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- [00:00]
Jill Wine-Banks
Foreign.
- [00:12]
Barb McQuaid
Welcome back to Sisters in Law with Kimberly Atkinstor, Barb McQuaid and me, Jill Wine Banks. Joyce will be back next week and of course we will miss her. This week we will be doing a live show in Denver, Colorado at the Cervantes Masterpiece Theater on on April 23rd. Tickets are available at Politicon.comTour we can't wait to see you there. And we will have more live shows that we're going to be announcing very soon. So stay tuned. We have a lot of heavy discussion this week. We'll be discussing a new salvo in fetal personhood laws craziness at the Department of Justice. Well, I mean, it's always been crazy, but it's getting worse. And then we're going to be talking about a case in which members of a so called group, Antifa, have been prosecuted and convicted for protesting. But before we get there, you guys know I don't follow sports, but my alma mater, the Fighting Illini, have won their first round in the ncaa. So I was really curious because you guys may have some competition going within your own state. So Barb and Kim, tell me what you're going to be doing. Who are you rooting for?
- [01:32]
Jill Wine-Banks
Well, here in Ann Arbor, it's nothing but Michigan. We are rooting for the Wolverines. Go blue. Michigan also won its first round game. Men and women have very good teams this year. So we're super excited about it. And I think we are facing Saint Louis University in the next round.
- [01:50]
Kimberly Eckinstor
Yeah. So that you know, I'm from Michigan, but my household is one of the St. Louis University billikens. My husband is an alum. He went to both St. Louis High and St. Louis University. I know when you're from St. Louis you gotta tell people where you went to high school. So he is a Billiken through and through. By the way, it took me a long time to even understand what a Billiken is.
- [02:16]
Jill Wine-Banks
I had to look this up last night. I looked this up last night.
- [02:19]
Barb McQuaid
A bill.
- [02:20]
Jill Wine-Banks
What is it? I thought, was it a person? What is a billiken? Kim, go ahead. But I just read this last night.
- [02:26]
Kimberly Eckinstor
It's like it's like some little talisman. Like it's changed its looks over the years. I will say to our viewers or and our listeners and our viewers since we're on YouTube now, some of the past incarnations have looked a little weird to me. I'll let y' all make your own rulings on that. But they're like a little talisman that stands for, oh, I should Know this off the top of my head. My husband will be mad at me. Like, things are as they should be or something like that. It's not quite a good luck charm, but, you know, it's what St. Louis has got, so we are building it.
- [03:00]
Jill Wine-Banks
How are you?
- [03:03]
Kimberly Eckinstor
I gotta root for the bills. Like, I can't. Like, you know, my marriage is at stake.
- [03:07]
Kim
Wait, what?
- [03:07]
Kimberly Eckinstor
I can't.
- [03:08]
Jill Wine-Banks
You're rooting for the Billikens? Kind of Michigan person. Are you?
- [03:12]
Kimberly Eckinstor
I went to Wayne State. You know, we're not in it.
- [03:14]
Jill Wine-Banks
It's part of the state. State pride. Well, we'll see you down the road. Perhaps. Jill, I'm gonna. We're gonna see the Billikens tomorrow. And who knows if our paths may cross down the road.
- [03:27]
Barb McQuaid
May it be in the finals.
- [03:29]
Kimberly Eckinstor
You want to make it interesting, Barb. Like, you know, name your price. We'll send you some toasted ravioli.
- [03:37]
Jill Wine-Banks
Is that a St. Louis thing?
- [03:38]
Kimberly Eckinstor
Yes, toasted ravioli, St. Louis thing. And you can, like, send a piece of Shield's pizza or something. A Coney.
- [03:43]
Jill Wine-Banks
Oh, well, you know, I got to go Ann Arbor, so I'll send you. Oh, yes, I'll send you, like, a gentlemen's deli basket. Yeah. Zinnia. All right.
- [03:51]
Barb McQuaid
All right.
- [03:52]
Jill Wine-Banks
Game on.
- [04:02]
Barb McQuaid
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- [04:39]
Kimberly Eckinstor
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- [04:46]
Kim
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- [05:17]
Jill Wine-Banks
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- [06:05]
Kim
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- [06:28]
Kimberly Eckinstor
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- [06:33]
Kim
This offer is valid only for new Factor customers with the code and a qualifying auto renewing subscription purchase. Make healthier eating easy with Factor and look for the link in our show Notes. Alexia Moore is being held in jail in Camden County, Georgia. Her alleged crime? Taking mifepristone, which caused her severe abdominal pain and led her to go to the emergency room where she told a security guard what she'd done and the
- [07:14]
Kimberly Eckinstor
security guard told police.
- [07:16]
Kim
Now she faces charges of murder because
- [07:20]
Kimberly Eckinstor
the fetus that was delivered did not survive. This case is the latest salvo in what has become, to borrow a phrase from UC Davis law professor Mary Ziegler,
- [07:34]
Kim
the new civil war over reproduction.
- [07:39]
Kimberly Eckinstor
So Jill, the facts of this case are really horrible, but they're important for us to have the discussion about fetal personhood laws and what they mean for the rights of women.
- [07:50]
Kim
So can you tell us a little
- [07:51]
Kimberly Eckinstor
bit more about what happened to Alexia
- [07:53]
Barb McQuaid
Moore just in terms of the facts of the case? This is as bad as it can get. She was somewhere between 22 and 24 weeks pregnant and she is from a state, Georgia, that has a total ban basically after six weeks and fetal heartbeat. So when she took mifeprestone and ended up having a delivery of a stillborn, or I think the baby lived for
- [08:31]
Kimberly Eckinstor
a few minutes after, according to prosecutors. That's what the arrest warrant said.
