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- [00:00]
Kimberly Atkins Store
Foreign.
- [00:10]
Joyce Vance
Welcome back to Sisters in law with Barb McQuaid, Jill Wine Banks, Kimberly Atkins Store. And me, Joyce Vance. If you've kicked off your new year with some Sisters in Law gear, then you know there's good stuff in the store. And if you haven't, go and check out the hoodies and T shirts. They're available@politicon.com merch you can find the link in our show notes. So on today's show, it has been yet another one of these really serious weeks. Kim and I are out on the ledge before we've even gotten started. We'll have to see how it goes because this week we're discussing the Insurrection Act, Trump playing dirty against the chair of the Fed, Jerome Powell, and DOJ's very aggressive statement stance towards journalists. Sort of a redo of prior policy which protected the First Amendment and the press. But now we've seen the execution of a search warrant at a journalist's house and subpoenas to the Washington Post. But before we do that, I have a dead serious topic to take up with all of you. There are weather reports that there will be snow in the Deep South. Oh, maybe I'm overplaying it. It is the prediction that maybe there might be a small dusting of snow. But, you know, we live for this stuff in the South. I mean, these are the moments that I dream about. You know, forget the inconvenience of the power going out and not having the right clothing. I'm ready to pull out all of my favorite hand knits, put a batch of vegetable soup on the stove, and go outside and play in whatever snow I can find with my dogs. But you guys get a lot more snow than we do. Right? So I want to know, what does your favorite snow day look like? What should I be thinking about doing, Barb?
- [01:56]
Barb McQuaid
Oh, that's fun, Hygge. You should enjoy that. Oh, snow days are the best choice because when there's a snow day, it's not just a day off, it's an unscheduled day off. So all the things you thought you were gonna have to do that day, like, they just go away. Either you have to wait, you can't do them. So instead you've got this day to just play. I like to play in the snow. I'll tell you, my favorite thing to do on a snow day truly, is get on my cross country skis and ski from my house to a local golf course and cross country ski there. Super fun. The other thing you can do, you know, if you can find a child to use as a pretext. You can go sledding. When my kids were young, I could use them as props. It's harder now, but all you need is a hill. You know, you probably don't own any sleds. A sled is a great thing, but if you don't own a sled, a cardboard box will do. Just break it down so it's a piece of cardboard and you go sledding right down a hill. It's a blast. I highly recommend playing or frolicking in the snow. Even shoveling the snow can be a lot of fun. You know, you pick up a snowball and throw a snowball or two, but just being out in it, walking and enjoying the beauty, there's nothing like it. I love a good snow day.
- [03:14]
Joyce Vance
You know, we used to go down Mount David on cafeteria trays when I went to college at Bates in Maine, and I have fond memories of that. Jill, what about you? Chicago gets a little bit of snow. We do.
- [03:26]
Jill Wine-Banks
And this year we've had more than usual, although only one in a big dump. And I have to say, mostly I don't like snow, except the first moment you wake up and see it on the trees. And it's so beautiful. I do love that. But. But my favorite memory of snow was one of Brisbi's predecessors. India loved the snow. She ate the snow. She played in the snow. She jumped around. She was so happy in snow that it really brought me joy. So I will have to just try to think of India in the snow.
- [04:03]
Joyce Vance
Kim, what about you? Do you have the same take on snow days, or are you gonna be a naysayer here?
- [04:08]
Kimberly Atkins Store
Oh, I think snowing in the south should be criminalized, if that were possible. I mean, listen, one reason, one benefit. I thought I was going to get moving below the Mason Dixon line. And, yes, I am below the Mason Dixon line.
- [04:26]
Joyce Vance
Barely, though. Come on.
- [04:27]
Kimberly Atkins Store
Yes, it's a stone's throw, but I'm still below it. Was that, oh, wonderful. No more snow, right? I'm officially in the South. The snowy days are over. I grew up in Detroit. I spent most of my young adult life in Boston. And I was through. I've had my fill. I don't like snow and I'm done with it. But, no, we still get it, and I don't like it. So my favorite activity is staying in the house when there is snow. I don't like going out. Jill. I used to have a dog. My late great dog, Boogie adored the snow.
- [05:01]
Jill Wine-Banks
We know Boogie.
- [05:02]
Joyce Vance
We loved Boogie.
- [05:04]
Kimberly Atkins Store
He would be so thrilled when it was snow, so I felt compelled to go out in it so that he could have a good time. Now Snickers is like me. She didn't like it either. So it's a perfect match. We're inside, we're under blankets, and we're happy.
- [05:18]
Joyce Vance
Well, fingers crossed, all the snow is coming to Bama. This episode of Sisters in Law is brought to you by Wild Grain. If you haven't heard, Wild Grain is the first baked from frozen subscription box for sourdough breads, artisanal pastries, and fresh pastas. Plus, all items conveniently bake in 25 minutes or less. Unlike many store bought options, Wild Grain uses simple ingredients you can pronounce and a slow fermentation process that can be easier on your belly and richer in nutrients and antioxidants. There are no preservatives and no shortcuts.
- [06:03]
Jill Wine-Banks
And besides that, all of the sisters love that Wild grains boxes are fully customizable. In addition to their variety box, they have a gluten free box, a vegan box, and now a protein box. No matter what you choose, it's amazing how fast wild grain goes from the box to our table. My husband and I enjoy the breads, pastas, and the pastries, and so do all of my guests. They are impressed and then surprised when I say it's baked from frozen, not homemade. They often end up subscribing because they loved it so much at my house and it is perfect for delicious meals, snacks, or quick food prep.
- [06:44]
Barb McQuaid
Yeah, you know, my kids were all home over the holidays and I emptied out the freezer with all my wild grain stuff. We had the chocolate chip cookies, we had the chocolate croissants. We had those orange cranberry biscuits. We just like crunch cooked up the lot. And they loved them. They were delicious. Having wild grain delivered is so convenient when life gets busy and I love watching the color and the flavor come alive. There's the three cheese sourdough. If you tried that, that smells great. When the cold weather really hits hard, the giant snickerdoodle cookies are a delicious winter treat. And you know, that aroma coming from the oven is just incredible. The whole house has that warm. What's the word, Joyce, The Scandinavian word for cozy winter Hygge.
- [07:33]
Joyce Vance
Is it hiigi or hygie? Yeah, we should really learn how to say that. Bar.
- [07:37]
Barb McQuaid
Yeah, hija. Whatever it is, you get that vibe when you've got the, you know, the aromas of the sweet breads cooking. Just make sure you'll get enough to share because you promise you you will never have to call anyone. When the food is ready, they will come running with those delicious smells coming from the oven. Want to treat your family and Wild Grain is the perfect way to go.
- [07:58]
Kimberly Atkins Store
You know, when my step kids are here they tend to sleep like well into the afternoon, but one way to get them up is for me to put Wild Grain pastries in the oven. Works every time. There's nothing like having an artisan bakery in your freezer to chase away the winter chill. So now is the best time to stay in and enjoy comforting homemade meals with wild grain. We highly recommend giving Wild Grain a try and right now Wild Grain is offering our listeners $30 off your first box plus free Croissant for Life when you go to wildgrain.com sisters to start your subscription today. That's 30 bucks off your first box and free Croissants for Life when you visit wildgrain.com sisters or you can use the promo code Sisters at checkout and the link is in our show not.
