#SistersInLaw Episode 257: Unitary Executive Meets Textualism

Date: October 11, 2025
Hosts: Joyce Vance, Barb McQuaid, Kimberly Atkins Storr (Jill Wine-Banks absent)

Overview

This episode grapples with a weighty week in law and politics, focusing on the Trump administration's unprecedented use of the criminal justice system for personal retribution, the controversial deployment of National Guard troops to U.S. cities, and the Supreme Court’s hearing of Louisiana v. Calais, a critical gerrymandering case with wide-reaching voting rights implications. The #SistersInLaw team—minus Jill this week—dives into the erosion of DOJ norms, the collision between unitary executive theory and textualism, and the potential risks to democracy that arise when presidential powers go unchecked.

Main Topics and Key Insights

1. Trump’s Weaponization of the Criminal Justice System

(Begins at 08:51)

• Indictment of NY Attorney General Letitia James:
  The DOJ, under Trump, indicted Letitia James for alleged mortgage fraud. The charge seems minor and highly politicized, with serious questions about prosecutorial ethics and process.

  • "Proving fraud is a pretty steep uphill battle... The real story here is the circumstances." – Barb McQuaid [09:45]

  • Only one prosecutor, Lindsey Halligan, signed the indictment—a political appointee with questionable qualifications and no backing from career staff.

  • Former US Attorney Eric Siebert and other senior staff resigned or refused to be involved.

  • The purported “harm” was a saving of $50/month for five years, with the bank expressing no grievance—a sharp contrast with Trump's own much larger, systemic fraud allegations.

• Selective and Vindictive Prosecutions:
  The hosts discuss how Trump brazenly directed prosecution of perceived enemies via public posts, e.g., naming James and Adam Schiff, a move described as “saying the quiet part out loud.”

  • "It was like 'Pam, indict Jim and Tish and Adam, because I hate them.'" – Joyce Vance [15:35]

  • These cases may collapse due to selective or vindictive prosecution—defenses rarely successful but plausible here due to Trump’s explicit motives.

• Legality of Appointments:
  Lindsey Halligan’s appointment is likely invalid under DOJ regulations. The Office of Legal Counsel’s opinions and precedent (noted by Ed Whelan and Samuel Alito) indicate that Trump cannot bypass established limits for interim appointments.

  • "There are three paths to being a US Attorney ... and she is 0 for 3 on all of them. So it appears to me that her appointment is invalid." – Barb McQuaid [19:43]

• Chilling Effects on DOJ Culture:
  Career prosecutors have staged a silent protest—refusing to sign indictments or accompany Halligan—demonstrating institutional resistance.

  • "You don’t bring... public corruption cases that the whole office isn’t behind. You go into indictment review... until it’s as tight and as tough as it can be." – Joyce Vance [24:50]

  • The shift is not just about targeting enemies but also protecting allies from prosecution.

  • "He can use it as a weapon to go after his opponents, and he can also use it as a shield." – Barb McQuaid [28:26]

2. Unitary Executive Power and the DOJ’s Role

(Interspersed throughout—see especially 28:26 and 50:10)

• Trump claims maximal power as “the nation’s chief law enforcement officer,” undermining post-Watergate reforms designed to ensure DOJ independence.

• The episode references key structural guardrails—restrictions on White House-DOJ communications, ethical prosecution standards, and principles of forbearance in democratic governance.

• Notable Quote:
  "Power should not be exercised just because someone can exercise power... If you use the full force of your power... you will destroy civil society.” – Barb McQuaid, referencing How Democracies Die [28:26]

• The hosts express grave concern as these precedents, once breached, risk becoming new norms.

3. Deployment of the National Guard Under 10 USC §12406

(Begins at 39:51)

• Trump has routinely invoked this obscure statute—normally a procedural step for using the Insurrection Act—to federalize National Guard units in multiple states.

  • "The fact that it doesn’t have a catchy nickname actually tells you a lot about it. As you say, it’s not the Insurrection Act." – Joyce Vance [40:34]

• Oregon & Portland Legal Battles:
  Trump’s move to deploy Guard units in Portland was challenged by state and local governments. Judge Karen Immergut (a Trump appointee) issued preliminary injunctions, blocking deployment first of Oregon and then California Guards.

  • "It was the wildest weekend of orders and of an attempt... to cleverly undercut the first order by just sending National Guards from a different state." – Kimberly Atkins Storr [44:39]

• Plaintiffs argue that no statutory precondition (e.g., rebellion, inability of law enforcement) exists; courts must be able to review presidential determinations for “smell test” validity.