- [08:35]
Barb McQuaid
Right. And there was a very similar case in 2015, but the law of Georgia was different back then. Back then you could not prosecute the pregnant person for murder. That was the law. But after Roe, a new law that had been Passed before Roe was abolished by Dobbs, that law went into effect, and as a result of that, it was the creation of fetal personhood, which meant that even a zygote, from the moment an egg is fertilized, it is given more rights or the same rights as any living person. In addition to taking mifeprestone, she also took oxycodone. And she has now been charged with murder and possession of drugs that are illegal and was put in jail and has a defense lawyer from, I think, Legal Aid of Georgia. So that's where the case rests right now as we look at what the law used to be and what the law is right now.
- [09:45]
Kimberly Eckinstor
So, Barb, can you explain a little
- [09:47]
Kim
bit more about what these fetal personhood
- [09:50]
Kimberly Eckinstor
laws are and what states have them? And are there any carve outs to these laws or are they really something that applies to everyone?
- [10:00]
Jill Wine-Banks
So these personhood laws that you ask about, Kim, these are laws that define humans and persons who could be the victim of a murder to include fetuses. So Georgia, for example, has a life act that was enacted in 2019 that grants natural person status to fetuses in utero. And so they have the same legal rights as any human, even before birth and after birth for embryos. There are some limited exceptions under Georgia law for cases of rape and incest or when the life of the mother is at risk, but it does not recognize the need for bodily autonomy for the pregnant person. And so, you know, there was a time when most other states will have a law making it a crime to kill a person. Sometimes there are other crimes prohibiting harm to a fetus. You know, if you should harm somebody while there's a fetus in utero, that could be a different crime, but a recognition that that's a different crime from murder because an embryo is not a person under Georgia law. That has changed. And I think the reason for the change, of course, is the Supreme Court's ruling in Dobbs. We previously had protection against criminal prosecution for abortion because of the substantive due process. Right. We enjoyed from Roe versus Wade. That's gone now. And so states are free to write their own laws. And I think we are still seeing the consequences of that Dobbs decision.
- [11:40]
Kimberly Eckinstor
Yeah, that's really important to understand. This is a direct result from Dobbs. And a lot of these fetal personhood laws were passed after 2022 because of Dobbs, or there was a zombie law in place that was resurrected when Dobbs came down.
- [11:59]
Kim
So, Jill, what about that? What about the rights of women?
- [12:03]
Kimberly Eckinstor
Do they factor in when it comes to states that have these fetal personhood
- [12:08]
Barb McQuaid
laws at all, it certainly takes away the rights for what I would consider reproductive health to women. But it also, I mean, just in terms of what it means for a woman who is carrying oftentimes a wanted pregnancy but loses the pregnancy. But even for those who decide, for whatever reasons, they don't want to carry the pregnancy to term, their rights are limited in comparison to the rights of the unborn fetus that they are carrying. And there's a very powerful article written in the Guardian that talks about the horrors of this. And if you look back, there was a case of a woman who was brain dead. She had blood clots, and she was absolutely brain dead. And the hospital kept her alive against the wishes of the family in order for her to be an incubator for the fetus that she was carrying now.
- [13:16]
Kimberly Eckinstor
And she was very. My recollection is she was early in her pregnancy fetus. She wasn't like, she was alive for
- [13:21]
Barb McQuaid
like four months and then delivered early, I think, because doctors finally decided that her dead body could no longer carry the pregnancy to term. And so they delivered the child, whose name is Chance, and who did live, although he was in intensive care, neonatal intensive care, for, I think, six months. And custody has been now been awarded to the father of the child. But imagine how the family felt with this human incubator being kept alive on, you know, machines in order to deliver this baby. Now, interestingly enough, the attorney general of Georgia did not think that it was mandatory to keep her alive, that it would constitute criminal abortion, murder under Georgia law. But somehow the hospital thought so and kept her alive, these are really tough questions. And for those of us who, for example, I'm Jewish, and it is not considered a life until the first limb comes out of the birth canal. So for me, this isn't a person, and I don't care what the state decides to designate it. It's creating problems and diminishing the rights of women.
- [14:49]
Kimberly Eckinstor
I think that's absolutely right. I mean, that horrific case you talked about, her name was Adriana Smith, and I can't imagine being a member of her family and being put through that, and her wishes were not considered at all. I mean, we talk about human dignity. Human dignity for who? I mean, Adriana didn't get any dignity in that sense. So, Barb, I want you to put your prosecutor's hat on now, because despite these personhood laws existing in a number
- [15:20]
Kim
of states, there have been very few attempts to charge women for having an Abortion or taking mifepristone.
- [15:29]
Kimberly Eckinstor
And the few cases that have been brought were largely dropped. I know that even politically, when they were talking points about, you know, these really restrictive abortion laws, there was always this, you know, this claim like, oh, well, we're not going to charge women. We're focused on doctors and other people. No, they're charging women now. So.
- [15:50]
Kim
So why do you think this case
- [15:51]
Kimberly Eckinstor
is being brought now and has gotten so far, as opposed to some of these other cases that were considered and dropped?
