Joyce Vance (3:05)

You know, we are actually sort of having my favorite date night tonight. We are going out to dinner with some very old friends who we don't get to see nearly often enough getting barbecue. There will undoubtedly be beer and lots of ketchup conversation and a good time involved. And the great thing about it is my very sweet husband is doing this because tonight is the first night of my book tour. It's sort of the soft launch in Birmingham. So my former senator Doug Jones is asking me questions in front of a nice audience at our favorite local bookstore. Knowing Doug, he will undoubtedly take a couple of potshots at me. So I'm going to gird with my thickest armor and get ready to respond in kind. But then we are, we're going to just indulge in barbecue and good friends, which is a wonderful date night.

Kimberly Atkins (3:59)

Yeah. Oh, that sounds like a lot of fun. You know, one of the things that I like doing with my husband is just walking around a neighborhood, like just finding a neighborhood that either within D.C. or someplace nearby and just going there and spending a day and just taking it all in it actually you end up seeing things that you didn't know about or finding new nooks and crannies of your own neighborhood or one that you're familiar with and meeting interesting people. And we always have a really good time doing that. And that one doesn't necessarily require you to spend large amounts of money. It's a good date. It's also a cheap date, so I really enjoy doing that. Well, I hope you all have a wonderful time. And we need to have these nice moments to keep us balanced for all the things we have to tackle, like what we're about to talk about right now.

Jill Wine-Banks (4:54)

Amen.

Kimberly Atkins (5:04)

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Jill Wine-Banks (6:07)

I saw the picture of that and it looked great.

Kimberly Atkins (6:09)

Yes. Yeah, yeah, yeah. So I'm gonna. That's gonna be dinner tonight.

Jill Wine-Banks (6:14)

You know, I love my Hexclad, and Michael loves the Hexclad because when I cook, he has to clean up and. And he always hated it. Except now it's so easy that he doesn't mind. And you know, I hate to say, but it does really look good while you're. You know, if you leave it out on the stove, it looks beautiful. And no matter what you're planning on making, Hexaclad's six piece and 12 piece sets. Have you covered? The six piece set handles everything essential for quick sears and simple sauces. While the 12 piece opens the door to big batch soups, which is perfect for this time of year. And I just made one in it. It was fabulous. It also can use for braising and all the comfort food classics that you want at this time of year. With Hexclad, you'll be ready for everything from weeknight cravings to holiday gatherings. And best of all, every Hexclad product is backed by a lifetime warranty. So you're not just investing in better tools. You're building a kitchen that's ready for anything.

Joyce Vance (7:21)

Look, there is nothing I would rather do in my kitchen and have in my kitchen when it's time to make the Thanksgiving feast other than Hexclad. But you have to be careful. I'm on my second set. My oldest son realized how great Hexclad is, and he actually ran off with my first set. So in case they don't bring them back, I am still ready to welcome everyone to our table with my very own set. Now, the quality is really amazing, and the unique design makes cleanup essential. You can join us in celebrating the delicious meals of the holiday season by embracing your inner chef and adding Hexclad to your cooking arsenal.

Jill Wine-Banks (8:04)

So, Joyce, I know you have an inner chef, and I'm still waiting for my invite to one of your holiday gatherings. So please, girl, anytime.

Joyce Vance (8:14)

Come on down.

Jill Wine-Banks (8:15)

Okay. I've never been to Birmingham, and I really want to visit, so we need a live show there.

Joyce Vance (8:21)

Wait, but before you come here, I just want to go to Kim's. Kim, what time is dinner tonight? I want hang out. I really want that. You've made me hungry.

Kimberly Atkins (8:30)

Sharp. You can catch a flight. Hurry.

Jill Wine-Banks (8:33)

So after everything, Fall is the season for cozy gatherings and home cooked meals. So why not treat yourself to the best cookware to make it all a breeze. For a limited time only, our listeners get 10% off their order with our exclusive link. Just head to hexclad.com sisters and you'll be supporting our show. When you do that, you can upgrade your fall kitchen at h e x c L-A-Com sisters. Make sure to let them know we sent you cheers to stylish and stress free fall hosting with Hexclad. The link is in our show Notes well, the Supreme Court really started out with a bang for this term. They have already heard oral arguments now instead of at the end of the term when they usually hold the really hot cases in Louisiana versus Calais, it's a case that could eliminate the protections of the Voting Rights act completely. Really? They've already eliminated part of the Voting Rights act and it's the most powerful remaining provision that we have. Section two, the Voting Rights act was enacted actually while I was in law school, unlike all the rest of you guys, and I understand how important it is it was to enforce the 15th Amendment and the 14th Amendment, which banned racial discrimination in voting. But as Democracy Docket wrote, the justices are weighing a sweeping conservative argument that Section two is itself unconstitutional. I mean, I can't believe we've gotten to a point where we're saying that this law could violate the Constitution. The Court's decision could dilute the voting strength of communities of color and shift the balance of power in Congress and in state governments, potentially giving Republicans a lasting advantage by enabling the dismantling of minority districts that currently elect Democrats. And according to most court watchers who listen to the arguments in the Supreme Court, the Court seems poised to do just that. How can it be that the 14th and 15th amendments could be basically gutted? Are plaintiffs actually arguing that the VRA is unconstitutional? Kim, let's start with the case was brought by black voters challenging a Louisiana map that created only one of six districts with a majority minority population, even though 30% of Louisiana's voters are minority. Take us from that case to an order for a map with two minority districts to be created and the challenge by what are called non black voters.

