefit of the doubt in that and think that that's going On. But, yeah, say censorship of any sort would be absolutely. That would just. That would be absolutely wrong. And I hope that that's not what's going on.
- [28:15]
Barb McQuaid
Yeah. Joyce, let me just ask you one last question. You wrote a great substack piece about this tonight with the famous quote about, first they came for the socialists and I wasn't a socialist, so I just said nothing. Then they came for the trade unions, then they came for the Jews. As our Jewish representative today, I have heard from our Jewish community here in Ann Arbor of people who are speaking out in support of Mr. Khalil, saying, I abhor, in the same way Kim does, you know, everything he's saying, but I think he has an absolute right to say it. And you wrote a really good piece in your substack about, like, don't be fooled. This is not about anything.
- [28:47]
Joyce Vance
Tell us about that. Yeah, I mean, I think that's right. This is not about hate and anti Semitism and the Trump administration trying to combat it. Jewish groups were out protesting in New York City for our First Amendment rights yesterday, our collective First Amendment rights. And look, if this was about anti Semitism, Elon Musk with his Nazi salutes and support for the Nazi aligned, you know, alternative for Deutschland, that wouldn't be a feature of the landscape. Right. If they were serious about this. So this is Trump scapegoating Jews with favoritism. That is a time honored path for authoritarian regimes. It's about using antisemitism to justify unconstitutional actions. And no one, least of all the Jewish community, benefits when a dictator begins to seize people who have not been charged with any crimes. I think it's important that we set aside our feelings on the substance of this issue. You know, people are all over the board. It's an incredibly diverse, divisive issue, but that's so quintessentially American to be able to disagree and to protest and to speak. Your piece, as you've suggested, Barb, there could be something in the intelligence community about Mr. Kalil. We know he has not been charged with a crime, but maybe there's evidence we're unaware of. That's a separate issue for right now, as he sits as a permanent resident in an uncharged state. He is entitled to express himself, whether I like what he has to say or not.
- [30:23]
Kimberly Atkins
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- [31:00]
Joyce Vance
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- [32:03]
Barb McQuaid
You'll feel good about you know I really like the hand soap. There's some really good scented ones, including Alpine, which is. You might detect the theme here, one of my favorite scents. I will often wash my hands and then a few minutes later I've completely forgotten and I say, what smells so good? Oh, it's me. I just washed my hands with my Alpine scented Blueland soap. There's a reason Blueland is trusted in more than 1 million homes, including ours. The fragrances add such a pleasant vibe to your home, and I can't begin to tell you how many times the subscription has saved me from running out of cleaning products. When you need them, you need them right away. It feels great knowing that I'm incorporating sustainable practices into essential everyday activities. And we know you'll love it too. That's why we're excited to share that Blueland has a special offer for listeners right now. Get 15% off your first order by going to blueland.com sisters. You won't want to miss this again. Blueland.com sisters for 15% off that's blueland.com sisters to get 15% off. The link is in our show notes.
- [33:20]
Joyce Vance
We have all seen or heard about the executive order lodged against the Perkins Coie law firm by now. Last week, Trump issued it. It's called Addressing Risks from Perkins Coey llc. That's a really weird name for an executive order. And Perkins Coie is an established, highly regarded law firm. They have over 1200 attorneys worldwide. They're in the United States, Europe, and asia. They've got 2,500 people who work for them in 20 offices. But here's the reason for the executive order. Donald Trump does not like Perkins Coie. Sounds like a legitimate exercise of power for a president. Right. You don't like a law firm or any other business. You just put him out of business with the power of the presidency. So, Kim, help us understand. What's the origin of Trump's beef with this firm?
- [34:14]
Kimberly Atkins
Oh, my gosh. This is so stupid. But the beef comes back.
- [34:18]
Joyce Vance
That's the best thing I've heard anybody say about this whole thing. That could be the name of the. The episode, right? This whole thing is so stupid.
