294: Law Of War

Summary

#SistersInLaw Ep. 294: "Law Of War" (April 11, 2026)

Hosts: Barb McQuade, Kimberly Atkins Stohr, Joyce Vance (Jill Wine-Banks away)
Theme: The critical juncture of law, politics, and accountability in the current U.S. administration, through the topics of the Law of War, the Presidential Records Act, and the purge of immigration judges.

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Episode Overview

This episode delves into three major areas:

1. Donald Trump’s conduct regarding the laws of war in Iran and the accountability (or lack thereof) for presidential war crimes.
2. The new Justice Department attack on the Presidential Records Act via an Office of Legal Counsel (OLC) memo.
3. The dramatic, politically motivated overhaul of immigration judges under Trump’s administration and its implication on American justice and due process.

The #SistersInLaw hosts combine legal expertise and political insight, integrating recent reporting, legal precedent, and personal experience to illustrate these evolving crises in American government.

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Key Discussion Points and Insights

1. Trump and the Law of War

• Trump’s Social Media Threats as War Crimes
  • Trump’s recent posts, including explicit threats toward Iran (“a whole civilization... will die tonight, never to be brought back again.”), are characterized as “unhinged” and arguably as incitement to genocide, a war crime under both U.S. and international law. (Joyce Vance, 06:57)
  • Quote: “That’s the president of the United States threatening genocide. Genocide is a war crime. It violates U.S. law. It violates international law.” (Joyce Vance, 07:10)
• International Accountability Voids
  • The U.S. cannot be prosecuted by the International Criminal Court, and, as a veto-wielding Security Council member, it can block UN-imposed sanctions. (Kimberly Atkins Stohr, 08:09)
  • Quote: “So any measure like that would be vetoed by the United States. So, yeah, while these are the potential of war crime enforcement, there are loopholes allowing the U.S. to skirt right through it.” (Kim, 09:27)
• Congressional Power and the War Powers Act
  • Congress’s persistent “supine” failure to invoke its war powers enables unchecked executive escalation. The War Powers Act would require presidential withdrawal at 90 days absent Congressional authorization—but Congress has so far not acted. (Joyce Vance, 10:17)
• The Problem of Presidential Immunity
  • The 2024 Supreme Court decision granting immunity for acts at the “outer perimeter” of presidential authority effectively blocks criminal prosecution—even for war crimes—leaving impeachment as the sole recourse. (Kim, 12:06)
  • Quote: “Impeachment...if a war crime or threatening a war crime is not a high crime misdemeanor, I don’t know what exactly is.” (Kim, 13:20)

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2. The Presidential Records Act Under Attack

• Background of the Act
  • The Presidential Records Act (PRA) establishes that all records created by the president are public property, maintained by the National Archives. This law was a direct response to Nixon’s claim of personal ownership over presidential records. (Kim, 19:53)
• Trump’s History with the PRA
  • Trump’s prior violations—destroying or withholding documents, even stashing classified materials at Mar-a-Lago—are well-known. (Barb, 21:37)
• The New OLC Memo
  • The OLC now asserts the PRA is unconstitutional and infringes on presidential independence, claiming Congress cannot “regulate a constitutional office, the presidency, that Congress did not create and cannot abolish.” (Kim, 22:47)
  • Critique of OLC: Hosts question whether OLC is providing genuine legal counsel or simply cover for Trump’s actions. Noteworthy mention of OLC’s checkered past, including the torture memos. (Barb, 24:23)
• Legal Challenge and Precedent
  • Two lawsuits—by American Oversight and the American Historical Association—argue the OLC memo is groundless, undermines transparency, and endangers the historical record. (Kim, 26:06)
  • Quote: “Let’s talk about the irony that they are attacking the very kind of future proofing that the Congress in the 70s did after Watergate in order to wipe that away so they can do goodness knows what with these records—hide them, burn them, throw them in the fireplace, flush them down the toilet—it’s absolutely gobsmacking.” (Kim, 27:05)
  • Barb points to Nixon v. GSA (1977), where the Supreme Court affirmed Congress’s authority to legislate the handling of presidential records. She predicts the current court, despite conservative slant, is unlikely to overturn this precedent. (Barb, 28:34 & 29:47)
• The Orwellian Risk
  • To close the segment, Barb cites Orwell:
    • “Every record has been destroyed or falsified...history has stopped. Nothing exists except an endless present in which the party is always right.” (Barb, quoting Orwell, 31:21)

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3. Purge of Immigration Judges