Kimberly Atkins (11:36)

Yes. So the original challenge, and it's a complicated case, I can understand why it's confusing. So just bear with me for a moment. The original case was brought by black voters alleging as Jill said that they were in fact packed into a single district in just one of six districts in that state, despite the fact that about a third of the black voting population in Louisiana are, is black. And so they took, they took this challenge it and saying, look, the fact that we're, it's only one place where we are are mostly all located, that shows that there is a racially discriminatory impact of the redistricting in this case. And I say impact for a reason. Section 2 does not require that discriminatory intent is shown in even if it just has the impact to dilute the vote of black voters or dilute the vote the votes of voters on the basis of race. That violates the Voting Rights act too. And they claim that that's what happened. And the judge ruled in their favor. A second map was drawn which created two, what is called black opportunity districts. That means that there are enough people in each district in order to have a meaningful opportunity to vote for the candid of their choice. It doesn't mean that they will always get the candidate of their choice, but that there is at least enough of them and under the test to prove that it's at 50%. Well then a second lawsuit was filed, this time by self identified voters called non African American voters. That means that they're white voters because that's, that's who sued saying no, no, no, this new vote took into account race. It took account where black voters are. And by that, by doing that they've crossed the line in the Constitution, lines that were drawn in the 14th and 15th Amendments which essentially say you cannot discriminate on the basis of race. So now we, the non African Americans are being discriminated on the basis of race and therefore this whole setup is unconstitutional. And that's really what landed us back at the U.S. supreme Court. They argued this case last term. They put it off rather than making a decision. And that made me worried right from the get go that this was not going to be good news.

Jill Wine-Banks (14:14)

Yeah, it wasn't good news. And they actually sent it back for a new and specific question. Joyce, talk about what that new question is. And although listening to Kim, it's like I can't believe that this is where we're at.

Joyce Vance (14:30)

Yeah, I mean, I think it's worth noting by the way, that this is not how the Supreme Court operates typically. Right. I mean, parties have a case, they litigate it. There's an issue they want the court to decide. They ask the court to decide it. And the court either says yes, we'll hear your issue or no, we won't. And if they say yes, they decide it. That is not on that issue alone.

Kimberly Atkins (14:52)

And you couldn't come back and say, oh, now I want to argue this other issue. They said, no, no, we did not assert on that. We did not agree to that issue. Too bad. So sad you should ask then.

Joyce Vance (15:02)

I mean, so this is, I think, worth underscoring that this is the court going rogue. Right? I mean, they're, they have skin in the game and nothing could be clear. Look, Kim gave a great layout of the details of the case, so I'll just go big picture and say this is an effort to make Section 2 of the Voting Rights act unconstitutional. You know what happened in Shelby county versus Holder. That was the case that gutted Section five. And the Chief justice said, oh, but, you know, no real problem with doing this, among other reasons because Section 2 still exists. Well, he's singing a different tune now. And like Kim, I'm very nervous about what the outcome is going to be.

Kimberly Atkins (15:45)

And can I just make one additional point on that and why it's so important they are using, in using the 15th and 14th Amendments to strike down this act. This is, and we've talked about this, you know how originalism is not real anymore. The whole purpose of these amendments to the Constitution, which were Reconstruction era amendments, were precisely. These amendments were passed precisely to empower Congress to pass laws that not only rectified past racial discrimination against black folks, Native, all other kinds, all of these statutes that were passed at that time was to rectify wrongs and to help encourage and bring up black people to be citizens at the same level of everyone else. So how do you address a problem like entrenched racism without acknowledging the problem, which is entrenched racism? So this challenge to say, oh, no, so by considering race, you have to strike the whole thing down is such a disingenuous attack on the founder's intent, the Framer's intent. The people who wrote this part of the Constitution was trying to do something entirely different. And now that argument is being used to strike it down. It's so gross. It's so. It's such a manipulation of the Constitution that it just blows my mind.

Joyce Vance (17:22)

You know, I couldn't agree with you more, Kim. And I've been thinking about how do you explain this to the people who insist, oh no, we must be colorblind, it's racial discrimination to do these sort of things. And you know, the best analogy that I have is it's as though these People are saying that providing special education for kids with special needs, whether they're, you know, have vision challenges or hearing challenges or developmental challenges, it's as though providing special education is discriminating against the kids who don't need it, which is.

Kimberly Atkins (17:55)

Of course, it's reinforcing stereotypes, Joyce. It's reinforcing stereotypes. So disrespectful. That was the literal. That was the literal argument by Louisiana, by the way.

Joyce Vance (18:08)

That was the argument that I heard, too.

Jill Wine-Banks (18:11)

Well, let's get to that, Kim. Let's talk about Louisiana's argument or arguments, because they did switch. They had one position, now they have another. So talk about that.

