261: The Earl Of Sandwich

Summary

Podcast Summary: #SistersInLaw – "The Earl Of Sandwich" (Ep. 261, Nov 8, 2025)

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Main Theme

This episode of #SistersInLaw, hosted by Politicon and featuring Barb McQuaid, Joyce Vance, and Jill Wine-Banks (Kimberly Atkins Stohr is away), dives into contemporary issues at the intersection of politics and law. The main discussions revolve around the acquittal of the DC "sandwich thrower," the escalating ICE operations and judicial resistance in Chicago, and the controversial prosecution of James Comey. The tone is witty, incisive, and occasionally irreverent, with the hosts using humor and deep legal expertise to unpack headline-grabbing developments.

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Episode Highlights and Key Discussion Points

[00:12] – Book Updates & Community

• Barb McQuaid’s Book News: Barb discusses her upcoming book "The Fix," focusing on the current administration's mob-like governance and solutions to restore democracy. ("The Fix is in. But I also spend most of the book offering solutions...how we can improve...so we can lead and restore our democracy..." – Barb [00:44])
• Joyce Vance’s Book Tour: Joyce finds inspiration from podcast fans encountered nationwide and highlights the community's appreciation for the podcast’s balanced tone and humor.
• Jill Wine-Banks's Second Book: Jill is undeterred by early rejections and draws inspiration from the perseverance of authors like J.K. Rowling ([02:44]).

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[04:28] – Government Shutdown: Local & National Impact

• Impact on Travel & Workers: Joyce and Barb express concern and empathy for federal workers not getting paid, referencing food drives and church efforts supporting those in need ([05:34]; [06:12]).
  • “I’m just super worried about all the people, government employees and otherwise, who are feeling the hardship from the shutdown.” – Joyce [04:28]
• ICE Still Operating: Jill elaborates on the irony that, despite the shutdown, ICE’s aggressive operations persist, leading to community mobilization to support immigrants ([06:42]).

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[09:22] – The "Sandwich Thrower" Case, DC

Laughter and Puns Set the Tone

• Case Overview: The hosts recap the viral incident: Sean Dunn threw a fully wrapped Subway sandwich at a Customs and Border Protection agent in DC, resulting in a high-profile but ultimately unsuccessful prosecution.
  • “The government tried to get the juror to bite, but they didn’t.” – Joyce [10:56]
  • “Assault with a deli weapon.” – Jill [11:32]
• Backstory & Escalation: Jill details the dynamics in DC, including protests, National Guard presence, and the “Reuben Missile Crisis” jokes ([13:58]).

[14:45] – Prosecutorial Overreach

• Failed Indictment: Joyce and Barb dissect how the U.S. Attorney’s push for a felony was first rejected by the grand jury, leading to a downgraded misdemeanor that still failed to meet the statutory threshold.
  • “A forcible assault with a sandwich, hard to think of that that way...What kind of injury would a sandwich have possibly caused...?” – Jill [17:02]
  • Courtroom laughter erupted over the claim that the sandwich "exploded" ([19:01]).
• Prosecutorial Discretion: Joyce critiques U.S. Attorney Jeanine Pirro for wasting resources and mishandling discretion (“Not everything somebody does that we think of as misbehavior is a federal crime.” – Joyce [20:25]), suggesting options like pretrial diversion instead.

[22:32] – Ethics, Protest, and Priorities

• The hosts emphasize the need for better protest behavior but also recognize the pressure and fear created by government overreach and ICE tactics. Civil disobedience, civil suits, and community-driven action are discussed over criminal prosecution.

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[33:06] – Escalation of ICE Operations in Chicago

[32:25] – Militarization & Community Backlash

• Outrageous ICE Tactics: Jill describes Chicago's streets being patrolled by camouflaged officers, with peaceful protesters and religious leaders facing violence:
  • “It looks like what I think Germany must have looked like in 1935, 1939 for sure. People grabbed off the street, detained and disappeared, even those with documents...” – Jill [32:25].
• Judicial Pushback:
  • Judge Sarah Ellis issues a TRO (Temporary Restraining Order) barring violence against protesters, requiring warnings before deploying force ([35:31]).
  • The 7th Circuit limits the judge's direct oversight but allows the core injunction to stand ([38:07]).

[41:31] – Accountability and Lying Under Oath

• Police Misconduct: Barb explains how videos exposed Commander Greg Bovino, who commanded ICE/CBP forces in Chicago, lying under oath about pepper spray deployments and excessive force ([41:31]).
  • “...the idea that a judge has found that the commander of this CBP effort in Chicago is lying under oath should disturb all of us.” – Barb [43:49]

[44:26] – Inhumane Detention

• Detention Center Conditions: Judge Gettleman orders improvements at the Broadview Detention Center after hearing testimonies of filth, overcrowding, and coercion.
  • “People shouldn’t be sleeping next to overflowing toilets...on concrete floors.” – Judge Gettleman, paraphrased by Joyce [44:26].

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[46:28] – Presidential Power and Resistance

• Barb details the legal nuance between the "Insurrection Act" and 10 U.S.C. §12406 as it relates to presidential powers over National Guard deployment, emphasizing the judiciary’s crucial review role.
  • “He can’t just make it up...there’s room for judicial review...” – Barb [46:28]

[48:48] – Consent Decree Violations

• Joyce discusses the extension of a longstanding consent decree after ICE was found to be conducting warrantless arrests in violation, leading to the release of several detainees ([48:48]).

[50:27] – By the Numbers

• An estimated "more than 2,000" arrests and over 1,000 deportations are reported in Chicago’s ICE sweeps, raising concerns about loss of prioritization for violent offenders versus peaceful workers and families ([50:27]).

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[54:30] – Comey Prosecution: Legal and Ethical Breakdown

[57:34] – Indictment’s Flimsy Foundation

• New information reveals the perverse logic of the indictment, where even the factual basis (“who” authorized leaks) is muddled. Barb apologizes to Joyce for misattribution ([57:34]).
• Joyce raises the legal defects in the case: vagueness, lack of specific false statements, and dubious prosecution motives.

[60:48] – Selective & Vindictive Prosecution

• The hosts analyze the high bar for proving prosecutorial misconduct (vindictiveness/selection), noting the extraordinary evidence of Trump’s direct involvement ("indict Jim Comey" social media post) ([65:28]).
• Barb is skeptical that Comey will legally prevail on these motions, while Joyce is cautiously optimistic given the egregious executive interference.

[67:31] – Grand Jury Testimony & Process

• The judge’s order to swiftly turn over grand jury minutes and the prosecutor’s explanations is seen as a reflection of judicial skepticism toward the whole prosecution ([67:31]).

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[77:30] – Listener Questions

• Is enforcement of Congressional false statement laws arbitrary? Joyce: No, but it depends on prosecutorial discretion, which can be problematic when political motives come into play ([78:30]).
• Hatch Act Violations: Barb: It is illegal for White House staff to use official channels for political messaging (e.g., blaming Democrats for the shutdown), but enforcement is weak post-Trump ([80:22]).
• What happened to the East Wing’s art/furnishings? Jill: No one really knows — everything may have been demolished under secrecy ([82:15]).

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Notable Quotes & Moments (with Timestamps)

• “The government tried to get the juror to bite, but they didn’t.” – Joyce [10:56]
• “Assault with a deli weapon.” – Jill [11:32]
• “Not everything somebody does that we think of as misbehavior is a federal crime.” – Joyce [20:25]
• “He can’t just make it up...there’s room for judicial review...” – Barb [46:28]
• On the sandwich case: "This case was full of baloney...Justice was served with chips, a cookie and a medium drink. That’s a wrap. The officer was taken to the Mayo Clinic.” – Barb [84:22]
• “It looks like what I think Germany must have looked like in 1935, 1939 for sure. People grabbed off the street, detained and disappeared, even those with documents.” – Jill [32:25]
• “Everything about this case is unusual.” – Jill (re: Comey prosecution) [60:48]

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Segment Timestamps

• Book updates, podcast community: [00:12]–[04:28]
• Government shutdown: [04:28]–[07:39]
• Sandwich thrower case: [09:22]–[26:10]
• ICE, Chicago, and courts: [32:25]–[54:30]
• Comey prosecution: [54:30]–[73:43]
• Listener questions: [77:30]–[82:15]
• Pun round-up: [84:04]

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Closing Thoughts

In their signature style, the hosts blend substantive legal analysis with humor and empathy. The episode shines at unpacking the absurdities and dangers of contemporary governance, prosecutorial discretion, and the erosion of norms under political pressure. Whether dissecting the seriousness behind a "deli weapon" charge or the grave risks of unchecked federal enforcement, #SistersInLaw helps listeners understand not just the law, but the stakes for democracy itself.