- [34:27]
Kimberly Atkins
So Perkins Coie was a law firm that had among its clients in 2016, the Hillary Clinton campaign, which is totally normal. That's why there are so many law firms in Washington. A lot of times they do political work. As part of this, Perkins Coie hired an opposition research firm, something else that has been done since time immemorial. And also note that we are now one degree removed from Perkins Coie. Right. So this oppo research firm, as part of his work, gathered a lot of information and put together what became known as a dossier, the Steele dossier, named after one of the investigators, which had a ton of raw data in it, data that had not been all verified, had not. Certainly had nothing, not all been used, and most importantly, was not used as part of the FBI's subsequent investigation into claims that Donald Trump may have collaborated with Russia in the election in an attempt to interfere with it, wasn't used at all. So in a normal world, we would have never found out about this Dassi, especially since Trump came out of that election president. Right. And he has been elected president again. But because Trump can't let anything go, and he is angry about this dossier and the Russia investigation, and he wanted the federal government to get to the bottom of it. He wants to punish Perkins Cooey now. And to me, one of the reasons that this is so stupid, aside from the fact that, you know, everything I just said, is that if he let this go, nobody would be talking about this anymore. So the minute that we're talking about Perkins Coie and the Steele dossier, in my mind, I'M like, right. I remember the Steele d'ass. Oh, it had some say. It has some very salacious, disproven, unproven things about things that Donald Trump may or may not have done, which I'm not going to talk about here because.
- [36:33]
Joyce Vance
We'Re thinking about them right now, as you say.
- [36:35]
Kimberly Atkins
But I don't want that image in my head. But it's like, dude, if you just shut up, we wouldn't be. We would remember this. But he can't let that go. He's doing, you know, it's the Streisand effect. Right. But he's more, he's more interested in punishing any attorney who had anything to do with this or not than he is in using common sense and hoping that people just forget this whole episode.
- [37:04]
Joyce Vance
Well, Barbara, there was a little bit of shock when the executive order was issued. You know, it came with no warning. In essence, it bans agencies from interacting with Perkins Coie, which is a death knell to their business. And then it took a couple of days, but the lawyers got to work. Tell us what happened.
- [37:25]
Barb McQuaid
This was a great act of heroism by a law firm known as Williams and Connolly. And there are reports that there were other law firms that declined to take up this case because they didn't want to get crossed. And I say shame on them. But what's great about the complaint filed by Williams and Connolly is it was signed by 15 lawyers. You only need to put one name on the complaint, but they put 15 names on it, which said to me, here we are, we care about this. We think this is important, and we're not going to cower and worry and hide from what we're doing here. So there's a lawsuit that's been filed that makes a lot of different allegations. First Amendment rights violation for free speech, because they're being punished by the government for their advocacy on behalf of clients. That's one First Amendment right to free association. We have a right to affiliate with anyone we want to. So remember, this isn't just against the individual lawyers who are involved, but their entire law firm. There are hundreds of lawyers at this law firm. So anybody at the law firm is bound by this. Also, they can't have any interaction with the the government, which means they're being punished for that association. And they can't represent clients who have been charged in a federal criminal case. So that's one of the charges. There are due process allegations for procedural due process, not getting any right to contest these allegations, and another due process for attacking this order as vague like what does this even mean? I can't associate with members of the government agencies. What does that even mean? So there's that. There are a couple others that I'm not sure will ultimately prevail because I don't know that the firm has standing. But one of the things they raise is on behalf of their clients, their clients, right to counsel of their choice. So if I've got Perkins Coy as my lawyer and now the government can't affiliate with them, my lawyer is not allowed to negotiate a plea deal with a government lawyer or go in and discuss a deferred prosecution with them. So I don't know if the law firm has standing to do that or if the client has to do that. So it's one of the weaker ones, but one that I found intriguing, and this is the last one I'll talk about, is a count on the basis of ultra vires, which means exceeding their power. And so it says that the executive has exceeded its power in this order altogether, regardless of all of these other Constitution violations, because the executive can only act in compliance with his explicit or inherent powers under the Constitution or things that are given to him by Congress. And there's no power under the Constitution to banish a law firm because you're mad at them. So I thought that was a really interesting legal theory as well. And so many of these counts seem really solid to me and I'll be enjoying watching them process through the courts.