Kimberly Atkins (18:22)

So in the original litigation against of the black voters trying to get that second opportunity or just trying to get redistricting, they didn't specifically ask for this map, but another map was drawn that created these two opportunity districts. Louisiana, when those were challenged first, Louisiana said, uncle, like, went to the Supreme Court saying, look, we imposed this new map with two black opportunity districts because we got sued under the Voting Rights Act. And so then we lost. And so we did it. Now we're getting sued saying it's unconstitutional because we tried to follow the Voting Rights Act. Uncle, like, just make a decision so that we know what to do. Now that the case has been re argued with this new question right on the table, they are like, okay, no, we think it's unconstitutional, too. We want to strike down, we want to strike down the map that we instituted already, and now we think that we made a mistake and we want to strike it down. And the main argument in saying why race should be forbidden in the consideration of how to remedy racial discrimination is saying, among other things, it is relying on stereotypes of black people, assuming that their access to vote is somehow different than everybody else. I don't want to lean into that stereotype. I think that it should be accessible to everyone. Yeah, that was one of the arguments. And the other, which I really, which was awful because I think that this really got traction among the majority on the board is, well, how long does, how long is this supposed to go on? How long are we supposed to be fixing the racial transgressions of the past? There should be some end date, some sunset to this. And most of the questions directed at the attorney, Janai Nelson, who was representing the black voters was, well, how long does this go on? Well, how do you limit it? Well, when do we stop? And you know, the chief justice and Brett Kavanaugh, who asked a lot of those questions, love that idea of a sunset we saw that in affirmative action, where a comment that Justice o' Connor had made in a previous case was taken as a deadline, which I don't think she intended. And now deadlines are put in place on. The Supreme Court wants deadlines put in place on efforts to not just rectify past discrimination, but to stop current discrimination and to have a tool to guard against future discrimination. So I say, listen, if we can put a sunset, if we can put a time limit on actual discrimination in America, then I'll be here for your time limits on the remedy. But so far, as I have seen 400 years in, we haven't found that. We haven't seen the end of that.

Jill Wine-Banks (21:17)

I'm with you on that. Kim and Joyce, the Department of justice got into the act here, too. What did they argue?

Joyce Vance (21:27)

Yeah, so, you know, Trump's Justice Department is now arguing for a reinterpretation of the Voting Rights act that would significantly weaken Section two, obviously. I mean, that's the whole point of this case now. So no surprise that the new version of the Justice Department would glom onto that. Their view of the Louisiana map. I think Kim has already said this, but it bears repetition because it's stunning. And they view the Louisiana maps as an unconstitutional racial gerrymander because they discriminate against white people, which has been such a big problem in voting right. White people being prevented from exercising their right to vote. So DOJ's argument focused on two key points that we can look for when the opinion comes out. First of all, is narrowing Section two. DOJ wants the Court to clear, clarify the framework for analyzing Section two claims. You know, the current interpretation is that it prohibits electoral maps that dilute the voting power of minority groups. And so DOJ seems to be advocating for a clarification by the Court that would make it significantly harder for plaintiffs to challenge racially discriminatory districts. And as if that's not enough, DOJ emphasized the idea of a colorblind Constitution in. In other words, one that ignores the history of discrimination in voting and the wrongs that the Voting Rights act was passed by Congress in an effort to prevent from reoccurring in the future. So, you know, for a court that talks a lot about history and tradition, they seem blithely willing to shove it away and ignore it in order to get the result that they want.

Jill Wine-Banks (23:10)

It's for sure true. And their arguments seem to me to be really a conflict between what they're saying here and they're saying, on the other hand, partisan gerrymandering is okay. Even though it impacts communities of color differentially. And, Kim, you mentioned, I think, about the disparate impact versus disparate intent. And as you pointed out, the law does not require proof of intent. And I just want to point out to our listeners that the EEOC has also abolished disparate impact as a grounds for suits in the workplace where a rule is passed that has a disparate impact. They're saying, eh, we don't care. It's okay unless you can prove intent. And that isn't what was intended. So this is a much broader issue than just this case and this state. It's everywhere it's going to be.

Kimberly Atkins (24:06)

But, and, Jill, can I just reinforce that just one more minute. That case that you talked about, Rucho, the Rucho decision that held that not only is it not illegal to gerrymander on partisan basis is to protect Republican seats, Democratic seats increase the chances of either one of them getting that. Courts can't even consider a challenge. Like, they can't even touch it if they do that. And as I've said many, many times, when you look at a political gerrymander, especially in the south, and you look at a racial gerrymander, the Venn diagram is a circle. And so what that has. What we predicted happened when that decision came down on this podcast, was that you were gonna see partisan gerrymandering used as a excuse for racial gerrymandering, and the court's gonna say there's nothing that we. That can actually be done about it. And I think that was kind of the first nail in the coffin of Section two, because now you're going. You're seeing exactly in the arguments that they were asking. Alito kept asking about, well, you know, you can do it on the basis of party. How do we know if you don't have intent here, if you don't have proof of intent, how do you know that they just didn't want to protect all the Republicans in the state? And that's totally fine. Like, we couldn't look at that. And it's literally blessing racial. The racial discrimination and racial gerrymandering. So even if they didn't strike down Section two, it's so much harder to enforce. It's, like, whittled down to nothing.

Jill Wine-Banks (25:46)

So, Kim, is there anything you want to add about what the appellants who took this to court had to argue?

Kimberly Atkins (25:54)

You know, I think even aside from the law, I think Janiyah's most powerful point was the impact that this decision could have. She called it catastrophic in terms of the ability just to use the gerrymander with no guardrail to literally just smash the power of voting blocs, especially in places that have had long histories and traditions of trying to discriminate against black people in order to hold on to power. It's like the new form of a literacy test or a jelly bean test. But it's just being done now in such plain sight. And now any guardrail to stop it is just about to disappear. And just how fundamentally awful that will be. I hope talk about the impact reach their ears. I hope that some of them have some empathy about how democracy is supposed to be working. Cause to think that this is the time right now, this is the time that we're eroding the voting powers of marginalized people in America. I just don't know how one could sleep at night knowing that you are helping make that happen. So I do hope they consider that.