Transcript

[Barb McQuaid]

Foreign.

[Jill Wine-Banks]

Welcome back to Sisters in law with Barb McQuaid, Joyce Vance, and me, Jill Wine Banks. Don't worry. Kim will be back next week. She's off this week. There's some book news from the Sisters. Barb, you want to start with the news?

[Barb McQuaid]

What's the news? My book.

[Jill Wine-Banks]

Yeah. Do you have a new book coming?

[Barb McQuaid]

I do. I think I've discussed it here before, have I not?

[Jill Wine-Banks]

Well, there's never a bad time to discuss a new book that's coming out.

[Barb McQuaid]

Okay, I'm sorry.

[Jill Wine-Banks]

Stop being so shy.

[Barb McQuaid]

All right, well, thank you. If you're going to drag it out of me. I do have a new book coming out. I'm working on it now. It'll come out next June. It's called the Fix. It's a double entendre. You see, because I talk about how the current administration is running our government like a mob ring. So the Fix is in. But I also spend most of the book offering solutions. Hence the Fix, about how we can improve some of the guardrails in our government so that we can lead and restore our democracy and not be subject to the whims of, you know, an organized crime figure.

[Jill Wine-Banks]

That is so important. I can't wait for that to come out. And, Joyce, you're on a book tour right now.

[Joyce Vance]

Well, I am, but let me just say about Barb's book, I think your timing is perfect because it's gonna come out right when we're getting ready to move past this administration, and people really will want to know what the Fix like, so. I can't wait to see it. Do I maybe get to, like, help and review a draft, or is it too late?

[Barb McQuaid]

Absolutely. Oh, no. I'd love to have that.

[Joyce Vance]

Both of you.

[Barb McQuaid]

All three of you. My sisters.

[Joyce Vance]

I have, like, new perspective being on a book tour, which is actually really fun. The thing I didn't expect was how much fun it would be to get to talk with people about the book, but also to go around the country and to get inspired by all the things people are doing. You know, so many of our listeners have walked up to me. There have been tons of people in Sisters in Law T shirts and the wonderful new hoodie, which I found. I was able to go home for two days last weekend. The hoodie was waiting. It's like, the perfect length. It's such a great hoodie, and a lot of people have been wearing them. And what they tell me is how much they like the podcast. Because we're not always doom and gloom. We talk about solutions we laugh, we try to have a little bit of fun. And that's so appropriate because in dark times, you gotta have friends and you gotta have a good time with each other.

[Jill Wine-Banks]

So I'm so jealous of the two of you because my book came out literally a week before COVID shut the world down. So I had a little bit of a book tour in New York, a little bit in Washington, a few days in Arizona, and a few days in Chicago. And then it was impossible. Every public event was canceled. So I did some zoom stuff. And I really enjoyed meeting the people in person and signing books and hearing about them. So I'm now working on a second book, but I've already received my first rejection. But I view that as one step closer to a yes. Because if you look at people like J.K. rowling and Dr. Seuss, they got dozens and way more than dozens of rejections before they got published. So I'm about to submit to some other publishers in the hopes that my teen book will get published sometime soon. And I, in the meantime, loving working on it. So that's good. We have a lot planned for you. In today's show, we're going to be discussing the acquittal of the DC sandwich thrower, Chicago's ice violence, and it's been outrageous to be here and the comb emotions and what's going on in his case. But before we get to those serious topics, I want to talk about the government shutdown and what it's meaning, how it's affecting all of our lives and all of our friends lives. I mean, Joyce, you're traveling extensively right now for your book tour. Has it impacted you yet?

[Joyce Vance]

You know, I'm like scared to say this out loud because I'll probably jinx myself and get stuck tomorrow morning, but so far it's been great. And what I've noticed is that everybody in the airports, the, you know, flight attendants, that just the people in the airport, everybody is just super patient and relaxed and trying to help other people, which I think is wonderful, because, you know, I. I've tried to make a habit of thanking the TSA agents when I go through security. I'm just really worried about all the people that are working without being paid for a month. And I can remember from being in government shutdown what it was like, especially as a young mom, to worry about if I was going to be able to afford to put food on the table in some of the prolonged shutdowns. So I love that everybody's treating them kindly. I think that that's Wonderful. But, you know, I'm just super worried about all the people, government employees and otherwise, who are feeling the hardship from the shutdown. It's wrong. I hope it gets fixed really soon. I saw the Senate has put a new deal on the table. The Democrats in the Senate have put a new deal on the table.

[Jill Wine-Banks]

And, Barb, has it affected you yet?

[Barb McQuaid]

Well, fortunately, not me personally, but I'm seeing it all around me.

[Jill Wine-Banks]

Right.

[Barb McQuaid]

People who are not getting paid. I'm pleased to see that we've got neighbors who are putting together food drives to help stock food pantries. We've got to drive at our church to try to stock some of the food pantries because the shelves are going empty as people are running out of paychecks. They've been now without paying since what. What are we at, like, 6, over 30 days now?

[Joyce Vance]

Yeah. Cause, you know, they got paid for that first, like, 10 days because it wasn't a pay period, but now they've missed a second pay paycheck.

[Barb McQuaid]

Yeah. So, you know, it's hitting. It's hitting a lot of people, and I think that's just a travesty. It's. It's so unnecessary. I mean, can't we all agree, like, nobody in America should go hungry? So between the defunding of food stamps and. And now the shutdown that's causing all of these people to be without pay, that's causing even more hungry people. I think it's really devastating. And so I hope all of us are doing what we can, if we can, to help support those in need.

[Jill Wine-Banks]

Yeah. I've had a minor delay on a flight, but I am feeling the results of the shutdown. With the SNAP benefits being cut off and the president sort of ignoring the order to restore them, my neighborhood has come together in wonderful ways to protect immigrants who, unfortunately, ICE is getting paid, apparently, and is fully on the job. But we've started food drives, and our local high school, Evanston High School, has been collecting food, as have many other organizations. And I think it's been a wonderful community event, and I'm glad to be part of that. So onto the show.

[Joyce Vance]

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[Jill Wine-Banks]

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[Joyce Vance]

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[Barb McQuaid]

I like doing these ads just for the opportunity to hear Joyce say words like Pilates. But speaking of Honey Love, you can treat yourself or someone special to the most comfortable and innovative bras and shapewear on earth this holiday season. There, I said it. Save 20% off [e-mail] sisters use our exclusive link to get 20% off. That's honeylove.com sisters. After you purchase, they'll ask where you heard about them. Please support our show and tell them we sent you. Celebrate the season feeling confident and comfortable with Honey Love. The link is in our show. Notes this week, a jury in Washington, D.C. returned a not guilty verdict for Sean Dunn. He's the man who was charged with throwing a Subway sandwich at a Customs and Border Protection agent on a city street. You may remember the White House posted his arrest at his apartment. There was a crew of agents in tactical gear, and this week we had sort of the reckoning. First Sisters before we get into discussing this case, I have to ask, what's the best joke you've heard about this case? There's a bunch out there. I think the one I liked the best was the one that called it a Reuben missile Crisis. I think that might have been George Conway. I thought that was pretty good. There are several others, too. I asked people on social media to post some and there's some really great ones. What were some of the best ones.

[Joyce Vance]

You heard Our family chat loop was sort of lit over this case. Could. We'd been watching it and I'd been writing about it. So my favorite one, I think was one of my kids said, well, the government tried to get the juror to bite, but they didn't. Yeah, and then I saw somebody on social media, I thought this one was great. You know, you have to get into your New Orleans frame of mind. You're out in New Orleans, going out to eat sandwiches. The big New Orleans sandwiches. And here's the line. The PO Boy was set free. Oh, you don't get it if you're not. That's good.

[Barb McQuaid]

That's good. Yeah, yeah, no, I get it. That's awesome.