- [15:59]
Jill Wine-Banks
Yeah, you know, it's difficult to imagine exercising discretion to charge a woman under these circumstances. I think that when you think about all of the what's in the best interest of justice and other factors, it's difficult to justify filing charges against, you know, a pregnant person who chose to abort their pregnancy. But there are some facts about this case that are a little different from some of those other cases you mentioned, which where either we saw prosecutors decline to pursue charges or they started down that path and ultimately dropped it. In this case, one of the facts that might merit prosecution is the fact that the pregnancy, according to the allegations in the complaint, was at between 22 and 24 weeks. And I think members of the public are probably accustomed from the Roe decision of thinking as abortions of something that occur in the first trimester. And so, remember, that's the way Roe kind of divided up the world, that there was this absolute right to pregnancy in the first trimester, and then after that, there's sort of a sliding scale. So because this occurs in between weeks 22 and 24, I guess that's what second trimester, and that this fetus had a heartbeat. We've now seen legislation across the country recognizing these heartbeat laws. Perhaps that makes it a stronger case for prosecution than otherwise. We don't have a doctor to charge in this case, so maybe that's the reason. But I will tell you, I really agree with Jill, and I keep waiting for the legal challenge to come from either members of the Jewish community or members of the Muslim community. You know, as Jill mentioned, in the Jewish faith, as I understand, birth, life does not begin until you say the first limb is out. Life begins at birth in the Muslim community. I believe a tenet of Islam is that life begins at insoulment, which occurs somewhere at around the fifth month. And so why isn't this a violation of the free exercise of religion? In fact, some of these laws talk about how a fetus is divinely created. I mean, lots of shades of Christianity in these decisions. And so you know, certainly as a policy matter, we can make choices backstopped by the Constitution, but we should not be favoring one religion over another. You know, if you are a person of a particular faith and choose to exercise that faith and as part of that faith, choose not to get an abortion, that's, you know, your choice. But to force that decision on members of all faiths, I would submit, is a violation of the establishment clause for various groups who have different religious views. We've seen this court be very aggressive in protecting the establishment clause. How about a little establishment clause for non Christian religions?
- [18:46]
Kim
Yeah, I agree with you totally.
- [18:48]
Kimberly Eckinstor
I mean, my gut would say I think it also has constitutional problems in terms of just a liberty right for a woman to choose what she does with her own body. But I know this court, the majority of this court is not a really. I doubt that would be a winning argument for the conservative supermajority of this court. But I think the religious right claim is totally spot on, and I would expect there would be some sort of constitutional challenge to this law that would make its way to the court. Now, I also worry, you guys that this is, I mean, we're talking about mifepristone here, which, as you pointed out, is used when there is a miscarriage in order to complete the miscarriage. I'm worried also about, you know, birth control being next. Will you consider having an IUD as murder? Would you consider other forms of birth control murder? I mean, I just feel like this opens a door, and if this prosecution goes forward, this opens a door so wide that it really puts reproductive rights at the most peril that they've ever been.
- [20:00]
Barb McQuaid
You know, I would make one other distinction when you were asking how is this different? In addition to mifepristone, she did take, or it is alleged, and I think she admitted that she took oxycodone. And maybe I'm straining because I want to limit the results of this case and to say that if you do active things like take oxycodone, which could harm the fetus. But again, that's like saying you can't smoke because it might hurt the fetus. You can't drink because it might hurt. So. And I don't want anyone to think that I am not absolutely, totally in support of a woman's right. Not just need, but right to do with her body what she wants. My body, my choice.
- [20:51]
Kimberly Eckinstor
I think that's one reason this case is so dangerous, because of the facts. I think that this is that perhaps the test case that prosecutors were waiting for in order to push this because they think because these the facts are complicated and that maybe a jury may take it differently that this is the test case to push this fetal personhood law to convict a woman for using mifepristone. I agree with you. It's because these facts are difficult.
- [21:29]
Jill Wine-Banks
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- [21:55]
Kimberly Eckinstor
You know I'm a champion Hurkle derkler here. Like I don't just wake up, I gotta lounge in bed for a little bit, get my bearings, answer some emails on my phone.
- [22:05]
Kim
And bowl and Branch signature sheets are made with the finest 100% organic cotton and instantly make your bed feel more comfortable, breathable and inviting so you can hurkle durkle even longer. They are so soft and soothing when
- [22:22]
Kimberly Eckinstor
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- [22:23]
Kim
drifting away on a cloud. With Bolen Branch you'll get to enjoy sleep you don't have to compromise on
- [22:29]
Kimberly Eckinstor
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- [22:31]
Kim
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- [22:34]
Kimberly Eckinstor
There's no setup, no habit building and no guesswork.
- [22:38]
Kim
Just noticeably better sleep that you'll look forward to every night and morning.
- [22:44]
Jill Wine-Banks
I used to think the sheets came in only two styles, regular and stretchy. I don't know how wrong I was. Bowl and Branch has definitely changed the game. Ever since I put them on my bed I've been so snug I haven't wanted to get up. I've been herkla durkling myself. Kim they are buttery soft right from the start. They get softer over time and they help you relax the moment you lie down. I've become such a fan that I might need to get a second set to take with me when it's time to travel. I'm never going back to the old ones. You need to experience their unmatched softness for yourself and once you do, there's no going back.
- [23:20]
Barb McQuaid
So I want to know can you hurkle jerkle in the nighttime? Because I am someone who gets in bed and reads for quite a while. So everybody look up. Can you? Okay, so then I'm a herkle der Hurkle derkle I don't know as well as you guys. And one of the things that I love when I get in bed to read, I really do snuggle up to the softness of bowl and branch. It's really great. And they have over two dozen amazing colors that will complement any room or style. My favorite color for my bedroom, which is a dark green. It's an old fashioned sort of. I don't know if you even guys know what it is. A chintz pattern with big flowers and it's a dark green. So for me the light green sage leaf was an easy choice. Even though I was tempted because there's some peachy flowers in it, I thought, well, maybe I need the peachy ones too. It's so much fun to pick them out for your family or as a gift. They'll love it. Don't wait. Upgrade your sleep during Bolen Branch's annual spring event. Take off 20% site wide plus free shipping@bolandbranch.com with code sisters. That's bowl and Branch B O L L a n d branch.com sisters code sisters to unlock 20% off exclusions apply. See the site for details. The link is in our show Notes. Okay, you guys all know how much I love Brisbi. He is the leader of our household and he gets all kinds of special care. And I'm proud to say that in talking about him on this show, I mentioned that he had been getting acupuncture and infrared treatments. And a listener who had a relative in the Chicago area reached out to me to get the name of and her relative's dog has also benefited from kindred spirits in Evanston, Illinois. Now we have a quick message from today's sponsor, the ASPCA Pet Health Insurance Program. We've all had so many fun times and amazing memories with our animal friends, and we know that your pet is part of your family too. Whether it's a chewed up sock, a spur of the moment adventure, or an unexpected vet bill, they make life full of surprises. That's why ASPCA Pet Health Insurance is worth checking out. Their plans are flexible, easy to customize, and help you stay prepared for whatever your dog or cat gets into.