- [40:27]
Joyce Vance
So, Barb, I think you're expressing the same sort of just indignation I've heard from so many lawyers over this. I mean, it's crazy. Your explanation of what the faults are in this executive order. They are many and they are varied. Sort of catches us up to Wednesday when Judge Beryl Howell, a judge in the District of Columbia with just a little bit of experience handling Trump related cases, held a hearing on whether to issue a temporary restraining order that would halt enforcement of the executive order while the parties briefed the substantive issues for her. She was very careful at the start of her hearing to say that that was what it was about. She ended up entering a TRO from the bench. Kim, why don't you talk a little bit about what the basis for that order was?
- [41:13]
Kimberly Atkins
She said that Trump's executive order exerted, quote, extraordinary power over Perkins Coey and that the law firm suffered immediate damage from it that needed to be halted in, as you said, as the case makes its way on the merits. She also said she had a lot of respect for the law firm representing Perkins Coway, which is Williams Connolly, because these cases are hard and. And not every law firm would be willing to do that. So she not only defended Perkins Coie, but also the law firm defending them. And she also said that this order, which very likely violates Perkins Coey's First Amendment rights. I agree. Sent, quote, little shivers down her spine. She was really offended by this. And, you know, I found it interesting scrolling on social media this week. I saw a conservative media person put out a post that basically said, this is Burrow Howell, the same attorney who oversaw the Mueller investigation, now shutting down Donald Trump's executive order. Only in D.C. folks. And it's like, yeah, only in D.C. because Beryl Howell is a judge in a court in dc. So, yeah, a lot of stuff that happens in DC end up in front of her. Again, not just file under. Under the this is so stupid category.
- [42:52]
Joyce Vance
But yes, this is so stupid. Barb. The judge spoke extensively, explaining both her reasoning and citing case law all from the bench at the conclusion of the hearing. And that's a little bit unusual, especially because temporary restraining orders aren't the kind of final order that the other side is able to take an appeal from. Quick legal nerdiness. You can only app a qualifying final order. And it's well established that TROs aren't appealable. So why did Judge Howell go to the trouble of doing that? And what do you think will happen next?
- [43:29]
Barb McQuaid
You know, I think she was just trying to make a good record so that there was a basis out there for her to proceed next. Cause what she said is, I expect the next thing that we will do is to go directly to summary judgment. So she asked them to submit a very tight briefing schedule within the next day. Right. And then said, I want a proposal discussing a schedule for going to summary judgment. And for our listeners, summary judgment means there will be no trial on the facts. We're not gonna bring in witnesses and talk about, you know, what happened, who saw what, because it's not necessary. We've got in this executive order all of the facts that we need. And the arguments are, they're just illegal on their face. And so. So she just wants to go straight to that phase. So I think what she's trying to do is to avoid any sort of delay and appeal by Donald Trump here, the President or the executive branch. Let's just finish this here. We'll get our summary judgment, I'll make my final decision, and then you can appeal, and we can do it in a very short order.
- [44:31]
Joyce Vance
Yeah, I think that's exactly what's going on. She made this cryptic comment about, well, we'll do it this way. I won't need to see you again until the case comes back to me from appealing. I'm not sure exactly what she's expecting the case to come back to her looking like, but, you know, as an appellate lawyer, I like to see my judges anticipating the appeal, making a good, solid record. Trump has been trying to appeal tros, even though he's not entitled to. She was clearly anticipating this here. And this is, I think, something that's interesting that we don't talk about a lot. But judges, like the rest of us who practice law, they learn too. They evolve. And there were cases, particularly the one involving Tanya Chutkan, where the record maybe was. I mean, I have always thought, to be honest, this was the appellate court being persnickety, but where the judge gave the court room to say that the record wasn't fully developed, which slowed proceedings down. Well, here is a judge who gave the appellate courts a fully blown record. Nobody can say that the case needs to go back to her in an interstitial fashion for a record to be created. So I took a little bit of heart from that. But as you say, this is an interesting case and it's a dangerous case. It's about more than just Perkins Coie. It's really about the entire legal profession, and it's about whether or not a president can indulge his own personal peccadillas from the Oval Office. Right?
- [45:57]
Barb McQuaid
Yep. I agree with you, Joyce.