- [08:56]
Jill Wine-Banks
Trump is threatening to use the Insurrection Act. So let's explore what that could mean for us and for him. He tried using a provision with no acronym section 12406 to federalize State National Guard and deploy them in LA, Portland and my hometown of Chicago. But last month, the Supreme Court in Illinois v. Trump ruled that he could not use that statute. And so now he's threatening to use the this other law. They ruled President Trump likely needed to show active duty regular military forces were insufficient under 12406 before he could use the Guard. It was a rare but to me encouraging decision limiting the scope of presidential power and established a precedent that reached beyond Illinois. But I want to know what's going to happen now that he's threatening to use the Insurrection Act? Although I want to note that just before we started recording, I read online that he now says, well, it's not time to use the Insurrection act yet. I'll emphasize the yet. So, Barb, should we all be scared if he does that? What were his powers under 1204? And does the Insurrection act give him any greater powers in terms of allowable activity by the troops?
- [10:15]
Barb McQuaid
Yeah, I'll answer that in a second, Jill. But in light of your recent update, I think this is so paradigmatic. If that's how you say the word of the way Donald Trump operates, right, it's about leverage. So he wants to inflict pain or a threat or intimidation in order to coerce compliance or behavior or control. So he's dangling this idea of the Insurrection act out there, like, don't make me use my big stick. Cause I will. But I think they are laying the groundwork. Todd Blanch, the deputy Attorney General, used the word insurrection in a tweet the other day. They're definitely sort of dangling this thread out there, but it is different. As you mentioned, what we've seen before is title 10, section 12 406, which we've often said is the statute with no cute name, clever nickname, acronym. So it's sort of a clumsy title, and it's kind of a less powerful version of the Insurrection Act. That is what allowed the President to call up the state National Guard troops, although we saw the Supreme Court rein that in by saying that there had been no showing that the President was unable to enforce the laws with regular forces, which the court said likely means military forces. The Insurrection act takes those things off the table, those checks, because there are a couple of very significant differences. So, number one, in addition to the National Guard, the President can call up active military troops. This is, you know, a much larger number of troops than just the National Guard. The other big difference is that the Insurrection act, unlike 124 06, has an exception to the Posse Comitatus Act. You may all know that the Posse Comitatus act is the statute that forbids the military from engaging in law enforcement activity. So under 12406, the National Guard could support military. They could help defend federal property, for example, they could help with patrols, they could help with crowd control, but they could not engage in law enforcement activity. Arrests, searches, seizures, questioning, those kinds of things. Under the Insurrection act, the military can do that. So this really would look very different with members of the military directly enforcing the laws on the streets.
- [12:54]
Jill Wine-Banks
And Joyce, let's get into some details, because there are three sections that spell out when the President can use the Insurrection Act. So let's talk about those three circumstances that allow him to call up the troops.
- [13:09]
Joyce Vance
You know, that's a really great question. I'm a huge fan of always starting with the statute. When you're going to talk about the law, sometimes you'll just hear people pontificating about what the law without ever looking at the statutory language, which is, of course, the correct place to start. So I'm glad to have the chance to do that. There are three different provisions in the act that a President can use, in essence, to do what Barb was talking about to get around the Posse Comitatus act and to call up the Troops. So we start with section 251 that allows the president to deploy troops if he's asked to by either a state's legislature or by the governor, if the state's legislature is out of commission. And that essentially a request for federal aid to suppress an insurrection in the state. But the two other provisions don't require consent by the state, even though that has been the practice for almost 60 years. It's not essential. Section 252 permits deployment in order to, quote, enforce the laws of the United States or to suppress rebellion. And so this is pretty much what it sounds like, a of state standard provision that's meant to be used in the face of extreme violence against the state. But then there's section 253, which is most likely what Donald Trump is eyeing, that allows the president to use the military in a state to suppress, quote, any insurrection, domestic violence, unlawful combination or conspiracy, close, quote, so long as it hinders the execution of the laws. And in that state, so that some of the inhabitants are deprived of constitutional rights and state authorities can't protect the right any longer. That's the part of 253 that Kennedy and Eisenhower used during the civil rights era. But it goes on a little bit further, and it permits the president to deploy troops to suppress any insurrection, domestic violence, et cetera. That, I think, is where Trump's fertile little mind has landed.
- [15:18]
Jill Wine-Banks
Yeah, I'm afraid that that is. And I do want to point out that even that power isn't limitless. The goal of the deployment is supposed to be to restore order so that control can be returned to state officials.
- [15:35]
Joyce Vance
And Jill, can I ask you, because you're a military expert here, my understanding is that the federal government has the obligation to do that as quickly as possible. That from the moment deployment, the goal is to restore order and return control to the state. So Trump can't go in Venezuela style and say, I'm gonna be here for a couple of years, I'm now technically the ruler of California. Right. You can't do that.
- [15:59]
Jill Wine-Banks
Exactly. And he shouldn't be doing it in Venezuela, but you're right, he can't in America. But Kim, let's look at your being our SCOTUS expert. What the court said, and is it likely to stick with it, about judicial review of a president's determination that facts exist that justify his invocation of the Insurrection Act Cause that's what scares me is that this uncontrolled, unhinged person would say, yes, it's an insurrection. I must go in and what are the facts that he would rely on? And has the court said, yeah, we can't review that. Once he says it's an insurrection, that's it, we're done.
- [16:42]
Kimberly Atkins Store
So one problem. Jill and I share your concern about how this might play out. One of the problems here is that there is so little case law on the Insurrection act because this is not normal, people. I know we say that a lot, but this is not something that has happened over the course. And think about it. The course of our nation's history. We've had wars, we've had all kinds of things. Protest has been an inherent part of our democratic system since the beginning. We are celebrating 250 years of a protest that led to an independence. So this is such a natural and crucial part of our society, and it always has been since the nation's founding. The idea that protests amount to something that would give the President the power to invoke the Insurrection act just seems to. It just seems to defy common sense. But what we do know is that the Supreme Court did back in 1827, rule that invoking the Insurrection act is a power that rests exclusively with the presidency. So we've talked about other powers that the President has that's not reviewable. The clearest example is the pardon power. If the President pardons somebody, nobody can appeal that. The courts can't come in and say, no, you can't pardon that person. That's a power that rests with the presidency. And in a case called Martin Vemont, the court said that invoking the Insurrection Act 2 is up to the President and that it is his exclusive domain. Now, there has been at least one other case, one called Sterling v. Constantin, which said, well, okay, yes, this is a right that rests exclusively with the President. So, for example, Congress can't say, oh, we're gonna invoke the Insurrection act in this way. It's a presidential power. But there are, as explained in this act, limits to it. There are criteria in there and in determining whether or not the underlying conditions are legal to qualify for this. Of course, courts have the ability to come in and determine that. If you don't, then you're just handing the President a blank check to call the military into cities at any time. And that's not what this really is. Given our current Supreme Court, they have seemed to like having the power to come in and decide what the President can and cannot do. Now, often they've said can a lot more than they've said cannot. But I find it really hard to believe that this court's majority would just be like, oh, nothing we can do. Can't look at it. Hands off. I just think their own hubris in their own. I shouldn't say hubris, but I will say I think, you know, sometimes they do express hubris, but I think the fact that they like to be the decider of these things makes it real hard for me to believe that judiciability, the fact that whether a court can review this at all is gonna be the thing that this turns on. I think it's gonna turn on whether or not these protests rises to the level of a governor and the National Guard stopping students from being able to attend school after a court rules that they can. I think there's a big difference between that.