[Jill Wine-Banks]

I like those. But my favorite was Assault with a Deli Weapon.

[Joyce Vance]

Oh, yeah, good.

[Barb McQuaid]

I relish that one.

[Jill Wine-Banks]

Another favorite I gotta just mention I. I met the Earl of Sandwich in London, and I like, therefore, the Hurl of Sandwich.

[Barb McQuaid]

Wait, wait, I'm sorry. So the Hurl of Sandwich is funny, but did you say you met the Earl of Sandwich? Like the real Earl of Sandwich?

[Jill Wine-Banks]

The real Earl of Sandwich still alive.

[Barb McQuaid]

There's still an Earl of him?

[Jill Wine-Banks]

Yeah. I mean, a descendant of his is alive and kicking and. Yeah, of course you do. At Windsor Castle.

[Joyce Vance]

It's another Jill Wine Banks moment.

[Barb McQuaid]

She met the Earl of Sandwich. Was he chewing on a ham and cheese? No, no.

[Jill Wine-Banks]

They actually had very nice hors d' oeuvres at this event.

[Barb McQuaid]

All right, well, let's. Let's talk about this case. Jill, the case is an interesting backstory. Can you just tell us about the events that occurred on the streets of Washington, D.C. in August that led to this case?

[Jill Wine-Banks]

Sure. Well, the first episode was the National Guard was dispatched to start law enforcement in D.C. and a lot of people didn't like that, thought it was wrong. And so as the people were patrolling the streets, there were a lot of protests. And in this case, Sean Dunn was on 14th street, which was actually. The Watergate offices were at 1425 K Street. So we were at 14th street, which at the time was burlesque houses. And literally, it was a really twenties.

[Barb McQuaid]

Watergate was in the seventies. The burlesque houses?

[Joyce Vance]

What are you talking about?

[Jill Wine-Banks]

I didn't know what to call them. There were a lot of. A lot of naked ladies were performing in the area, and a lot of prostitutes were in the area. When I left late at night, I would get looked at strange because I was carrying a briefcase. What was I doing on the streets late at night with a briefcase? So anyway, that was A different story. But so that was what was happening. And Sean was out for a late night dinner, hot summer months. He was wearing shorts and he had just bought a foot long Subway. I'm not sure what flavor it was. I don't know if anybody has that detail.

[Barb McQuaid]

I read salami.

[Joyce Vance]

Salami.

[Jill Wine-Banks]

It was salami, but salami and what else? But it was tightly wrapped up and it stayed tightly wrapped up. It did not, as the agent said, explode on him because there were pictures of it lying fully wrapped on the ground. So that's what started the whole thing. People were yelling at the, the officers who were on the street. And it got a little out of hand. And Sean threw his sandwich and has become famous in Washington. There are memes of him, there are murals of him throwing, and there are T shirts in his honor. So it's been a escalating story, I would say.

[Barb McQuaid]

Yeah. Well, Joyce, moving on then, to the charges. You know, the old cliche is that, um, a prosecutor couldn't date a ham sandwich. So you write your own joke here. Right. But the. Nonetheless, the U.S. attorney's office had trouble indicting this case. Can you tell us about the tortured procedural history that occurred in this case?

[Joyce Vance]

Tortured is exactly the right word because as you pointed out first, Dunn gets arrested and he gets charged with a felony to effectuate the arrest. It's just a complaint. Janine Pirro, the U.S. attorney in D.C. cuts this really smarmy video in her office where she's bragging about the charges and trying to be funny, talking about, you know, where he can stick his sandwich and that sort of thing. But it didn't play out too well for her because apparently she forgot that a felony had to receive the grand jury's stamp of approval. And after hearing the government's evidence, the grand jury in this case declined to indict. So some prosecutors might have fought, thought better of going forward after that. But Pirro, maybe in an effort to save face, brought a misdemeanor charge that didn't require the grand jury. That was something that just she, as the U.S. attorney could sign off on. And so the charges that went to trial, that was a misdemeanor. Yeah.

[Barb McQuaid]

And you know, just interesting point for our listeners. The grant, the fifth Amendment to the Constitution provides that in capital or otherwise infamous cases, a defendant is entitled to indictment by a grand jury. But misdemeanors are not considered to be infamous crimes. And so if you want to charge a misdemeanor, no need to take it to a grand jury. So Jill When I first heard about this grand jury refusing to indict, I had it in my head that this was like jury nullification, that, sure, he did this thing, but it's just not in the best interest of justice and that's why it didn't go forward. But actually, now that I have seen what happened at the trial and looked at the statute and the jury instructions, I now have a very different opinion of it, that it's not nullification, but simply failure of proof. What are your thoughts about that? Can you explain what they had to prove in this case and your view of it?

[Jill Wine-Banks]

Such a good question, and I agree with you. It does sound like jury nullification. Of like, I'm not going to go with this. But when you look at what the evidence they presented was and what the evidence they needed was, you're right. They failed to have the proper elements. As I said, you know, an exploding sandwich didn't exist. The officer was wearing a bulletproof vest. The sandwich remained in its wrapper. He thought it was funny enough that he accepted gag gifts of a sort of a plush sandwich, a decal for his lunchbox that was of a sandwich, of a Subway sandwich. So the elements just weren't there. It has to be a forcible assault on a federal officer. So we had a federal officer, that's true, but a forcible assault with a sandwich, hard to think of that that way. And the defendant has to do so while the federal officer is engaged in his official duties and he has to make physical contact with the intent to commit a felony. And it's hard to see that this was a forcible assault. This, you know, he hit him on the bulletproof vest. So that's like, there couldn't be an attempt to harm someone wearing a bulletproof vest or to inflict injury. What kind of injury would a sandwich have possibly caused to this well, armed and bulletproof vested person? And so I don't think he had the ability to inflict injury and couldn't have caused actual apprehension that the agent would have been injured. I mean, if he was afraid of a sandwich being thrown, man, he's in the wrong line of work and he should resign immediately.

[Barb McQuaid]

Yeah, you know the language of the jury instruction. There has to be, you know, all these things you said, but there has to be an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm. When they talked about how the testimony, when the officer was testifying about how it hit him in the bulletproof vest, and he said, and I was. I smelled of mustard and onions. Afterwards, the reporting was that there was audible laughter in the courtroom.

[Joyce Vance]

Yeah.

[Jill Wine-Banks]

As he described it, he also said he had an onion hanging from some part of his vest, but you could see that the sandwich was still wrapped. In the video, it was on the ground, fully wrapped.

[Joyce Vance]

Yeah.

[Barb McQuaid]

He said it exploded when it landed on me. Yeah, hardly. Joyce, As a matter of prosecutorial discretion, I kind of get it that Jeanine Pirro, you know, wants to protect officers who are out there doing their jobs. You know, they're being used as pawns in all of this. I'm sure many of them are. You know, people who are just. They're there because they've been assigned to go there. They don't want to be there any more than, you know, the people on the street do. And so she wants to have their back and protect them from being have, you know, objects hurled at them. And she said, even a child knows you can't throw things at other people. But that doesn't mean, does it, that your only option is to charge someone with a felony or even a misdemeanor. Right. Didn't she have other options here that could send a message of deterrence short of criminal charges?

[Joyce Vance]

Yeah, I mean, absolutely not. Everything somebody does that we think of as misbehavior is a federal crime.

[Barb McQuaid]

Right.

[Joyce Vance]

I mean, that's just crazy stuff. Dunn lost his job at doj, by the way. He was a paralegal. That's a pretty significant punishment. The Attorney General personally took it upon herself to fire him. It was sort of a very notorious firing. It will damage his future work prospects. And, you know, there was no reason to believe that he's a danger to anyone else in the future. Right. So why waste government resources on this prosecution? In fact, it seems really counterproductive to me. It's done further damage to DOJ's credibility because this is the office that passed on completing the investigation into border czar Tom Homan, who allegedly took a $50,000 bribe for government contracts and got a pass. And we've also seen far more people, far more violent people in a case with a clear national interest, get pardoned for January 6th offenses. So it's really tough to view this as a principled exercise of prosecutorial discretion. She had a lot of options. Right. She could have even given him pretrial diversion and required him to behave for the next 18 months. All sorts of options that would have spared the government this real egg on the face moment. Yeah, I did there.