- [46:07]
Joyce Vance
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- [46:48]
Kimberly Atkins
Oh, my goodness. One Skin has been really game changing for the last several months. I feel like this has been an unusually dry winter, and now that things are changing to spring, it's when you can get like, patchy spots on your. But One Skin products really, really combat that beautifully. Their products are free from over 1500 common irritants. And are backed by countless lab and clinical studies. It's really amazing when you think about it, how many terrible things are in so many products. So it's great when you can find one that is a lot cleaner. And it's no surprise that Oneskin has earned the National Eczema association seal of acceptance. So whether you have seasonal sensitivity like me or year round skin irritation, one skin soothes and calms your skin while helping it become younger and healthier at the cellular level. And now for a limited time, get an exclusive 15% off your first One Skin purchase with code Sisters when you check out at Oneskin Co. Well, you.
- [47:57]
Barb McQuaid
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- [49:36]
Kimberly Atkins
Well, if that wasn't enough legal news this week, the Supreme Court also agreed to take up a challenge to a Colorado law prohibiting conversion therapy or therapeutic efforts to try to change someone's sexual orientation or gender identity. I think this goes without saying, but sexual orientation or gender identity are not mental conditions that need to be treated. But anyway, it's the course latest foray into the legal tension between LGBTQ rights and claims of religious freedom. So Barb, tell us about the challenger in this case. The challenge itself and the appellate ruling below.
- [50:22]
Barb McQuaid
Yeah, so this case was filed by someone named Kaylee Childs. She is a licensed counselor and says a practicing Christian, and she has a practice where she works with clients that she says implicates Christian values about human sexuality. And so she talks with clients and tries to persuade them that the body that God gave you is the one where you will find peace. But Colorado has a law that prohibits this conversion therapy that they say essentially it's child abuse, that it has devastating real world consequences. They've made findings, and they have made it illegal. So she says it is a violation of her First Amendment rights of free speech and free exercise of religion that she cannot carry out this counseling business. Now, the 10th Circuit Court of Appeals rejected her challenge. She said that Colorado based its law on evidence about the harms of conversion therapy. And so this is another one of those instances where strict scrutiny is the joker in the deck. So she does have First Amendment rights to free speech and free exercise. But if there is a compelling governmental interest, and it is narrowly tailored to achieve that interest, then those restrictions are permissible. So that's what the 10th Circuit found. And now the court has agreed to take it up.
- [51:44]
Kimberly Atkins
So, Joyce, she has now asked the Supreme Court to weigh in. I find it really interesting because in 2020, a similar challenge, not exact, but a similar challenge to a conversion therapy ban was turned away by the Supreme Court. It takes four justices to grant cert, meaning take up a case, put it on their docket, and decide to rule on it, whereas it takes five to issue an opinion. So I'm just wondering if you have any ideas as to what changed in these last two years where the court initially turned the key case away, maybe signaling that they didn't have votes to strike it down. But now, especially given that this challenger lost in the lower court and the Supreme Court is taking it up, is that a signal to you that maybe the court has recalibrated and they're ready to strike this law down?
- [52:44]
Joyce Vance
Yeah. I mean, I don't know any other way to read it, Kim. Right. You're our Supreme Court watcher. But as an appellate lawyer, when the court takes up a case that trods on to established principles where the lower courts have ruled consistent with those principles, it is a signal that there are at least four justices who are entertaining thoughts of reversing it, it only takes four votes to hear the case. Of course, it takes five to reverse it on appeal. But we know that for this court, when the rights of other people bump Heads with what they've called the rights of Christians to not have to engage with people whose views or lives they're offended by the Christians. Christians seem to have their ability to live in this sort of intrusion free world validated. That was the outcome, for instance, in the Masterpiece Cake case. That was the case about whether or not a Christian baker had to make a wedding cake for a gay couple. And that case, which interestingly, also came out of Colorado, maybe Colorado is the new frontier for this sort of stuff. But in that case, the court ruled 7, 2 in favor of the baker. Only justices Ginsburg and Sotomayor dissented. So I think there's apparently an appetite on this court to go further.
- [53:59]
Kimberly Atkins
Yeah, sadly, I think that you are right. So, Barb, this ruling can go far beyond just licensed therapists, Christian licensed therapists who want to be free to impose their Christianity on their patients. Some experts warn that the consequences could reach other professional speech, too. What are they saying?