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Kim
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Kimberly Eckinstor
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Kim
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Kimberly Eckinstor
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Kim
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- [26:29]
Jill Wine-Banks
You can tailor your plan to fit your budget, your lifestyle, and your pet's particular quirks. To Explore coverage, visit aspcapetinsurance.com sisters that's ASPCA pet insurance eligibility restrictions apply. Visit aspcapetinsurance.Com Amazonterms for more information. The link is in our show Notes. This is a paid advertisement. Insurance is underwritten by either Independence American Insurance Company or United States Fire Insurance Company and produced by PTZ Insurance Agency Ltd. The ASPCA is not an insurer and is not engaged in the business of insurance. Well, this week the Department of Justice had a wild ride with a variety of cases where there seems to be this through line of the Justice Department abusing some of its authority. And I wanted to talk about a few of those in. Jill, get your take on one of these. Judge James Boasberg. He is the chief judge of the district court in the District of Columbia. You may remember him from such roles
- [27:52]
Barb McQuaid
as
- [27:54]
Jill Wine-Banks
telling the Department of Homeland Security to turn the planes around and not send them into Venezuela and holding Justice Department officials in contempt. Well, this week he quashed some grand jury subpoenas that were issued by the office of U.S. attorney Jeanine Pirro against the Federal Reserve. Jill, tell us about that and how unusual it is for a judge to quash a grand jury subpoena.
- [28:19]
Barb McQuaid
So first of all, let me say what quash a subpoena means because, yeah,
- [28:23]
Jill Wine-Banks
quash is a great word, isn't it? But it is sort of.
- [28:26]
Kimberly Eckinstor
It sounds like an automaton, but it's not.
- [28:29]
Barb McQuaid
Well, it sounds like squash. And this is squashing a subpoena. It's invalidating a subpoena. So the U.S. attorney has a right in a grand jury investigation to issue its own subpoena without a judicial intervention. And then a party can go to court and say, wait a minute, this so far exceeds anything that is under relevant investigation or it's so burdensome that you have to stop this. And it's very rare. There's a great deal of deference allowed in an investigation by a grand jury. But this case, the judge basically said, hey, guys, this looks like it's clearly done to pressure Jerome Powell. It's part of a political witch hunt against him. And so he said, no, you don't have to comply with this subpoena. And that's what he did. He quashed the subpoena.
- [29:26]
Jill Wine-Banks
Yeah, I actually teach grand jury practice in my criminal procedure class. And we talked about this earlier in the semester. So I sent my students a copy, copy of an article about this case. And you know, the standard, the legal standard to quash is you have to show that the subpoena was unreasonable or oppressive.
- [29:43]
Barb McQuaid
Right.
- [29:44]
Jill Wine-Banks
Which is a pretty high standard, because the standard, a prosecutor may issue a grand jury subpoena as long as there's any reasonable possibility that the category of materials to be produced will be relevant to the general subject of the grand jury investigation. That's from this case called United States versus Our Enterprises. And in fact, Judge Boasberg cites this Our Enterprises case to say, and you know, what I always say to the students is like, this is such a broad standard, it's almost impossible.
- [30:16]
Barb McQuaid
It's a very high burden of proof.
- [30:18]
Jill Wine-Banks
Yeah, it's like it never happens, which is why I sent them this article. And so, Kim, reading Judge Boasberg's opinion, he cites our Enterprises, and he says, even under the standard of our Enterprises, I find this to be unreasonable and oppressive. Can you tell us about that opinion or what stood out to you about that opinion?
- [30:35]
Kimberly Eckinstor
Yes, what stood out to me about this opinion is rather than starting with a recitation of facts or the procedural history, this is literally how the opinion starts. Jerome, Too late. Pal has done it again. He is too late. Wait, how do you read all caps? He is too late and actually too angry, too stupid and too political to have the job of Fed Chair. Of course, that is a truth social post from the president of the United States. That is how this opinion starts. Just to show why this case surpasses that very high bar for quashing a subpoena. What I love about this approach in writing the opinion is I feel like so many of these opinions, if you were just to read them, you really don't get a sense of just how absurd the things that are happening. The opinions themselves, because they're in legalese and they're stayed on paper. It almost works to normalize what the president is doing and trying to pressure this independent board to bow to his wishes. And Judge Boasberg was having none of that. He started out showing just how not normal this is to prove the point that this subpoena was issued not in order to effectuate good law enforcement or to determine if some crime was taking place or some misfeasance. It was just meant to bully the Fed Chair, which is just not what a president is supposed to do.