- [20:08]
Jill Wine-Banks
Yeah, I agree with you. And the case you mentioned, Sterling v. Constantine, was one where they did say that judicial review is allowed about once they're deployed, did they act constitutionally or did they violate constitutional rights? So there is at least that promise from a more recent case than the 1872 Mott case. And, Barb, let's look at whether this is on the slippery slope to martial law, because a lot of people are saying once he invokes the Insurrection act, that it could lead to martial law. And I want to know what rights, if any, the president has under martial law that he doesn't have under the Insurrection Act.
- [20:55]
Barb McQuaid
Yeah, this is such a good question, because I think people often conflate all of these things. We talked about 12406, the Insurrection Act. And this term martial law gets tossed around. Martial law is, you know, the nuclear option. It is the replacement of our civilian government by military rule. And it means that all of our civilian legal processes are suspended and the military is just taking over. It is something that's intended to be very minor. There's no specific statute. There's no provision for it in the Constitution. But legal scholars have said, you know, it has to be inherent in the president's powers as the chief executive. And in fact, it has been declared at times in the country's history, but very rarely. For example, when Japan attacked Pearl Harbor, Hawaii went under martial law. Not the whole country, but just Hawaii, where the military said, we're taking over. They could make orders like, everybody go inside. There's a curfew. There have been others after major disasters, like the Chicago fire in the late 1800s and the San Francisco earthquake. Most recently, Joyce, you may know, in Montgomery, Alabama, when there was mob violence against Freedom Riders, there was martial law declared, but it is Rare. And one of the things it can allow is the suspension of. Of the right of habeas corpus, which is something in the Constitution, the suspension clause, that says that it's sort of the rare opportunity when habeas corpus can be lifted, which means the right to be brought before a court to show that your confinement is legal. So it's supposed to be very limited. It is rarely invoked, and there really isn't any specific basis for invoking it, but it is recognized as a right the president has.
- [22:58]
Jill Wine-Banks
So, Joyce, because we're on this slippery slope, I wanna know what are the rights that citizens retain under the Insurrection Act?
- [23:08]
Joyce Vance
Yeah. So, you know, the Insurrection act is not martial law. That's the important thing to know here. And it does not suspend constitutional protections. Troops that are deployed under the Insurrection act are governed by the safeguards that the Constitution provides for are. Although, as Barb notes, the president can do things like suspend habeas. You know, that would not be the case under martial law. In that setting, for instance, your First Amendment right to assemble, to protest, those rights can be curtailed. That would be an entirely different and very unprecedented environment.
- [23:44]
Jill Wine-Banks
And, Kim, again, you mentioned earlier about being on the ledge, and this does sound scary. So, Kim, let's talk everyone off the ledge. The Insurrection act has been used only 30 times in our 250 years of history. What are the basic rules for using it, and what are the limitations on what it can be used for? Because there are some limitations that should make us feel safer.
- [24:12]
Kimberly Atkins Store
Yeah. So think about it in this way. It can be used when a state asked for help. I think Rodney King is a good example of that. At the time of the unrest, after the verdict for the police officers, those police officers who beat Rodney King were acquitted after a period of time. The governor asked, I believe it was President Bush at the time, for help in federalizing the National Guard. Incidentally, by the time the National Guard got there, local law enforcement had gotten the situation under control, so it wasn't that much for them to do. And then they were withdrawn soon after. They, you know, wasn't a situation like this where they were there, like perpetually in Los Angeles or when a state is impeding federal rights. A great example of that is in the south when governors and local officials were preventing black students after desegregation orders, still preventing them from attending classes. George Wallace, segregation today, tomorrow, forever. So that's another situation. And when there is just lawlessness, where civilian law has completely broken down and there is just plain old anarchy, I can't Even think of an example of that happening in America, but that's it. It is not when there are a lot of protests. It is not when the President is mad. In Minnesota, Governor Walls has given no indication that law enforcement is unable to work there, that the laws cannot be enforced, state, federal or otherwise. A situation for the Insurrection Act. I also think. And this sort of gets to Barb's point. Donald Trump likes to rattle the libs, and this is his favorite tool. I think, you know, he likes saying this, he likes threatening this thing. And I. I understand it's important for us and like we're doing to explain to you exactly what it is and is not. But I also. I'm sorry, maybe I just have one foot on the ledge here because it's sort of like, you know, like, really. Shut up. Like, he's doing this in a way to try to draw attention and to grab headlines, and he's getting it. It's working. And I just don't think he really believes that this is what this is all about. But, you know, this is sort of a game that he plays. So. No. Is this something that is really called for in this instance? No, not even anything close to it. Most of the. I mean, a lot of the violence that we're seeing is actually being committed by the federal officials, by the federal agents here, not by the protesters themselves. So I would urge all of us to take a deep breath and sort of, you know, just remember what our principles and our laws provide. And it's not for what Donald Trump is claiming. They do.
- [27:00]
Jill Wine-Banks
And to that point, I want to. I'll put in our show notes a substack article by Robert Hubble which goes through the things that it would be allowed and the things that it absolutely would not allow. And it's very. So, everyone, I urge you to get off the ledge by reading that article. And I also want to mention, when you talk about the use of it, one of the uses was when James Meredith was trying to enroll in Ole Miss, and James Meredith was one of my law school classmates.
- [27:32]
Kimberly Atkins Store
Oh, was he?
- [27:34]
Jill Wine-Banks
Yes, he was.
- [27:35]
Joyce Vance
Oh, that's incredible.
- [27:36]
Kimberly Atkins Store
That's insane.
- [27:37]
Joyce Vance
This is the newest Jill Wine Bank.
- [27:40]
Barb McQuaid
Legendary.
- [27:40]
Joyce Vance
You have never told us this, Jill.
- [27:43]
Kimberly Atkins Store
What's the deal?
- [27:44]
Jill Wine-Banks
And.
- [27:44]
Joyce Vance
Well, he came back.
- [27:46]
Jill Wine-Banks
I mean, he obviously took some of your off because he's more than 10 years older than the rest of the class. But yes, we were very proud, I believe. Yeah, I'm not sure what he did in the interim, but anyway, yes, we were all very proud to have had him as a classmate and still incredible. So it is incredible. And so I'm glad that we had this conversation because to me, it summarizes what we as citizens all need to know about the laws that may be invoked at any time and will encourage us to resist peacefully. Because you don't want to give him even the slightest grounds for even having some remote claim to invoke the Insurrection act or, heaven forbid, martial law. And that would, as we've said, allow the military to completely oust civilian government. So everyone resist peacefully.
- [28:52]
Kimberly Atkins Store
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Jill Wine-Banks
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- [30:53]
Barb McQuaid
I'm so glad you're here today Jill, because as you know, I'm contractually prohibited from saying the word bra. So I'm glad you were here to say it.
- [31:00]
Jill Wine-Banks
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Barb McQuaid
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- [31:41]
Joyce Vance
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- [32:13]
Jill Wine-Banks
Boy, you make that sound so good, Joyce.
- [32:16]
Joyce Vance
We love our cats and our cats love Smalls.
- [32:20]
Jill Wine-Banks
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- [32:31]
Barb McQuaid
Wait, we need to hear about Rupert.
- [32:33]
Joyce Vance
Rupert?
- [32:33]
Barb McQuaid
How do we not know about Rupert? Tell us about Rupert.
- [32:36]
Joyce Vance
Who's Rupert?
- [32:36]
Jill Wine-Banks
Rupert was his cat when he lived in ire, and Rupert used to walk around the bathtub that had a ledge and splash, according to my husband. I didn't. I wasn't with him at the time, so I don't know.