Jill Wine-Banks (27:17)

And that's the question, I guess, is whether they will and what the predictions are. What so Joyce, you want to say whether you think the Voting Rights act is unconstitutional under the 14th and 15th amendment. Do you think that the court will completely destroy the Voting Rights Act? What do you think's going to happen? And will they just limit it sunset it? Will they apply a different standard? What do you think's going to happen?

Joyce Vance (27:47)

You know, I suspect that they will not flat out strike down Section 2 as an impermissible race conscious remedy because doing that right before, before the midterm elections would tank their reputation with the public even worse than they've already tanked it, you know, from doing away with Roe versus Wade on. But I think it could also spark, you know, outraged public protest, engaged American voters. And this court has been, you know, small p political when it comes to trying to avoid doing that. So I think we'll see a sort of disingenuous opinion, sort of like what Justice Alito wrote in the Bernovich case, the last Section 2 case, and they'll maybe reread Section 2 in a sort of a voter hostile way that makes it less race conscious and claim that that's what it's supposed to do. This notion that the Constitution is entirely colorblind and we can't look at our history and tradition, at least in this one context.

Kimberly Atkins (28:47)

Yeah, I think that's exactly right.

Jill Wine-Banks (28:49)

Me too. At least that's my hope. Because as Joyce said, they're on a downward trend. I mean, Roe, Citizens United, the immunity decision, Shelby county, and now this. I mean, these are really bad decisions on a par with the worst decisions ever. You know, taking us back to Jim Crow being. Yeah, that's okay. I'm horrified, but will remain hopeful until I hear the decision. Fall is one of our favorite seasons, and it deserves its own vibe. One way to do that is to infuse your clothes with the amazing scents of laundry sauce. They deliver fragrances that are warm, bold, and unforgettable. Each one transforms laundry day into something you actually look forward to. Embrace everything from cozy sweetness to crisp sophistication. With each scent designed to set the.

Kimberly Atkins (29:55)

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Joyce Vance (31:36)

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Kimberly Atkins (34:01)

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Jill Wine-Banks (34:53)

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Kimberly Atkins (35:42)

You know, I remember watching television as a child and learning from Rod Serling that there was a little town that you won't find on any map. And in it there's a very small tyrant who ruled with fear and retribution. Well, America, we are that small town. And our president is Anthony. And this is where we are. Because everyone who he labels as an enemy or a bad man is somehow feeling the force of the Department of Justice, the latest person being John Bolton. Joyce, can you walk us through John Bolton's indictment over the handling of classified documents and give your thoughts about the indictment itself and the context in which it was handed down?

Joyce Vance (36:33)

So this is an 18 count indictment, which is to say it's pretty sturdy. The first eight counts involve disseminating national defense information. The remaining 10 are about unlawfully retaining it. And so I think the sort of the gorilla in the room that we should dispense with first is that at least in my view, this indictment looks different than the indictments against Jim Comey and Tish James. It's being grouped with them and discussed with them as part of Donald Trump's revenge agenda. Donald Trump certainly seems to view his former national security advisor as among his enemies. But this indictment to me looks far more like the traditional sort of meritorious indictment that I'm used to seeing from federal prosecutors. It did not come out of the Eastern District of Virginia. It came out of the District of Maryland, where the U.S. attorney is a, a, a career prosecutor. She did not go into the grand jury and get the indictment on her own, like the insurance lawyer who's now the U.S. attorney in EDVA did. Instead, two senior prosecutors from her office and some prosecutors from DOJ's National Security Division all signed off on it. All those names, all that experience. And look, most importantly, 20 pages of this indictment lay out the factual predicate for the charges. And, and it looks serious not to say that this case will ultimately result in conviction because there's a lot we don't know about the fact and the government's evidence. But my assessment is that John Bolton is in a lot more trouble than either Comey or James.

Kimberly Atkins (38:11)

So, Jill, I want your thoughts on that, both your thoughts on the indictment and the seriousness of the charges. And I'll throw in one more fact for you to consider. This is this indictment stems from an investigation that began under President Biden. So what do all those things to you give you a feel about this indictment?

Jill Wine-Banks (38:38)

So it's such an interesting question because of course, the fact of who started the investigation should have no bearing on our opinion of shouldn't. But of course, in reality, it does because we are not oblivious to what's happening. But much more compelling than who started the investigation are some of the things that Joyce mentioned. The indictment was signed and presented by career prosecutors. The U.S. attorney wasn't a replacement who was brought in after the U.S. attorney was fired. Because the U.S. attorney said, there's no evidence for this case, I'm not going to bring it. So someone like. Well, I'm not gonna say like, but anyway, someone was brought in who would carry out the president's wishes. And so I think it isn't like someone was brought in to do the dirty deed as it was for Comey and James. Also, as Joyce mentioned, this is a detailed speaking indictment that suggests there's some real evidence behind the allegations. Of course, we haven't heard any defense yet, so I'm not going to judge whether these allegations are true or false, whether there's a perfectly legitimate explanation for everything that's said, and that's possible. There are some similarities to the Comey and James case, though, which is one. Clearly, Bolton was targeted. He's one of the people on the president's hit list. And secondly, he also has a pretrial publicity argument in the same way that they do, because. And maybe selective prosecution, maybe not so much will lead to dismissal. But I think he does have pretrial publicity. That's going to mean he can't get a fair trial. So I think there's a lot more to this case than to the other two. And we can't compare them in the same way we can't compare the Biden holding of documents to the Trump holding of documents. Very different.

