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- [00:04]
A
Welcome to this episode of Sisters sidebar with Joyce Vance and me, Barb McQuaid. If you have a question for us, please email us@sistersinlawoliticon.com or tag us on social media using SistersInLaw. But don't just type them. Your voices are so important, which is why we wanna hear them, too. You can email us a voice memo using one of your notes apps and we might play it on the show before we started. We're delighted to share that we'll be doing a live show in Denver, Colorado at the Cervantes Masterpiece on April 23rd. Tickets are available at politicon.com tour We Can't Wait to see you there. Let's get started. Our first question comes to us from Scott in Liberty, Pennsylvania. My name is Scott from Liberty, Pennsylvania. And my question to you is this. Exactly what statute could be used in order to criminally charge federal officers or their superiors for inciting a riot? It seems like if we don't have one, we certainly need one. Thank you, Scott. Thank you for that question. I think it's terrific. We actually do have some statutes on the books that make it a crime to incite either a riot or an insurrection. One of them is inciting an insurrection that is, you know, urging people to overthrow the government. There's also another one called the Anti Riot act, which requires some elements of either traveling across state lines or conspiring to travel across state lines for a group of people to engage in acts of violence. So there are some elements of each of those statutes that are required. But one of the reasons they are so rarely charged is a Supreme Court case from the late 1960s which called Brandenburg versus Ohio. And what the court said there is that the First Amendment protects speech unless you cross a really, really high threshold. And that is that your words were both intended to elicit imminent lawless action and that it was likely to have that effect. So merely advocating in the abstract that, you know, somebody ought to go storm January 6th, come January 6th, we'll be wild is probably not enough. You have to be like right there with the people and say, let's go attack. And so when Donald Trump said let's march down Pennsylvania Avenue, that came really close. But you'll notice that Jack Smith did not charge it in his indictment. And I think that's because of Brandenburg. Remember, he threw in the word peacefully. He never really said we should engage in violence. Once we get down there, it was we should use our voices to make, make sure Congress can hear us in there. And so it's very rarely charged. I will tell you, though, the one time it was charged was in the first Trump administration in that Unite the Right rally. A number of defendants were charged with coming from out of state to incite a riot in Charlottesville, Virginia.
- [03:11]
B
So, Barb, we've got a question from Miriam. She's a law student in Cleveland, Ohio. Do you want to take a stab at it?
- [03:18]
C
Yeah.
- [03:18]
A
Love it. Glad to answer a question from a law student.
- [03:21]
B
Here's the question. I am wondering, she writes, to what extent does the government's use of the term domestic terrorist, absent a clear statutory or legal consequence tied to the designation, create a potential due process issue?
- [03:36]
A
Oh, this is a great question. I can tell you're a law student, Miriam, because you're really thinking about this. The term domestic terrorist is not any statute that anybody's going to be charged under. That's because there is no federal offense of domestic terror terrorism. There is a definition. That definition is used for investigative purposes and sentencing purposes. But in terms of an offense, that can be a basis for an indictment, there are things like using a weapon of mass destruction. That's what Timothy McVeigh was charged with. But there's no crime of domestic terrorism. And then, you know, you get these people like Kristi Noem or Pam Bondi referring to people as domestic terrorists, and you ask the right question about, does that create a due process issue? And it potentially does. That's because if there is adverse pretrial publicity, it could taint a potential jury pool. So jurors are only allowed to decide a case based on the evidence. That's why we as prosecutors were always trained that we were giving a press conference or talking about charges and an indictment. To stick to the four corners of the indictment, you could say, you know, this defendant is charged with using a weapon of mass destruction to destroy a building. That's all accurate and that's all consistent with the evidence that the jury's going to hear at trial. When you start tossing around these labels that don't exist in any statute, it does create a potential to taint the jury pool, and that brings with it a motion from the defendant to dismiss an indictment or an issue on appeal that there was a violation of due process. So good job, Miriam. You are thinking about the right things and asking the right questions. Joyce, we've got another question I'll direct to you. It's from D.J. in Greensboro, North Carolina. D.J. writes, I am a protester of the president's unlawful actions. I have never been arrested in my life. How do people who have done nothing wrong but are arrested obtain legal services? I think about the people in Minneapolis that we're hearing about and wonder how they manage when they're arrested.
- [05:39]
B
Yeah, this is such a great question, and it goes to one of our fundamental rights, because in 1963 there was a landmark U.S. supreme Court decision called Gideon vs. Wainwright, and in that case the court ruled that the Sixth Amendment to the United States Constitution requires the states to provide attorneys to criminal defendants who are unable to afford their own. You know, there are some limitations, though. You have to be charged with a felony in order for Gideon vs. Wainwright to apply. I think in some states they do make criminal defense lawyers available for misdemeanors, but not in all states, certainly not in my home state in Alabama. So there's that exception because some of these sorts of charges that come out of protests could be misdemeanors. And in that case you would have to look to legal aid or some other local organization for help. We say pro bono services, which means free legal services. Sometimes there are low bono services. Services provide a lower charge, but if you are charged with a federal crime, you've got a right to counsel in both federal and state court.