- [32:50]
Joyce Vance
But anyway, Rupert would have loved Smalls.
- [32:53]
Jill Wine-Banks
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- [33:45]
Kimberly Atkins Store
Now, I don't have a cat, so, I mean, how do you know your cat's preferences? I would, you know, do they really.
- [33:52]
Jill Wine-Banks
Let you know they're cats.
- [33:53]
Joyce Vance
They're cats. They make it very, very clear.
- [33:57]
Kimberly Atkins Store
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- [34:44]
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- [35:29]
Kimberly Atkins Store
Well, this week kicked off with a battle between two people who have no love lost between them. President Trump and Fed Reserve Chair Jerome Powell. Powell made headlines at the start of the week by announcing that the Fed had received subpoenas from the Justice Department and that he was under criminal investigation for allegedly lying during a Senate hearing about the renovations that are happening at the Fed's headquarters on Capitol Hill. Like, you really can't make this stuff up. But, you know, something tells me that this isn't just about the renovations, Barb. So why don't you tell us a little bit about this investigation into Powell by the Justice Department. And why does it make me think of James Comey?
- [36:23]
Barb McQuaid
Yeah, you and me both. It's boy. Because both seem baseless. I think that's why it makes us reminds us of that case. You know, this is a cross between the James Comey indictment alleging false statements before Congress. And remember Operation Whirlwind when Ed Martin was the interim U.S. attorney in Washington, D.C. and he was sending out these letters saying, I just have some questions I want to ask you. So it appears that the U.S. attorney's office in D.C. reached out to Jerome Powell, the chair of the Federal Reserve, with some casual emails saying, hey, we just want to talk to you. We just have some questions about this building project that you're doing to renovate the headquarters of the Federal Reserve. And, you know, they didn't call them back. And the next thing that happened was they got some subpoenas for records about that. Now, Jerome Powell has testified before Congress about this project as the head of the Federal Reserve, about some of the cost overruns of the project. And he now views it as if he is, you know, facing these subpoenas under criminal investigation. That is the clear implication of sending a grand jury subpoena. That means that a criminal investigation has been opened. And so it really has that vibe of this is done to harass, to intimidate, and to pay back against Trump's political rivals. As we all know, President Trump has been pushing for Jerome Powell to lower interest rates. Why would he do that? Because it is in the best interest of a political candidate facing midterm elections next year for interest rates to be low. Because that means borrowing is easy and people invest and it gives short term boost to the economy and everybody feels like the economy is booming. Of course, what the Federal Reserve actually does and what it is bound to do is to use their best independent judgment as economists to set interest rates for the long term interests of the economy. Because even though low interest rates may boost the economy in the short term, it can also lead to really damaging long term inflation. And so Jerome Powell has not done what the President wants to do and done his bidding. Instead, he has executed his job in his professional judgment, the way he believes is appropriate. And Donald Trump clearly wants him out. He's mused aloud about firing him, about replacing him. He's fired one of the governors, Lisa Cook, because he wants his people on board. And so this really, Kim has the feel of the same way of I'm going to punish my rivals, I'm going to get them off stage by pushing out some BS criminal investigation out there.
- [39:22]
Kimberly Atkins Store
Yeah. And this whole idea that the DC's US Attorney's office, which is like, hey, let's just chat, you know, drop us a line. We just want to talk to you. Knowing that one of the lawmakers from that hearing, Congresswoman Luna, filed a criminal referral to DOJ about his testimony back, I think it was back in. It was during the summer. So they already knew that this criminal referral had been made. I'm sure Powell knew that, too, according to some Washington Post reporting. Like, he had already retained outside counsel. Like, he knew that this is what the Trump administration does and what they threaten. So this whole idea was like, oh, we just wanted to chat. He knew that they didn't want to chat. So of course he didn't respond. He got his attorney and he braced for what was coming, and it's just really ridiculous. He also. I thought it was really remarkable, his statement. He made a video statement, y'. All. He did not issue a piece of paper. He got on camera and was like, look, and I'll read a little bit of it. He says, this new threat is not about my testimony last June or about the renovation of the Federal Reserve buildings. It's not about Congress's oversight role. And he goes on to say that they are, quote, a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the president. And he says this is about whether the Fed will be able to continue to set interest rates based on evidence and economic conditions, or whether instead monetary policy will be directed by the political pressure or intimidation. He too long didn't read. He said, come at me, bro, like, I know what my job is, and you are not going to intimidate me. So, Jill, here's the thing. The timing of all of this is pretty terrible. Tell us why.
- [41:09]
Jill Wine-Banks
Oh, my gosh, that's such a great question, Kim. And there are so many reasons why it is stupid, dumb. I love being able to say that this is, like, crazier than most of his crazy stuff. So, first of all, let's say you just mentioned about what the real reason is, according to Jerome Powell. And I have to add that before I answer your full question, that Trump just did something even stupider, which is to say, the quiet thing out loud. He has said recently that he'd back off if Powell would lower interest rates like Trump wants. I mean, he said that he actually.
- [41:52]
Kimberly Atkins Store
Given every smoking gun.
- [41:54]
Jill Wine-Banks
Oh, my God. It's unbelievable. But anyway, what this does is it gives more evidence that this is political retribution, that it's not legitimate. The evidence adds support to federal members, Lisa Cook's current case, which will be argued next week in the Supreme Court, and she's claiming that she can only be fired for cause, as the law says, of course, and that there is no cause because the criminal referral, as with the criminal referral of Jerome Powell came from. Well, in her case, came from a Trump loyalist, Bill Pulte, who heads the Federal Housing Finance Agency. And she hasn't had any charges against her, let alone a conviction. And so there is no cause, and that this just shows that it's retaliation. And, you know, the Solicitor General's gonna argue that the Cook firing is legitimate, but, yeah, I mean, it just doesn't look legitimate. And what he's doing here with threatening Jerome Powell is just more evidence that will hurt their argument in the Supreme Court. And then add that, you know, yeah, I'll back off if he will lower rates like I want. And it's ridiculous. But also, the timing is stupid because Powell's term as chair ends in May, but he still has two more years left as a member of the Reserve. And so he could stay on. And this may motivate him to stay because he is basically an institutionalist who thinks that this must be an independent agency, and so he's not gonna go away quietly. So I think the timing is really, really dumb.
- [43:45]
Kimberly Atkins Store
And to that point, I mean, there's a lot of speculation that Trump, you know, Trump has threatened to fire Powell, and people, including Republicans in Congress was like, whoa, whoa, whoa, whoa, you can't do that. The Supreme Court has already given an indication that they don't think that the Fed is the same as other agencies that they let the President fire people from. So it's already starting from, you know, when Solicitor General Sauer has to go before them. He's already on the back foot. Right. Without his terrible client, like, messing it up even more. But what is. What is Trump gonna do? Fire Powell? Nope.
- [44:21]
Jill Wine-Banks
His.
- [44:21]
Kimberly Atkins Store
Powell and Cook will still be on the. I make this bold prediction. Jay Powell and Lisa Cook will both still be on the Fed beyond his chairman terms. So I just think it's all just so silly. So, Joyce, Trump has pushed to oust other agency heads. While I mentioned talk about what the Supreme Court has said about the Federal Reserve, they haven't made a. On, you know, merits ruling on the ability of Trump to fire them yet. But why. Why do you. Do you think my prediction is right? And if so, why?