[Barb McQuaid]

I did a little food. I Like the little food metaphor. That's nice. That's nice. I was. I thought you were going to use one of your favorite quotes. I was. I was hoping to tee it up.

[Joyce Vance]

For, like, awful, but.

[Jill Wine-Banks]

Awful.

[Joyce Vance]

Awful. Yeah.

[Barb McQuaid]

Right. I mean, I think you kind of.

[Joyce Vance]

I don't even know that this is awful.

[Barb McQuaid]

Right.

[Joyce Vance]

I mean, let's just be honest about the context. Trump is trying to take over in the District there, you know, for the first time ever, there are troops roaming the streets in D.C. in an effort to face down protesters. I mean, it's easy to understand how tensions got out of hand, and we ask our prosecutors to use their discretion not to make things worse. Right. Prosecutors aren't supposed to add fuel to the flames, and this case really did.

[Barb McQuaid]

Yeah. Let me just ask you both. Do you think throwing a sandwich is a. An acceptable form of protest? Or when you're out there at no Kings rallies, should we try to model better behavior?

[Jill Wine-Banks]

I think we should try to model better behavior. I just watched a series of videos about the violence in Chicago caused by ice, and you see people reacting by yelling. I don't know if I can say it, but the F word. And, you know, I understand the anger. This was trick or treat night, and the woman's children were being terrorized by the presence of dozens of agents with masks and camouflage and rifles. So I get why you would feel that way, but I think there are better ways to communicate. Go away than saying that. I don't think throwing things is the most sophisticated, appropriate way. Holding up a sign, using your voice. Those are better ways. But I do. As Joyce just said, I really understand how out of control. I mean, what's happening in Chicago makes me feel that I might be yelling the F word at an agent someday soon because it is outrageous.

[Joyce Vance]

I think we could all take a lesson from the civil rights movement and from Dr. King and this notion of peace protest, which I think speaks very loudly when everyone is. Is shouting. But I'm with you, Jill. I mean, it's tough. And. And I. I think we all have to think about what our personal red line is. You know, what would you do if you saw someone being dragged into an unmarked vehicle by masked men? And especially now that there are reports of crimes being committed by people imitating ICE agents. I think it puts everybody into a really difficult situation, which underlines just how irresponsible the Trump administration is being.

[Barb McQuaid]

Yeah, I. I think I agree with you. I mean, if you are angry, sometimes your passions spill out. But I am just struck by, you know, I'VE posted some jokes on social media about this myself. Couldn't resist a little opportunity for humor. And some of the responses are so that means it's okay that if I were to come to one of your live shows, I could throw things at you, right? No, I. They're missing the point. This was not a crime because it did not satisfy the elements of the offense. That's not saying it's okay. I would sue you civilly. I would have you removed from the arena, and if you did cause me bodily injury because I wasn't wearing a bulletproof vest, you could be charged with a crime. But prosecutors have to look at the elements of an offense and decide whether the crime fits those facts. And if not, they can't charge it. In addition, prosecutors have to allocate their scarce resources and choose which cases they're going to charge. Charging this case and using all the resources of the grand jury and the trial court means there's some case that didn't get charged. I don't know what that case was. It might have been the jaywalking. It might have been murder. I don't know what it was. But because of this case, there is some other case that went uncharged. And I think it's that lapse of judgment that causes me to be so exercised about the conduct of Jeanine Pirro.

[Jill Wine-Banks]

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[Barb McQuaid]

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[Joyce Vance]

So I'm just unabashedly in love with one skin. I cannot get enough of it. You know, it's every once in a while you discover one of those products that as soon as you realize you're at risk of running out of it, you buy more so that you're never without it. That's one skin for me. I get super dried out flying on planes and right now I'm in the middle of my book tour, so everything is awful. But as soon as I land, I use OneSkin's OSO One Face topical supplement and that really fights back against the dryness. And the body lotion is better than anything I've ever used. So look, these supplements make your skin look fresh and they leave it ready for anything that the elements like the upcoming winter winds can throw at you. And I especially love that Oneskin's regimen works fast and the formulas feel great when you put them on.

[Barb McQuaid]

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[Joyce Vance]

Wait, I don't have the lip stuff yet. We have to stop the podcast so I can go order it before we do anything.

[Barb McQuaid]

Stop the podcast.

[Joyce Vance]

I'm literally right there right now. I'm going to order using the Code Sisters.

[Barb McQuaid]

Jill, did I tell you that my daughter has been fostering a cat?

[Jill Wine-Banks]

No. That's fabulous.

[Joyce Vance]

Oh wow.

[Barb McQuaid]

Yeah, she really enjoys him. His name is Waldo and she said it's like a real life stuffed animal. I think that's art. Is that what life imitating art?

[Jill Wine-Banks]

Oh, I love it.

[Barb McQuaid]

Yeah, I said actually it went the other way around. But she loves cats and, and even if not everybody owns a cat, we are telling all of our cat owning and cat loving friends and family about Smalls. You know, the cat food most people rely on has questionable ingredients. And from better digestion to better general health, Smalls is a win. That's why we're so glad this podcast is sponsored by Smalls, especially because for a limited time you can get get this 60% off your first order plus free shipping when you head to smalls.com.

[Jill Wine-Banks]

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[Joyce Vance]

Look, all of the Vance cats deserve the best, which is why they are now consumed Smalls customers. I mean they are really consumed with this stuff. You take it out of the fridge and get ready to serve them and they just go nuts. Sometimes it sort of feels like they're eating better than we do. But don't just take my word for it. One of our listeners, Smalls customer Jennifer M. Had this to say after every feeding, my cat gets this burst of energy and starts running around the house and his fur is softer and more vibrant with higher contrast. Honestly, she says, I wouldn't recommend anything else. Smalls also has a great story. It was started back in 2017 by a couple of guys home cooking cat food in small batches for their friends. A few short years later, they've served millions of meals to cats across the usa. And here's the best food part. Smalls works with the Humane World for Animals, donating over a million dollars worth of food through them to help cats. So you can feed your cats and help stray animals. And you can even donate at checkout. You have the Choice of donating $5 for flea and tick medication or $7 for vaccines. Feed your cats and feel good about it.

[Jill Wine-Banks]

Smalls even has amazing treats and snacks for a full feline feast and you can try it risk free for your cat. So what are you waiting for? Give your cat the food they deserve for a limited time because you are a Sisters in law listener. Get 60% off your first order plus free shipping when you head to smalls.com sisters one last time. That's 60% off your first order plus Free shipping when you head to smalls dot com sisters the link is also in our show notes. It's been a busy week in Chicago. And as you learn what ICE is doing here in my hometown, remember, your own town could be next. And although you first saw photos of patrols on Michigan Avenue, which is like our Fifth Avenue or our Rodeo Drive, and on the Chicago river and in Millennium park, which is our tourist area, ICE operations have now spread way beyond that area, not just to minority neighborhoods, but to wealthy homes and suburbs where landscapers, many of whom are documented, or US Citizens and nannies, have been taken off the street. It looks like what I think Germany must have looked like in 1935, 1939 for sure. People grabbed off the street, detained and disappeared, even those with documents. Peaceful protesters and priests have been pepper sprayed and gassed and beaten. People are being pulled out of their cars. Children trick or treating have been terrorized by displays of mass force, by masked men in camouflage displaying multiple weapons and pointing guns at the protesters. But I'm proud to see that our courts here, our police, our citizens, our governor are taking action, including, I think one of the best ideas was our governor appointed an accountability council to track the violence and to do something about it. I'm going to put a Chicago Tribune article link in our show notes because it has the most depressing, terrifying videos. When and when you see them one at a time, it's, you know, if you see one, it's maybe not so bad, but when you see a dozen of them, you know what's happening here and why we must do something to make sure that it is stopped. I'm now wearing a whistle and a resistance paperclip every single day. But, Joyce, we did have some good actions from our courts. Judge Sarah Ellis issued a TRO barring violence against protesters. Let's talk about that TRO and then talk about what happened after the TRO with whether she thought it was being obeyed and what happened.

