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- [00:00]
Barb McQuaid
Foreign. Welcome back to Sisters in Law with Joyce Vance, Jill Wine Banks and me, Barb McQuaid, Kimberly Atkins. Store is away, but she'll be back soon. We already miss her. Well, one of the things that you can do right now to join the resistance is to get our new resistance mini tote. It is ready to order.
- [00:29]
Joyce Vance
You.
- [00:30]
Barb McQuaid
You can go to politicon.com merch to get yours now. It's the perfect accompaniment to any protest. I don't know if you saw me out at the no Kings last weekend, but the mini tote is the perfect accessory for your next protest. Now let's get onto the show where this week we're going to talk about political violence, the ABA's lawsuit against the Trump administration, and the latest from the Supreme Court. But first, before we get into that, I just wanted to say, Joyce, are you ready for my visit to Alabama? I'm coming down.
- [01:04]
Joyce Vance
I am so excited. I cannot wait for you to get here. Are you ready?
- [01:08]
Barb McQuaid
I'm ready. So Joyce and I are gonna do a book talk Monday night in. It's near Birmingham, but it's near, what's it called? Homeworld.
- [01:15]
Joyce Vance
It's Birmingham. It's like a suburb, but it's really metro Birmingham.
- [01:19]
Barb McQuaid
Yeah. So we'll be together in Birmingham Monday night, and then I'll be in Montgomery Tuesday night and Mobile or a place called Fairhope near Mobile. You are so lucky on Wednesday. Yeah, I can't wait. My tour through Alabama is it. It can't be as hot there as it is here in the Midwest.
- [01:35]
Joyce Vance
Oh, darlin, it's hot.
- [01:38]
Barb McQuaid
All right, well, I'll be ready.
- [01:40]
Jill Wine Banks
Jill.
- [01:40]
Barb McQuaid
I had a chance to do a book talk with Jill in Chicago. And when Jill hosted me, Joyce, not to set the bar too high, but she took me for a visit. Not only did she take me out to a fabulous dinner with her friends, which was great. She took me to visit the still under construction Obama center in Chicago.
- [01:58]
Joyce Vance
I'm going to take you to the gym Monday morning.
- [02:00]
Jill Wine Banks
All right.
- [02:03]
Barb McQuaid
All right.
- [02:03]
Jill Wine Banks
All I can say is I'm jealous that I won't be with you all. I've never been to Alabama.
- [02:08]
Joyce Vance
Well, why don't you fly down?
- [02:10]
Jill Wine Banks
You know, it's not a bad idea.
- [02:13]
Joyce Vance
It's a. It's a, you know, non stop on United States.
- [02:17]
Barb McQuaid
Well, think about it, too.
- [02:18]
Jill Wine Banks
I might have to think about that.
- [02:19]
Joyce Vance
Just a thought.
- [02:20]
Barb McQuaid
Well, enjoy your company if you can make it.
- [02:32]
Joyce Vance
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- [02:57]
Jill Wine Banks
You know, it's amazing. I couldn't believe how easy it was. It's way easier than you think. And you can adjust them if you get it in the wrong place. If it's not quite even if you hang two together and they come out, you can pull it off and put them back on. It's something that revolutionizes magnetic hanging systems so that decorating is painless. Just peel the magnet, stick it on your wall, and pop your framed photo right on. That's it. There are no tools, no damage to your wall, and best of all, there's no mess. We've heard about mixtows for a long time, but had never tried them because I wasn't sure that their creations would truly stay on the wall and leave no damage. Luckily, when I tried it, I saw how wrong I was. Mix tiles work beautifully, and now I'm obsessed. And I know you will be too. Not only will your walls stay damage free, but your photos will look like they were professionally hung. Say goodbye to the days of choosing between crooked frames or a wall full of holes. With mixtiles, you can easily adjust each frame to find the perfect spot.
- [04:01]
Barb McQuaid
You know what I like about mix tiles is I always have like a commitment problem with art in my home because what I like today not be what I like tomorrow. So I do not invest in expensive art, but I like to put up pictures that I've taken, like at National Parks, family photos. I've got, you know, pictures of my kids. And the beauty of mix tiles is you can put them up, you can take them down, you can move them around, and there's nothing better than seeing your favorite art and family memories displayed on your wall the way they deserve. It doesn't have to be hard. You can make any space into a cherished one over the course of a short afternoon break. Now, I love looking at my most beloved memories, and it was so easy. You need to see what mix tiles could do for your home. Turn your favorite memories into stunning, affordable wall art. For a limited time. Our listeners get 35% off all orders above $139. Just head to mixtiles.com and use code SIL and you're all set. That's code SIL@Mixtiles.com and please, after you buy, do us a favor. When they ask you where you heard about Mixtiles, tell them it was from our show. The link is in our show notes.
- [05:21]
Joyce Vance
Well, I remember a time when political violence provoked swift condemnation from both sides of the aisle and everyone in politics and in our communities. You know, the horrible shooting at congressional softball practice when Steve Scalise, who's now the Republican majority leader in the House, was seriously injured. Universal condemnation. The assassination attempts on Donald Trump during the campaign. But now that condemnation seems to have gone out of fashion. And the recent event in Minnesota where a lawmaker and her husband were murdered and another lawmaker and his wife were seriously injured by the same shooter. They should have been a moment that national leaders denounced. And it hasn't happened like you would expect. Early on, conservative commentator Laura Loomer and Utah Senator Mike Lee both assumed on social media that the shooter was a Democrat, or as Mike Lee put it, a Marxist. But the Associated Press spoke with witnesses. They described the shooter as a devout Christian who attended an evangelical church and went to campaign rallies for Trump. And more and more reports have confirmed that, calling him someone who was delighted Trump won and would have been upset to see it reported that he was a Democrat. But here's the problem with all of that. Politics should not be involved in a situation like this. Political violence is wrong, no matter who the perpetrator is, no matter who the victim is. Full stop. Our political system may be broken, but our legal system jumped into action really quickly after these shootings. Jill, Minnesota prosecutors got a complaint for second degree murder. Some people were outraged that it wasn't a first degree murder charge. Can you explain the charge and why it happened the way it did?
- [07:13]
Jill Wine Banks
Yes, first degree murder, which is what is obviously happening here because first degree murder is premeditated and the evidence is pretty overwhelming. I would say, based on public reporting that this was a well planned execution. And so that, though, requires a grand jury indictment. You cannot issue a complaint for first degree murder. So I'm pretty sure that the complaint that was signed by the prosecutor, not by a grand jury, will be superseded by a grand jury indictment for first degree murder. So this isn't the end of it. And in fact, the attorney, the county attorney, has pretty much said that she will be filing first degree murder charges once they have the time to do it. In the meantime, of course, the complaint was sufficient to get him manhunt going and to arrest him and detain him. So I think it was really the right thing to do.
- [08:19]
Joyce Vance
So, Barb, the federal government has also charged the shooter do you want to talk about those charges? And also, are you surprised by the fact that the feds got a complaint so quickly? I mean, who's going to go first here? You've got two dueling charges.
- [08:34]
Jill Wine Banks
Yeah.