- [06:55]
D
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- [07:56]
E
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B
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C
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A
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B
Our next Question comes from Tish in Arlington, Virginia. Hi, sisters, my name is Tish. I live in Arlington, Virginia. I listen to your podcast all the time. And I have a question about when members of the Cabinet are having to testify in Congress. So, for instance, when Pam Bondi was being asked questions and she would just look at whoever was asking her the question and not answer, can they be compelled to answer the questions or be held in contempt? Tish, this is a really great question. It was so frustrating for all of us who watched the Attorney General Pam Bondi, in her oversight hearing last week. She didn't answer questions. She was rude, she was disrespectful. She dodged. When she was asked to turn and look at Epstein's survivors, she defiantly looked forward, acting as though they weren't even there. You know, we pay the salaries for these folks. We expect them to work for us, and it's sort of disappointing. I think that's maybe a very gentle word for what it really is when we watch them behave like this when they're in front of Congress. You know, three co equal branches of government, right? Pam Bondi works for the executive branch. She's actually supposed to submit to oversight from Congress. And so much of that has been lost. And so I think it's interesting that you ask whether there's a way to compel her to force her to answer the questions. And, you know, the answer is it's sort of up to the will of Congress. Just how far is Congress willing to go to make these folks in the executive branch behave? I spoke after that hearing with Pramila Jayapal, the congresswoman from Washington State, and she reminded me that in these hearings, they only get five minutes to ask questions. And that's enforced very strictly by the Republican chairman of the House Judiciary Committee, Jim Jordan, who was cutting Democrats off as they were trying to question Bondi. And so it would require pretty incredible messaging discipline for one congressman to devote all of their five minutes to getting an answer out of Bondi. And even then, they might not succeed. There is a way to ask for contempt of Congress. And you know, this is now in theory, because in practice, with this Republican majority and with this Justice Department, you know, they're not gonna turn and prosecute Pam. Bo Although there's an interesting analogy. Eric Holder, Barb's and my boss, testified in front of Congress. And you may remember this, There was an investigation called Fast and Furious. Congress had questions about it. DOJ produced thousands upon thousands of documents. But Republicans in Congress kept going, and they hauled Holder up in front of them, and they made that effort. They held him in contempt. They wanted the Justice Department to prosecute him. Ultimately, he was not prosecuted. It was very, I think, very just divisive moment. But what I think is so fascinating is that even in that moment where Congress was really going after the Attorney General of the United States, Holder did not resort to the kind of tactics we saw from Bondi. He tried to maintain his composure. Maybe a couple of times he had words for a member of Congress, but by and large, he was respectful, he was forthright, he accepted, explained what DOJ had done. That's very different from what we saw out of Pam Bondi. And so I would say that if you want to see Congress actually in a position to hold Trump administration officials responsible and accountable, the only way we can do it is by going to the polls in the midterm elections and returning majorities in Congress that are willing to do just that. Barb, let's see. There's another question for you in here. This one comes from out of the country. This is from Jim in the United.
- [14:58]
A
Kingdom, across the pond.
- [15:00]
B
Yeah, no kidding, right? Jim wants to know, when there are unethical or illegal orders at doj, the lawyers quit and leave. Why don't they stay, refuse to obey the lawless orders, and then get fired?
- [15:14]
A
This is a great question, and it has some interesting dynamics to it. You're right, Jim. That is sort of the practice and the norm.
- [15:24]
B
And.
- [15:25]
A
And that's one of the reasons, I think, we're seeing so many people flee this Department of Justice, you know, all of the lawyers who resigned in Minneapolis rather than investigate Renee Good and her widow for domestic terrorism when there was no evidence of it after her killing, instead of investigating the agent who shot them. So it is often the practice. I think the idea is that I have an ethical duty not to execute an unlawful order. And so I'm going to resign. If I stay, I will be fired. Sometimes that brings with it adverse employment consequences. For example, if I resign, I get my pension, and if I'm fired, I don't. So there's that very practical personal concept. But I think one of the interesting examples where somebody did the opposite was Sally Yates. Remember this, Joyce, when she was that short period of time, she was the deputy Attorney General during the Obama administration. Loretta lynch left as the Attorney general, as is the case, you know, typical at the end of the administration. But to preserve some continuity until the new attorney General is sworn in, the deputy Attorney general typically hangs around. So it has to be somebody who can sign FISA orders, and only the Attorney General, the Deputy Attorney General, and the Assistant Attorney General for National Security can sign those. And so the idea is, you know, I'm not gonna take on any major policy initiatives, but I'm just gonna kind of keep the trains running until the new Attorney General gets here. But one of the things that happened just a couple weeks, I think it was like the first week that Trump was sworn in in his first administration. You know, he gets sworn in on the 20th, and now on the Friday of that week, he imposes the travel ban. And he says, not only may noncitizens from these handful of countries not come into the United States, I am also including green card holders. These are people who live here and who have a due process right before their right to live here can be taken away. And so Sally Yates says she looks at it. What she has said since is she