Kimberly Atkins (40:40)

Yeah, let me say that, and I thank you, Jill, for the point that it does not matter. It should not matter who the president is. When an investigation started, what I meant, what that meant. I meant that more to say that this investigation, and what I should have said was this investigation predated the Trump era. It began before this. An investigation into the origins of the Russia investigation. And miss part of that came a evidence that led to this indictment. And I want to say we've talked a little bit about what John Bolton's defenses might be. But, Joyce, first let's just state clearly what John Bolton is accused to have had done and sort of talk about how it is different from the investigations that we've talked about over classified documents here with over Joe Biden or Mike Pence and even Donald Trump. What exactly is he accused of having done?

Joyce Vance (41:46)

Yeah, so the. The eight counts that the indictment starts with are. Are the meat of this indictment, the dissemination counts, because John Bolton was apparently taking notes while he was in office with an eye to perhaps a future book writing project. And then he was emailing notes that contained classified information, according to the indictment, using public sourcing email like Gmail and AOL text messages to two people who aren't named in the indictment, but they are reported publicly to be his wife and his daughter, who were in essence acting as his book editors while he had the work in progress, allegedly.

Kimberly Atkins (42:28)

In the indictment two, it said that the title, the two line was like Diary for the Future. Three, exclamation point. I'm like, dude, what are you doing?

Joyce Vance (42:41)

You know, a lot of people in public office, apparently I did not do this, keep diaries that include classified information because they want to write books when they leave government service. And look, let me just say out loud, as a former federal prosecutor, this is a bad practice. I mean, this is, you know, classified information, and it's classified for a reason. It stays in your scif if it carries that classification. It does not leave your scif. And there's a nice little chart in this indictment that lays out in some detail the kind of information and the classification level. And frankly, somebody at John Bolton's level in government just should have known a lot better. So let me tell you what this case reminds me of. Much more than the Biden case or the pen is the case of General David Petraeus, who was prosecuted during the Obama administration by my good friend Ann Tompkins, who was one of the North Carolina U.S. attorneys. And he did something sort of similar, but he was storing classified information in a Gmail account that he shared with his biographer, who was also his mistress.

Kimberly Atkins (43:54)

I was gonna say biographer with air quotes.

Joyce Vance (43:58)

And she too had access to his. I'm trying to not take the bait there, K. Um, but she had access to classified information in that insecure space. And Petraeus was permitted to plead to one misdemeanor count involving classified information. Look, here's a big factual difference, though, between the two cases. And I think this is one of the key points in the Bolton indictment. So Bolton gets hacked after he leaves government and he reaches out to the FBI. Hey, guys, just thought you might need to know, my Gmail account has been hacked. And I think it was Iran that did it. And he never alerts them to the fact that he had classified information in that email account that Iran now had its hands on. But he does come back and say, and I'm going to delete everything, all of the contents of my Gmail account. And that is actually a best practice sometimes that consultants on these sorts of issues will recommend after a hack. But, you know, to the point, Kim had titled this conversation, but his emails. And here we are with John Bolton destroying all of them. So, yeah, this case is more like Petraeus, but depending on what the government's evidence about his state of mind is, it may end up being a fair bit worse.

Jill Wine-Banks (45:21)

It's, you know, I have to say that Bolton has so much experience in this area, it's so clear that he knows the rules and that he deliberately violated them.

Kimberly Atkins (45:34)

Yeah. In fact, part of that. Part of the evidence put forward is news accounts of him being a commentator on television talking about the rules to show intent, which I actually thought was rather clever.

Joyce Vance (45:51)

Well, let me just read you my favorite John Bolton tweet. Because after Donald Trump got indicted, Bolton, I guess it wasn't really a tweet. I saw it on Twitter, but it was something he said on cnn. And he said, if Donald Trump were an innocent man, he'd be saying, I want the trial within 30 days. I want this stain in my reputation removed. So we'll see what John Bolton now under indictment, says that that's a really great point.

Kimberly Atkins (46:21)

And none of this is to say that this indictment isn't something we know that we've heard Donald Trump disparage him and attack his enemies. He's top among them. Which is why we are all more or less expecting an indictment of him to come. It could still be politically motivated, even if there is some, potentially some there there, according to the indictment. So, Jill, this case has been to been assigned to Federal District Court Judge Theodore Chuang. I hope I'm saying that right. What do we know about this judge?