- [54:22]
Barb McQuaid
Yeah, so think about this. If your religion could trump all licensing requirements, then, you know, someone could say, I'm allowed to go into court and make a false claim because of my first amendment right to do so. I have a free speech right and a free exercise right, and you can't disbar me if I walk into court and make up a lie that I believe is supported by my first amendment right. So think about, you know, in the abortion context or in gun rights or other kinds of things.
- [54:52]
Kimberly Atkins
Of course, they can cite the Bible as like law.
- [54:55]
Barb McQuaid
Of course, licensing authorities have the ability to rein in and set rules for members of their bar. As we said earlier, you know, if it, if it passes strict scrutiny, a compelling governmental reason to limit free speech, then it's, it's, it can be limited. I remember Sidney Powell when she was sanctioned in the state of Michigan in a federal court in Michigan for making up false claims to challenge the 2020 election. She got sanctioned, but in her hearing on that, she asserted the First Amendment. I have a First amendment right to say whatever I want. And the judge said, you do not. You are a licensed attorney, and to appear in this court, you must tell the truth. You are an officer of the court. So I think that licensing bodies have a lot of authority to be able to restrict the speech of the professionals they license.
- [55:49]
Kimberly Atkins
Yeah, I mean, think about all the professions that are licensed. Doctors, contractors. Just imagine that sort of being open season on the attack on other people's rights that are protected by statute. That is really scary to me. So just one last question to you guys. This is Part of a larger pattern of the court taking up more LGBTQ related cases. Joyce talked about the Masterpiece Cake decision. There's also. We're still awaiting a decision about a ban on gender affirming care. What do you guys think is going on here? I mean, we've come from 2015, when the court said that everyone had the right to marry who they choose, to this moment in time where it seems to me that these rights are really being eroded in a lot of other ways.
- [56:44]
Joyce Vance
Yeah, I mean, I think that's exactly right, Kim. I think it's what we've all feared, right? It's less tolerance in this case, less tolerance for the LGBTQ community, with transgender people bearing the brunt of the burden right now. But the question is, how far will it extend? And we all know that marriage equality is in jeopardy on the this entire spectrum of cases. I think this is really a very concrete example of what it means to go back. Right. We all said during the last election, we will not go back. Well, sorry, we are.
- [57:18]
Barb McQuaid
Yeah. You know, I guess I would say, Kim, is one thing to explain to our listeners is that these cases don't just arrive along the conveyor belt, and the court takes up whatever shows up in their inbox. They choose the cases they take. They get hundreds, maybe thousands of petitions of cases that they ask the court to review, and the court rejects most of them. They don't have the bandwidth to take all of them. And in fact, in recent years, they've been taking fewer and fewer, somewhere between 60 and 70 cases per year. So they pick and choose which cases they wanna take on. And with the 10th Circuit rejecting this, it seems to me that if all they wanted to do is to allow this decision to stand, there'd be no reason to take it up. So the fact that they're taking up suggests to me that there is a very strong likelihood of a reversal.
- [58:08]
Kimberly Atkins
And that's a really, really important point. And I will go even further on that point to say that they don't just come up by themselves on the lower level. Like, the lawsuits don't just file themselves. This is one of many lawsuits filed by a group called Alliance Defending Freedom. This. This is a Christian conservative law firm, essentially public, nonprofit law firm, whose mission it is, is to bring lawsuits that challenged laws exactly like this Colorado law. This wasn't just somebody who said, hey, and then they went to their local court and filed a lawsuit, and it made its way to the Supreme Court. These groups are seeking plaintiffs like this to purposefully attack this law. So it's as political as can be. And then the court. Court has a lot of authority, as Barb said too. So we are seeing this case. When a case arrives before the court, not every single time, but very often, it is by a carefully crafted design, not just the luck of the draw.
- [59:09]
Barb McQuaid
Yeah.
