277: Shattered Norms

Summary

Podcast Summary – #SistersInLaw: "Shattered Norms" (Episode 277)

Date: February 11, 2026
Hosts: Kimberly Atkins Stohr & Barb McQuade
Theme:
This episode of #SistersInLaw, dubbed the "Sister Sidebar," dives into the fragility and evolution of constitutional, legal, and governmental norms in the United States in the aftermath of recent political events. The hosts address listener questions about constitutional amendments, DOJ transparency, civil rights in law enforcement encounters, judicial career trajectories, major civil litigation, and Supreme Court accountability. The episode is conversational, clear, and in-depth, with the hosts drawing on their legal expertise and personal experience.

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Main Topics & Key Insights

1. Guardrails on Executive Power: Statutes, Norms, and Constitutional Amendments

[01:35–05:08]

• Listener Chris from Maine asks whether strengthening constraints on presidential power requires congressional action or a constitutional convention.
• Kimberly Atkins Stohr explains that numerous "guardrails" for executive power in U.S. governance are traditions—gentlemen’s agreements—rather than law, but recent events have exposed their limitations.
  • On presidential immunity: “Congress could try to pass a law. … Then you have the problem that you would need the president to sign it. So I really think that it would take constitutional intervention in something like that to make it clear.” [02:46]
  • Election/voting rules can be reinforced by Congress without constitutional amendments, citing the amendment to the Electoral College process post-January 6 as an example.
  • Ammending the Constitution is difficult but not impossible: “We have 27 times that our Constitution has been amended, even at the … most difficult times in our nation, like after the Civil War… So it is possible.” [05:09]
  • Expresses cautious optimism about the public’s role in driving reform: “With the people being as active as they are in what is happening in their government… it could happen in our generation.” [05:25]

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2. DOJ, Congress, and the Epstein Files Transparency Act

[06:03–09:56]

• Listener Donna from North Carolina asks why Congress cannot force the DOJ to release all Epstein files and whether withholding them is “obstruction.”
• Barb McQuade clarifies that the law contains exceptions, but DOJ (via Todd Blanche and Pam Bondi) may be overusing them:
  • "It says that they can redact or withhold documents that might reveal private information about survivors… but it may not withhold information that just might be embarrassing… or covers deliberative processes…" [06:19]
  • DOJ’s claim that pending investigations justify withholding is questioned since they claim no further charges are expected.
  • Congress can compel testimony and request a log of withheld documents, and could sue DOJ if unsatisfied.
  • Noted tension even within Republican ranks over full document disclosure: “We’ve got Republicans like Thomas Massie… pretty offended that all of these documents have not been turned over.” [08:39]

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3. Observers, ICE, Civil Rights, and Qualified Immunity

[09:56–12:53]

• Janice from Tampa, FL inquires about legality of following and recording ICE agents and the lack of repercussions for ICE’s destructive actions.
• Kimberly Atkins Stohr reinforces that observing and recording is protected by the Constitution; ICE’s retaliatory actions are likely violations of the Fourth Amendment.
  • “Recording them or following them on foot, none of these things amount to obstruction. And all of those things in fact are constitutionally protected.” [10:20]
  • Civil redress is possible in theory under the Federal Tort Claims Act but “there is qualified immunity for federal agents… that makes civil actions all but impossible.” [11:16]
  • Provides a sobering conclusion: “Constitutional rights are valid, but they don’t protect you in real time.” [11:46]

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4. District Attorney Versus Judge: Career Pathways and Diversity

[12:53–14:57]

• Linda from San Francisco asks about the difference in career paths for DAs and judges.
• Barb McQuaid: Prosecutors have traditionally been appointed judges, especially federally; however, Biden’s administration is pushing for more diversity.
  • “For a long time, many judges had prior careers as prosecutors… It used to be that if you wanted to be a judge, being a prosecutor was a great career path.” [12:56]
  • Calls for more judges from defense, civil rights, and private practice backgrounds and greater geographic diversity.
• Kimberly Atkins Stohr notes: “Justice Sonia Sotomayor is the only former prosecutor on the bench.” [14:37]

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5. Status of January 6 Civil Suits Against Donald Trump

[14:57–17:56]