- [08:35]
Barb McQuaid
This is really an interesting trend. You know, Joyce, when you And I were U.S. attorneys, I think the protocol was typically to defer to the state to go first because they had a substantial state interest. When, you know, there's a murder of one of their own citizens. And then there's something called the petite policy, named after a case that said that feds should not duplicate state efforts. If a person has been charged and convicted in state court, that's that. And there's no need to expend scarce federal resources on the exact same case unless there's some substantial federal interest that has not been vindicated. So the famous example of the exception to the Petit case that I was always taught was the Rodney King case, right? The defendants get acquitted in state court. There's a federal interest that's not vindicated. And so federal charges get filed and they obtain a conviction. That, to me was always kind of the roadmap for how these cases should proceed. But what we're seeing now in this case, and it's not just this case, we also saw it in the Biden administration, we're seeing with Luigi Mangione, and that is kind of simultaneous state and federal charges. And I think the concern there is that one could kind of step on the toes of the other. You know, as you are interviewing witnesses, as you're gathering evidence, if one trial goes first, there is usually a disadvantage to the second sovereign that goes to trial because you've got all of this witness testimony now that can be used to cross examine the witnesses in the second trial. So I'm not surprised that charges were filed. In fact, the charges are almost identical. Identical to the charges filed against Luigi Mangione, which is this interstate stalking or stalking using a facility of interstate Commerce, and then a 924 charge, which is using a gun in furtherance of a crime of violence resulting in death, which makes it actually death eligible. So it's the same statute that was used for Luigi Mangione. So I'm not surprised that they're looking at it. I guess I'm just surprised at this trend. And we saw it in the Derek Chauvin case. We saw it in the case of the men who attacked and killed Ahmaud Arbery, where the feds are getting involved right at the outset, as opposed to showing deference. To the state counterparts. I guess I don't know why that's happening, but it does seem to be happening. Any thoughts as to why, Joyce?
- [10:58]
Joyce Vance
You know, I have a little bit of a different view. In both Arbery and Chauvin, the feds were in at the invitation of state officials, right? There was a civil rights interest that wasn't vindicated by the state statutes. Arbery is a great example. People might remember this was the jogger in Georgia and the DA down there. Great DA made the decision to charge the case as a straight up murder without making any mention of racial animus because they wanted to get a conviction and they were worried about what would happen. Turned out they didn't need to be. The jury was outraged by the case. But then the feds came in behind them and indicted the civil rights charge in order to vindicate that interest. And I've actually done things like that either when the state under indicted a case wasn't committed to a case and we then came in after the fact, or when there was an unvindicated civil rights interest. But you know what surprises me about this? And maybe Jill or you have a thought about this. I mean, the government didn't wait. This is a complaint. They didn't take the time to get all of the evidence together and go to a grand jury and charge. And there was no reason to hurry, no reason to get a federal complaint. With one possible exception. The state of Minnesota here did get an all states warrant that would have let them arrest any place across the country that this guy was found while he was a fugitive. The feds originally got what's called a ufap. It's an unlawful flight warrant. It's what you can use to arrest someone who's a fugitive from state charges. We used to use this a lot. I would get a UFAP for one of my local DAs, but then as soon as their fugitive was picked up at out of state, we would dismiss the ufap. And it was same.
- [12:43]
Barb McQuaid
I was once the UFAP coordinator in the Eastern district of Michigan.
- [12:46]
Joyce Vance
Is a state case, right? Youth apps the ban every federal prosecutor's existence, but we do them to help out our state and local friends. That doesn't seem to have been at issue here. Minnesota was able to arrest him on on their own warrant. So look, I'm sort of bemused. I mean, if I was the federal prosecutor here, I would have waited until I had seen all of the evidence and I would have decided whether there was a federal interest that meant that I needed to get an indictment, I would have had a, you know, sit down with my local district attorney colleague and talk that through with her. In this case, she has already made it plain that she would like to go first. And what we are pussyfooting around and not saying here, I will just come out and say it. There is a concern that the Justice Department is showboating on this case. And let me tell you, that's just wrong. These people, these victims, families, deserve to have a prosecution that's focused on their loved ones and not on political theatrics. And so I hope that all of the prosecutors involved will take to heart that this is a case about the community, about the family, and not about people notching their political belts.
- [13:58]
Jill Wine Banks
It's just hard to rejoice how that is going to be the case when the President hasn't even acknowledged the deaths or sent any condolences. I just don't see the federal government doing that. And I do wonder just whether there's any thought possible, and this is contrary to what I'm saying before that, because there was such a long list of victims found of targets.
- [14:26]
Joyce Vance
Targets, 70 plus targets in his car and more in his home.
- [14:32]
Jill Wine Banks
Right. So I'm just wondering if the Feds thought, well, there might be a need of a nationwide something because this was targeted. Now, as far as I know, I've only read that there's one person involved. There's not any danger to any of those people anymore because he's incarcerated, he's detained. But, you know, maybe that explains why they took this unusual step of jumping right in.
- [14:58]
Joyce Vance
Yeah, I mean, I hope that's the case. I still don't know why you wouldn't take time to look at the evidence and go to a grand jury. But hope springs eternal. You know, thankfully, this is the only outright political violence we've experienced in the last week, but it's not the only assault. I mean, it's really a sad week, right, when you have to say that thank God there's not been more. I think the country really held its place breath after the shootings in Minnesota. But the Trump administration is continuing to act in a really predatory fashion towards Democratic lawmakers and Democratic aligned politicians. They're continuing to arrest Democratic lawmakers in particular. So the most recent one. Jill, let's talk about the arrest of New York mayoral candidate Brad Lander and what you make of it. And also, what can he do about it? Does he have a remedy?
- [15:48]
Jill Wine Banks
So before I answer that question, when you said there was no other violence.
- [15:52]
Joyce Vance
That was like 12 questions. And you're going to answer something else first.
- [15:56]
Jill Wine Banks
But I'll answer all of yours. I promise. I will answer every single thing you ask. I just want to point out there was violence in Virginia for no Kings March. And I was in Virginia and was dissuaded from marching there because one, it's an open carry state and there's a history of MAGA people with long guns disrupting the protest. But then also because of the Minnesota shootings happening before it. Cause it was a nighttime event and this episode in Culpeper, Virginia, where a car was driven into the crowd. But.
- [16:31]
Joyce Vance
Well, and just to be complete, though, let me say I have seen a report, I have not had the chance to track it down, that a Republican congressman was driven off the road, I think a Jewish congressman, by someone shouting anti Israeli slurs. And that it was like he really was forced off the road. So violence comes in all shapes and forms and happens to all kind of people, and it's never acceptable, no matter the reason.
- [16:56]
Jill Wine Banks
Okay, so back to the comptroller of New York, who is a mayoral candidate. He, with many other volunteers and many other members of Congress and city government have been attending immigration hearings because the federal government has adopted a new tactic which I think is despicable and underhanded, where they are having the case dismissed. When someone shows up for a routine hearing to vindicate their rights and to show that they are entitled to be in America legally, they're dismissing the case. And that makes them eligible for immediate arrest with no due process. And so a lot of lawyers are now volunteering to show up. A lot of public figures are showing up. And Lander had been. This was his third time coming to immigration court to escort out people. And one of the immigration organizations that's organizing this has said, we just don't want people to be alone. We also want them to have legal advice if they can. But if something happens, we want to have their name and phone number to be able to call their family and let them know what's happened. We don't want them to be alone. And so they've been escorting people out of the court when there's a risk that they will be arrested because their case was dismissed. That's what happened. And Brad Lander was escorting a man named Edgardo out of the courtroom where his case had been dismissed. He had his hand on his body and masked. UN Uniformed officers tried to take this immigrant from him and he didn't let go. They are accusing him of assaulting a federal ICE Officer, there is, from the video, no assault that I can see. He was trying to disrupt the arrest. He wouldn't let go of the man. And he kept saying, where is your warrant? You don't have a judicial warrant. Which, by the way, to the best of my legal knowledge, you don't need a judicial warrant for these kinds of arrests. But he thought there was. And he kept saying, where is your judicial. And they rustled him off to the side. They got him handcuffed and arrested him and detained him. It took Governor Hochul and his wife and some other people to come down to the detention facility to get him released on bail. Now, no charges have been filed as of yet. I checked just before we started recording. And as of now, there still are no charges against him. He was there to provide moral support, maybe some legal things to notify people. He says, I was escorting an immigrant. I wasn't there assaulting or impeding. And as I say, the video leaves it unclear that he was not impeding, but it certainly leaves it clear that he was not assaulting anyone. So that's how that case arrived. He is now out on bail, and we'll see if any charges are ever filed.