[Joyce Vance]

Yeah. So Judge Ellis issues this tro. That's a temporary restraining order, the kind of injunction we've talked about before that a judge might issue immediately if the plaintiffs can come in and convince her that they'll be irreparably harmed if, as in this case, the government isn't stopped from doing something. And so that's really just a 14 day pause so the judge can get started and figure out what's going on without anyone getting harmed. And in this case, she barred violence against protesters. And so the details of this involved the police not being able to use pepper balls or gas without issuing two warnings first and being careful to give people time to disperse. Now she's Gone a step further. Right. And. And what it comes down to is she's an. Issued an order saying that the police, that the federal agents can't use excessive force against peaceful protesters or journalists. She gives the police the ability to deal with violent disturbances as appropriate. The concern is about improper use of force against peaceful protesters exercising their First Amendment rights.

[Jill Wine-Banks]

Yeah. You know, she also added to that the chief commander here is named Bovino, and he has been ordered to wear a body camera. And he was originally ordered to appear daily to report to her any incidents of violence. But the 7th Circuit reversed that, and she went ahead and had another hearing, and she issued a sweeping preliminary injunction which basically says the same things. You can't give people protesting gas or pepper balls without warning them, saying, I'm going to use this if you don't disperse and give them time to leave. So, I mean, we've had episodes where a priest who was praying was hit more than once by a pepper ball. So it's really bad. And the question now is, are we getting to a constitutional crisis? Because she doesn't think that her order has been obeyed. And if it isn't obeyed, and if it's deliberately not obeyed, are we at that constitutional crisis that we've been talking about? So, Joyce, let's go a little more deeply into the preliminary injunctions terms and what it means.

[Joyce Vance]

So after Judge Ellis issued the temporary restraining order, she then issued an order that looked like it was designed to prevent problems from happening. By meeting with this person that you're talking about, Jill, Commander Greg Bovino, every evening to review how things were going and make sure that any problems were being swiftly addressed. It looked like something that had a good chance of working. He was very cowed when he appeared in her courtroom for the hearing that resulted in that order. But unfortunately, the 7th Circuit Court of Appeals saw it differently, and they viewed what Judge Ellis did as a violation of separation of powers. They thought that it was an effort by an Article 3 judge to tell an Article 1 law enforcement person what to do. And they said that her order puts the court in the position of an inquisitor. So they permitted her temporary injunction to stay in place. But they rejected this unusual enhanced monitoring that would have involved Bevino coming into the courthouse every night to visit with her. So that happens. Judge Ellis then came back on Thursday. She issued the preliminary injunction that will remain in place throughout the litigation. Here. She accepts, explained why she wasn't infringing on Article 1 powers. And, you know, I'm not sure that we're at the constitutional crisis stage, I think it can be averted because the injunction that she has now issued is really just a slightly enhanced version of what the 7th Circuit has already signed off on. Right. They used Mandamus to strike down the visiting with the vino provision, but they had permitted her temporary restraining order to stay in place. And so now the government has a very clear choice to make. They can appeal this and try to get the Supreme Court to hear it. I sort of doubt that the court will. They can comply with it. And that looked like what they were preparing to do before the 7th Circuit intervened in the first moment. Or they can do what you're talking about. They can go into an open non compliance. I think the courts will act very strong, swiftly if they do. And so if there is, you know, I'm not sure that that would be a constitutional crisis. It would be a crisis if the courts let them get away with it. If the courts brings the administration back into compliance and that goes smoothly, it could actually reset the way this entire deal has been working so far.

[Jill Wine-Banks]

And so, Barb, that brings us to Bovino's deposition, which the court just ruled had to be published. And so anyone who wants to can see his full testimony or see the clips of it that have been excerpted. And the judge was pretty harsh in determining that he was lying and saying that the violence is unconscionable. The judge was also frustrated by a new Department of Justice attorney who came in totally unprepared and called this operation Midway Bliss. It's actually Midway Blitz.

[Barb McQuaid]

And I wonder if that's like the little nickname internally or something.

[Jill Wine-Banks]

Maybe. Anyway, so can you talk about his deposition and why she thought he was lying?

[Barb McQuaid]

Yes. So, you know, she has issued this order that they have to use warnings if they're going to use tear gas. I mean, makes sense, right? The whole point of using tear gas and pepper spray is to get the crowd to disperse. And so if you say please disperse first, maybe they'll just do that. Right. That's what you try to do with de escalation. Use verbal commands if you can. And then if they don't comply, then certainly they may escalate to using other kinds of things. But what she said is that she found video and said that Bovino himself deployed tear gas without giving a warning and then lied about it during his deposition. She said there's another video where Bovino attacks and tackles a person to the ground despite saying at his deposition that he never used force against that person. And, you know, this is the guy who, back when Customs and Border Protection and Immigration forces were deployed to Los angeles at that MacArthur park raid. Remember that a couple of months ago, he said words to the effect of, we're here, we're gonna be here, and you better get used to it. I mean, he's definitely kind of adopted the swagger of the Trump administration. You know, a big part of this move seems to me to be a show of force and a show of aggression to try to intimidate people off the streets or to self deport or whatever it is. And I think that, you know, in a democracy, that's really just not how we're supposed to do things. Certainly people have an obligation to obey the law. And, you know, I'm not a defender of people who are blocking their path or slowing their cars or other kinds of things because they do have a right to enforce the law. But when they're using these, you know, gas and sprays without necessity. And as you've said, Jill, there are these scenes of just, you know, strolling down a otherwise quiet tree lined street with, you know, smoke bombs and stuff, that is, is overreach. And the idea that a judge has found that the commander of this CBP effort in Chicago is lying under oath should disturb all of us.

[Jill Wine-Banks]

It definitely disturbs me. Um, and, and another element of what's going on in Chicago is that people are being detained in a detention center in Broadview, just outside of Chicago. It's a suburb, and the conditions there are reported to be so awful that it's cruel and unusual punishment. And another judge, Robert Gettleman, ordered ICE to improve conditions at the Broadview Detention Center. Joyce, can you talk about that and why that's so important?

[Joyce Vance]

Yeah. So on Wednesday, Judge Gettleman ordered ICE to completely overhaul its processing facility in Broadview and make it more humane. This is just supposed to be a place where people are being processed and not held. Now, there are reports that people are being routinely held for 72 hours. Some have spent weeks there. And so before the ruling, the judge heard hours of testimony from undocumented people. And they testified that they were being pressured to sign voluntary deportation forms in order to be permitted to escape from the facilities. Really just disgusting, overcrowded and filthy conditions. The judge is hearing all the evidence and at one point he just has had enough. And he says people shouldn't be sleeping next to overflowing toilets. They shouldn't be sleeping on top of each other, they shouldn't be sleeping in plastic chairs, they shouldn't be sleeping on concrete floors. So you get an idea of just how horrific this is. These conditions are. Are inhumane. The judge has entered a temporary restraining order that will, as we discussed previously, that's the order that lasts for two weeks until he can hold a hearing on a preliminary injunction that will last for longer. And something pretty remarkable happened here. I'm not entirely sure what to read into it, but the government, which has been objecting to everything, even in the most flagrant abuse cases, they didn't object to the TRO here, which tells you perhaps that even they know this is wrong.

[Jill Wine-Banks]

Yeah, it's hard to believe that even they know anything, but maybe you're right on this. In the meantime, Trump is, you know, not only sending in ice, he's threatening to use the National Guard here, and it's all based on disinformation about conditions in Chicago. So, Barb, our queen of dis and misinformation, what can we do to correct his fake info and stop the Guard from being deployed here for no reason whatsoever?

[Barb McQuaid]

Yeah, so this is an interesting question that goes to presidential power and judicial review. I think that when it comes to, you know, the statute people talk about, the Insurrection act, that's not actually the statute that he has used, though he's threatened to use it. He's actually been using a different statute, and it lacks a catchy name, which is why I think we have trouble talking about it. It's just, it's. The code section is 10, United States Code section 12406. So it makes it a little clumsier to talk about, but 12406 says that the President may call up the National Guard in times of invasion, rebellion. I don't think either of those are going on. Or when it is impossible to enforce the law with regular forces. What's interesting about 12406, in contrast to the Insurrection act, the Insurrection act says when the President considers it to be impossible to do these things. 12:406 says, when it is impossible to do these things. And so even if President Trump is saying things about, you know, oh, it's a war zone and the streets are terrible, et cetera, et cetera, there's room for judicial review there because of the language of that statute. If he says it is impossible, then it's the role of the courts to see if they agree. He's entitled to deference, but he can't just make it up. Like, what if he were to say, little green men from Mars have invaded the city of Chicago, Therefore, I'm deploying the National Guard to defend us and a judge were to say, there are no little green men. We've got, you know, witnesses all over the street, and there just are none. It can't be that the president is completely free, inoculated from judicial review when there is no basis in fact for the things that he is saying.