• Systemic Firing and Politicization
  • Trump has purged over 100 of 750 immigration judges, replacing them with ideologically aligned or barely qualified candidates, often pressuring those remaining to escalate deportations or risk losing their jobs. (Kim, 35:04)
• Difference from Article III Judges
  • Unlike federal (Article III) judges, immigration judges are hired and fired at the pleasure of the President/Attorney General, with little independence. (Joyce, 36:17)
  • Quote: “Immigration judges are hired by, paid by, and serve at the pleasure of the President...if immigration judges don’t give the answers the administration wants, they simply can lose their jobs and the administration can bring somebody new in. Period.” (Joyce, 36:44)
• Due Process Rights and Political Influence
  • Asylum seekers and those facing deportation have due process rights—but Trump’s administration, influenced by Stephen Miller, has pushed judges to ignore the law, set impossible standards for asylum, and reject claims en masse. (Barb, 37:38)
  • Shocking Standard: A fired judge was told: “Maybe if you were Jewish and escaping Nazi Germany in 1943, you should get it.” (Barb, 43:05)
• Broken System, Real People
  • The backlog in cases is real, but the solution is more resources and better process—not punishment or rights reduction. As Joyce emphasizes, “Our budgets, they’re moral documents...you hire more immigration judges, you put more lawyers on the problem. You don’t give people fewer rights.” (Joyce, 41:27)
• Solutions and Next Steps
  • Hosts suggest reforms: shifting immigration judges out of the executive branch, making them independent (part of the judiciary), and using elections to reestablish respect for due process. (Barb/Joyce, 45:11)

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Notable Quotes & Memorable Moments

• On the Law of War: “That’s the president of the United States threatening genocide. Genocide is a war crime.” (Joyce Vance, 07:10)
• On OLC’s PRA Memo: “...hogwash.” (Kim, 22:47)
• On the Judicial System: “Anybody within the territorial jurisdiction of the United States has full constitutional rights, whether people like it or not.” (Barb, 38:09)
• On Immigration Adjudication: “Maybe if you were Jewish and escaping Nazi Germany in 1943, you should get it.” (Barb, quoting fired judge’s experience, 43:07)
• On Historical Precedent: “How about some Supreme Court precedent? How about that?” (Barb, 28:34)

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Timestamps for Important Segments

• Trump’s Iran Threats & War Crimes Discussion: 06:57–14:32
• Presidential Records Act and OLC Memo: 19:21–31:49
• Immigration Judges Purge: 35:04–46:07

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Listener Q&A Highlights

• Pam Bondi, Attorney-Client Privilege (50:34)
  • Retaining former AG as private counsel does NOT shield prior government actions from congressional scrutiny or subpoena.
• Election Day Disenfranchisement (51:48)
  • Call the posted 1-800 legal hotline for immediate help at the polls.
• Pardons During Impeachment (53:29)
  • President can issue pardons until Senate conviction; once convicted, removed immediately, losing all powers.

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Tone & Takeaways

The Sisters' tone is at once urgent, incisive, and deeply steeped in legal analysis, balanced by practical advice for listeners (“we fix this like we fix the rest of our broken institutions—by voting.”) Their commentary is rich, relatable, and grounded in both precedent and lived experience.

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Conclusion

This episode urgently dissects the erosion of legal norms and democratic institutions under the Trump administration—from dangerous war rhetoric and unchecked presidential power, to threats against transparency and historical record, to the human cost of an authoritarian immigration regime. As always, action—both legal and electoral—is presented as the antidote.

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For more resources and links, check the show notes.

Transcript

[A]

Foreign.

[B]

Welcome back to Sisters in law with Barb McQuaid, Kimberly Atkins Storr and me, Joyce Vance. Jill will be back with us next week. We'll be doing live shows in Denver, Colorado, at the Cervantes Masterpiece on April 23 and at the Buckhead Theater in Atlanta, Georgia on May 3. Tickets are available at politicon.com tour that link is in the show notes. And we cannot wait to see you there. But we've got a couple of big shows to get through before we go live. In today's show, we'll be discussing the law of war, the Presidential Records act, which is newly under attack from the Justice Department, and, and also we'll be discussing immigration judges and how they operate. But Kim, before we do that, I think if we don't let Barb talk about the glorious victory that the University of Michigan's basketball team had the other night, there will be no living with her.

[A]

I think that you're right. They have reached the pinnacle, going through schools like Greg's beloved Saint Louis University and others to win again. Barb, how does it feel?

[C]

Oh, my gosh. Do you guys want to talk about this? I can't believe you want to talk about this. This is so great. You know, my husband often jokes, how can you get so much satisfaction about watching other people play a sport? I don't know, but I do. And in fact, you know, I am a die hard fan. My husband's a fan, but he is not quite the passionate, be there in person kind of person I am. And so after Saturday night, he said, you want to go down? And we did. We got tickets on StubHub, you know, relatively speaking, some cheap seats in the nosebleed section. And we drove down to Indianapolis on Monday and we went to the game and it was fantastic. I had to teach the next morning. So we were up at, oh, dark 30, back on the road. The whole trip was like 12 hours, you know, whirlwind. It was great. And my voice is still, is still gone from the game. It was wonderful. There's something about being at a live event that I think is really special. You may have experienced this at a lot, like a musical performance, a concert. I hope our live shows, there is a community of people that get together when you're all cheering for the same thing. It's almost spiritual. And it was really wonderful. Lots of joy, lots of high fives. So I will enjoy this for a long time.