- [32:14]
Jill Wine-Banks
Yeah, this quoting his own language back at him is a pretty persuasive way to make the case what Judge Boasberg says is there's a mountain of evidence to suggest that the real goal here is either to get the Federal Reserve to lower interest rates, because that's what Donald Trump wants, or to get Jerome Powell to resign and that they have fabricated and are using as a pretext this idea that he testified before Congress about cost overruns at a renovation at the Federal Reserve building and that the only thing the Justice Department could come back with in response was to say there have been cost overruns. And Judge Bogusberg says, yeah, building overruns happen all the time. That doesn't mean a crime was committed. There's just no predication to suggest that. So that was a really interesting case in a, you know, a real unusual but appropriate, I thought, judicial intervention against an effort by Jeanine Pirro at the U.S. attorney's office to abuse her office to punish or intimidate the Federal Reserve. But we see this occurring not only in D.C. but also in Florida, where this week we saw the Southern District of Florida issue a grand jury subpoena to Jim Comey, of course, the former FBI director in what they're calling the grand conspiracy. Jill, tell us about this. What is the grand conspiracy?
- [33:35]
Barb McQuaid
So before I move to Florida, I just want to say also about Judge Boasberg. In addition to quashing the subpoena, he issued a new rule about grand juries, because we've seen in D.C. under Jeanine Pirro, the use of grand juries to try to indict people who have committed no crimes. And grand juries are having none of it, just like Judge Boasberg is having none of it. And so he has required now that anytime a grand jury refuses to indict, it has to be reported. So it's just the Department of Justice that you and I love, and we're proud to go into court and say on behalf of the United States and know that we had credibility just because we said that no longer exists and there is no more credibility but onto Florida, where the same thing is actually true. Yeah, the U.S. attorney has created a conspiracy that may allow something that obviously the statute of limitation has run on the 2020 election. There's just no way that it isn't over and done. Five years is the statute. We're in 2026. But in conspiracy law, if you do something in furtherance of the conspiracy, even though it started and ended before the five years has expired, if you do something after that, and in this case, they're saying there was perjury committed not by Comey, but by someone else after the after 20. Well, in 23, so that the statute would now be extended to 28. So he was subpoenaed for some documents. And now we're back in court as to whether this conspiracy exists, whether he's going to have to produce anything. And the investigation is, you know, again, back to something that has been disproven over and over and over over again. And it is aimed at what Donald Trump sees as his enemies who have investigated him. Intelligence officials, enforcement officials like Comey, like Brennan. And so that's where we are. It's back to his assessment in 2017, right after Donald Trump was elected. Remember, Comey was the one who was elected to tell Donald Trump about the Russia investigation. And Donald Trump has never forgiven him for being the one who spoke on behalf of the intelligence community. So that's where we are.
- [36:09]
Jill Wine-Banks
Yeah. So this investigation of the Russia investigation from 2016. Now, Kim, correct me if I'm wrong, but haven't we already had the Mueller report, an inspector general's report, and an investigation led by John Durham appointed by William Barr, who have already. Republicans, Republicans, reviewed the origins of the Russia investigation. What could possibly be left to investigate? And if there's not anything legitimate left to investigate, what do you think is really going on here?
- [36:40]
Kim
Hmm.
- [36:41]
Kimberly Eckinstor
Is it an effort to try to both change the narrative of the election as well as get back at Jim Comey, who wasn't just the one in charge of speaking on behalf of the intelligence community, was also the one who
- [36:56]
Kim
was asked, hey, can you see it through? To let my buddy.
- [37:00]
Kimberly Eckinstor
To let my buddy General Flynn go
- [37:03]
Kim
because he's a good guy.
- [37:05]
Kimberly Eckinstor
Right.
- [37:06]
Jill Wine-Banks
And remember the loyalty dinner invited Jim Comey over, like, to dine at the White House, like, yeah. Expecting something out of.
- [37:14]
Kimberly Eckinstor
Something out of a mafia movie. So, yeah, Jim Comey has been on Donald Trump's perceived enemy list since basically since Donald Trump took office the first time. So it's no surprise. It should still be shocking and outrageous to everyone that he is trying to go after him and using the levers of the government to do so. But that's exactly what's happening here. I think it's just as obvious as it is in the case with Jerome Powell that Judge Boasberg so clearly outlined. I think that there is a host of truth social and Twitter posts that whoever the judge who writes this order can quote from as well.
- [37:57]
Jill Wine-Banks
Although, you know, it strikes me that there may be a little forum shopping going on here.
- [38:02]
Barb McQuaid
Right.
- [38:02]
Jill Wine-Banks
This investigation is in the Southern Eugene Judge Cannon. Yeah. And they are conducting it out of Fort Pierce where the only judge is Judge Aileen Cannon. So if they file these motions to quash, instead of getting a Judge Boasberg who will look at the law objectively, we're gonna get Judge Aileen Cannon, who has a history of ruling in favor of Donald Trump. So strikes me as no coincidence that they have chosen to put the case down there. All right, well, so those are two examples, but we've got one more this week where the Justice Department, I don't know, again, you know, in the old days, the Justice Department had this presumption of regularity, and we would let these things see their way through to the grand jury system, the court system, and we would presume that the Justice Department's acting in good faith. But we had this other incident this week with this guy, Joe Kent, who's the head of the nctc, the National Counterterrorism Center, a total Trumper who resigned in his letter over the war in Iran. And, you know, he doesn't blame Trump. He says something like, Israel misled him and that's why Trump declared this war in Iran. But as soon as he resigns, we suddenly learn that he is now under investigation for leaking classified information. Joe, what do you make of that? Is it, is it he left because he was under investigation or he's being investigated because he left and, you know, split with Donald Trump?
- [39:33]
Barb McQuaid
So if I were a betting person, I'd put my money on he's under investigation because he said Donald Trump did not have a legal reason for invading Iran. But we don't actually know because we know that the investigation started before his resignation, but we don't know if it was like a minute before his resignation. And when I say we know it is reported, I don't know that I haven't seen the document that starts the investigation. So we're going to have to wait and see whether it was a thing that started it or that followed it.