[Jill Wine-Banks]

So, Joyce, a third judge is also involved in this. You know, we've talked about Judge Ellis and Judge Gettleman, but this week, a judge found that ICE violated a old consent decree by conducting warrantless arrests of immigrants. The judge ordered authorities to correct the arrests and to extend the agreement until February of 2026. So can you talk about that and what happened here? And is this meaningful? Because this happened because he said they violated by using warrantless arrests in Illinois and elsewhere?

[Joyce Vance]

Yeah, it's a really important case. The ICE officials took the position that they were no longer bound by the 2022 Casta Nava consent decree. That was a decree that prohibited certain arrests of immigrants without a warrant or without probable cause. And there was very clear language that indicated that the government was still still bound by this consent decree. Nonetheless, there have been a lot of ongoing violations. So, as you say, the judge has explicitly extended it to February 2, 2026, which is, you know, probably a heads up that there will be more litigation about this since the government seems to be unable to behave itself. But the individuals who got relief in this case, because it didn't just look forward, it also talked about people who've been held in custody. And as you say, there were 11 people who were detained in the. In the Chicago area, people who had been subjected to warrantless arrests in their neighborhoods or in their vehicles. And then there were an additional 11 people who were arrested in an ICE raid at a restaurant in Liberty, in Liberty, Missouri. So the judge ordered ICE to lift any conditions on their releases, in essence saying these were illegal arrests and you can't enforce them. And also, ICE is being forced to push back out notification about the consent decree and certify that all of the officers who violated it have been retrained.

[Jill Wine-Banks]

And, Barb, you know, Joyce just mentioned some numbers, but how many have been detained in Operation Midway Blitz?

[Barb McQuaid]

You know, I don't know if we have full numbers, but there are some reports about more than 2000 arrests, a detention of 1400 of those individuals, and that a thousand of them have been deported. So we don't know if those numbers are accurate. That's for the period between January 1 and September 30. We've seen tweets by Greg Bovino saying that DHS has made more than 1500 arrests with more to come. So is he talking about the nine month period or just the period since they've been here? It's hard to know. But they are certainly on a mission. And you know, the one thing I would say about that is President Trump certainly ran on an agenda, a platform of enforcing immigration laws, including deportation, and he's entitled to do that as the, as the president who won that election. But it's all about not just the what, but the how. And I think the how is where we are seeing problems. The how with these very aggressive tactics. And I, from a law enforcement perspective, would also question the who, because ordinarily we've seen immigration officials prioritize immigrants who are not entitled to be here, who pose a danger to either the national security or public safety, and they prioritize those individuals for removal. Instead, what we're seeing in this administration is quantity over quality. And they're just rolling up on, as you said, landscapers and nannies and day laborers hanging out in the Home Depot parking lots looking for work. I'm not sure it really makes us safer to focus priorities on those people when at the same time people who are a danger to our public safety and national security are just going unaddressed.

[Jill Wine-Banks]

That is so correct. And what we're finding is that in their rush to hire ICE agents, they have brought in people who are not qualified for several reasons. One is they can't meet the physical requirements, and two, because they have criminal convictions that would bar them from holding this position. And I also think it's important to note that compared to past years, the numbers, although shocking, are less than in the past in previous years, like double the number over 3,000 were removed during the same time period last year. So even with this unbelievable effort and hiring, they aren't doing as well as they were in the past. And these are not criminals. These are people who are working and paying taxes. So it's really been a wake up call to me about the power of the government and how horrible this is and how unsuccessful. What is happening is this year is flying by way too fast. We're almost at the holidays, and between trying to get ahead of work, planning trips and preparing for family, there are a lot of stressors. All of those can keep us from feeling and performing our best. The where did you have time to go? Anxiety is real and it can leave you feeling scattered and behind. But after our experiences with the Calm app, we realized we had Discovered the perfect way to reset and recenter. If you haven't heard, Calm is the number one app for sleep and meditation and it's here to help you feel better. So if you're feeling like you could use some support navigating life's ups and downs, get the relief you need with CALM sessions. They offer a wide range of content designed with your piece and and well being in mind.

[Barb McQuaid]

You know, Jill, you talk about the holidays coming up. Reminds me of what my dad used to say. He would say this with the holidays or like a trip or even like going to the zoo or a ball game. After we were done, he'd say, well, I'm glad that's over with. And we'd say, dad, what are you talking about? It was great. And he'd say, someday you'll understand because it's such a hassle. And now, as a kind of a running joke, my sister and I will say that after, you know, like a holiday celebration or something fun was like, I'm glad that's over with. But part of it is because of the stress. But if you use calm, you can approach the holiday season in a way that you can enjoy it and embrace it and not feel that stress. No matter what life throws at you, Calm is perfect for every mood and every moment. There's every type of program that you can imagine, like guided meditations designed to help you work through anxiety and stress, boost your focus, build healthier habits and take better care of your physical health. There are also sleep stories, sleep meditations and calming music that will help you drift off to restful sleep quickly and naturally. It's so relaxing even when you feel like you're juggling everything at once. It's the perfect end to a stressful day. But when you're feeling overwhelmed, we recommend you try their grounding exercises to help you relax and reset. CALM even has powerful expert LED talks designed to help you handle grief, improve self esteem, better your relationships and more.

[Joyce Vance]

When I'm on the road or preparing to do something stressful, there's nothing better than calm. That's because calm puts the tools you need right in your pocket so that stress and anxiety relief are always within reach. With over 2 million 5 star reviews, Calm can help you stress less, sleep more, and live mindfully. Don't wait to calm your mind and change your life. Calm has an exclusive offer just for listeners of our show. Get 40% off a Calm premium [e-mail] sisters. This is an amazing value. Go to c a l m.com sisters for 40% off unlimited access to CALM's entire library. Again, that's calm.com sisters and tell CALM you heard about them from us. The link is in our show notes the meritless prosecution of former FBI Director Jim Comey continues. And we have more news to update you on this week. So first up, we've seen the government's response to Comey's motion to dismiss. And Barb, I think this is so interesting. This indictment in this case speaks less than any indictment I've ever seen. Listeners will recall there was a lot of confusion about what the charges against Comey actually involved. I'm still not convinced that they've identified a statement he can be prosecuted for. But we have learned more this week, didn't we?

[Barb McQuaid]

We have. And you know, Joyce, I owe you an apology because I have been insistent all along that the person they are talking about in this indictment was Andrew McCabe. And that's because when Ted Cruz asked Jim Comey about whether he had ever authorized anybody at the FBI to leak information to the news media, and Comey said, no, I stand by my testimony, Cruz followed it up by saying, so when McCabe testified that you did, was he lying? And then Comey said, you know, I'm not going to characterize his testimony. I'm just going to tell you, you know, that I stand by mine. That's so clearly McCabe. Right? It had to be McCabe. And you said, no, you know, ABC, some other outlets are saying it was somebody else, that it was Daniel Richmond, who was a friend of Comey's. He's a law professor at Columbia University. And for a short period of time, he served as an FBI employee, a special employee, but he ended his employment in February of 2017. And so of course, this had to be about the alleged leaks that McCabe made to the press about the Clinton investigation. But we learn now that, no, it is Richmond. And it appears that this is about testimony that Comey gave in May of 2017 that he has publicly admitted to when he gave the press his memos about his concerns about President Trump and the Russia investigation. So this just fails in a hundred ways, doesn't it? Because it says it was about what Comey what, what Cruz asked about it was he meant to say Clinton investigation, but he actually said Clinton administration, which suggests Bill Clinton. So there's that gaffe. But he also said that he had ever authorized this. This testimony comes in May of 2017, which is before this Richmond release of information. And so I, I think it's a worse case now than I thought before.