[B]

Hey, what about next year? The final four is in Detroit, isn't it?

[C]

It is, yeah. Next year in Detroit.

[B]

Are we all invited?

[C]

Yeah, come on. I'll, I'll come on up and we'll watch Michigan defend its title.

[A]

That sounds like a lot of fun. I mean, you know, twist my arm to go to Detroit anytime.

[B]

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[B]

Right. So unhinged is a really great word. It's descriptive. That's all that you need to know. I'll just read part of one where Trump says a whole civilization he's talking about Iran, will die tonight, never to be brought back again. That's the president of the United States threatening genocide. Genocide is a war crime. It violates U.S. law. It violates international law. We are a signature of the Geneva Convention, and our Constitution makes it clear that those treaties are, in fact, part of the law that the president of the United States takes an oath to uphold when he enters on duty. So none of this, I mean, how many times do we have to say this? None of this is normal. But here we're talking about war crimes. We're talking about a threat to an entire country. And that, frankly, is how Donald Trump spent Easter morning.

[C]

So, Kim, let me ask you about the consequences for this kind of thing. Is this the kind of thing that a person could be prosecuted for by the International Criminal Court, or is there any other enforcement mechanism for a president who engages in war crimes?

[A]

So, theoretically, it would be something that could be prosecutable. And I am of the view, based on my reading of international law and the Geneva Convention, that the social media post itself very well can constitute a war crime, because the Geneva Convention provides that you cannot terrorize a population in order to gain some sort of political advantage. Right. Which is clearly, by any reasoning, what exactly those posts did. So I think that the war crime has probably already been committed, but the way that they are enforced is two ways. You have the International Criminal Court, which you talk about, which can prosecute people who engage in war crimes. Unfortunately, the United States is not a party to it, so that nullifies that particular point of Accountability. Then you also have these other. The international treaties that we talk about are enforced through the United Nations Security Council, which consists of members that can bring sanctions against countries that engage in this sort of act. But there are five members of the Security Council that are permanent members that have vote veto power over such measures. And guess what? The United States is one of them. So any measure like that would be vetoed by the United States. So, yeah, while these are the potential of war crime enforcement, is there loopholes allow the United States to skirt right through it.

[C]

Well, Joyce, I want to ask you about this war, right? You know, all of us learn, I think in, you know, fifth grade, if not some point in school, that the power to declare war belongs to Congress, the legislative branch. The President is allowed to, you know, engage in defensive efforts and other kinds of things. And then there's also the War Powers Act. So where are we with all of this? How is it that we are in a war with Iran? And what's Congress's role in all of this?

[B]

And that really is the question, right? What is Congress's role in all of this? Because Congress continues to be supine. Had Congress invoked the War Powers act and forced the President to jump through those hoops early on, when Democrats brought that to the floor, we would be in a very different place. But now here we are, 40 something days into this military action and the reality is that the War Powers act will kick in. It will require a withdrawal at the 90 day mark if Congress has not authorized war in Iran. The way that works is that at the 60 day mark, he would have to begin withdrawal. He would have 30 days to complete it. So that's the 90 day window there. But Congress has been very lenient and complacent over this action. It doesn't look like there are the votes in Congress to actually authorize war in Iran. Perhaps that will become moot if the ceasefire holds. But, you know, this is a frightening moment with American boots on the ground in the Middle east and incredibly volatile region. And the reason I'm sort of belaboring that point is I think most Americans are acting like this is just business as usual and nothing out of the ordinary. It's really a moment where people need to wake up.

[C]

Yeah, well, speaking of having Congress wake up, Kim, we know that in the 2024 decision by the Supreme Court, the President can no longer be prosecuted criminally for conduct occurring at the outer perimeter of his constitutional duties. So what happens if a President violates his constitutional duties? What recourse is left Is there anything that can be done for a President who violates the law of war and violates the Constitution?

[A]

Yeah, very little because of that ruling. I think that's why we are here. I think a very good argument could be made that we wouldn't be in this position and that the President would not feel as free to engage in the sort of unhinged manner that he's engaging in, but for that immunity decision, which has all but guaranteed that anything ostensibly within his power as presidency is totally off limits when it turns to accountability. Now, it's worth noting that technically he may be immune, but that does not apply to his Cabinet members. If you do get people within the Pentagon giving orders that turn out to be illegal and those of war crimes, that does not in itself insulate them. Of course, the President also has the pardon power, which he has used liberally. So I also fear that that will be without repercussions, too. I mean, if he gives a pardon, it applies not only to criminal courts, but also court martials. So I fear that the entire apparatus of the Pentagon is operating as if they are all above the law.