- [59:19]
Kimberly Atkins
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Joyce Vance
You know, Kim is very enthusiastic about this and I share her enthusiasm. I love Thrive's liquid lash extensions mascara. It's perfect for a salon look without the damaging glue or excessive prices. Your lashes will last all day. No clumping, smudging or flaking. And they slide off with just warm water and a washcloth cloth, no soap required. Plus, the nourishing ingredients support longer, stronger and healthier lashes over time. And their flake free tubing formula dramatically lengthens and defines your lashes from root to tip. As soon as I found out about it, I started using it. And now every time I do, I'm watching myself do TV and I notice how much better my eyes look. It's the perfect way to subtly stand out from the crowd and make a big impression.
- [60:48]
Barb McQuaid
I notice how good your eyes look too, Joyce girl.
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Joyce Vance
I mean, it's all I'm noticing in the return feed when I'm on tv.
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Barb McQuaid
I'm like, wow, those eyelashes, all the lashes. Well, another thing we love about Thrive Cosmetics is that cause is in the name for a reason. Thrive not only defines luxury beauty with their clean skin loving ingredients and uncompromising standards, but they give back, too. Every purchase supports organizations helping communities. Thrive. Thrive. Thrive donates to eight major causes, including the fight against cancer and domestic abuse, veteran and education organizations, and more. I'm so glad we're a part of it. Celebrate the women in your life with Thrive Cosmetics luxury beauty that gives back. Right now, you can get an exclusive 20% off your first order@thrivecosmetics.com sisters. That's Thrive Cosmetics Sisters for 20% off your first order. The link is in our show notes.
- [61:54]
Kimberly Atkins
And now our favorite part of the show. We answer your questions. If you have a question. For us. Don't forget to email us@sistersinlawoliticon.com or use the hashtag Sisters in Law on your social media. That's why our name is what it is. And ask us your questions. We will get to as many as we can in the show, and those we can't answer in the show, we will try to answer right there in your feeds. I've replied to a few just in the last 24 hours. I really appreciate the questions you all send. So the first one today is from Nancy, who says, who asks a question specifically of Joyce. Nancy asks, we all love your chicken. Are you worried about bird flu? How do you recommend protecting your flock? Joyce, how do you protect your babies?
- [62:47]
Joyce Vance
Nancy, thank you for the love. We actually take bird flu really seriously down here. Our daughter is finishing up a master's in agriculture and sustainability. And so what we've learned from her is that the right way to gauge the level of preparedness you need is through wastewater surveillance. That's how you learn about what the levels of bird flu are like, like in your local area. But beyond that, we have always had really good coop hygiene procedures. Everybody has to wash up before going in and when coming out, shoes that are worn down there, separate shoes that are kept in a rack at the back of the house and are continuously cleaned. Any, any sort of infection. Right. Is a problem if you're raising poultry. But what we're prepared to do if we reach the point where there's an indication that the population down here is infected is we are blessed with a very large covered run. So our chick would have to stop free ranging and they would stay in the covered part of the coop. But we have. Our bird feeders are down. We have taken down all of the old bird nests in our trees and in our bamboo. We're doing everything that we can to be as inhospitable to the wild birds as possible, which really breaks my heart. We enjoy seeing them so much. And, you know, I mean, obviously there's a larger question here, right? Are we worried that the administration will not be aggressive about helping people in local populations or backyard chicken farmers like me keep track of what's going on? It's ironic that Trump's agriculture secretary just suggested that if people are concerned about the price of eggs, they could just pop a couple of chickens into their backyard and get their own free eggs that way. And at the same time, we're having to worry about an administration that refuses, refuses systematically to educate Americans about the.
- [64:38]
Barb McQuaid
Spread of bird sisters in law and Agriculture. I like it.
- [64:42]
Kimberly Atkins
Yeah. I was saying I learned so much from this podcast, things that I don't expect to learn, and I learned some good agriculture facts. So thank you for that choice. Our next question is from Dan, who asks, what is the definition of treason and does it change from one administration to another? For example, if Trump's actions happened in the Reagan era, would it be considered treason? That's a great question, Barb.
- [65:06]
Barb McQuaid
Yeah, it is a great question. And I think that most of us think of treason as just disloyalty to the United States, but there's actually a legal definition of it. There is a federal statute that specifically calls it levying war against the United States or giving aid and comfort to the same. And so it requires that the United States actually be in a declared war with another country. And that's why treason is. Is used so rarely. We are not in a declared war with anyone right now. So no matter how disloyal an act that Donald Trump seems to take to be to America, it cannot be, by legal definition, treason, because we are not currently in a declared war. And of course, only Congress can officially declare a war. So for that reason, no treason. And when people start throwing around that term, they're just wrong.