[Joyce Vance]

Yeah. I mean, there are just so many problems. You know, the law here is very clear. There has to be a very specific false statement. There can't be any vagueness. And if Comey can come in and offer any wiggle room. Well, you know, I thought he was asking. I thought Ted Cruz was asking me about a completely different person because Ted Cruz was using that name. Or, you know, if, if. I think there's a great argument that all that Comey is doing here is saying, yes, I stand by my former testimony. Well, where's the lie in that? Right. The government's case here is just so perilous. It reflects the inexperience of the brand new US Attorney insurance lawyer who indicted the case. And we also saw this week responses to the Comey's motion to dismiss the case on vindictive and selective prosecution grounds, which also continues to look very strong. So it's just not at all clear that we're going to ever see a trial in this case. To add to all of that, Jill, the case has drawn condemnation from former DOJ employees. What's their objection to the case? And do you think it's unusual for this kind of thing to happen when a case is still pending pretrial motions in front of a district judge?

[Jill Wine-Banks]

I think everything about this case is unusual. And I think Barb laid out how. I mean, this case should have been dismissed for vagueness, for failure to state a case. It's really an inadequate indictment. But, yes, the former DOJ employees have seen that there isn't sufficient evidence to proceed in this case. And that's why other administrations, other US Attorneys refused to indict and why they had to bring in someone new to do it, who would just do whatever she was ordered by the President of the United States, which is not how our system is supposed to work. I think that it is not just unusual, but I'm proud that DOJ lawyers stood up to this kind of behavior and is drawing attention to it, and it deserves their condemnation. So they did the right thing.

[Barb McQuaid]

Yeah.

[Joyce Vance]

So, Barb, I mentioned that the Justice Department responded to Comey's motion to dismiss the case on selective and prosecution grounds. On Monday, they defended Trump's social media posts calling for Comey's prosecution and saying that that doesn't amount to retribution. Can you help us understand the government's position here? It's a little bit squirrely.

[Barb McQuaid]

Well, they'd say a couple of things that are just sort of laughable, you know, like that the president's posts were not singling out Jim Comey. They were not retributive. I mean, that just is sort of silly. They also say that Comey has not shown that the U.S. attorney, Lindsey Halligan has been retributive. But there is case law that says you can't use the prosecutor as like your stalking horse. That's the phrase from the case law. However, I will say this. I think this is not a popular view, but I don't think Comey will prevail on vindictive or selective prosecution in this case. You may disagree with me, but one of the things the government raises here is vindictive prosecution doesn't just mean I hate you and I'm prosecuting you. It is a term of art. Prosecutorial vindictiveness is, I am punishing you for exercising a known legal right. And as they correctly point out, Comey's kind of vague about what that right is. Most often where you see this claim is in a case where somebody gets punished by the prosecutor for daring to appeal their sentence, and then they come back on remand for resentencing and the prosecutor seeks an even higher sentence or they add charges or something like that. Comey here says it's because I exercised my First Amendment rights. Well, which one? Like what statement? What was it that you said that has Trump so animated now? I've heard other people say, you know, this is such a different kind of situation that we've ever seen before, that maybe we just presume vindictiveness because in these other cases, you have to kind of presume it based on the conduct. And so maybe that's the case. But it is a new theory of vindictive prosecution. Similarly, with selective prosecution, what you have to show is that other people who were, who were similarly situated were not prosecuted. And Comey does name some people, like Jeff Sessions who testified at a congressional hearing where maybe he shaded the facts about his conversations with a Russian diplomat and some other things. But these, your false statements cases are so fact sensitive, they're so unique to their facts that I'm not sure you can really produce comparables in a case like this. And so although I very much want Jim Comey to prevail on these, because I think this is a BS prosecution and I think it should fail. I think it should fail for the failure to state a claim, as Jill just said, I think it might fail because the prosecutor is illegally appointed under the various methods of appointment. I just don't think this selective prosecution or vindictive prosecution at least lines up with the way those concepts have been traditionally litigated.

[Joyce Vance]

You know, I agree with you that this is a different variant of these arguments. And it's because the situation is so unusual. I have, I think, a little bit more positive of an outlook on these motions. You know, the government points out that the standard for moving forward on them is very high. And it is. I think they're correct when they point that out. But Comey's got this fabulous piece of evidence, which is the president's social media post directing his attorney general indict Jim Comey.

[Barb McQuaid]

That is unusual.

[Joyce Vance]

It is what often happens in these cases. And we've actually seen this. We'll see this, for instance, in some of the cases coming out of the District of Maryland involving John Bolton. They'll say, well, you know, sure, the president had personal animus towards this defendant, but the president wasn't making the decision about whether to indict John Bolton in Maryland. That was career prosecutors. And here they're actually going to be able to say, no, actually, Donald Trump ordered Pam Bondi to indict, removed the prosecutor who wouldn't, and put this guy in. And then to your point, I think you're absolutely right that Comey will have to identify the right. But I think that some species of First Amendment right will pass muster here. Selective prosecution is. Is sort of tough, as you say. It's hard to be very clear about people who weren't indicted. But again, you know, all sorts of people dissemble in front of Congress. And it is weird that it's this weak, squirrely case against Jim Comey that gets indicted, not some of the clear ones, and particularly, you know, some of the folks who went just into flagrant disobedience to congressional subpoenas to avoid testimony. So I think it's going to be a very close call. It'll be interesting to see which one of us is right when push comes to shove. One thing that we know is, I hope it's you. Well, I know, but we'll find out, right? Because I think you raised good points. I mean, we're in the Eastern District of Virginia. This is a rocket docket. I think it's probably not going to be very long. And to that point, Wednesday in a hearing, US Magistrate Judge William Fitzpatrick ordered prosecutors to produce grand jury testimony and the prosecutor's colloquy before the grand jury to the defense. And Fitzpatrick said that his concern was that DOJ chose to indict first and investigate later. So, Jill, is this ordered turnover of grand jury proceedings at this stage in the case. Unusual.

[Jill Wine-Banks]

You know, I thought about this and it seems to me that grand jury testimony has to be turned over before trial. The trial is now set for January. That's really only a month and a half away. And so I don't think it's so unusual to say you must grant discovery of not just exculpatory, but all the evidence that was presented before the grand jury. So I do think it's unusual to have the investigation subsequent to the indictment, but it's not that unusual. In Watergate, we subpoenaed 64 additional tapes after the indictment. We only had subpoenaed nine before the indictment. So you learn things as you proceed. You have enough to indict, and then you say, well, yeah, but I now have learned other things that I really want to have. And so you subpoena additional information or call additional witnesses before the grand jury. So I'm not sure I would say that it's really odd. I think it's unusual, but not improper.

[Joyce Vance]

What seems very odd to me is that they ordered the prosecutor's comments to the grand jury turned over. And as you say, testimony in front of the grand jury is what prosecutors call Jenks act material. And by saying statute, it has to be turned over after the witness testifies at trial. But usually a judge will order it earlier. In my district, we produce it about two weeks before trial. Even more time in a very complicated case. But this is not a complicated case. Right. And so I, I think the fact that the judge wants everybody to see what the prosecutor said to the grand jury and God alone knows how many things she got wrong. Right. Because this is a prosecutor who's never been in front of a grand jury, doesn't know what the rules are. There may be all kinds of error there. And whatever it is, the defense now knows about it. What was really interesting was that the government appealed this ruling to the district judge. You have an immediate right to appeal when a magistrate judge makes a decision, because a magistrate judge is not an Article 3 judge. And so you can actually appeal to the district judge. And they did that here. And it took Judge Nachman off, I think like about 10 minutes to say, not interested, government. Overruled. So what do you make of the fact that the judge gave the government such very short shrift here when they objected?

[Jill Wine-Banks]

Well, I mean, it seems sort of self evident that obviously they don't have a very good argument with this and will not prevail if they appeal his judgment a higher up. So you're right. Of course that the Jenk Sack doesn't have to be turned over right now, but it's not an impossibly early time. And I think it does show what both Fitzpatrick and Nachmanov think of how this case was handled. And what's unusual, of course, is that this prosecutor is not a prosecutor, had no prosecution experience, was appointed specifically because the prior incumbent as U.S. attorney refused to indict for lack of evidence. And then you see the email to or the social media posting by Trump saying, what's going on here, Pam? Get this done. And then she brings in this new person and Halligan does exactly what was ordered by the President. So it raises the specter of selective, vindictive prosecution. And it also means you need to know what she said. You know, we have to see exactly whether the indictment is based on false information or whether it's based on real facts.