- [44:54]
Joyce Vance
Yes, you are dead on the money. Look, the Supreme Court is not supposed to decide cases and controversies that aren't before it. But it has pretty much prejudged the situation with the Fed, right? I mean, it has. Like, just, in fact, Justice Kagan, in a dissent, calls out a majority that just. Just says, oh, but by the way, the Fed is different in was it? It was one of the earlier cases. I can't remember now if it was Slaughter, the FTC case, or another one.
- [45:20]
Kimberly Atkins Store
Yeah, I mean, that was it.
- [45:22]
Joyce Vance
But here's the deal. I've always wanted to just be very real about what's going on with the Supreme Court and the Fed, and just to acknowledge that legally, there's no reason that the Fed is different from these other quasi independent agencies. I mean, what's different is what the Fed does and the position it holds.
- [45:42]
Barb McQuaid
My.
- [45:43]
Joyce Vance
Exactly, exactly. And so let's not pretend that this is about legal principle. You know, the Fed's purpose is to maintain independence from political mood swings.
- [45:55]
Jill Wine-Banks
Right.
- [45:55]
Joyce Vance
When it comes to economic stability. And that's what we're gonna watch play out here. This court has showed really a hesitance to let even this president, who in many ways they've championed, control the Fed. With Commissioner Cook, she got to stay in her position while her case was being litigated. Unlike others. Inspectors General Rebecca Slaughter, the FTC commissioner, folks at the mpsb, you know these folks, the handwriting was on the wall because when the cases were heard by the court on the shadow docket, the court let Trump go ahead and fire them. And that did not happen with Cook. So, look, the Fed is different because the court says it is and for no other reason.
- [46:38]
Kimberly Atkins Store
Yeah, they sort of indicated it's like, well, you know, the history and tradition of national links being independent. Come on. There's a history and tradition of all of these agencies. I just wanted to close. And if any of you have thoughts, please share them. Is that one thing that is really concerning is that this is a part of a pattern of practice with this administration, which is using political pressure from the Justice Department and the threat of criminal investigation and prosecution to settle political differences. I mean, we see this with. And not just the Justice Department. We see this with the Pentagon going after Senator Mark Kelly, trying to take his rank away. We see it with members of Congress who have stated that, you know, just stated the truism that troops are not required to follow unlawful orders. They're getting criminal investigations lodged against them. I mean, just. Just as three people, three veterans of the doj, like, just how dangerous is this? Anybody?
- [47:42]
Barb McQuaid
Well, I'll chime in with one thing, that it's incredibly dangerous. It's a witch hunt. You know, Trump loved to use the phrase hoax, witch hunt, weaponize, but that's exactly what this is. Since Watergate, there has been a policy at the Department of Justice in both the Attorney General guidelines and in the Domestic Investigations Operations Guide used by the FBI that requires what's known as predication. You can't just open an investigation on somebody and go on a fishing expedition and hope you might find something. You have to have a good faith, factual basis to believe a crime has been committed. So, you know, these mortgage fraud findings, that was clearly Bill Pulte. Let's look through everybody's mortgage documents and see what we can find. As Robert Jackson, who once served as Attorney General of the United States, later became a Supreme Court justice, said in a famous speech to federal prosecutors, U.S. attorneys gathered in the Great hall of the justice department in 1940 for a famous speech known as the Federal Prosecutor, which, you know, prosecutors across the country post on their walls. As you know, the sage language of the Attorney General was, your job is to investigate crimes, not people. And this is a perfect example of what goes wrong when you investigate people instead of crimes. Let's just look at everything about them and see what we can find that might stick. That is a terrible way to run investigations, and we should all be afraid because it means that anybody who ends up in Trump's crosshairs could find themselves subjected to one of these kinds of investigations.
- [49:20]
Kimberly Atkins Store
Yeah, and the words of Justice Robert Jackson are wise. He was also a prosecutor at Nuremberg, so he knew what he was talking about.
- [49:28]
Joyce Vance
Well, you know, in speaking of international stuff, because obviously the domestic and the foreign are inextricably intertwined at this point. Trump is using these same sorts of tactics abroad. This afternoon, he suggested that any country that didn't agree with his takeover of Greenland, he just slapped tariffs on them. I mean, this isn't how presidents are doing.
- [49:49]
Kimberly Atkins Store
The Supreme Court hasn't even issued the tariffs rule. Like, he keeps doing this. Like, does he think that's gonna make things better?
- [49:57]
Jill Wine-Banks
And in terms of bad timing, it's really dumb timing to be threatening tariffs based on retribution. This is so dangerous. Cause as you pointed out, Kim, it's not just the Department of Justice, it's Homeland Security, it is the Pentagon. And we are in this situation of being so overwhelmed that we can't focus on any one thing. And we need to really start resisting each and every one of these so that. That as what happened with the Nazis. It didn't happen all at once. It was one little thing, and then one little thing and then one little more thing. And we've seen it. Now we have to start resisting every action that's taken. That takes away our rights. Delete me. Makes it easy, quick, and safe to remove your personal data online. At a time when surveillance and data breaches are really all too common, it makes everyone vulnerable. Privacy is important to online safety, and Deleteme is the perfect tool to up your digital security.
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- [52:51]
Barb McQuaid
Well, earlier this week, the FBI executed a search warrant at the home of a Washington Post reporter. It's not the first time this has ever happened, but in light of Kash Patel and Donald Trump's prior comments about the media, it certainly caught our attention. Joyce, can you fill us in on what happened? Is this reporter the target of the investigation? Yeah.
- [53:13]
Joyce Vance
So Hannah Natenson is a reporter at the Post, and she does pretty amazing work on federal employees and the bureaucrac. She was not the target. She's at home when the agents show up. They search her home, her devices, they seize her phone. They take two laptops, one of which is her personal laptop. But the target of the investigation is a government contractor who's accused of illegally retaining classified government materials. That sounds like a familiar charge, but I guess that's not the point of this topic. Anyhow, his name is Aurelio Perez Ligones, and he's a system administrator with a top secret security clearance. So, you know, these are not unusual cases. Retention. Illegal retention of classified information. We all know a lot about those statutes, but typically cases like this, when they involve a reporter, aren't made using the reporter. Here the government alleged that the defendant, or the putative defendant, was sharing classified information with Natenson at the time of his arrest. And so they went ahead and searched her home. Unless, look, these are serious crimes. I don't want to dissuade people from believing that they are. But very often in our criminal justice system, competing values sort of knock heads. And here we've got freedom of the press knocking head. With protection of national security, this administration is taking a decidedly different tact.
- [54:42]
Barb McQuaid
Yeah, I think that's a really great way to frame it. It's not that it's illegal to search a reporter. It's just that most often there's a choice not to do that because of our deep respect for the rights of the free press. So, Jill, tell us about the law on this. Do journalists have any special privilege against searches of their sources?