- [40:17]
Kimberly Eckinstor
Well, I was just going to make a quick point that even if it, if it began before he left, I got to believe that his leaving and his resignation letter were not the first time that he expressed some skepticism over
- [40:28]
Barb McQuaid
what was going on.
- [40:28]
Kimberly Eckinstor
So, yeah, go ahead.
- [40:30]
Barb McQuaid
I agree with that. I also want to point out that Joe Kent is not the perfect person to come forward with this information because he is a well known conspiracy theorist. He's made a lot of anti Israel, anti Semitic remarks. And so he isn't the most credible witness for this. And I would say, despite that, whatever his past is, it doesn't Mean, he's wrong about this allegation that there was no imminent threat from Iran. And I also, just out of coincidence, it fascinates me how things come around and go around. Chris Miller, who some of you may remember, was the person appointed to be the Acting Secretary of Defense after Esperanto resigned at the end of Trump 1. Chris Miller was in the same position before that. He was the head of the same organization that Kent was the head of. And like Joe Kent, he was a retired Green Beret. So it's just sort of funny how people from one place get to another. At least he didn't get to be the Secretary of Defense. Joe Kent. So it's just an interesting set of facts. And as I say, it may be true that there was no credible imminent attack, because that's what the intelligence community has made clear.
- [42:00]
Jill Wine-Banks
Yeah. You know, the other thing I'll say, having been a national security prosecutor, it seems to me that if they really were suspicious that Joe Kent were a source of leaks, they would have removed him from his position when they first became suspicious of that. And the timing of this, you know, suddenly now we're gonna say he was under investigation, really does strike me as. It feels more retaliatory than, you know, that this was all legitimate and was going on all along. And the reason he's leaving is because of this investigation. You don't keep somebody in a very sensitive position like that as head of the NCTC if you think they are a security risk.
- [42:39]
Barb McQuaid
As I said, my money on in a bet on that would be that he was under investigation because he had made it clear that he was of the view that there was no credible imminent threat.
- [42:55]
Jill Wine-Banks
Kim, let me just wrap up by asking. You know, we've talked about the Boasberg quashing of these Jeanine Pirro subpoenas. We've talked about the Comey subpoena and this grand conspiracy, and now we're talking about the Joe Kent investigation. I worry as somebody like Jill, who spent a good part of my career at the Justice Department, who enjoyed this presumption of regularity, and we always thought we wore the white hat. How does this end for the Justice Department? Do you ever see this ability to regain, you know, there's going to be this narrative that the Justice Department was weaponized, and the Trump administration says, well, that's just because the Biden administration weaponized it. How do we ever get back? How do we put the pieces back together so that the public can have confidence in the work of the Justice
- [43:37]
Kimberly Eckinstor
Department that's really hard to answer because it's just been, I mean, a sledgehammer has been taken to the reputation of the doj. I think this is just one of a thousand things that have been thrown on the pile of the withering of the DOJ's reputation. I think just the way that Attorney General Pam Bondi has conducted herself, even like in public hearings, makes me lose all trust in that this is a Department of actual justice as opposed to just an arm of Trump's retribution campaign. It will take another administration to earn that trust back, but I don't know how long it will take because there's so much distrust among citizens and it's hard, it's really not hard to understand why.
- [44:37]
Kim
We've talked before about why Oneskin really
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Kimberly Eckinstor
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Kim
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Kimberly Eckinstor
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Kim
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Barb McQuaid
And as you already said, Kim, it's serious science that fits easily into anybody's routine. And that's one of the things we love about Oneskin. So many products rely on slick branding or filler ingredients, but not Oneskin. Every time I use Oneskin, I give my skin a clear signal to repair damaged cells, support collagen production and strengthen my skin barrier. Now I can't get enough. Neither can my husband, who steals a lot of mine. Whenever I get dried out on planes or while I'm out in Chicago's wind, I use OneSkin's OS One Face topical supplement to fight back against dryness. It's the perfect supplement for making your skin look fresh and keeping it ready for anything the elements throw at you.
- [46:12]
Kim
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Kimberly Eckinstor
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Kim
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Kimberly Eckinstor
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Kim
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Jill Wine-Banks
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- [47:36]
Barb McQuaid
When selecting topics this week. As always, there were too many to choose from. All were frightening, including the ones that I have chosen to talk about today, which is the trial and conviction of protesters as domestic terrorists and Brendan Carr's threats to pull FCC licenses from channels that don't cover the war the way Donald Trump wants them to, and to enforce the now defunct equal time rule. So let's dig into that. And Kim, start us off by talking about what the facts of the conviction of the protesters are. They were labeled as antifa. What law did they get indicted for violating?
- [48:23]
Kimberly Eckinstor
So I really one thing that I found difficult to even ascertain is how they were, how these protests were conducted, why they were considered to be antifa, and also what the definition of antifa was with respect to their prosecution. So this is worrisome to me in a lot of ways. But these nine defendants, as you pointed out, were prosecuted as a antifa cell and they were found guilty in Fort Worth, Texas of a bunch of charges including providing material support for terrorism for attending a demonstration outside an ICE facility last summer. So these are that's the kind of charge that was once, you know, levied against people like the, you know, the Boston Marathon bomber or somebody, someone who would give support to an actual terrorist attack, not someone who was present at a protest no matter what happened at that protest. And so anyway, the long and short of it is that it's quite a victory for the Trump administration, who has long sought to tag anybody who opposes
- [49:47]
Kim
administration policies, particularly when it comes to
- [49:52]
Kimberly Eckinstor
immigration, the effort to swiftly deport more people than ever, the law and the Constitution be damned as terrorists, as enemies of Americans, as opposed to people who are trying to ensure that justice is done. I mean, we've seen even in Minneapolis in the case of people who are doing nothing but videotaping what ICE was doing and shot in the street, they were labeled as terrorists by this administration. So I think this is a very, very dangerous outcome in this case.