- [20:13]
Joyce Vance
Well, Barb, the administration, it's also refusing. I mean, it's arresting lawmakers. It's also also refusing to let them do their job at immigration facilities. There's this new rule now that I think is contrary to statute that requires members of Congress to give 72 hours of notice before they want to take a look at an immigration facility. You don't have to be a rocket scientist to figure out what sorts of things can be manipulated in a facility in 72 hours if you have notice. So can you talk a little bit about this situation and explain what the legal remedy members of Congress have in this area is?
- [20:52]
Barb McQuaid
So there's a federal statute that says that as a condition of, you know, receiving federal funds, the Department of Homeland Security may not prevent any member of Congress from entering for the purpose of conducting oversight. Any facility operated by or for the Department of Homeland Security that's used to detain or otherwise house aliens. That's the. The term used in the statute. I don't love that term. I like to say people, but they refer to aliens, which means people who are not citizens or green card holders of the United States. So that's what the statute says. One of the things that they're starting to do is to say, well, if you want to come in first, it was. You're going to have to tell us with 24 hours notice. And then it was, now we're going to need 72 hours notice. Now it's, we're going to need a week's notice. But the other thing they're doing, Joyce, is that they're saying this is limited to just our detention facilities, not anywhere else. However, what we are seeing is the detention of immigrants happening at some of the field offices. And so if you look at the language of this, and what they're saying is, no, no, you can't come into a field office. You can come into a detention center with this week's notice, but you can't come into a field office because that's where we're doing our work and our strategizing and our planning, and we can't have members of Congress floating around there. But what it says, it doesn't say detention center. It says any facility used to detain or otherwise house aliens, if they are using it to house aliens, to house people, immigrants, it seems like it falls under the language of the statute.
- [22:31]
Joyce Vance
No, absolutely. And I mean, you, like me, we've spent a good bit of time in our lives in field offices, right? I can't imagine housing people there for any period of time. You can't feed them, you can't clothe them, you can't bathe them. I mean, that's not a place where you can keep people overnight.
- [22:48]
Barb McQuaid
And all the more reason that you need to have over. Like, what are you doing? Like, where are you doing that?
- [22:53]
Joyce Vance
I want to do oversight and see what those conditions look like. Right. I mean, there's a statute in federal law that lets you go in and challenge conditions of confinement for people in prisons and mental health facilities, but this, it wouldn't cover these kind of facilities. And so this sort of congressional oversight is just really incredibly important. Well, Barb, I don't mean to hammer this point home and be obtuse, but I think I am going to hammer it home and be obtuse because that's just how my feelings are on this issue. I mean, at some point, when you add everything that's happening up, right, there's the arrest of the New Jersey representative, Lamonica McIver. There's the takedown of Senator Alex Padilla, the California senator, the judge who's arrested in Wisconsin. I mean, at some point, you look at what is going on with this administration and you start to think this is deliberate. They are trying to systematically put Democrats in their place to provoke them, to create an incident. Sort of reminds me of sending the National Guard into the streets in Los Angeles to try to provoke an immigrant. Do you think that I'm overreading it? Do you think that this is the administration trying to kick it up a notch and really get people to blow up? Or do you see something else at work here?
- [24:14]
Barb McQuaid
I don't know. In every one of these episodes, the only video we get is after the skirmish has begun. Right. So it's a little hard to know how it began. Yeah, like it's already started. So did these lawmakers and judges and others initiate the conflict or did they just get caught up in it? So I don't know, but, you know, just the sheer numbers. Right. We've got a judge, we've got a member of a congresswoman, we've got a senator now we've got the comptroller of the state of New York. At some point, you know, you say, I don't think it's us, I think it's you. When you've got that many, it seems to me what's really going on is they've got like a hair trigger temper and they're just looking for a chance to be able to make an example of powerful people to say, we're the boss, we're in charge here. Don't you dare cross us. And then if you deal with people very swiftly, you know, this is like Trump's old line about being a counterpuncher. I'm a counterpuncher and if you punch me, I'm going to punch back times 10. It is sending a message to other people, don't you dare cross us, or you too could end up jailed. And nobody wants that right. Nobody wants to be arrested or brought to the ground or handcuffed or charged criminally and having to have their liberty and their livelihood at risk. And so, you know, as a prosecutor, Joyce, a former prosecutor, all three of us know that a huge part of being a prosecutor is exercising discretion and declining to bring criminal charges because of a whole lot of factors that come into play. And I would think that one of them is respect for co equal branches of government. But instead, it almost seems like this administration relishes the opportunity to charge these people who are members of CO/ branches of government, to sort of show them who's boss. Right. It reminds me of, you know, the theory of the case of Derek Chauvin and why he leaned on the neck of George Floyd. It was to show them who's boss. And I think that's a very dangerous way to govern in a democracy.
- [26:16]
Joyce Vance
Yeah. I mean, it feels to me like this is just part of this ongoing through line of Trump trying to accumulate more power into his own hands. Jill, do you think Barb and I are. I mean, are we making too much of it, or do you have a similar take?
- [26:29]
Jill Wine Banks
No. I mean, I think maybe, if anything, making too little of it. You originally asked whether we thought it was to provoke the Democrats to overreact, and I don't think that that's it. I do think that whatever their motive in doing these things, it's wrong and that it will backfire on them. I think it's going to anger people, not just the Democrats, but I think it will anger Republicans who see this as the same sort of thing you would expect to see in a dictatorship that you would see in countries without a rule of law. And it just seems wrong to be picking people up who are not doing anything horrible that are just exercising their legitimate rights as members of Congress or as citizens protecting other immigrants, other people. So I think it's not going to do them any good, but it is intended and will show who has the power, and that's. I think, you know, Donald Trump just loves accumulating power.
- [27:48]
Joyce Vance
This episode of Sisters in Law is brought to you by Wild Grain. And this week of Very Happy Family in the the Vance household is also brought to you by Wild Grain. Because I snuck a pack of their macaroons. Do I say that right? It's a French word. I don't speak French. Macaroons. How do you say that? You know the really beautiful multicolored little round cookies with a little bit of jam or some sort of filling in between them?
- [28:14]
Jill Wine Banks
I think a macaroon. Even though that's really a Passover cookie.
- [28:19]
Joyce Vance
Right. I think of that's the Passover, the coconut cookie, however you pronounce it.
- [28:25]
Barb McQuaid
She would say macaron.
- [28:26]
Joyce Vance
Macron. Yeah. Put them in your next order from Wild Grain. And if you have not ordered from Wild Grain yet, make sure you do, because you want these. My husband was actually the other night saying, is there anything for dessert? Oh, no, dear. I slaved away all day in the kitchen and made this meal and made you a pie. No, there's no dessert for you, dear. But Bob found that with the wild grain stuff in the freezer, there were some macaroons and he pulled em out. They were so good. They were every bit as good, I'm embarrassed to say this, as the ones from our local bakery that makes just spectacular pastry. We were so in love. You need to run and get these. If you're not familiar With Wild Grain. It's the first baked from frozen subscription box for artisanal breads, pastries and pastas. Wild Grains boxes are fully customizable to your tastes and dietary restrictions. And they do have exciting news. In addition to the classic variety box, now they have a new gluten free box and a 100% vegan plant based box. Best of all, Wild Grain takes the hassle out of baking since all items bake from frozen in 25 minutes or less with no mess or cleanup. But those macaroons, you just take them out and eat them straight out of the packaging. Oh, Chef's kiss.