• Caroline from Providence, RI asks about the Bennett Thompson, Eric Swalwell, et al v. Trump civil suits and reasons for delays.
• Kimberly Atkins Stohr: Explains the civil suit accuses Trump of inciting Jan 6. Both trial and DC Circuit Court have held Trump does not have immunity for civil suits related to non-official conduct.
  • “No, Trump does not have immunity from this civil suit for many reasons, including… the rally… was technically a campaign rally, a political rally.” [16:09]
  • The appellate court isn’t holding up the case but, “Civil suits are rarely decided in a year or two. They usually take many, many years.” [16:43]

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6. Supreme Court Justice Removal – Myths and Mechanisms

[17:56–20:24]

• Jill (possibly co-host Jill Wine-Banks) asks about mechanisms for removing a Supreme Court justice and specifically if a president could remove a sitting justice, e.g., if Trump appointed Ted Cruz.
• Barb McQuaid firmly debunks the myth: “The president cannot remove a justice of the Supreme Court, even though it’s the president who nominates… This is really very much about the checks and balances.” [17:57]
  • Only impeachment for “high crimes and misdemeanors”—not for political disagreements or convenience.
  • Historical impeachments have occurred for grave misconduct like corruption or “chronic drunkenness on the bench.” [18:45]
• Kimberly Atkins Stohr quips: “I am more likely to be appointed to the US Supreme Court than Ted Cruz. I could say that with strong confidence…” [19:38]
• Reinforces that only formal retirement by the justice or impeachment can create a vacancy.

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Notable Quotes & Moments

• On constitutional reform:
  • “I think that it could happen in our generation. So let's hope that it does.”
    —Kimberly Atkins Stohr [05:25]
• On DOJ transparency:
  • “If Congress is not satisfied with this, they have the right to sue the Justice Department to get a court involved to order them to disclose the remaining documents.”
    —Barb McQuaid [08:12]
• On the realities of civil rights protections:
  • “Constitutional rights are valid, but they don’t protect you in real time.”
    —Kimberly Atkins Stohr [11:46]
• On Supreme Court removal:
  • “It would really require misconduct to be able to remove a justice from the Supreme Court. So I think we won’t be seeing Justice Ted Cruz anytime soon.”
    —Barb McQuaid [19:24]
  • “I am more likely to be appointed to the US Supreme Court than Ted Cruz. …Ted Cruz never. It's not going to happen, so rest assured.”
    —Kimberly Atkins Stohr [19:38]

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Timestamps for Key Segments

• Strengthening Executive Guardrails: 01:35–05:08
• DOJ & Epstein Files: 06:03–09:56
• ICE, Civil Liberties, Qualified Immunity: 09:56–12:53
• DA vs. Judge Career Paths: 12:53–14:57
• Jan 6 Civil Suits vs. Trump: 14:57–17:56
• Supreme Court Justice Removal: 17:56–20:24

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Takeaways

• The episode highlights the urgent need for hard legal protections—not just traditions—to defend constitutional democracy.
• Legal battles around Trump, ICE, and DOJ exemplify how statutory exceptions, executive-congressional tensions, and evolving court doctrines shape justice and accountability.
• The hosts stress the essential role of public participation, active oversight, and wise, informed reform—tempered by the recognition that change is often slow, uneven, and hard-won.

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Tone:
Smart, authoritative, slightly irreverent, and deeply committed to clear public education about government, law, and civil rights.

For Listeners:
This episode is a must-hear for anyone wanting insight into current constitutional crises, American legal process nuances, and practical ways citizens' questions shape the public conversation—made approachable by two seasoned legal experts.

Transcript

[Kimberly Atkinstore]

Welcome to Sister Sidebar, the new companion podcast to Sisters in Law. I'm Kimberly Atkinstore, and I'm joined by my sister, Barb McQuaid.

[Barb McQuaid]

Hello.

[Kimberly Atkinstore]

Hey, Barb, how you doing?

[Commercial Narrator]

Good.

[Barb McQuaid]

Good.

[Kimberly Atkinstore]

We get so many fantastic questions from our listeners each week, and we don't have time to cover more than three in the main Sisters In Law show. So on Sister sidebar, we can dive deeper into the top topics you care about most and answer more of your questions. Every Wednesday, we'll have a new episode with two or more of the sisters, so you'll still be hearing from all of us. And if you have a question, you know what to do. Email us atsisters in lawolitikon.com or use hashtag Sisters In Law on social media. But even better, you don't just have to type out your questions. Your voices are so important, which is why we want to hear them, too. You can email us a voice memo using one of your favorite notes app, and we just might play it live on the show. Remember, we love seeing you rocking our Sisters In Law merch. So go to politicon.com merch get your hoodies, get your T shirts, get everything you need to get you through the summer and the upcoming spring. So let's get started. So our first question is an audio question, and it comes from Chris in Maine. Let's have a listen.