- [66:05]
Kimberly Atkins
Yeah, sedition is something.
- [66:08]
Joyce Vance
Well, anyway, we'll talk about opening a can of worms.
- [66:14]
Kimberly Atkins
All right, our last question this week comes from SC who asks, does the Department of Education fall under the executive branch, and is Trump able to unilaterally dismantle it? Great question. So the first question, yes, the Department of Education is part of the executive branch. The answer to the second question, can Trump unilaterally dismantle a. Is no. It is no. Now, first, let's talk about what's clear. Then we'll talk about the gray areas. It is clear that it takes an act of Congress to create or to dissolve a federal agency. It also takes an act of Congress, and it's important that it takes an act of Congress. First of all, that's a part of the checks and balances to ensure that the government is operating in a way that no one agency, no one branch can run amok. It also is because that process is really complicated and can have a lot of unforeseen impacts as we are seeing when that happens. It's also true that a president cannot unilaterally restructure an agency to the point that it no longer resembles the agency that comes. Congress originally set up, there was actually a law passed by Congress giving the president more flexibility in basically just reforming an agency in its own image. In his own image. And the Supreme Court struck that down, saying that that violated separation of powers principle. That's a job for Congress, not for the executive. So, no, there are some. The gray area is obviously the president is the head of the executive branch, and so he has some say in how his administration is run. So there is some room for a president to get involved in terms of the policies of the agency and even some way in how it is run. But certainly a wholesale destruction of an agency is something that the Supreme Court has said is a no, no for the president. Thank you for listening to Sisters in Law with Joyce Vance, Barb McQuaid, and me, Kimberly Atkinstore. You can follow SistersinLaw wherever you get your pods. And you may think that everybody knows about us, but they don't. So if you give a five star review, it really helps other people find us and helps our show grow. Because at a time like this, I think people really need to know the law. And please show some love for this week's sponsors. Who, you know, I'm asked a lot, like, do you really like the sponsors that, that you talk about? Do you really use this stuff? We choose our sponsors, y'all. We don't just, you know, this is too important. We, we, if we're going to give our imprimatur on something, we try it. We like it. And so, yes, please show some love to Laundry Sauce, Blue Land One Skin, and Thrive Cosmetics. Their links are in the show notes and they help us bring this podcast. See you next week with another episode, Sisters in Law.
- [69:21]
Joyce Vance
Uh oh, did y'all hear my doggie?
- [69:24]
Barb McQuaid
We just heard Joyce's dog barking. You know, I know you've got Bella, who is the adult German shepherd, and then you've got your German shepherd puppy at home. What's her name? Is it Elsa?
- [69:35]
Joyce Vance
Elsa.
- [69:35]
Barb McQuaid
Elsa. It reminds me. And you told us she went to her first visit to the vet today. It reminds me of a Far side cartoon where there's a puppy who is leaning out the window and wagging its tail, and it says to its dog friend who is out on the street and says, guess what, Rover? I'm going to the vet and I'm gonna get tutored. Super excited. The other dog's just looking at him like, girlfriend.
- [70:01]
Joyce Vance
Oh, that's dark, Barb.
- [70:03]
Barb McQuaid
That's dark.
- [70:06]
Kimberly Atkins
That's great.
- [70:07]
Barb McQuaid
Great.
- [70:11]
Joyce Vance
My name is Andrew Zucker.
- [70:12]
Kimberly Atkins
I'm a contributing editor at Town and Country, and I'm the host of the Golden Age, Politikon's newest podcast. It explores the collision of power, politics and culture. Join me every Tuesday as I interview guests who are shaping the new world order.
- [70:25]
Barb McQuaid
You won't want to miss it, so.
- [70:27]
Kimberly Atkins
Tune into the Golden Age with Andrew Zucker wherever you can get your podcasts.
- [70:30]
Barb McQuaid
Or watch us on the Politikon YouTube channel.