- [29:42]
Jill Wine Banks
I can't wait to try those. I haven't had them yet and you are making me want them. I just got a new box and they did an amazing thing because when I saw the thing saying it was coming, it didn't have butter on it. And I was like, oh, did I forget to order butter this week? Because we all love their French butter. And I wrote them an email at like midnight and guess what? The box arrived with the butter. I couldn't believe it. I was so happy. Anyway, it's amazing how fast Wild Gray not only gets to you and how fast they will change your order, but how fast it goes from the box to our table. My husband and I enjoy many of the breads, pastas, and pastries, and so do my guests. They are impressed and surprised when I say it's baked from frozen, not homemade. They often end up subscribing for wild grain delivery themselves because they loved it so much. It's perfect for delicious meals or snacks now or at outdoor summer parties.
- [30:41]
Barb McQuaid
You know, Jill, that French butter really is delicious.
- [30:44]
Jill Wine Banks
Oh, love it.
- [30:45]
Barb McQuaid
I'm sitting here, I'm eating a bowl of it with a spoon right now. You're gonna love watching the color and flavor come alive when the Bavarian pretzel buns are heating up. The aroma of fresh bread and pastries coming from your oven is incredible. You'll never have to call anyone when the food's ready. As soon as the smell reaches them, they come running, especially on game days. Wild Grain items are delicious, super high quality and easy to make. I guarantee the chocolate croissants will be a hit.
- [31:15]
Joyce Vance
Speaking of chocolate croissants, there's one in my hand right now because I'm eating breakfast late and it really, I mean, they're so good. I'm constantly surprised and excited by how good this food is. If you're ready to bring all of your favorite breads and pastas and even cookies right to your doorstep. Be sure to check out Wild Grain. You can begin building your own box of artisanal breads, pastas and pastries. For a limited time, Wild Grain is offering our listeners $30 off the first box, plus free croissants in every box when you go to wildgrain.com sisters to start your subscription. You heard me. Free croissants in every box. And they're delicious. Also, $30 off your first box when you go to wildgrain.com sisters. That's wildgrain.com sisters. Or you can use promo code Sisters at checkout. Look for the link in our show notes. You guys know I was a late convert to this stuff, right? Because I'm such a snob about baking my own stuff. And it is. These croissants are so good.
- [32:18]
Jill Wine Banks
The chocolate ones are especially fantastic, better than any bakery. I just bought the Snickerdoodle cookies. I haven't tried those.
- [32:25]
Barb McQuaid
Oh, yeah, those are good. I've had before. Yep.
- [32:37]
Jill Wine Banks
In an unusual move, the American Bar association sued what looks like the entire Trump administration from the Office of the President on down, including every Cabinet official. The suit was filed by outside counsel who are, by the way, one of the firms subjected to an executive order, just like my old firms, Jenner and Block. The suit was filed by the ABA on behalf of itself because they use pro bono attorneys and are being denied it because the order is making people shy about taking on these kinds of cases, but also on behalf of all of its members. And it's worth noting that the ABA is the largest voluntary professional association in the world. And the reason I say that it's unusual for the ABA to do this is based on my experience with what was then a pretty conservative group when I was the chief operating officer and executive director of the aba. I can't imagine them having done this at that time.
- [33:39]
Joyce Vance
But.
- [33:39]
Jill Wine Banks
But this suit and the prior statements made by the ABA's current President, William Bey, really show that they are standing up against Trump's attempts to control the legal profession and should make us all as lawyers feel a sense of pride. But let's get some facts underway here. So, Joyce, let's talk about some of the facts. What led up to this lawsuit? What facts are laid out in the lawsuit? I thought it was really well written and easy to follow.
- [34:07]
Joyce Vance
I was gonna say that same thing. You know, this lawsuit was filed. It's Friday when we're taping, not this past Monday, but the Monday before. So we're playing a little bit of catch up here. And I had not read the complaint, which is long, until we started to prep for the show. And when I read it, it was like reading a novel. I really couldn't put it down. I just read the whole thing from front to back in one sitting. And here's the deal. This is, as Jill is saying, very unlike what we know the ABA to be, because it's a group that includes all lawyers. It's a big tent. So it has to be careful to represent the views of all of its members. This is American lawyers speaking with one voice. I assume that they had approval to do this. They say in the complaint, I'm going to read from it. Since taking office earlier this year, President Trump has used the vast powers of the executive branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like. That's pretty plain spoken. They talk about the executive orders that Trump has put in place against law firms, and they characterize them not as individual actions, but as a larger assault on the practice of law. And the complaint says the President said it most clearly in a March 24, 2025 press conference. And now they're quoting Trump. I just think that the law firms have to behave themselves. So, look, as the ABA notes, the administration's law firm intimidation policy is uniquely destructive. It's designed to prevent lawyers from playing the critical role that's assigned to them in our constitutional system. Because if you believe in the three branches of government and think the courts are important, the courts have nothing to do if there aren't lawyers to file and defend lawsuits. So when you keep the lawyers from doing their work, you're, in essence, shutting down the Article 3 branch of government. Jill, I think what pushed the ABA over the edge to filing this lawsuit is the success that Trump is having in getting law firms to comply with his dictates and to moderate their work, even if they don't completely stop. They are concerned that firms are moderating who they represent, in what cases they're willing to take. And they put it like this. They talk about the chill of blizzard proportions that continues to grip most of the top law firms and lawyers in the country. So it's clear the ABA thought it had no other cards to play to vindicate the rights of the profession as a whole. They took this really, I think, virtually unprecedented step of filing this lawsuit, for sure.
- [36:52]
Jill Wine Banks
You know, they were founded in 1878 in Saratoga, New York, and their main mission was to protect the rule of law. And I think they see this as a Very serious threat to the rule of law. Because I think you really captured it when you're saying if there are no lawyers to take unpopular cases, then the judicial branch has no meaningful work. They don't make cases. They only hear them when they're brought by lawyers. And I love in the complaint, they develop a word. They say that this is law firm intimidation policy. And that's what it is. It's intended to coerce the law firms to obey. And they also go through all the statistics on how many of the top hundred, the top 200, the top 500 firms in terms of gross revenues are kneeling at the throne of Donald Trump. And so I think it's really important. But, Barb, let's get to the details of what are the causes of action that they filed for and what relief are they asking for?
- [38:01]
Barb McQuaid
Yeah, I love this lawsuit. For one. It's great to see the ABA as an organization stand up for the rule of law, which is exactly what they're doing here. I wish we had other organizations who would actually fulfill their missions. And some are putting their heads down and hiding during these times. It's great to see the ABA standing up with courage. The first thing I want to note about this law lawsuit is the caption. I'm not sure I've ever seen a caption that was eight pages long. I know, as you said, Jill, they sued just about every agency and every head of every agency. But that's because these executive orders really permeate throughout the whole administration. But to answer your question about the counts, most of them relate to various theories under the First Amendment. So one is a violation of the First Amendment for retaliating against law firms for protected speech. Free speech. Another violation to count two is a violation of the First Amendment based on viewpoint discrimination. You know, as long as you say things we like, we're not going to sue you. But if you say things we don't like, we're going to issue an executive order about you. Violation of the First Amendment, which is the right to petition the government. If I can't complain to the government about something I don't like, then that is a violation of my First Amendment rights. There's another First Amendment violation, Account 4, for free association. And this is law firms are being punished because of individuals that they've hired into their firm or individuals they've associated with as clients. So, you know, these law firms have hundreds of members. But these executive orders, like, single out Robert Mueller, like, well, this firm used to employ Robert Mueller or Wilmer Hale several years ago. So we're holding them accountable. And Jenner and Block once employed Andrew Weissman, one of his deputies. And so we're going to squeeze you. So that is a violation of the First Amendment right to free association. There's also a violation of the First Amendment for over breadth. There are all these findings like that are, you know, unsubstantiated, overly broad claims that these firms are engaging in illegal racial discrimination. There's been no finding of that because of their DEI programs, that they've engaged in grossly unethical misconduct. You know, the allegations are things like weaponizing the Department of Justice by investigating Donald Trump, frivolous, unreasonable positions, litigation against the United States. So all of that is, you know, attacking not only individuals who might have violated the law in some way, but also many who have not, which is what makes it overly broad. And then my favorite, we've seen these in a number of these lawsuits, which is ultra vires of presidential action. I love this one. This ultravirus is Latin for beyond the power. So it's essentially accusing the President of acting beyond his power by punishing these law firms. Because the president, of course, may act only to either powers he's given by Congress or powers he's given under the Constitution. And he has no authority to go out and strip law firms from their ability to enter federal buildings or to strip them of federal contracts. And so this ultravirus count addresses that violation, that overreach of power.