Jill Wine-Banks (46:56)

It's an interesting question because this judge has ruled against Trump several times before getting this case. And six days after the first time, he ruled against White House efforts to shut down USAID as their actions, you know, trying to shut it down, likely being unconstitutional. Representative Andy Huggles from Tennessee submitted an impeachment resolution. So he is now under an impeachment resolution, although nothing has happened to it since it was filed. There's been no House vote. It's not out of committee. And there were several other blows since Trump came back to office in January, including he blocked a Department of a Government efficiency employee from being appointed to the USAID board. And he criticized billionaire Elon Musk for his involvement as being highly suspicious. And he's complained that this was something done by a judge who, as a law student at Harvard, was responsible for promoting critical race theory and racial LGBTQ propaganda. The impeachment is not going to go anywhere. And he's not the only judge. There are five other judges who have ruled against Trump who have been targeted. But this is a judge who has an exemplary background. He's suma and maga cum laude from Harvard Law and Harvard undergraduate. He is now on the Board of Overseers of Harvard, and he was appointed by Obama in 2014. So he's been on the bench quite a long while. And before that he was deputy General Counsel at the Department of Homeland Security. He was a part, not a partner. I don't think he was at Wilmer Cutler. He was an AUSA. He was a DOJ trial attorney. He clerked for a judge on the 9th Circuit. He was elected to office in Massachusetts. And if Barb were here, she'd want me to say he was a sports reporter for the Harvard Crimson. So I would say that he is, he's, he's on solid ground, and I think he will know how to handle this case. I think it was, you know, it's the luck of the draw who gets it, but he's going to be.

Kimberly Atkins (49:24)

I have no doubt he'll be able to handle it. What I'm mostly concerned about is the fact that he's also already come under attack by, by Republican members of Congress seeking to have him impede. Like that's what we're dealing with here. And I thank him for his work because I know that this is going to be probably, as the other cases have been, probably devastating for his family, if not worse, because this one's so high profile. So I thank him for his work. I think I'm just going to wrap up here saying, what do you guys expect to happen next here? I mean, for all of the differences we've distinguished in this Maryland prosecution from the hot mess that's happening in the Eastern District, District of Virginia, the differences in the actual claims that are made in the indictment itself. What do you think happens next, Joyce?

Joyce Vance (50:18)

You know, I think Abby Lowell, John Bolton's very capable defense lawyer, one of the best defense lawyers in the country. He'll file motions. He'll probably file a selective prosecution motion. But I think what's really going to happen in this case is discovery. The fight fights here will be over what Bolton gets out of the government. There'll be a big battle over classified information. We all remember how that goes from the Trump Mar? A Lago case, where there will have to be a method and a special master used to decide what information Bolton is entitled to access. But here's my prediction, Kim. I think if Bolton does not want to plead guilty, the government may not offer him a deal. Actually, he might not have a good option there. But if he doesn't plead, I think this case ends up going to trial. I don't know if it'll be on his 30 day timeline or not, though.

Kimberly Atkins (51:08)

So I what do you think, Jill?

Jill Wine-Banks (51:09)

I agree with Joyce, but I want to say also in terms of what I expect to happen is more of the same, unfortunately, because Donald Trump has already directly and specifically called for investigations of Senator Schiff, Lisa Monaco, Andrew Weissman, Jack Smith. He called Smith a criminal and Weissman a bad guy. And I would add to that list basically anyone who leads the resistance, all Democrats, anyone who criticizes Donald Trump, anyone who gets into his mind when he's in front of a microphone may be named because that's what he does. He just lathers on and names whoever's on his mind at the time.

Kimberly Atkins (52:00)

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You know, I just used the pollock and I didn't even know what pock was and it was so tasty. I just air fried them and it was really yummy. I used flour, an egg and panko and honestly, with just a little teeny bit of seasoning, it was fantastic. So really juicy, tasty, wonderful. And now that I've used wild Alaskan. There's no way I'm going back to any other source for fish. It is really, really fabulous. Everything from wild Alaskan is 100% wild caught and never farmed. This means there are no antibiotics, GMOs, or additives in the catch. Just clean, real fish that support healthy oceans and fishing communities. Don't settle for less. Go with fish that are nutrient rich and full of flavor. With wild Alaskan, that's a given. Their fish is frozen off the boat to lock in taste, texture and nutrients like omega 3s. Like us, you'll love that. Everything from wild Alaskan is sustainably sourced and wild caught from Alaska. With every order supporting sustainable harvesting practices. Plus, becoming a member means your deliveries are flexible and at your own pace. You'll even get chef tips from the pros. It's an endless smorgasbord of truly feel good seafood. I love the Pacific halibut for a tasty treat that's low in fat, high in protein, and rich in Omega 3s. It's perfect for tacos or for a curry, but they have so many other amazing options. And Pacific halibut is so good, if you just grill it, it's unbelievably rich, juicy and tasty.

Joyce Vance (54:24)

You know, now that it's getting cooler, one of my favorite things to do with the fish that we have been sampling is to make fish chowder. I have this really old recipe. I need to send it to y'.

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Kimberly Atkins (56:35)

So Congressman Jordan wants not only Jack Smith to come in and testify in a closed door session on or before October 28, he also wants documents in connection with his investigation. And this seems to stem from a recent report from about a week or so ago that alleges that Jack Smith's probe caught up up, among other things, the phone records of several Republican lawmakers. You know, that Senator Josh Hawley, for example, claimed that his phone had been tapped by the FBI, that he'd been wiretapped. We don't have specific evidence as to whether that is true or whether it, his phone number came up in a. We don't, we don't know any of that. But that's what he's claiming. And that's really the basis. I think they want to bring him in in order to grill him on these alleg. And to. And to say, hey, look, you know, we, we are on the case in this. And to signal to their audience of one.