[Chris from Maine]

Hello, Sisters In Law. My name is Chris, and I'm calling from Maine. A lot of people have talked about how the executive branch needs guardrails on its power that are far more rigorous and permanent than the sort of gentleman's agreements we've had for 250 years. How can that be accomplished? Do we have to go through Congress? Or is a Constitutional Convention the better place to get that done? And if that's the case, how do you get a Constitutional convention? And how likely do you think it is to be successful?

[Kimberly Atkinstore]

Thank you, Chris. That is a fantastic question. And before I answer it, I have to say that you, too should have a podcast. This is a podcast that I would listen to, preferably in the evening while curled up by a fire, because your voice is so very soothing, even when asking the most important constitutional questions that we have. But to answer your question, yes, many of the guardrails that we have learned are needed. That, as you so rightly point out, have been done as a matter of norms, not necessarily as a matter of law or constitutional prescription, have been brought to life and eroded and just misused by the current administration in a way that has never been done before, since our nation's founding. And so for many of them, I would say not all of them, I think for some things, laws could be passed, but for many of them, yeah, I think it will take a change in the Constitution to make a difference. Things like, for example, that the president should not be immune if he commits crimes while in office, given the Supreme Court's ruling, which created this new immunity for the president that was never conceived before. Yeah, Congress could try to pass a law. I would. Then you have the problem that you would need the president to sign it. So I really think that it would take constitutional intervention in something like that to make it clear. On the other hand, I think other things like voting rules, I think Congress can do a lot to reinforce and restrict and replace the kind of voting and election rules that have been flouted by the administration, including things like. I mean, we have an example with the amendment to the Electoral college process that Congress passed after January 26th that made it so that a single member of Congress can't file an objection to the counting of electoral votes from a particular state. That went a long way to really protect the electoral process and make sure that something like January 6th doesn't happen again. Because it couldn't have happened if you didn't have a lot of members of Congress who were willing to. To exploit that system in an effort to try to cast doubt on the electoral vote. So, yeah, I think some of them can be done in Congress, but some things would need a constitutional change. And, you know, you also ask how difficult it is to do a Constitutional convention. Very. But it's not impossible. It's happened. How many?

[Barb McQuaid]

27.

[Kimberly Atkinstore]

We have 27amendments, too. Thank you, Barb, because I should have looked that up before. We have 27 times that our Constitution has been amended, even at the, you know, the most difficult times in our nation, like after the Civil War, that's happened. So it is possible, I think, with the people being as active as they are in what is happening in their government and wanting change, I think that it could happen in our generation. So let's hope that it does. So, Barb, we have a question for you from Donna in Greensboro, North Carolina, who asks. Todd Blanch had said that the DOJ will not turn over any more of the Epstein files. The law says all files must be turned over to Congress. Why can't Congress this week demand that the law be followed and that Blanche turn over all the files as the law directs? Or is this obstruction? What do you think, Barb?

[Barb McQuaid]

Donna, we are in the same headspace here. You know, the Epstein Files Transparency act says that they should turn over everything. It has a couple of exceptions, right? It says that they can redact or withhold documents that might reveal private information about survivors. It also said that the Attorney General may withhold any information pertaining to pending investigations, but that it may not withhold information that just might be embarrassing to a particular individual or that covers deliberative processes of the Department of Justice. What Todd Blanche has said is a couple things that really raises highlights your question, Donna, which is he has said he does not expect anybody else is going to be charged. So is there a pending investigation anymore or not? Remember, President Trump demanded that Democrats be investigated and Pam Bondi said, oh, yeah, we're gonna do that. Did they withhold any documents as the basis of that? And if not, let's turn those over. And then he has also said they have withheld documents relating to their deliberative processes, their work product, their decisions about whether to charge and not charge. The statute says they cannot withhold on that basis, and they have. So I think that Congress would be within its rights to do a couple of things. One is Pam Bondi is going to be testifying before Congress next week. I think at that hearing you asked her these questions. Why have you not turned over these documents? Why are there so many redactions? What are the categories? They are also due to produce a log within 15 days of the deadline that was back on December 19th. So remains to be seen whether we will get this log. Now that they say they have completed their production, that explains the categories of documents that were withheld and why they were withheld. And I think ultimately if Congress is not satisfied with this, they have the right to sue the Justice Department to get a court involved to order them to disclose the remaining documents. Most often the legislature and the executive branch are able to work out their differences when it comes to disagreements over the production of documents. They call that the negotiation and accommodation process. But if this Justice Department won't do that, this is an option that they have now. Query whether this Republican led Congress will do that. But we've got Republicans like Thomas Massie and others who, who are pretty offended that all of these documents have not been turned over. So maybe that is a remedy that's available.