- [41:28]
Jill Wine Banks
It is. And they're asking that all the bad things the executive orders require of the agencies under the president, like barring all these people from these firms from entering a federal building, or making sure that they are denied their security clearances, which means they can't represent certain people if they can't have security clearance, that they cannot get a government contract, that if they have a client who has a government contract, that client can be punished. They're really trying to put these firms out of business. And I think that the ABA did the morally, legally, philosophically, jurisprudentially correct thing ensuing, as you said, eight pages of defendants. I mean, it was like, well, I saw it's a 93 page thing. And I'm going, well, that's one page, not two page, three, four. And you go through all these eight pages of the names of all the different people who are defendants. And it fits the ABA's mission of ensuring that no one is above the law, that everyone has access to legal representation, regardless of their viewpoint and financial status. And so I think they really did a good thing about the independence of lawyers. So, Joyce, actually, I may have already sort of answered my own question, but what relief are they requesting, both generally and specifically? And will it stop the harm to law firms in terms of retaliation or punishment, even to those that caved to him?
- [43:01]
Joyce Vance
Yeah, I mean, that's what makes a case something that's appropriate for a federal court to hear. Right. Courts don't hear cases unless they have a remedy that they can issue that will redress the wrong. And so that's an important issue at stake here. I think that the answer is yes. The ABA is asking the court to do something. I think that's pretty simple and elegant. They want them to declare the law firm intimidation policy unconstitutional and block any of those eight pages of defendants from implementing or enforcing it and from doing that now or from doing that in the future, not just to the aba, but to any of its members. So it's this very comprehensive form of relief. It sort of in some ways feels like it's a sort of unofficial class action. You've mentioned most of the stuff the ABA identifies as the most egregious. Taking away security clearances, terminating existing and refusing to grant future government contracts, keeping law firm employees out of federal buildings and denying them access to federal employees, and then, of course, ending the ban on hiring some of these law firms employees into federal government. I think those are the big sticking points. And so if the court goes along with the ABA and issues this remedy, I think it will do a lot to remediate the harm that Trump has inflicted. But there's something I think that's troublesome, which is that Trump, as we all know, doesn't ever stop. He's not going to say, oh, the court ruled against me, so I'll back down. He will more than likely just find a new way to try to do it. Right. He'll evolve and he'll have a new strategy. And so my concern is that many of these law firms will continue to obey in advance, even before they know what the directive is. Just because they want to continue to do business and represent their clients. I don't mean to make the firms out to be bad guys. Right. These firms want to make sure that they can do a good job for their clients and by their support employees. And so as long as Trump is in office, this is something that's going to hang over the heads of the legal profession.
- [45:12]
Jill Wine Banks
So, Barb, is a follow up to what Joyce just said. The firms that are obeying in advance or are settling when they are actually threatened, although Many of them have settled before they actually had an executive order against them. Are they actually protected because the settlements aren't in writing, they're not enforceable. And to some extent, it seemed to me, I don't know why, but I just thought of the Mayor Adams dismissal, where it seemed to me they were asking for dismissal without prejudice so they could hold over his head the possibility of re indictment if he didn't obey them. And that's what it seemed to me now. So what do you think? Am I imagining that connection or what do you think?
- [46:01]
Barb McQuaid
No, I think that's a really interesting insight. So paragraph eight, the one you referred me to, says that this same core purpose of coercion is reflected in the settlements the administration entered into with the other eight law firms that were never subjected to executive orders. To avoid these sanctions, the firms all agreed to represent clients in pro bono cases and to jettison hiring practices disdained by the president. And they're not in writing. So the president could change his mind at any time and impose an executive order on the firm at his whim. That's exactly the problem in the Eric Adams case, because remember when we got that letter from Danielle Sassoon, and then also what Judge Dale Ho found when he dismissed the case, not without prejudice, but with prejudice. They wanted to say to Eric Adams, we'll dismiss this case as long as you play ball with us in enforcing our immigration policy. We want access to Rikers Island. We want you to help us. And they wanted to do this, but with when, when you settle, when you dismiss a charge without prejudice, it means you can bring it again. There's nothing to stop you. So the prosecutor says, I'm going to dismiss this, but I always have the ability to reinstate these charges. And it was that ability. The judge, I think, called it the Sword of Damocles. I can hold this over your head as leverage so that if you disobey or don't do what, what you said you would do, misbehave in some way, I can always come back and punish you with it. And so by dangling it over your head, I, in fact, control you. And so in the same way with these law firms, especially if, you know, no one's ever seen these things in writing, if that's all it is, is like a handshake, a gentleman's agreement with Donald Trump. Are you kidding me? The worry is that if they should fall astray of his wishes, he can come back and ask for more. It's why in my career as a prosecutor, I always Observed that people made a big mistake whenever they appeased an extortionist, because the extortionist always comes back for more. If they have power over you. You know, sometimes it was blackmail. I'm going to keep this person's secret. If you pay me $100,000, I won't reveal your secret. Okay, here's $100,000. Well, then come back next week and say, you know what? I'm going to need 100,000 more. But you promised. Yeah, well, you know, I lied and I might tell your secret after all. So there's no satisfying somebody who is bent on extortioning someone. And so. Or extorting someone. And so. I agree with your analysis, Jill. I think it's spot on. I think it is an MO for this president.
- [48:38]
Jill Wine Banks
It's so interesting because every court that has looked at these orders has ruled that they are illegal, unconstitutional. They've ruled against Trump. So given that, what do you think the likelihood of success for the ABA is? And you think they're gonna win?
- [48:57]
Barb McQuaid
Well, I think the answer is yes. I think the one area where we've seen courts fall a little bit short of winning on all counts is stripping of security clearances, that the executive branch does have a lot of authority there when it comes to security clearances. But for these other things like government contracts and refusing to admit people into federal buildings, I think on those issues, it's a very strong case. I don't see it going any differently than all of the other lawsuits that have been brought by law firms. I mean, Joyce, do you disagree with me?
- [49:28]
Joyce Vance
You know, I think that there may be a standing issue here. This is an organizational plaintiff, and we've seen organizational plaintiffs falter in the abortion cases, where anti abortion doctors groups have used organizational plaintiffs to bring cases, and courts have said, sorry, you don't have sufficient links to these claims. So I think we will see that argument being made here. But to the point of a question that Jill and I discussed earlier, I think that the remedy that the ABA is seeking actually sort of fits the charge. And it may be that the ABA will have a clever argument about how they, along with the individual firms and lawyers, are harmed that will pass muster on standing. So that's my sort of, my, My one caution here, my one asterisk. I'm very interested to see how this issue will come out in the briefs.
- [50:21]
Jill Wine Banks
Yeah, I think it's pretty clear that they sued on their own behalf as well as on behalf of members, because.
- [50:28]
Joyce Vance
Part of their mission. Yeah, I mean, the commissioners Tried the same thing. Yeah, right.
- [50:34]
Jill Wine Banks
I think it's gonna work. And I also wanna ask you one last question, which is the ABA argued that if Trump can do this, another administration could do the same thing. They could say if you represent gun manufacturers, you can't do business with the government. If you're an oil company, we're barring you from the federal building. Taking their policies as different than Trump's. And I mean, what. What philosophical legal argument could be made that there would be a difference? If law firms can be punished for representing people that Donald Trump doesn't like, why can't another administration do the same thing to people they don't like?