- [55:06]
Jill Wine-Banks
It's an interesting question, and in a way they do. They have a. A law that applies to them, the Privacy Protection act, which was passed in 1980 after the Supreme Court issued a ruling that maybe threatened the rights of journalists. And the law protects journalists and authors and scholars who plan to disseminate information from the government, and it protects them from government searches and seizures of their work product and the materials that they have. The law requires that law enforcement use a court approved subpoena first and not a search warrant first. The reason for that is that they want to protect journalists from prior restraint and also from invasion of their secret sources, which are very important to journalists. And subpoenas would safeguard the First Amendment rights because that would allow the journalist to go to court and say, whoa, there's no reason for this. And I can tell you why they're coming after me. And this has nothing to do with anything. So it would protect the journalists or the author or whoever is being searched who has this information and protect the damage before it happens. Once they've done a search warrant, they have the information, and so the damage is already done. And this is like, like analogous. Remember when we had Michael Cohen's records being seized, which had attorney client privilege protections. This has certain First Amendment protections. And the court said, you know, you can't just use it. They appointed a special master to review what stuff was protected by attorney client privilege. And I think that's important to keep in mind. The Privacy act does allow exceptions, and they're very limited. If there's probable cause that the person is committing a crime related to the materials that are being sought, except for having the information itself, then the search warrant can be used. And also if there is some imminent threat of bodily harm or death or revelation of some security information, then you can go ahead with a search warrant. None of that seems to be relevant here.
- [57:38]
Barb McQuaid
Yeah, you know, my thought is they may have tried to use this national security exception. We don't have any explanation. But in light of their investigation against the leaker, maybe that was the basis. Or maybe they just don't care.
- [57:57]
Jill Wine-Banks
If.
- [57:57]
Kimberly Atkins Store
I say, barb, you're being so generous.
- [57:58]
Joyce Vance
That's the best take. Barb, that was good.
- [58:01]
Barb McQuaid
Well, Kim, you're our journalist. Tell us, like, you know, big picture. What about this search makes it concerning for reporters?
- [58:08]
Kimberly Atkins Store
Yeah, this is very concerning because even though the limitations that we've been talking about and laying out are there, there is a fear, particularly now with this administration that, you know, like the first term labeled journalists the enemy of the people and have been on the attack with journalists and bringing lawsuits and otherwise bullying news organizations and such that if, you know, if there is a search that is conducted, let's say they make a good faith effort under one of these exceptions. If it were me as a journalist, I would not trust. If they came and got my computer and got my phone, I wouldn't trust that they wouldn't go through every single bit of my information and turn around and use it against me. Use it to target me, to say, oh, look, she. You recorded this podcast and said this thing about the, you know, just going through everything about, oh, look, their, their third cousin gave to Democrats based on the, you know, I mean, they're going. These are literally going to turn into witch hunts. And knowing that journalists are already doing everything they can to protect themselves. Now, I will say, you know, I work at a large news organization, a couple large news organizations who have attorneys, who have, you know, when we're hired, we get training on sources and what laws protect them and what to do if we're subpoenaed or if we get some sort of court order. Journalists do that. Not all like independent journalists or people with substacks or things like that. I'm not sure they get that kind of training or they have that kind of support. So particularly for independent and smaller news organizations, this could be really devastating. I mean, you know, that can put them out of business, retaining lawyers and going through the fees and the cost of litigation if this comes up. It could be, it's A really, really big threat to the freedom of the press.
- [60:04]
Barb McQuaid
Joyce, when Attorney General Merrick Garland was running the Justice Department, he had a policy that prohibited the use of court process for reporters records. I think, to address some of the issues Kim just discussed. It had some exceptions for national security and imit threats and other kinds of things. But Pam Bondi lifted that policy, I think, in April after she became the Attorney general. What's your view? You talked about an interesting point. You said when values sometimes knock heads. I talk about competing values all the time in my law school classes, that the law is all about line drawing and drawing the line between competing values. We want to protect the values of the free press on the one hand, but also protect private information and public safety and national security. And especially in today's world, where Kim mentioned we have some of these smaller journalists. How do we even define journalists? Right. Like, does Julian Assange count as a journalist? And so how do we think about drawing that line in terms of policymaking?
- [61:08]
Joyce Vance
Yeah. Well, Barb, I'm sure that when you discuss with your students that you guys struggle about the issue of where lines should be drawn, especially when there are important priorities at point, some stake, but this administration really doesn't do that struggle at all. They just draw one clear line. They do whatever will protect the president. Because I think what we're seeing here is all about firing back at government employees who might disclose information that could portray Donald Trump in a bad light. I mean, predictably, that's what this administration did when it rolled back the Merrick Garland policies. They're paranoid about leaks. They don't want their hands tied at making it clear to government employees that they will be punished if they talk to the press at all. I mean, we don't know here, Right. The allegation is that the putative defendant here did have national security information that he was in the process of sharing with a reporter. And if you take that at face value, that's very serious. Of course, there's also the Pentagon Papers case as an example of where you might have competing values. So the administration underdid Garland's policy, which I think was fairly consistent with prior administrations. You know, the balance has always been that absent a solid justification and a very high level of internal approval at doj, DOJ doesn't go after journalists. They've gotten into trouble in the past, really, for engaging with journalists. That happened during the Obama administration in a way that many people felt was too restrictive on the First Amendment. But this is not an administration that's about Balance. And especially, as you point out, in this era of new media where there are some people, it's difficult to know whether they're journalists or not. With an administration that's focused only on its own internal security and the avoidance of scrutiny, we could be in an era that has just fresh damage to inflict on transparency about government practices.
- [63:13]
Barb McQuaid
Yeah, and, you know, there was probable cause here because they got a search warrant. So a judge, we don't know what that affidavit says, but a judge must have read it and found that there was probable cause to believe that on her devices would be found evidence that was useful in this investigation of a crime about this purported leaker. But it does concern me, Jill Joyce mentioned earlier that this particular reporter, Hannah Natenson, has been reporting about the chaos inside the federal government. In fact, she calls herself, like the federal worker whisperer or something like that. Is there concern that this is all just a pretext to find out out what these insiders are telling her?
- [64:01]
Jill Wine-Banks
Of course there is. And, well, there should be. And I want to point out that even though she may have, there may have been probable cause that she had some information. The Privacy Protection act says that you have to use the least invasive methods. You don't start with a search warrant. And there's no evidence that they, they contacted her and said, please, would you give me this, or I'm going to subpoena you. And they didn't do that. They went straight to a search warrant, and there was no cause for that. But she is the federal workforce whisperer. She has been covering the federal workforce in her recent reporting for the Washington Post about how Trump is reshaping the federal government. And. And she had contact with over 1000 whistleblowers who were willing to talk to her through a secure messaging app. And before that, she covered education. And she has won a Peabody for a podcast series. So, of course, we're all jealous that she got a Peabody. I guess that's only for journalists, though. And she also was awarded a Pulitzer for public service coverage. And she has lots and lots of honors. She's a graduate of Harvard. And although the investigators have now, as you mentioned, alleged that she's not the target, but that she was being messaged by the target at the time of his arrest, and that the chat that they were engaged in contained classified materials, we, of course, don't know that. And we do know that he's not, as yet charged with anything other than retention, not transmission. So it's just like Donald Trump was charged with retention of documents, not dissemination of them. So it's unlikely that she published something that she got from him because if she had, then it would have been the sharing of it that was part of the case. So I think it's important she didn't get a subpoena or a request. And that, as Barb, you said, now there is a risk to the thousands of people who contacted her from the federal government as part of her regular journalism work, and they are now in danger, as is she. So I think it's finally interesting that there was a subpoena issued after the search to the Washington Post. They say they received a subpoena in the morning that she was searched. So, you know, they knew they should have used a subpoena and not a search warrant.
- [66:43]
Joyce Vance
Yeah, no kidding.