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[Barb McQuaid]

Here's a question for you, Kim, from Janice in Tampa, Florida. She asks, is following ICE in a car or on foot not obstructing and just recording them? Is that illegal? If not, how is it possible that ICE shatters car windows and assaults observers without any repercussions? Is ICE able to define following officers and recording as obstruction?

[Kimberly Atkinstore]

This is a great question, Janice. All the things that you point out, not obstructing but recording them or following them on foot, none of these things amount to obstruction. And all of those things in fact are constitutionally protected. And in fact, shattering a car window without probable cause, that a crime is being committed or that there is evidence of a crime in your car or that you are a suspect in a crime is also violative of the Fourth Amendment. So yeah, all those things are constitutionally protected that people can do. But the problem is, is what you're getting at at the other part of your question, which is how is it that ice some ICE agents, not all of them, but some ICE agents are doing things like shattering the car windows of US Citizens, we've seen it on tape, and taking them into custody being done without repercussions. So technically, if you have suffered some sort of tangible harm at the hands of a member of government, you can seek civil redress under a statute called the Federal Tort Claims Act. The problem is that there is qualified immunity for federal agents, and courts have read that qualified immunity pretty broadly, including the Supreme Court, in a way that makes civil actions all but impossible. So essentially, if you get property damage, if you are detained, if your constitutional rights are violated, the likelihood is very low that there will actually be some accountability unless the law is changed or the courts interpret them differently. So that's Why? I always say when we're talking about the rights that you have as an observer, as a protester, as anything, they are there. The constitutional rights are valid, but they don't protect you in real time. And it's really important that you act carefully and you protect yourself, because certainly not in real time and maybe not even later in a civil action will you be able to get the kind of redress that you seek. So the next question comes from Linda in San Francisco. Also, all of these places are places that I've been in love from our listeners. So I'm so glad to get questions from all over the country. So this one comes from Linda in San Francisco. How does the career path of a DA differ from that of a judge? Great question.

[Barb McQuaid]

Yeah, thank you, Linda. This is a good question. It could be that their career paths are actually quite similar. For a long time, many judges had prior careers as prosecutors, whether it was district attorney or assistant U.S. attorney. That is actually a fairly common path. Many of our former assistant US Attorneys are now on the federal bench in the Eastern District of Michigan in the sixth Circuit. You see that pretty commonly. I know one of the goals of the Biden administration was to improve the diversity of the judiciary by finding people with different backgrounds. For example, Ketanji, Brown Jackson, I think, is the first Supreme Court justice to have served as a public defender. And so I think the defense bar tends to be a little bit underrepresented on the bench. It used to be that if you wanted to be a judge, being a prosecutor was a great career path. But I think that judges can come from all backgrounds, especially elected judges. And so I think that being a prosecutor is always a great for developing experience. I think until recently, it was one that was generally respected by voters. And so that's why it was considered a pretty solid career path. I know when I was hiring assistant US attorneys, most came either from DA's offices or from what's called big law, large law firms. But I think, you know, in the future, I would like to see more diversity on the bench. Some prosecutors, to be sure, but also people from private practice, people who have practiced in the civil rights arena, people who have been defense attorneys. And also with regard to the Supreme Court, more geographic diversity, too. We get so much from the east coast corridor. It would be great to see people from the heartland just, you know, different people bring different perspectives.

[Kimberly Atkinstore]

Justice Sonia Sotomayor is the only former prosecutor on the bench.

[Barb McQuaid]

Yes, I think that's right at the moment. I mean, Justice Kavanaugh and Chief Justice Roberts have worked at doj, but not as prosecutors per se. They're more like, you know, I don't know, OLC and some of these other kind of positions.

[Kimberly Atkinstore]

Oh, that's so interesting.

[Barb McQuaid]

Our next question comes to us from Caroline in Providence, Rhode Island. She asks a question, Kim, maybe you could answer. She says, would you report on the status of the Bennie Thompson, Eric Swalwell, et al versus Trump civil suits related to the January 6th attack on the US Capitol? And can you explain why the appeal from the district court ruling in 2022 is taking so long?