- [51:19]
Joyce Vance
Look, I would go even further. If Trump can do this, the next president can say, I don't like that law firm. You know, I'm jealous of them, or I don't want them to be in business. So, I mean, this is a no holds barred attack, not just on law firms. Right. It's law firms here. It could be any other kind of private business. Right. Pick and choose among the steel companies or whatever this is.
- [51:41]
Jill Wine Banks
Or protect Tic Tac like he's doing.
- [51:43]
Joyce Vance
Exactly. This is one of the central features of this administration. They operate like they're the last administration that's ever going to exist. And I think that that should brighten their goals. I mean, I think that, you know, some of this is just that they don't really care what happens after them. Right. I don't think Donald Trump cares about the presidency as an institution, so he's doing what suits him and not worrying about the future. But, I mean, you know, I think the nightmare scenario, right? Joe Biden, a man of honor. Trump versus United States happens. The President knows that he's immune from criminal prosecution. And Joe Biden continues to conduct himself like the man of stellar character that we all knew him to be. Well, what happens if we have people on both sides who behave like Donald Trump? This just feeds the cesspool. And what we really need is for the courts to draw lines and set limits on the Article 2 branch of government. Hopefully, they'll take the hint and use this case as the vehicle for doing that.
- [52:54]
Jill Wine Banks
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- [53:55]
Barb McQuaid
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- [54:23]
Joyce Vance
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- [55:16]
Barb McQuaid
Well, the Supreme Court is in that part of its term where it is issuing opinions in batches as it looks towards its summer recess. This week we got one of those highly anticipated opinions in a case called United States versus Scurmetti. That's not easy to say. It's almost like one of those names.
- [55:34]
Joyce Vance
It's hard to say.
- [55:35]
Barb McQuaid
Yes, Skremetti S K R M E T T I Skremetti. Jill, tell us about this case. What was the issue before the court in this case and what did the majority decide?
- [55:45]
Jill Wine Banks
Okay, I'll tell you about the case. I won't say the name. I don't want to mispronounce it. It's a really interesting case. The issue involved the Tennessee law barring gender affirming care for minors, even with parental consent and doctor's approval. And it's not just Tennessee because 26 other states also have similar laws. So whatever this ruling is would apply to them as well. The Teens who were involved in getting care and their parents and a doctor sued and they all had standing. And the majority said that trans people are not a suspect class. And I say that that's what they said. I mean, I can't see how you don't see them as a suspect class when the government just banned trans people from serving in the military. And hate crimes against trans people are skyrocketing. But that meant because they're not a suspect class, that the standard of review is a very minor rational basis standard, and that made it a different outcome than if the standard had been higher. So that was the principal holding. Was that the standard of review? And no, there was a rational reason for Tennessee to say, although I honestly don't see the rational reason for them saying that they have a right to interfere in trans treatment. I just think it's important that we all recognize the importance of early intervention. I have a friend who had a child who wanted to transition, who was very unhappy, dropped out of college, was suicidal and drug addicted to transitioned, and they are now a very happy person in a very nice relationship and living a good life. So I think we want to be empathetic to the need for gender affirming treatment.
- [58:03]
Barb McQuaid
Yeah. In fact, Joyce, I thought that the dissent had that sort of focus. Justices Sotomayor, Kagan and Jackson dissented in a dissent written by Justice Sotomayor. What was the view expressed there?
- [58:17]
Joyce Vance
Yeah, Justice Sotomayor really took the majority to task in this one. She's been doing that a lot lately, and she does it with a really deft hand. She's joined here by Kagan and Jackson. The case, as you've said, is 6:3. And Justice Sotomayor argues that the majority rule improperly discriminates against minors based on sex, which, as we all know, is not legal. She articulates it in a couple of different ways. She says the majority refuses to call a spade a spade and they obfuscate a sex sex classification to allow the Tennessee bill to withstand constitutional tests. In other words, the majority is just ignoring reality to reach the result that they want to reach. She has. It's a very quotable dissent. She points out the hypocrisy in this case, which allows the law to operate as functional discrimination. And she says SB1 Senate Bill 1 makes explicit that the very reason why a doctor is can treat an adolescent female for hirsutism, which is male pattern hair growth, but not gender dysphoria, is that the former will promote consistency with sex, while the latter does the opposite. She concludes, as was true in Bostic, this sort of important precedent. We'll discuss that. They're relying on. As was true in Bostic, then, the law deprives minors of medical treatment based in part on sex. I mean, it's sort of a plain argument. She's not contorting herself. This is not pretzel logic. She's just looking at what's going on. So I think Jill made this point so eloquently, but I think it's worth underscoring what this law is not about. This is not a case about surgical intervention. The Tennessee law prevents kids from getting puberty blockers, which buy them extra time to sort things out in their own minds. It's. It blocks them from getting hormone treatments that do the same thing. That's what's promoted all of this outrage in the Tennessee legislature. And like Jill says, statistics show that these treatments keep kids alive. I mean, this is a population that's prone to suicide and depression and these sorts of interventions which Tennessee has now outlawed and which will now be illegal in any other state that wants to adopt a law like this. These are life saving measures. It's just cruel to do this. And like so often in modern day America, the cruelty is the point. But this is a marginalized population that. That's a very, very small percentage of the country. These are minors. And just the consequences are going to be catastrophic when it comes to human lives.
- [60:58]
Barb McQuaid
In reading this opinion, I couldn't help but feel that the court really looks at the trans community very differently from the way it looks to the lesbian and gay community. And I say that based on this prior case called Bostic. Bostic was a case that was interpreting Title VII about employment discrimination, where the court, in an opinion written by Justice Gorsuch, certainly one of the conservative members of the court, found that it was a case where there was a discrimination based on sex which would bring it to that intermediate level of scrutiny instead of rational basis scrutiny. And he said that in the case, even though. So, you know, to discriminate against gay people is not necessarily against men or women. It's against all gay people. Like, I hate all the gay people. I don't hate just gay men or gay women. I hate all the gay people. That was enough because you could go to a work event and introduce to your boss, your husband Bob, if you were a woman without negative consequences, but you could not introduce your boss to your husband Bob if you were a man without negative consequences. So he said that was a distinction based on sex. It seems to me that they disregard that concept in this case and they say, oh, no, this is about. It doesn't matter whether it's for boys or girls. You can't use puberty blockers and hormone therapy for anybody for this purpose. Jill, do you think that that is a distinction with intellectual honesty, or do you think that they are looking at the gay community and the trans community in very different ways?
- [62:39]
Jill Wine Banks
I think it is completely disingenuous. It is a difference without distinction. And it does. I think Joyce pointed this out that it's just so obviously based on sex. They're saying, no, it's based on medical outcome. You can use these to confirm your gender. You just can't use it to change your gender. That's just wrong. And I don't see any difference intellectually between how they ruled in Bostock. Well, I mean, I guess I see intellectual difference between them. That makes no sense. It should have been the same outcome is what I'm trying to say. Bostock should have governed here and this would have been a sex based discrimination, and sex is a suspect clatifier classification that you can't do and would have required a higher standard of review and should have had a different outcome. So, no, I think it's horrible.
- [63:38]
Barb McQuaid
What about you, Joyce? Do you see that distinction?
- [63:42]
Joyce Vance
You know, I think Jill is 105% correct. This opinion is just an example of leading with your politics. And you don't need a law degree to see that this is discrimination based on sex. I mean, you might not like how other people view gender and sex. It might make you feel uncomfortable. But that doesn't change the fact that this law discriminated on that basis. And that's not how our legal system is supposed to work. So truly, I understand that some people are uncomfortable with this whole issue. They're uncomfortable with transgender people. But imagine for a second that this was a case about black people or Jews or women with blonde hair, and they were told that they were no longer permitted to buy or take aspirin.
- [64:27]
Barb McQuaid
Right.