- [66:43]
Barb McQuaid
Yeah, but now they've got the stuff. Last question for our reporter, Kim. I know that a lot of reporters are using encrypted apps like WhatsApp and Signal. And in fact, this reporter, Hannah Natenson, I think posted like wrote an article or posted online and said, hey, federal workers, if you've got anything to share, here's my signal number, please reach out. And she was inundated. Like she was stunned at how much she got. I think most of us think of Signal chats as being protected. And I know, I have read that a lot of reporters use these because they can't be hacked or obtained. But is that true? If someone has the FBI has now seized her phone. Do they have access to all of those people she was talking to and all the things they had said to her?
- [67:36]
Kimberly Atkins Store
So probably not. Generally speaking, they won't be able to access that because Signal does have end to end encryption. Now, I'm not a tech expert, but that's the reason that a lot of journalists do use it. Now, that isn't to say that there isn't any information that they will be able to get off their phones. They'll be able to get things like metadata, which is not the content of what was shared on these chats, but they may be able to know things like what when she was using Signal, at what times and in what locations. This is data that the phones keep stored locally that the FBI would be able to get to. But unless she gives them access to the content or someone else who was on the Signal chat does, so they won't be able to access that content. Now, could they try to pressure her and threaten her with charges of obstruction or something if she doesn't do it? Maybe. There have been journalists who have been Pushed to reveal their sources, for example, and when they have not done so, they've been jailed at times. So are they going to play this kind of hardball with her? I hope not. But they can't access it without her cooperation.
- [68:53]
Barb McQuaid
Yeah, well, I wonder about that. You know, if she's got a phone that's passcode protected. There's, you know, there's differences about whether it's biometrics, like if your face or your thumb opens it versus whether it's password protected, which gets Fifth Amendment protection. So that's a really interesting legal question.
- [69:12]
Kimberly Atkins Store
Yeah, it's interesting actually. Journalists have been, have been advised to not do facial recognition. It would still be an illegal search if they put the phone up to the face without consent. That's not consent. Right, but you'll have to fight that in court. You'd have.
- [69:31]
Barb McQuaid
Well, they might be able to look at it.
- [69:32]
Kimberly Atkins Store
It's possible. It's possible, but for that very reason, I mean, I think in general, no matter who you are these days, just with what's going on, take face recognition off, put your coat in, because it really opens up some. It at least can allow for some nefarious, even if not illegal practices that can go against you.
- [69:55]
Barb McQuaid
Yeah, and this is such a great tidbit. I teach this to my criminal procedure students who are sometimes stunned at the difference because it seems like it should be the same. Right. But the law is that you can't be compelled to be a witness against yourself. And that includes the content of your mind.
- [70:10]
Kimberly Atkins Store
So if it's. But your face is around in the world.
- [70:12]
Barb McQuaid
Yes, exactly.
- [70:13]
Kimberly Atkins Store
So that's not protected.
- [70:15]
Barb McQuaid
So, dear listeners, if you wanna protect yourself from legal process, a passcode is better than a biometric like your face or a thumbprint. The other thing I will say is if you use Signal or WhatsApp or something like that, I think that you can time them to delete after a week or a day or whatever it is. So even if someone can get into them, I think they can be deleted. The messages can be deleted after a certain short period of time. So I imagine journalists are engaging in those sort of best practices. But nonetheless, we find ourselves in a place where the administration does not give at least the same verbal recognition about the importance of our First Amendment. 2026 is already in full gear. So if any of your resolutions include eating better, saving money, or creating meals that you're proud to serve, it's time to upgrade your cookware with hexclad. Ditch those scratched up pans that make cooking Frightening and cleanup impossible, and replace them with tools that are as stylish as they are practical. Once you make the switch, confidence in the kitchen comes naturally with how easy it is to cook delicious meals and have everything ready to go for the next one.
- [71:43]
Kimberly Atkins Store
You know, I this week made shrimp pasta primavera in my hexclad pan, and Greg was actually shocked at how quick I did it in like 20 minutes because the pan heats so evenly and you put the ingredients in and it, you know, you get, you put your ingredients in, it gets a nice sauce, it cooks evenly, and which with shrimp, it's so easy to overcook, but with hexclad, it's so, so easy and quick. So I love my hexclad pans. It really completely changed the way we cook. Their pans combine the durability of stainless steel, the convenience of non stick, and the versatility of cast iron all in one beautiful design. You don't have to choose between great performance and easy cleanup anymore. You get a real sear, even heat. And when you're done, it wipes clean and goes into the dishwasher, which is my favorite part. When I first heard the sou of really like, I was not able to make salmon with the crispy, the crispy skin. I tried and tried and tried and couldn't do it. And when I got the hexclad, I finally was able to do that. And that was such a game changer for me because I really love eating that. So since getting hexclad, I'm never going back. Aren't they the best, Joyce?
- [72:59]
Joyce Vance
You know, I wish I knew, Kim. Sadly, I don't, because my oldest son was on the verge of getting his first home of his own when mine arrived. And he, he promptly swooped them up, made off with them, and I am assured that they are great, that they cook really, really well. But I don't know, I really need to get a set for myself. You know, no matter who uses them, it's great knowing that they're oven safe. Up to 900 degrees. My oven doesn't go quite that hot. And the stay cool stainless steel handles make it so that they're safe and easy to cook with. You know, Robert tells me that after experiencing them in the kitchen, he can tell why Gordon Ramsay cooks from with hexclad at home and in his restaurants. And thanks to their lifetime warranty, this is truly the last set of pans that he will ever have to buy now that he's taken mine away from me.
- [73:49]
Jill Wine-Banks
You know, I love that story and I have to tell you that my husband actually used one of our Hexclad pans last night to sear a steak and then he took our sharpest knife and cut it it in the pan. To my horror I said oh you can't do that, you'll ruin the pan. And I swear to you I have studied that pan and he didn't even scratch the surface. It is still washes away. It looks perfect. I don't recommend anybody else do that. I informed him he was never to use a knife in the pan again. But the steak really came out well. And no matter how much you use or abuse the they always manage to look brand new. It's no surprise hexclad has over 1 million customers and over 50,000 5 star reviews including ours. So don't wait. Take back your kitchen with a new new year, new you new cookware and for a limited time only, our listeners get 10% off their order with our exclusive link. Just head to to hexclad.com sisters support our show and check them out at H e x c L-A-Com sisters make sure to let them know we sent you and bon appetit. Let's eat with hexclad's revolutionary cookware. The link is in our show notes.
- [75:28]
Joyce Vance
So y' all guess what part of the podcast it is. Does everybody know? I mean, it's our favorite part. Absolutely. Questions and this week I I have to say to our listeners, your questions were more important than ever. There was so much news to cover that three segments really didn't do it all. And your questions did a great job of letting us know just how aware you are of everything that's going on and how insightful the questions are are. So if you've got questions for us, please email us@sistersinlawpolitikon.com or you can tag us on social media using Sisters in Law. But when we don't get to your questions during the show, if you'll keep an eye on your feeds during the week, we try to sneak in and answer as we can. Throughout the week, we try to get to as many of your questions as they can because they're smart ones, they're good ones, and it's essential for all of us to help each other stay educated at this point. Point Barb, I think the first question this week is for you. It's from Kathy in Albuquerque, New Mexico, and it's a great question. She says, how will people assigned to the Renee Good case be able to Determine which photos and videos are legit and which might be altered by AI.