- [50:26]
Barb McQuaid
But do you or Barb, do you think that there were guns, which makes this a little different or maybe a lot different? Do you think it does make a difference?
- [50:37]
Jill Wine-Banks
Yeah. Can I say I have a different take on this case? I think there's a legitimate case here that has been spun by Trump's DOJ as being part of this antifa cell thing. There are two different terrorism statutes. The one we most often use for material support is providing material support to a designated terrorist organization. And there's a whole process for how an organization gets designated. It's through the State Department, and it has to be a foreign terrorist organization. And that's because of First Amendment concerns about labeling domestic groups as terrorists. So you can be convicted of providing material support to ISIS or Hezbollah or some other designated group because the State Department has determined that that group engages in terrorism and terrorist activity. That's one brand of material support statute. There's a different material support statute that can be used for purely domestic cases, but it's a little different. It's not about providing material support to an organization that's been designated. It is providing material support to an individual that you know is going to use that material to conduct a terrorist attack. For example, in the Timothy McVeigh case, I forget, it was one of the Nichols brothers or something who gave the. Some of the materials to Timothy McVeigh. That could be a legitimate use of this other material support statute. That's 2339A. But the one we use most often for these designated groups is 2339B. But the Trump administration did a little magic trick here because they issued an executive order designating Antifa as a domestic terrorist organization. Now, this just isn't a thing under the law.
- [52:28]
Kimberly Eckinstor
It doesn't mean. That's what I meant. And to be clear, I'm not. I don't have the prosecutor experience that you have, but that's what I meant by saying I didn't understand how they defined Antifa, how they determined that that was something that could be the basis of terrorism charges. That's what I meant.
- [52:45]
Jill Wine-Banks
Absolutely right.
- [52:46]
Kimberly Eckinstor
Yeah.
- [52:46]
Jill Wine-Banks
Yeah, you're absolutely right.
- [52:47]
Barb McQuaid
And you set up my question for Barb, which was to have her explain whether Antifa could even possibly be a legitimate target of the statute under which they're charged. And.
- [52:59]
Jill Wine-Banks
Yeah. And so just to flesh it out, just to flesh it out for our listeners, you can only be convicted of a crime when the. When Congress has passed a statute and Congress has passed this statute saying it's a crime to provide any kind of material support to these designated foreign terrorist organizations. But it's not a crime to provide it to somebody. So all the antifa references are surplusage. They're just irrelevant facts that are thrown in there to dirty up the concept of antifa. So if they proved, and it appears they did to a jury, that these people had the knowledge and intent to provide firearms and training and support to this attack, that's a legitimate conviction. But all this spin about antifa that is just irrelevant political propaganda.
- [53:42]
Barb McQuaid
And I think the facts aren't going to support it in terms of whether they knew each other or just showed up to protest what was happening at this ICE facility. And I want to, because next Saturday, a week from now, it's going to be the no Kings march. And I want to make sure that everyone who attends the no Kings march isn't worried that they're going to be deemed a terrorist and put in jail. So it's really important that we understand what this is and that it will be appealed. I'm sure both of you, do you think it's going to be reversed on appeal? And will it be on first amendment grounds or on some kind of trial error or some factual ground? What do you think?
- [54:27]
Jill Wine-Banks
So I don't know that it'll be reversed on appeal, Jill. I mean I didn't follow the trial, but if their theory is the one I explained 2339A, that they proved that there was intent to provide support to what they knew would be a violent attack, that's sufficient. So that's sufficiency of the evidence and we'll see. All the antifa stuff is, as I said, just propaganda outside of the essence of the charges. So the facts will matter here in determining whether there's a successful appeal.
- [55:04]
Barb McQuaid
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Kimberly Eckinstor
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Kim
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Kimberly Eckinstor
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Kim
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Kimberly Eckinstor
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Barb McQuaid
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Jill Wine-Banks
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- [58:13]
Barb McQuaid
It's our favorite time of the show answering your questions and if you have a question for us, please email sistersinlawoliticon.com or tag us on social media using Sisters in Law. If we don't get to your question during the show, we will try to answer them through our social media sites or during our new show Sister's sidebar, which will come out every Wednesday, so tune in for that. Our first question is for Kim and it comes from Caesar. Caesar asks when The Constitution was written. The oldest American politician was probably Ben Franklin, who was 81. Is there a legal argument to be made that lifelong means until 81? Because that was the original meaning of lifelong. What do you think, Cesar?
- [59:09]
Kimberly Eckinstor
I see what you're doing there, Cesar. We talk a lot about history and tradition when it comes to analyzing constitutional provisions. In this case, that doesn't come into play here at all. First of all, Ben Franklin was not actually an elected official. He was one of the framers of the Constitution, but he was not holding federal office. He held office in Pennsylvania. And I feel like I'm an expert on Ben Franklin because I just went to Philly last weekend and went to the museum and learned all about him and all of that. So, yes, he was an elder statesman at the start of our nation. But the reason that we say people get lifetime tenure in some positions, namely judges, get them federal judges, is because the only way to remove them is if they reject, resign, retire, or are impeached. There's no other mechanism to limit their terms because those are the only ways for their terms to end. So that is effectively lifetime tenure. And if you're trying to think in terms of a limit of. On the presidency, for example, I mean, we've already had Presidents. We've had two presidents who were older than 81 while in office. Joe Biden. Joe Biden and will be Donald Trump, should he serve out the full term? So I think.
- [60:33]
Jill Wine-Banks
But.