- [64:27]
Joyce Vance
You can't do that. Other people can, but you can't. We wouldn't have any trouble seeing that that was wrong. And maybe I'm oversimplifying for the purpose of making the example, but this is not all that different. This is discrimination against people on the basis of sex.
- [64:42]
Jill Wine Banks
You know, it's especially outrageous because at the very same time, the ban on transgender service members is going forward and it's at least temporarily not being stopped. And if that doesn't make you a suspect classification I don't know what does. So how can the court just blindly look away from them being a suspect category that should be protected? It's outrageous to me.
- [65:13]
Barb McQuaid
Yeah, I think this is one of those low moments we will look back on, I hope not too many years in the future and say, what were they thinking? You know, what backwards times, you know, when cases like this come down, I feel like I'm living in the history books. I'm living in the bad old days. I wanted to raise just a couple things. One is just by way of explanation for our listeners. The court still has several cases remaining. I think they decided this week something like eight cases, but that means they still have, like 13 cases to go. And what's interesting is they now decide fewer cases than ever. They're going to decide 65 cases this year. But the opinions have become much longer. And what we're seeing now is every June and July, we've got these blockbuster cases that are coming out. What do you think is causing these changes? I'm just kind of interested in this from a court watching perspective. What do you think, Joyce? I mean, is it politics? Is it Trump tying them up with emergencies? Is it the shadow docket? What do you think is leading to this?
- [66:20]
Joyce Vance
Well, you know, I sort of think it's ivory tower syndrome. Right. Things tend to get more specialized over time with more decades of legal trivia behind them. The Supreme Court has more reference points and touchstones that are very inside baseball. And so they write more and more about it, and they write back and forth to each other in majority opinions and dissent. And although maybe the politics contributes to this, I have sort of just started wondering. I'm not really very far along with this, but I always think that the worst answer to a question about why do we do it this way is, well, because we've always done it that way. And so I've started to, you know, think as a lawyer, my, my reaction when people say the courts are so slow to do anything. And I say, oh, there are all these really good reasons, blah, blah, blah, blah, blah. And I've started to think maybe that's a bad answer. And maybe what we should be doing is thinking about more efficiency in our courts and being more user friendly. In other words, the target audience for these opinions in some cases is gonna be a technical legal audience. There were some very technical legal questions decided by the Supreme Court this morning. But, you know, by and large, the court should be writing in language that everyday Americans can understand. And so maybe what we really need is an evolving theory about the purpose of the judiciary and the way it should conduct itself. And sure, judges have life tenure and they can take as long as they want to, but that doesn't mean that they should.
- [67:49]
Barb McQuaid
How about you, Jill? You have any theories for.
- [67:52]
Jill Wine Banks
Well, I think there's a lot of reasons. I don't think you can point to one. Cause I think politics is definitely playing. I mean, we see the political goal changing how they analyze things and depending on what the case is. So I think the politicization of the selection of justices and of their willingness to make decision based on politics. I think we have seen an unprecedented number of emergencies that not all of which I think are actually emergencies, but of asserted emergencies that are taking up court time that delays things. But every article that. And Barb, you circulated one to us, that was a very good analysis of all the possible reasons and most of them just didn't hold up. It was, you know. Well, there was a law passed in 1833, and there was a law passed. But that doesn't explain why in the last few years, not 100 years ago, the number of cases has dropped significantly. I mean, in the recent times, it's cut in half. Why is that? And I don't think it's because they're writing longer ones. There's, you know, the article about how the cert decisions are made now by one clerk who represents five justices. And so that. That is making denials of cert more likely because the clerks are afraid that if they take and say, yeah, you should take this case uncertain, it turns out to be a dud, that, that they'll feel bad. So there's a lot of suspected reasons, but I think it's just everything and they're getting away with it. I mean, this is maybe grounds for. We need a bigger court. We need two supreme courts so that they can handle enough cases. They're not taking the cases that are Mr. Smith versus Mr. Jones. They're taking just the cases that seem to have political consequences. And that's too bad. So I don't think it's a good thing. I wish it would be different.
- [69:59]
Barb McQuaid
Yeah, I definitely think it's politics. Don't forget, the court decides which cases it is going to take. And so it has been taking up these cases of gun rights and abortion and all these kinds of things, all the culture war stuff. And we also now have all of these impact litigation organizations that tee up lawsuits just to test things. And we also have justices who are willing to sort of say in their concurring and dissenting opinions. The time has come to review substantive due process. And so they're kind of inviting the court to overturn precedents. And so it's become a much more political animal, I think, than it was ever designed to be. Well, let's move on to one more case if we can. And that's something that came out of the Ninth Circuit Court of Appeals. This is not the Supreme Court, but one of those intermediate courts of appeals that covers California. And the court decided that the Trump administration could keep the troops in LA for now. You may recall that a district court judge, Charles Breyer, had ruled that the Trump administration had violated a statute by sending nationalizing the National Guard, calling them up to enforce immigration law on the streets of California, I guess, in a support role. What's your take on this case, Jill? What was the holding, and do you see any limits on the holding?
- [71:29]
Jill Wine Banks
So, first, in full disclosure, let me say that, Chuck, to me, Charles Breyer is a friend. He was a Watergate colleague. That's what he was called then. Now we call him Judge. Anyway, he is a friend. I had the pleasure of seeing him recently in Chicago, and I thought his opinion was really well written. One of the things that I really was struck by in the Court of Appeals opinion was how differently they saw the facts. And that made a big difference in how they determined the case. Breyer saw the facts as not being a serious threat. The violence wasn't so bad, whereas if you read the 9th Circuit's opinion, it was a disaster. There was fires. And I mean, you know, they saw it very differently. So I think that changed the outcome of how they ruled. But I think their decision, which is actually just a temporary. You can keep them there while this case is pending litigation. It was a tro, which was going to expire anyway. So it's sort of like, I don't know if anybody's going to actually appeal this because there's a hearing on the preliminary injunction. So. So maybe you won't bother with that. But I think there was a lot in this ruling that was a warning to Trump not to go too far, as his posts have suggested. He's saying, you know, we're going to be everywhere now. We're free to do this. And I don't think they're saying that. They're saying you have to have a rational reason for doing this. It did require deference to the president's decisions on national security, but it requires rejected one of his main and most important arguments, which was that he was not even subject to judicial review, that his actions couldn't be reviewed. And the court said, oh, yes, they can. We have the power to review what you do, and you need some evidence to do this. There has to be some rational reason. So I don't think it was. You know, my first reaction when I saw the headlines was, oh, my God, this is the worst thing in the world. And then when I read the opinion, I was like, like, well, they didn't go so far. They only decided to pause the TRO while litigation was pending. On the other hand, they also did say that part of their reasoning was that he was likely to prevail. So that does suggest something else. And also, I just want to point out, it doesn't address the Marines. The only thing at issue here was the National Guard. And it's my understanding that the hearing that that is back before Judge Breyer will also address whether calling out the Marines was appropriate and can stand. So there's still a lot more to come on this.
- [74:21]
Barb McQuaid
Yeah. What about you, Joyce? You had a nice piece about this in your civil discourse substack that maybe suggested that it is not as worrisome as first. First blush might suggest.
- [74:35]
Joyce Vance
You know, I think maybe that wasn't my point as much as my point was that the opinion we got out of the 9th Circuit was consistent with what we heard from them at oral argument. I mean, I very rarely want to read tea leaves following oral argument, but I actually wrote that night that I thought that the decision would be 30 and it would come out this way. The one slender thread of hope was that the panel didn't go as far as Trump wanted them to go. He, of course, wanted them to say the judiciary can never review the president's decisions about when to federalize the National Guard. And they said no. You know, there's some room for common sense review, sort of a. They didn't say it this way, but really what they were saying was whether or not the president's determination that there's a problem passes the smell test. And so that, I think, is, you know, it wasn't as bad as it could have been. It's not great. Personally, I thought Judge Breyer's opinion took a much better tack, given what we know about the exercise of presidential power and the importance of maintaining balance between the three branches of government. I mean, this is a dangerous moment. Right. Donald Trump read the opinion earlier. I assume he didn't read the opinion. Somebody told him about it last night, and he immediately got on social media and said, glorious victory for me. He didn't say that, but that's my interpretation.