- [76:40]
Barb McQuaid
Oh, that's such a. That's such a good question. Now, when it comes to stuff that you find on social media, I think that it is wise to always be skeptical as to whether what you are seeing is accurate or has been altered. But when investigators are looking at material and thinking about evidence in a case, they will look for authentication and a chain of custody. So, for example, there's been video from a body camera. They will get that body camera. They will look at the actual footage that's on the camera, not something that's been posted online. There are also some other images from individuals who had their cell phones. They'll go take it off the phone, the recording. They won't look at, you know, what got uploaded to social media or a newspaper. There's even a shot that's from some distance, and I don't know what that one comes from, but it looks like some stationary camera that is positioned some distance away. So they'll authenticate it, and then at trial, a witness would actually testify about where they got it and whether that accurately reflected what they observed at the time. So the witness who was videotaping it with their camera, they'll say, does this fairly and accurately reflect what you saw that day? Yes, it does. So I think those are some things that are there that can help safeguard. But you are right that as we enter this brave new world of AI, I think that we are going to have to do more work to authenticate photos and videos and other things so that jurors are satisfied that what they're seeing is authentic.
- [78:22]
Joyce Vance
So that's a fascinating question that'll, I think, linger and have sort of legs in many other cases moving forward because of the predominance of AI these days. Kim, a different sort of question for you about the same case, and this is one that I think is really interesting. Most people have by now seen the video and heard the utterance that takes place after Renee Goode has been shot. Many people have attributed it to the ice. Agent Ross. So this question comes to you from Erin in Idaho, and she asks a very sophisticated legal question. What is a spontaneous utterance? And would ICE Agent Ross profanity be an example? How might it impact the charges, trial, and jury?
- [79:12]
Kimberly Atkins Store
This is a great question. It does show a sophistication. It also touches my procedure loving heart, because it deals with a rule of evidence. So every state and federal law all have rules of evidence about what can and cannot be admitted in Trial, both criminal and civil. And one rule of evidence that a lot of people are familiar with from watching Law and Order or, you know, Perry Mason or whatever, is the rule of hearsay. Basically, if you hear. If someone else heard something someone else said, the fact that they heard it cannot be admitted to prove the truth of what was said unless they saw something with their own eyes. If I said to Jill, frank stole that apple, Jill can't testify that Frank stole the apple, but because she only heard it from me. And you can't admit that as evidence that Frank actually stole the apple. But there are exceptions to the hearsay rule. And that's what a spontaneous utterance is. That is somebody exclaim something, like after seeing it or based on some sort of situational that you can tell that they did not think it through. They did not, you know, plan and strategize what they were saying. You see something explode and you go, oh, my gosh. That's a spontaneous utterance. And so after Agent Ross shot Renee Goode, it can be heard on video, him calling her a profane name. But in this case, that wouldn't. You wouldn't even need a rule of evidence, because that evidence would be admitted not to prove the truth of what he said. It would be admitted for other things, such as showing his state of mind. And then that would not violate the hearsay rule. It wouldn't be hearsay at all. It would be evidence to something else. But the fact that you asked this question is a good one. It's all but certain that that would be admitted into evidence because it is something that goes to his state of mind, perhaps his intent in that it's not proving what he said is true or false.
- [81:27]
Barb McQuaid
I knew Frank stole the apple.
- [81:33]
Joyce Vance
Okay, last question is for you, Jill. Same situation, but this time it's a question about civil cases, and it comes from Anil and Craig. Is there a strong case for Renee Good's family to receive a civil settlement? Would the officer pay ice or does it fall on the entire government taxpayer? And this, of course, goes to the core of the dispute over qualified immunity. So it's a great question for us to take. Take up.
- [81:59]
Jill Wine-Banks
It is. And I love that our listeners are still interested in last week's news, despite the horrors of this week's news. And the answer is that you can file a civil lawsuit against a federal employee like an ICE agent. You have to file the claim within two years, and there's a standard form. And in that, you have to prove that your injury, in this case, death resulted from an officer's negligence or wrongful act or intentional tort. Those are essential that it be one of those. Then if your claim is denied, you get to sue under the Federal Torts Claim act because normally there is sovereign immunity and you can't sue the federal government, but under the Federal Torts Claim act, you can. And you know, let's at look, look at some past history. You know, George Floyd collected $27 million from the city of Minneapolis. Now, he was not a federal employee, so he didn't have the federal, according to JD Vance, absolute immunity, which he does not have. He does not have absolute immunity. If you can show that he acted wrongfully, not within the scope of his job, then you can go after. The damages in George Floyd's case were paid by the city, not by the officer who kept his knee on his neck. But that officer Derek Chauvin ended up in jail. And the same thing is true. You know, we mentioned in this episode Rodney King, he got 3.8 million from Los Angeles for his injuries and medical bills. Even though the officers were acquitted of the crimes that they were charged with. It makes it harder if you're not convicted of a crime. And in this case, there's no way that the federal government is going to sue Agent Ross. So there probably won't be a criminal conviction, but the city of Minneapolis and the state of Minnesota may bring criminal charges against him. And there's a of lot, lot of debate now about whether they can or can't. So I think there is a good chance that particularly we were talking about the videos and I don't know if you all saw, but the New York Times just released a multiple view simultaneously showing from different viewpoints. And it is so clear to me that the agent, Agent Ross, put himself in danger by walking in front of the car, but that he was well past any danger when he shot the first shot and he was far enough away that he was not hurt. You can see him clearly walking away despite the government now saying, well, previously saying that she ran him over, that he was lucky to be alive, that he was in the hospital recovering, when in fact he walked away from the episode and as Kim just referenced, used an obscenity to refer to her as he walked away and her car was out of control and crashed. They're now saying that he suffered internal bleeding and had to go to the hospital. There is no evidence of that, but we'll have to wait and see if they produce some evidence of that.
- [85:25]
Joyce Vance
You know, this video compilation is so good that it makes me wonder if they've got some retired FBI guys from the team that enhanced video doing the work. Because this points to something, Jill, that I think is so important. You know, something I learned doing excessive force cases. Cases is it's great if you've got one video, but you don't decide the case based on one video. You've got to get it from as many angles as possible. And also sometimes there can be a difference. If you're close in or if you're further out, it might look like an officer is engaging in misconduct if you're very close in. Sometimes when you pull further back, you can see circumstances that justify it here. This video compilation is very intriguing and something else that it points out is what a dangerous world we're in where it's news organizations doing this and not the FBI doing an authoritative version. So lots of different feelings about that one. But I know that this isn't the last time that we'll talk about that case. Thanks to all of you for listening to Sisters in law with Barb McQuaid, Jill Wine Banks, Kimberly Atkins Storr, and me, Joyce Vance. Follow Sisters in Law wherever you listen and please give us a five star review. It really helps others find the show. Don't forget, there's still time to ring in 2026 with some of your favorite Sisters in Law merch and other goodies@politicon.com merch and please show some love to this week's sponsors, Wild Grain, Honey Love Small, Delete Me and Hexclad. The links are in the show notes. Please support them both because we love them and also because they make this podcast possible. See you next week with another episode, Sisters in Law.
- [87:15]
Jill Wine-Banks
Well, I, I. What I want is actually someone saying it.
- [87:18]
Kimberly Atkins Store
You are looking at Julian's pronunciation guide where we look at how to pronounce better some of the most mispronounced words.
- [87:26]
Jill Wine-Banks
We are looking at how to pronounce.
- [87:28]
Barb McQuaid
He makes it sound very exciting.
- [87:29]
Jill Wine-Banks
Norwegian word. A mood of coziness and comfortable conviviality. How do you say it?
- [87:39]
Kimberly Atkins Store
Hygge. What website? Jill, you're gonna have to clean your cookies after this.