wrestled with one. This is illegal. This is illegal because these people have a right to due process. You can't just refuse them entry without a hearing notice and an opportunity to be heard before an impartial fact finder. So she says it's illegal. I could resign, but she started doing the calculation. So then what happens? Well, that means, you know, the next person in line is going to have to decide this thing, right? Her underlings. It's going to keep working its way down until somebody agrees to impose it. You know, we saw this during the Saturday Night Massacre when the Attorney General and the Deputy Attorney General resigned. And. And then Robert Bork, who was then, I think the Solicitor General maybe said, I'll do it. And he, in his defense, I believe he did it just so that the bloodletting could stop. And he agreed to fire Archibald Cox, the special counsel, or independent counsel, I guess they call it at the time. So what Sally Yates did in an effort to protect all of those behind her, is she said, I'm just going to refuse. And she said she knew she would probably get fired, but she wanted to take a stand and demonstrate to the public that this was really awful and illegal. So she. I remember getting this email. I was still in office. I got an email from Sally YATES to all AUSAs, all U.S. attorneys. I've reviewed this order. I am not convinced it's constitutional. Therefore, I am at this time informing and instructing all personnel not to enforce this order. And I remember thinking, thank you, Sally Yates. And then I also remember, like an hour later, seeing another breaking news to the New York Times. President Trump has fired Sally Yates. And it made me Cry. I remember sitting on my daughter's bed and getting all teary as I read it because it just really demonstrated, like, you know, the end of the Justice Department as we know it is no more. But so there is that option of getting fired. You might lose, you know, your pension and your benefits. So there's that. But I suppose it is a different way of taking a stand and maybe one that is more courageous.
- [19:39]
B
You know, I was already gone by the time Sally did that. Barb. I resigned the night before Donald Trump was sworn in. But I remember watching that and just feeling so horrible when that happened. And, you know, it's ironic in hindsight, right, Because Sally was the first one in government to tell people, hey, you don't have to follow an illegal order. And here we are all these years later with something we talked about in our episode over the weekend, this idea that the Trump administration wants people to follow illegal orders. It's something I'll just never get my mind around.
- [20:14]
A
Yep. Well, let's move on to the next question. Here's one from Linda Joyce. She asks why is it that no male reporters ever step up and defend the female reporters when Trump constantly degrades them at his press conferences? Are they all afraid of him? And, you know, we've seen these things with like, you know, why aren't you smiling? And a quiet piggy and accusing someone of insubordination when they ask a question as if they somehow work for him. What's your thought on that, Joyce?
- [20:46]
B
Oh, Linda, this is such a great question. I sure do wish I had an answer, because we know that standing up to the bully works. And I mean, look, reporters sometimes walk this sort of tightrope trying to maintain access to principals while doing their work. You know, Donald Trump is notorious for banishing reporters who run afoul of him. But in these situations, especially quiet piggy, and these recent comments to Kaitlan Collins, who certainly does not have to smile for the president of the United States or any other man, I really wish that all of the men in the room would have responded with a unified voice. And, you know, if they all had, if they had done it instinctively or if they had, after this had happened a couple of times, agreed that the next time it happened that they would say, speak up. I think we would be in a better place, quite frankly. We have a free press for a reason. You know, we all get that democracy dies in darkness. So if these guys would all stand up and universally support reporter, regardless of their gender or the newspaper or other news outlet, that they work for. Just stand up for what's right. We need more of that right now because we live in a moment where courage is contagious and we can all demonstrate that. But certainly I would like to see it in the press. Thanks for listening to Sisters sidebar with Barb McQuaid and me, Joyce Vance. Keep sending in your questions. They've been really great so far for next week's show and if you send a voice memo, we'll try to play your question during our next episode. We hope we'll get to see you at our live show in Denver, Colorado at the Cervantes Masterpiece on April 23rd. Tickets are available available at politicon.com tour make sure you get yours before they sell out. Follow Sister Sidebar and Sisters in Law wherever you listen. And please give us a five star review. It really helps others find the show. Don't forget to pick up Sisters in Lawmerch and other goodies@politicon.com merch and see you every week on Wednesdays and Saturdays for new episodes of Sisters in Law and Sisters. Sidebar.
- [23:06]
A
Hey Joyce, you know, these Sister sidebars come out every Wednesday, which I think is cool because it, you know, breaks it up midweek. We have so many questions to get to. And it reminds me that you once told me that your nickname at your former U.S. attorney's office was Wednesday. Why did they call you Wednesday?
- [23:24]
B
You have such a good long memory. I have no idea how you do that. So look, if my former colleague Bill Simpson is listening, and Bill, I hope you are, Bill named me Wednesday because, you know, I've got four kids like you do, Barb, and for many years I just found it so easy to throw on something black, braid my hair and go to work. And so I spent a lot of time in a black suit with a black T shirt and long braids because my hair used to be really long halfway down my back. And one day I'm walking down the hall and Bill sort of sticks his head out of his office, crosses his arms in front of him and he goes. And from that point on people would go, hey, Wednesday, how you doing?
- [24:09]
A
That's Wednesday Adams. Hey, at least it wasn't Morticia.
- [24:18]
E
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- [24:48]
B
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