- [76:02]
Barb McQuaid
He claims victory for everything, right?
- [76:04]
Joyce Vance
And then he says, and these are his words, congratulations to the ninth Circuit. I mean, presidents don't congratulate federal judges for ruling in their favor. This is just mashuggena. And then Trump says, oh, and this is great. Now we can go and save other American cities. You know, it's just a really. I think if we didn't laugh and make fun of it, we would just all be deeply, deeply depressed all the time. This is a president who is threatening to launch the military, whether it's the Federalized Guard or the Marines or some other fighting force on American streets to keep order as he defines order. And I mean, this is the moment, right? This is the moment. We are living in the constitutional crisis. And even though I think for many people it doesn't feel that way, everything still looks pretty normal and people go about their business. But we need to all be on high alert.
- [77:12]
Barb McQuaid
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- [77:37]
Joyce Vance
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- [78:02]
Jill Wine Banks
You know, it's amazing. And Barb, although you were talking about the summer clothes. I just came back from a plane trip where the planes are so cold, and I used my cashmere quince wrap as a blanket. Basically, it was beautiful, soft, felt great, and kept me really warm. But you're right about the other clothes, too, and all of us love how Quince works with factories that use safe, ethical and responsible manufacturing practices and premium fabrics and finishes to give you their amazing offerings. I have to say, everyone needs Quince's washable stretch silk blouse. The material feels amazing and the style is perfect for giving a speech, being on screen, seeing friends, or heading off to exciting new places. It's great for travel. There's nothing better for looking your best as the weather heats up. And if you're prioritizing fitness going into the summer, the best workout motivation is new activewear from Quints.
- [79:02]
Joyce Vance
So don't wait. Give your summer closet an upgrade with quince. Go to quince.com sisters for free shipping on your order and 365 day returns. That's Q U-I-N C E.com sisters to get free shipping and 365 day returns. Again, quince.com sisters the link is in our show notes, but you did make.
- [79:28]
Jill Wine Banks
Me want to go buy some quince linen stuff.
- [79:33]
Joyce Vance
I want that wrap. I don't have that.
- [79:35]
Jill Wine Banks
Oh, my God.
- [79:35]
Barb McQuaid
I haven't seen their taste.
- [79:36]
Joyce Vance
It's fantastic.
- [79:37]
Jill Wine Banks
And the price is unbelievable. It is the quality of like three $400 cashmere stuff.
- [79:44]
Joyce Vance
I need a new one because mine is full of moth holes. I've gotta replace it.
- [79:47]
Jill Wine Banks
It's sort of thick, so it's not something you can easily stuff in your purse, but in a big tote bag on a plane. It's perfect.
- [79:55]
Joyce Vance
Yeah, I actually use mine on airplanes and for sleeping in hotels.
- [79:59]
Jill Wine Banks
You will love this. You will? Absolutely. And you'll be shocked at the price.
- [80:02]
Joyce Vance
See if I can order that while we podcast.
- [80:04]
Jill Wine Banks
Okay.
- [80:14]
Barb McQuaid
Well, now comes the part of the show that is our absolute favorite, the part where we answer your questions. If you have a question for us, please email us at sisters in lawpolitikon.com or or tag us on social media using Sisters in Law. If we don't get to your question during the show, please keep an eye on our feeds throughout the week. We'll answer as many of your questions as we can. Our first question comes to us from Adam in Lexington, Massachusetts, who asks what happened with the TikTok lawsuits? Didn't the Supreme Court have a unanimous opinion saying that it needed to be sold? Well, Jill, why don't you take a stab at that one?
- [80:54]
Jill Wine Banks
Well, I love the question. Thank you, Adam. Yes, the Supreme Court did have a unanimous opinion and the sale was supposed to have happened a long time ago, but Donald Trump became president and so he said, I'm going to delay that because I'm a great deal maker and I'm going to solve this problem and get them to sell it. And then he extended it a second time, and this week he extended it a third time. So it's now more than six months and the sale has not happened. And I don't know how long this can keep going. What's the point of having a Supreme Court decision that says, here's the deadline. Do it. It's not the Supreme Court deadline. Congress set the deadline, and Supreme Court said that's okay. So I don't know, Adam, I can't tell you. It needs to be sold, and that's it. Why is Congress doing nothing? Because they're loyal to Donald Trump, and the majority says, okay, whatever he wants. So why are they passing any laws? I mean, there's so much wrong with what this question represents. Thank you for asking it.
- [82:05]
Barb McQuaid
Next question comes to us from ichigancandeedluesky Social. Joyce, let me ask you this. Will Trump ever run out of appeals on his unconstitutional actions? What do you think?
- [82:20]
Joyce Vance
Well, Candide, it certainly does not feel like it, right? I mean, they go on and on forever. And I'll tell you, I practice as an appellate lawyer, and often they do go on and on forever for years, because there's not just one appeal. There are these early appeals about injunctions, and then a judge decides the case and their appeals. And. And oftentimes, if a case does make it to the Supreme Court, the Supreme Court sends it back. It did this in two or three cases this morning with directions to the Court of Appeals to take further actions consistent with its findings. Sometimes that case will then go back to the Supreme Court, and so it can be a very lengthy process. I think that the question that you're asking, if I'm interpreting this correctly, is, will he run out of appeals while he's still the sitting president? And I think the answer to that is yes in some cases. But in. In other cases, they may outlast him. And as we saw last time, those cases, those issues may become moot once he's no longer in office, and there may never be a decision in some of these cases. So it's a real mixed bag.
- [83:26]
Barb McQuaid
And our final question comes to us from Carla, who asks, do you think the no Kings protests made a difference? Oh, Carla, what a good question. And my answer is absolutely yes. I think it shows a democracy that is awakened, a democracy that cares about all of the abuses of power that we are seeing. I think that when people who are maybe more on the fence politically see that happening, they realize that there's a big deal going on and they ought to be paying attention. I think it also really helps those of us who are deeply disturbed that something's going on to say, you know what? We're not crazy. Look at all of these. There's thousands and thousands of people all across the country who agree with me that there's something deeply wrong with our democracy. So I think it is a sign of a very healthy democracy. I was really glad to see how many people were out there in my community and across the country and I hope the next opportunity you have to join in a protest that you'll do the same.
- [84:26]
Jill Wine Banks
I'm hoping the number will double the next time because there is a theory in social science that it takes 3% of the population to actually change the policies of the government and that would take about double the number that we had this time. So if you're listening, next time, join the protest.
- [84:47]
Barb McQuaid
Thank you for listening to Sisters in Law with Joyce Vance, Jill Wine Banks and me, Barb McQuaid. Follow sisters in Law wherever you listen and please give us a five star review. It really helps others find the the show. And please show some love to this week's sponsors, Mix Tiles, Wild Grain, Calm and Quint. The links are in the show notes. Please support them because they make this podcast possible. See you next week with another episode. Sisters in Law.
- [85:18]
Jill Wine Banks
I can't sing worth anything. I was told to mouth the words to my 8th grade graduation song so.
- [85:23]
Joyce Vance
I wouldn't throw everyone up. Someone who can.
- [85:27]
Barb McQuaid
If not for that, a star would have been born.
- [85:29]
Jill Wine Banks
I'm sure. My dream is to be Bette Midler. That's what I really want to be. I want to sing and dance and be a comedian.
- [85:36]
Barb McQuaid
You know, that's funny because I was talking to her last week and she wants to be you.
- [85:43]
Jill Wine Banks
Bravo.