Joyce Vance (57:42)

Yeah. So, Jill, what do you think? Was Josh Hawley, right. He's the one who talked about wiretaps. I mean, he's a lawyer. He should know. Did Jack Smith use wiretaps for his investigation here?

Jill Wine-Banks (57:54)

There is absolutely no evidence that he used wiretaps. And he would have needed a court order to do that because there's a difference between wiretaps, which are legal under Title 3, but that requires court authorization. It lets you hear conversations, you actually listen in. And that's different than getting toll records, which is a standard part of any investigation. And remember, this investigation was started for legitimate reasons. It was properly predicated. And if you're investigating someone, it sometimes helps to know who they were speaking to when they're, they're being investigated for starting a conspiracy. You need to. Who would they be conspiring? Well, it's people they talk to. Toll records show who called who and for how long they talked. It shows you the phone numbers. It does not give you any information about the actual Conversations. It's a non invasive technique of tracking and it is standard operating procedure. And Hawley is a lawyer, so he knows that.

Joyce Vance (59:00)

Yeah, I think that's a fair assessment. You know, Kim, Jack Smith talked more extensively about the special counsel investigation he conducted into Donald Trump than he has previously, I think with our good friend Andrew Weissman. They were in London. They had a really fascinating conversation that people can listen to on YouTube. What's your reaction to the interview? What did you take away from.

Kimberly Atkins (59:27)

Yeah, he, as you said, it was the most extensive comments that he's ever made about the investigation. And they were way more expense extensive than I would have expected from him. And I was really, really glad that he spoke out in this way first. I was really grateful for his comments praising the hard work of career prosecutors who went through law school, got to the DOJ because they were the cream of the crop in their classes and with their resumes and dedicated themselves to be public servants rather than going and, you know, getting a fat paycheck from a big white shoe law firm. And many of them lost their jobs, had their careers really severely damaged for their service. And I appreciated him recognizing them. He also distinguished between, when asked the difference between, say, the Joe Biden case and the Trump classified documents case. One was prosecuted, one was not. And he basically said he followed the facts like they were the, they looked at each case, looked at the facts, what had happened. And the two cases were very dissimilar. What just from what we know, and we don't know everything that he does, we know that Joe Biden cooperated it, that he worked with the National Archives and Secret Service and FBI to get these documents back. We know that Donald Trump did not and that had he cooperated, we may never have even known that those documents were at Mar a Lago because it's not uncommon for documents to end up places where they weren't meant to be, so long as there was no intent to take them and certainly no intent to keep them. Donald Trump said that they were his like he explained that too. But in the end, one of the things that he brought home in relation to that and other aspects of the prosecution is he said, quote, the heart of the rule of law is treating people equally under the rule of law. Good prosecutors do not care about politics. They bring cases that are supported by the facts. I think we need to bring that back and be. I think whenever we get through these dark times, somebody needs to nail that somewhere in inside the justice building because that really ought to be the motto.

Jill Wine-Banks (61:46)

You Know, the one thing that I took away from this was, first of all, I never heard Jack Smith's voice because during the entire investigation, he really did not do any press availability and neither did any of his staff. And it was something that I personally, based on my Watergate experience, was critical of. During Watergate, our press officer felt that if people were going to accept our activities as legitimate and just and proper, they needed to know that we were not political hacks, that we were being serious lawyers. And although we did not ever speak about the case, we did agree to be interviewed about who we were, where we came from. And of course, there was a very famous press conference that Archibald Cox held to say why we needed the tapes and why he wasn't going to accept the Stennis compromise that Nixon offered. And I really felt that if we had known who Andrew Weissman was really during the investigation, who Jack Smith was, that there would have been more public acceptance of him. So that's. I just think it was important that they did this now and that we saw how credible Jack Smith is, how honorable, how much integrity. I thought it was a really good intro interview.

Joyce Vance (63:09)

Well, to your point about Jack Smith's credibility, you know, Jim Jordan does not want to hear evidence from Jack Smith. He wants to have a closed door session because the letter says, we want you behind closed doors, and we, in essence, are going on a witch hunt against you, arguing that you weaponized the Justice Department. So I'm curious about what y' all each think will happen here and whether this might. Might backfire on members of Congress. Perhaps Jack Smith will say, I will come and testify, but only in public. Kim, what do you think?

Kimberly Atkins (63:44)

I think that's exactly what he should do. I think he should cooperate and offer to help in any way that he can, the Congress in their oversight duty, but not fall into the bait that Republicans seem to be setting. Setting.

Joyce Vance (64:04)

Jill, what do you make of it?

Jill Wine-Banks (64:05)

I completely agree, and I think that if he comes in, especially in, in a public forum, that he will make mincemeat out of the committee. I testified before the Judiciary Committee under Jordan, and it's a horrible, horrible experience. But I am sure that Jack Smith is more than up to the task and that he will show how wrong everything that they are accusing the government of in terms of, you know, a witch hunt and politicizing and weaponizing the Department of Justice and his investigation. So I, I hope that he does get a public hearing and that people can hear a lot of things that maybe. And it, you know, would have been presented at trial had Donald Trump not one reelection so that the cases never went forward. I I hope it will happen.

Joyce Vance (65:01)

You know, this is an administration that talks a lot about transparency, but it's all just talk. So maybe November will be we'll have a true Thanksgiving because there will be a release of the Epstein files and a release of the Jack Smith files. That would be a great month for democracy.