- [60:33]
Kimberly Eckinstor
But I think this brings up an important point, because I think there is a mechanism, particularly for judges, that if
- [60:40]
Kim
there is the political will to do
- [60:41]
Kimberly Eckinstor
it, to phase in term limits in a way that makes more. Brings more surety to an office like a judge, and that can bring so many benefits with it. If you have a limited amount of time, someone can be a judge, you can say, okay, for that period of time, they can take no donations, no bribes, no luxury trips, no anything beforehand or after. Live it up, like, do whatever you want. But while you have this position, we're gonna limit you as to what you could do. No outside employment, no other influence at all. And the term is limited. So you won't have to nominate people who are 12 to try to, you know, keep them on the bench for as long as possible. There's so much good that can come out of it, and it just means it just requires the political will in Washington, which we don't have. But I think people need to remember that the power is with them to demand that. So I think this is something that we should constantly be talking about and thinking about how we want our Constitution to work, how we want to change it, how we want to pass laws that really makes the Constitution work better for our people. We don't have to be limited to trying to figure out history and tradition. And, you know, I think that sort of gets to the spirit of what you're asking about.
- [61:55]
Barb McQuaid
So the next question is for you, Barb, from Fran in Portage, Michigan. So another Michiganander is asking Michigander a question. All right. Fran says the Democrats may win majorities in both houses of Congress in November. If so, would congressional impeachment and finding of guilt hold given the SCOTUS immunity decision?
- [62:19]
Jill Wine-Banks
Oh, great question, Fran in Portage, lovely part of our state. Yes, it would. And in fact, this really gets to the crux of what Chief Justice Roberts was writing about in that opinion. What he said is impeachment should be the only remedy for misconduct in office, that a president, because they have so many responsibilities, should be able to be bold and fearless and not worried about looking over his shoulder that his successor, the next administration, and their Department of Justice might charge them with crimes. It might cause a president to shrink in his duties or responsibilities. But the best way and the appropriate way under our Constitution to deal with presidential misconduct is through the impeachment process. And so impeachment in the House, conviction in the Senate, which could include removal from office, and also on a second vote, whether the person may be barred from ever holding federal office again. So. So if there should be a change in leadership in the House and the Senate, impeachment becomes once again, a very viable possibility.
- [63:27]
Barb McQuaid
And this question is actually addressed to me by a listener named Kathy in Vacaville, California. Alexander Butterfield passed away this week. Since you are the Watergate girl, I was wondering if you had ever interviewed him over the at any time or knew what he would say about the Watergate tapes that Nixon had in place. And the answer is yes. I have interviewed him both when I was a prosecutor in Watergate, but more recently I had a show called Igen Politics and Victor Shi and I interviewed him then. I also saw him at the opening, the premiere of Robert Redford's movie All the President's Men Revisited, in which both he and I had roles and we talked at that time and I've talked to him since, just by phone to say hello. He was a man of great integrity who decided that if he was asked the exact question in the right way that he was going to admit that there was a taping system, he wasn't going to volunteer the information. But that if asked the right question, he was going to answer. And he did. That led to the discovery that there were tapes that led to the subpoena of those tapes, a court case, the turnover of the tapes, which proved the president's guilt beyond a reasonable doubt. And I don't have to wonder what he would have said about them, because he did say about them. He knew the guilt was there.
- [65:00]
Kim
Oh, that's lovely, Joe.
- [65:03]
Barb McQuaid
Thank you. Thank you. He was a terrific person. So before I turn to the end of the show, I want to just say we got one more question we don't have time to answer, but I want to read it to you. And that is from Carolyn. It's from North Carolina, Donna. She says, I love your shows and excellent informative discussions. Thank you very much, Donna, from all of us. I'm sure that you guys want to chime in, too. I also enjoy your humor and your camaraderie. Have you all considered doing YouTube videos or sisters in Law sidebar? It would be so great if we could actually see you and see your facial expressions as you discuss your topics and questions. Your wish is our command, Donna. We are going to go on YouTube very soon, so stay tuned and watch us.
- [65:59]
Jill Wine-Banks
Yay.
- [66:00]
Barb McQuaid
Yay. So thank you, Donna, for that question. And thank you all for listening to Sisters in Law with Kimberly Eckinstor, Barb McQuaid, and me, Jill Wine Banks. We hope to see you at our live show in Denver, Colorado, at the Cervantes Masterpiece on April 23. Tickets are available at politicon.com so make sure to get yours before they sell out. And we have in all of our past live shows, sold out. Don't forget to pick up Sisters in Law merch for those of you who might be seeing this on YouTube. Look at Kim and look at me. We're wearing our Sisters in Law T shirts. You should be, too. Anyway, also make sure you tune in to our companion podcast, Sisters sidebar on Wednesdays. And please show some love to this week's sponsors, Factor, Boland Branch, ASPCA, OneSkin, and the Pets. Table. The links are in the show notes. Please support them because that's how you get this podcast for free. See you next week with another episode, Sisters in Law.
- [67:16]
Jill Wine-Banks
Yeah, me too. Okay, we can agree on this.
- [67:18]
Barb McQuaid
Well, wait a second. Alainae won their game yesterday. Hooray. Hooray. So there you go.
- [67:24]
Jill Wine-Banks
There we go.
- [67:24]
Kimberly Eckinstor
Basketball. Basketball.
- [67:26]
Barb McQuaid
Oh, isn't it basketball? Yeah. Wait, day one.
- [67:28]
Jill Wine-Banks
That's what we were talking about.
- [67:32]
Barb McQuaid
Yeah. I don't know a lot about it.
- [67:33]
Jill Wine-Banks
It's gonna be Dakota.
- [67:34]
Barb McQuaid
Okay.
- [67:35]
Kimberly Eckinstor
All right.
- [67:37]
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