[Kimberly Atkinstore]

Yeah. So this is a great blast from the past in litigation that we've certainly talked about on Sisters in Law, but it's been a minute since we have talked about it. This is a civil suit that was filed on behalf of members of the House of Representatives at the time of January 6th which accuses Trump and others of conspiring to incite the January 6th attack. It's a civil suit. It was challenged by Trump, who wanted to claim immunity from this civil suit. And both a trial court. First, a trial court held, no, no such immunity exists against civil suits. And the appellate decision that you're talking about actually came down. It was a U.S. appellate court from the D.C. circuit held that, no, Trump does not have immunity from this civil suit for many reasons, including the fact that the rally that he held where he is alleged to have incited the attack on the Capitol was not a part of his official duties. It was a part of him being a candidate for office. It was technically a campaign rally, a political rally. And so he does not enjoy that immunity. So it's not that the appellate court is holding it up. It's the fact that it's a civil suit and it's moving forward. It's still in place. It's moving forward. I can tell you that civil suits are rarely decided in a year or two. They usually take many, many years. In fact, there are cases that I worked on when I was a civil attorney that I worked on for the entirety of my civil appellate career that who, according to people in my office, who I remained my law office, who I remain friends with a decade later, some of these cases were still going on. So I think that's really the normal course of things. But that lawsuit is still active. And our final question is from Jill. Is this Jill Wine Banks? You could have just come and asked us the question. All right, so this question is, I have a question about Supreme Court accountability. Can justice actually be removed? And if so, what mechanisms exist for that. This comes up because of the rumor that Trump may nominate Ted Cruz to the court, which I believe would be disastrous if that were to happen. Could a president remove a sitting justice, or would it require a formal impeachment process through Congress? Barb, what do you think?

[Barb McQuaid]

Yeah, this one is pretty clear that the president cannot remove a justice of the Supreme Court, even though it's the president who nominates justices to the Supreme Court. This is really very much about the checks and balances, and I think it is a very good design so that the president can't remove a justice who just rules against him. I mean, think about some of the calls we've had from President Trump when a judge has ruled against him calling for their impeachment. And that is the method for removing a justice. And it's supposed to be not because they've made a decision that somebody doesn't like or that, you know, Ted Cruz might be more amenable to the kinds of decisions that Donald Trump wants. It is supposed to be for high crimes or misdemeanors. The same standard that we use to impeach a president, and we've had impeachments over the years of judges and justices. I think one justice of the Supreme Court and maybe like 13 judges, all the same standard of impeachment. Sometimes it's been for, like, chronic drunkenness, you know, drunkenness on the bench. Sometimes it's been for corruption, you know, taking bribes and things like that. So it would really require misconduct to be able to remove a justice from the Supreme Court. So I think we won't be seeing Justice Ted Cruz anytime soon unless somebody chooses to retire. And that could happen. You know, oftentimes someone retires while their party is in office, so that that president gets to appoint their successor and just essentially replacing them with a younger model. So I suppose we could see that Ted Cruz replacing of Clarence Thomas or somebody like that with a younger model, but the president doesn't get to off people from the Supreme Court.

[Kimberly Atkinstore]

I would just add that. Yeah. Could you imagine, like, if Trump could just. Tanji Brown Jackson would be gone. So they would. Oh, my God. There would not be. Like, there would be. That would be crazy if they can make their own vacancies. Also, I am going to say it here, and you can hold me to it. I am more likely to be appointed to the US Supreme Court than Ted Cruz. I could say that with strong confidence that Ted Cruz is. If there were ever to be an elected official who might be in line, maybe Mike Lee, although I think it's less likely than it was some years ago, but Ted Cruz never It's not going to happen, so rest assured.

[Barb McQuaid]

All right, we heard it here first. Thank you for listening to Sisters Sidebar with Kimberly Atkinstore and me, Barb McQuaid. Keep sending in more great questions for next week's show and if you send in a voice memo, we will try to play your question live during our next episode. Follow Sisters sidebar and sistersinlaw wherever you listen and please give us a five star review. It really helps others find the show. Don't forget to pick up your Sisters in Law merch and other [e-mail] merch and see you every week on Wednesdays and Saturdays for new episodes of Sister Sidebar and Sisters in Law. It might be my cord. Is it me? I've got a tangled cord. Let me untangle and stop creaking. Yep, that's okay.

[Kimberly Atkinstore]

That's okay.

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