Jill Wine-Banks (65:27)

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Kimberly Atkins (68:38)

And now our favorite part of the show and that is answering audience questions. If you have a question, you know what to do. You can email us@sistersinlawoliticon.com you can tag us on our socials. There are many ways to submit your questions. Just use Sisters in law. And if we don't get to your question during the show, sometimes we answer them right in the feeds. So keep an eye out there, too. Our first question comes from Jennifer, who asks why is ICE allowed in courthouses? Jill, do you have an answer for Jennifer?

Jill Wine-Banks (69:13)

I do. And we had great questions this week, and this is certainly one of them. It's a balancing act between the historical rule against it because we need witnesses and parties to show up for justice and due process, and the fact that that federal law and the Constitution generally do not prohibit ICE from making arrests in courthouses, especially if ICE has a warrant or can establish probable cause to believe a person is violating immigration laws. But we are now seeing some policy directives, some court orders, including one issued this week by Cook County Chief Judge Evans, which are attempting to limit such arrests to, for example, in Cook county, to where there is a warrant, they're barring entry for a non for warrantless arrests. And you know, ICE is arguing that there is no legal basis for any sanctuaries from enforcement, that arrests can occur wherever a person is found to be breaking the law and that it's safer for them because inside a courthouse there are no weapons because there's weapons checks going in. And it's easier because they know where the person's going to be, they're targeting someone and they know that they're going to be there. But the truth is that it's hurting in domestic violence cases, in criminal cases, witnesses are afraid to come to court. And I think that on balance, that's what should guide us and that we should not Allow these arrests in the courthouse, it'll be harder to extend it to the area surrounding the court. So if you're entering the courthouse before you get inside, you know, and ICE is standing there, they can grab you off the street like they are to US Citizens and everybody else that they feel like grabbing. So I'm not sure what this is going to come out, but it is a balancing act.

Kimberly Atkins (71:14)

Our next question comes from Allison, who asks, how much is it costing to prosecute Trump's enemies list? Are we, meaning the taxpayers, paying for this? Joyce?

Joyce Vance (71:25)

Yeah, I think this is an absolutely great question. This sort of a consideration all too frequently gets lost when we think about the ways Donald Trump is abusing government for his own benefit. And so, yes, we are, in fact, Alison, paying these salaries for agents who are investigating, for lawyers who are prosecuting, for grand juries that are sitting for courtrooms where judges are hosting proceedings. I don't think we can put a dollar amount on that, but let's just say that it's not insignificant. And we're also paying for this in other ways, right? We're paying for it in opportunity costs. Because when prosecutors and agents are looking at Jim Comey or at Tish James, they're actually not focusing on cases that are important and significant for their community. We are losing experience in the Justice Department, at the FBI, and in U.S. attorneys, both where career prosecutors, the institutional knowledge that sort of stakes the integrity of the institution, those people are resigning, they're leaving because they don't want to be associated with this Justice Department. Now play that out. And that's happening across all of government. So, yes, Donald Trump is costing us both with our taxpayer dollars and far beyond that as well.

Kimberly Atkins (72:50)

And our last question comes from Jill. Not Jill Wine Banks, but someone else named Jill. Can a private citizen, can a private citizen who is not even a lawyer submit an amicus brief to the court? How does that work? This is a really great question. We're talking about amicus curate briefs or friend of the court briefs that the court can considers when coming to a decision. So what it takes to be an amicus cure is that you have to be someone who has an interest in the outcome of the case, even though you are not a party to the case. So the answer to your question, Jill, is anyone can submit an amicus brief in a case. But here is how things get whittled down. Only select amicus briefs ultimately end up being being considered in a case, and that is because all of the parties have to agree to it. And also consider that there are a lot of amicus briefs that even when the parties agree to, the justices may not even read them. They don't have to read them. They can. And usually they read briefs that come from organizations or that are filed by attorneys who are career litigators at the Supreme Court or who are very well respected in their field and that maybe give them cause to admit it. So yes, on the one hand, yes, anybody can submit one. On the other hand, I don't think that's probably the best use of one's time when they're trying to influence how the Supreme Court may come out. Unless you are a seasoned litigator or you hire one and you can really demonstrate why you in particular have an interest in that case. Thank you for listening to Sisters in Law with Jill Wine Banks and Joyce Vance. Barb will be back. She loves us. I was just joking at the beginning of the show. And me Kimberly Atkins Store Follow hashtag Sisters in Law Wherever you listen to your pods. Give us a five star review. Tell your friends about the show, tell your church folks, tell your community members, tell the people in your Majesty gang. And please show some love for this week's sponsors, Hexclad Laundry Sauce, Helix and Wild Alaskan and Lulan. The links are in our show notes. Please support them because they support us and allow us to bring this podcast to you. See you next week with another episode. Sisters in Law.

Jill Wine-Banks (75:21)

So I have another chat topic which is how you fold things. Like do you fold in thirds or.

Joyce Vance (75:28)

No, not talking about it because I fold horribly. Yeah, no, we do it when I'm gone. I really can't fold. It's really embarrassing. My husband shames me, but I can't fold.

Kimberly Atkins (75:41)

Bob.

Joyce Vance (75:41)

Bob has to fold.

Jill Wine-Banks (75:42)

Well, that's a good topic right there. I have to admit, I don't do laundry at all ever. So I don't do any of this.

Kimberly Atkins (75:50)

Okay, we'll file it away.