[Joyce Vance]

Yeah. I mean, it's a thoroughly despicable case all the way around. Right. Like a very irresponsible decision to indict. After the career prosecutors looked at it and said, there's not even enough evidence for us to believe that a crime was committed here. And then there's the impropriety of the White House getting directly involved and ordering the prosecution of one of the president's enemies. The notion that any attorney general would actually stand for that, as opposed to just resigning flat out is crazy. And maybe that's as good of a point as any to stop on. You know, at some point, Pam Bondi will have to take a stand. Donald Trump will do something so flagrantly outrageous that it will subject her to criminal liability. And in order to save herself, she'll have to say no and probably resign. And you have to wonder what it is that lets someone who knows the law and who has experience as a Prosecutor, unlike the U.S. attorney in the Eastern District of Virginia, simply let the president push her around and tell her what to do and engage in such terrible misconduct that she will be, you know, a footnote in American history, and she will be a villain in that footnote. Rather than just realizing from the get go that she needed to tell Donald Trump no, and leaving the Justice Department with her head held high, she has foreclosed that option. That is not what will be in her future.

[Barb McQuaid]

Don't you ever wonder, like, don't these people realize, like, in four years this is over and there's going to be a new president and a new attorney general, and, like, these are you know, really ethically very questionable decisions that they're making? And I'm using questionable in a very generous way. Yeah, being very generous here. How do they see this ending? These aren't old. These are young people. Like, what do they think their next job going to be? Or do they think that, you know, they're going to do all they can to make sure the Magaverse continues in power and as long as that's the case, they don't have to worry. Is that what they're thinking?

[Joyce Vance]

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[Jill Wine-Banks]

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[Barb McQuaid]

Even if you're someone just starting out with makeup. What? What are you suggesting? I'm just starting out with makeup? Wait a minute, where's my agent? The holiday collection is a great starter and a wonderful present for yourself.

[Joyce Vance]

Or.

[Barb McQuaid]

Or it makes the perfect gift. Jones Road Beauty has makeup that won't even feel like you're wearing it, which is a win for me. Hey, once again, so this holiday season, simplify your routine with makeup that's clean, strategic and multifunctional. And don't miss out on their limited edition holiday sets. They won't be here for long and once they're gone, they're gone. Also, as a treat for our listeners, you'll get a free cool gloss on your first purchase when you use Code Sisters at checkout. Just head to Jonesroadbeauty.com and use code Sisters at checkout. After you purchase, they'll ask you where you heard about them. Please support our show and tell them our show sent you. The link is in the show Notes.

[Jill Wine-Banks]

Now it's time for our favorite part of the show, Listener Questions. I so enjoy this. I love seeing what our listeners are thinking. I'm always impressed by the intelligence of their questions. It's really amazing. And I just want you all to know, if you have a question for us, please email sistersinlawoliticon.com or tag social media using Sisters In Law. Get your questions into us and if we don't answer them during the show, watch our feeds during the week because we sometimes answer additional questions on our social media posts. Today, I want to start with a really great question for Joyce from Carolyn. Carolyn asks, James Comey is being indicted for lying to Congress. If that's a thing, is the enforcement strictly arbitrary? Who has the power to do it?

[Joyce Vance]

You know, this is a great question in light of our last conversation, and I would just slightly reword the question. I would say it's not arbitrary. It's consigned to the wise use of prosecutorial discretion. You know, prosecutors are supposed to be very thoughtful. They're supposed to evaluate the evidence. They're supposed to apply DOJ guidelines which say that you should only indict a case if you've got sufficient evidence to obtain and sustain a conviction. And the case is one that involves a national interest, you know, and you shouldn't indict otherwise. And so prosecutors in their offices actually spend a lot of time mulling over these questions about when a case should be indicted. It's supposed to be the exact opposite of arbitrary. But the problem which you identify in your question is it is left to the discretion of prosecutors. Nobody else can decide on when to indict a case. Congress can send a referral, but they can't force the indictment. And so this is why it's so important for us to have a Justice Department that operates in good faith. You know, if you voted for Donald Trump because you thought he'd be good for your pocketbook, maybe a good consideration to include when you make your decisions about who to vote for in the future is who will make sure we have a functional justice system if you care about people being held accountable for misconduct.

[Jill Wine-Banks]

Our next question comes from sue in North Carolina, and it has your name written all over it. Barb.

[Barb McQuaid]

Okay.

[Jill Wine-Banks]

The question is on the White House website, the banner at the top reads, democrats have shut down the government. Is that illegal? And is anyone doing anything about it?

[Joyce Vance]

No.

[Barb McQuaid]

That's such a great question. So, yes, it is. There's the Hatch act, which makes it illegal for federal employees to engage in political conduct while on duty. So whoever wrote that and who is ever displaying it is absolutely in violation of the Hatch Act. Now, the president himself and I think the vice president, are not bound by the Hatch act, but everybody else in the federal government is. You may remember Kellyanne Conway got in trouble for violating the Hatch act in the first Trump administration. But that's so Trump 1.0, because in Trump 2.0, we laugh at the Hatch Act. The Hatch act is enforced by the Office of Special Counsel, not to be confused with the Jack Smith Special Counsel. The Office of Special Counsel is a permanent office, an independent agency that investigates workplace, you know, like, employment misconduct, when people are fired for improper reasons or merit protections. But they also investigate allegations of violations of the Hatch Act. And the penalties are things like disciplinary action. You can be suspended, fined, maybe even terminated, but it's not a criminal charge. So the most recent nominee to lead the Office of Special Counsel was that guy Paul Ingrazia, who withdrew himself from consideration for confirmation because he posted texts that were quite racist, including one that where he claimed that he had a Nazi streak. So turns out that's frowned upon. So he's out, and now there is no candidate for that office. So it's kind of, you know, just listless out there. So I think this administration just doesn't care about the Hatch Act. And so we've seen these websites. There's Christy Noem has videos up at airports blaming the Democratic Party for the shutdown. And it is lawless and it is going unaddressed.

[Jill Wine-Banks]

Thank you, Barb. And there's a final question that I want to answer, although I'm not sure I have an answer, but it's from Shoshana, who asks. It's really bothering me not to know what happened to the East Wing's art, furniture and architectural elements. I assume Trump would have packed up the movable stuff, put it in storage, but how under secrecy? All the beautiful flooring, doors, moldings, etc. Where are they? In a pile of rubble somewhere. Well, Shoshana, I wish I could reassure you. I have interviewed two people about the destruction of the East Wing for my show on YouTube and podcast called Just the Facts. And nobody really knows because he promised he wasn't going to touch the East Wing. And then the next thing we knew, the bulldozers were there and it was just totally destroyed, ground up into sand and brought off site to an island somewhere. Thank you for listening to Sisters in law with Barb McQuaid, Joyce Vance and me, Jill Wine Banks. Follow Sisters in Law wherever you listen to podcasts. And please give us a five star review because it really will help others to find the show. And please show some love to this week's sponsors. Honey Love, Oneskin, Smalls, Calm and Jones Road Beauty. You heard how much we love them. 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.

[Barb McQuaid]

A ham handed prosecution. If the rap's not split, you must acquit. The sandwich wasn't the only hero. Oh God, don't bread on me. This case was full of baloney. The case went awry.

[Jill Wine-Banks]

Oh my God.

[Barb McQuaid]

One man mustered all his courage. Justice was served with chips, a cookie and a medium drink. That's a wrap. Oh, here's a good one. The officer was taken to the Mayo Clinic.

[Jill Wine-Banks]

Oh God, these are all great.

[Barb McQuaid]

A sub standard case. We need a hero. Eat. Freshly acquitted. We relish the outcome. Assault with a breadly weapon. He was in a pickle but now he's on a roll. Let us celebrate the verdict. It was a salami sandwich. Good thing it wasn't a club. A waste of dough all around Felony footlong.

[Jill Wine-Banks]

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[Joyce Vance]

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[Jill Wine-Banks]

Tenable's AI powered exposure management gives teams one view of risk, helping them focus, take action and close critical exposures fast.

[Joyce Vance]

Visit tenable.com tenable your exposure ends here.

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