  • "There’s a reality test, sort of a smell test, where she could look... and say the administration is overstating what the evidence suggests." – Joyce Vance [45:52]

• Appealed to the Ninth Circuit, which may uphold presidential deference but demonstrates deep division over judicial oversight versus executive authority.

• "This is where unitary executive meets textualism... and what could be a really interesting, interesting test." – Barb McQuaid [50:54]

4. Voting Rights and the Supreme Court: Louisiana v. Calais

(Introduced at 57:32, Discussed 58:04–68:21)

• The Supreme Court will rehear a case on a Louisiana redistricting plan that attempted to create two majority-Black opportunity districts, forced by prior SCOTUS rulings; a group of white voters now claim that this violated their rights because race was considered.

  • "We’re talking like 20, 30, maybe even more seats, which I think is super frightening." – Joyce Vance [66:10]

• The Court expanded its review question to ask whether intentional creation of such a district violates the 14th or 15th Amendment, signaling potential for a wide-reaching ruling undermining the Voting Rights Act’s Section 2.

  • "Now Louisiana is on the side of the non African Americans... Everybody now is backing up and saying, 'No, this is unconstitutional.'" – Kimberly Atkins Storr [62:15]

• If SCOTUS strikes down these protections, states could gerrymander with near impunity, endangering minority representation and democratic legitimacy.

• Michigan’s Model – Independent Redistricting Commission:
  Barb offers hope by describing how Michigan and other states use independent commissions to draw fair maps, not tilted by partisan control.

  • "We have districting in Michigan that is no longer got a thumb on the scale based on partisan politics..." – Barb McQuaid [66:57]

Notable Quotes & Moments

• "We are perilously close to a moment where we slip into autocracy… we are in a moment that calls for all of us to be vigilant." – Joyce Vance [27:33]

• "There has to be respect for other institutions... because if you use the full force of your power against them, you will destroy civil society.” – Barb McQuaid [30:09]

• "Plenary power means complete power... As we’ve discussed, the president does not have plenary power over deploying the National Guard." – Kimberly Atkins Storr [72:57]

• On judicial review: "If you can preserve a county line, you should do that. They should be contiguous... keep together groups of people. They should be of equal size." – Barb McQuaid [66:57]

• Humor in appellate advocacy:
  "Good advocacy. I agree... I don’t think I ever said [crazy sauce]... but sometimes humor is a wonderful thing." – Joyce Vance & Barb McQuaid [49:26]

Key Timestamps for Important Segments

| Timestamp | Topic | |---------------|----------------------------------------------------------------------------------------------------| | 08:51 | Discussion of Trump DOJ's indictment of Letitia James, prosecutorial ethics | | 15:35 | Trump’s “indict them” Truth Social post and implications | | 19:43 | Legality of Lindsey Halligan’s appointment as U.S. Attorney | | 24:50 | DOJ prosecutorial culture, office resistance | | 28:26 | Erosion of DOJ norms; unitary executive doctrine | | 39:51 | National Guard deployments: statutory grounds and legal challenges | | 44:39 | Oregon, Portland case and Judge Immergut’s rulings | | 50:54 | “Unitary executive meets textualism” in the courts | | 57:32 | Louisiana v. Calais: Returning to the Supreme Court | | 62:15 | Diminishing hope for Section 2 of the Voting Rights Act | | 66:57 | Michigan’s redistricting commission as a model | | 72:57 | Listener question: Plenary authority and its misuse | | 75:03 | How citizens can counter unconstitutional government actions | | 78:04 | Definition and law school lesson: “unindicted co-conspirator” |

Tone, Language, and Memorable Exchanges

The hosts balance seriousness with wit and warmth, particularly in candid asides and relatable legal analogies. They freely express alarm at the breakdown of legal norms, but maintain humor (e.g., the running “Andy Dodd did it” joke [80:50]) and hope—especially when drawing on state-level democratic reforms.

Conclusion

Episode 257 delivers a sobering but vital roadmap to the perils facing American democracy under an empowered unitary executive, the politicization of prosecution, and the threat to fair elections. Yet, via listener Q&A and concrete state reforms, the Sisters remind us that vigilance, civic engagement, and the rule of law remain powerful tools for defense.

For more: Listen to oral arguments for Louisiana v. Calais on the Supreme Court website this Wednesday.