[C]

So what's left? What can the people and their elected representatives do?

[A]

Yeah, so there is technically the 25th amendment, which we've talked about before. But again, even unlike his first term, he has filled his Cabinet with sycophants and it would take Cabinet members to invoke that. So that's a no go. I say the only thing is impeachment. I mean, if a war crime or threatening a war crime is not a high crime misdemeanor, I don't know what exactly is. So that's gonna take political will. Either the political will of folks including the Republicans like Ron Johnson, who are as MAGA as they come, who said that this was not okay, or we have a midterm election coming up, making that for the American people, a litmus test for their votes. For every single member of Congress who is up for reelection in November, to say, you have to be able to hold a president accountable or I'm not voting for you. So that is where the American people come in.

[C]

Well, President Trump has been impeached twice before. Maybe the third time will be the charm.

[D]

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[B]

This week, the Office of Legal Counsel at DOJ weighed in with a new opinion. And as y' all may remember from our conversations way back during the Mueller report about how OLC opinions are binding on Justice Department appointees, then it was about whether or not a sitting president could be prosecuted. The answer was no. Now there's a new one about the constitutionality of the Presidential Records Act. Kim, can you start by explaining what the act is is and why it was created in the first place?

[A]

Yeah. So the Presidential Records act operates on the principle that the records that a president creates do not belong to him. They belong to the American public because he is an elected official acting on behalf of the nation. And so the Presidential Records act provides that all documents so all correspondence that includes emails, includes social media posts, any sort of policy, paperwork, just anything that the President creates is notes of meetings. Anything that that is created needs to be needs to stay within the US Government. Now, the National Archives is the agency that's been designated to keep these records for posterity and to keep them in the hands of of the public. And it came out of our our friend Jill is not here today, but it is a vestige of the Watergate scandal because President Nixon claimed that everything that he did and wrote within the White House belonged to him. And so afterwards, as a best practice, Congress acted to reinforce no, no what happens in the White House is about the people, not about the person that is in it. And that is why that act was passed.

[C]

I wish Jill were here today. She'd probably say, like, she wrote it or something.

[B]

Well, here we are, right? With this super favorable comparison for Trump. The two presidents who object to the Presidential Records Act, Donald Trump and Richard Nixon. I mean, Barb, this is not his first brush with the Presidential Records Act. Can you remind us of what happened the last time?

[C]

So, of course, there were these reports that President Trump would tear up documents that he didn't like. Some were even flushed down the toilet, and people had to, like, tape them back together. There were all those kinds of reports. But of course, there was the big one, which resulted in his indictment. His refusal to return documents that he had possession of during the presidency that the National Archives asked for back. And they went back and forth for, like, 18 months. Some of them were highly sensitive, classified documents that are, you know, allowed to be seen by only a handful of people in the US Government relating to, you know, battle plans, war plans, defense plans, and other kinds of things. And President Trump ended up storing them at Mar a Lago in ballrooms and a bathroom in his private office. So you can see why compliance with the Presidential Records act is not something that President Trump does easily.

[B]

Okay, so compliance wasn't the ticket for Trump. And he then turns to, you know, his law firm, right? What the place Barb and I used to work when it was called the Justice Department, but the place that now delivers for Donald Trump. And he asks them to. To issue this opinion on his behalf. What happens?

[A]

Yeah. So we get this memo from the Office of Legal Counsel, which, as you says, governs the way the executive branch operates. And I will read you a little part of. Asserts that the Public Records act, quote, exceeds the oversight power because it serves no identifal and valid legislative purpose. And it exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of public austerity. It exceeds Congress's regulatory power over statutory agencies because it purports to regulate a constitutional office, the presidency, that Congress did not create and that Congress cannot abolish. Basically, it's a lot of mumbo jumbo which claims to say we are the unitary executive, and no one, not Congress, not a court, nobody can tell us what to do, because we are an imperial presidency that is above even regulation or checks and balances by the other agency, which, in my opinion, is hogwash.

[B]

Yeah, I mean, I'm the tough guy. Don't tell me what to do. But Barb, you know, I mean, we both had interactions with the Office of Legal Counsel. I'm going to say, even as an appellate lawyer, we sort of thought of them as being a little bit the pointy heads in the Justice Department who sort of looked at these high end legal propositions and issued these opinions that we didn't always, you know, agree with, but that we were bound by. Can you talk a little bit about this Office of Legal Counsel, give people context for operating, for understanding this memo that's been issued?

[C]

Yes. So historically, as you said, the Office of Legal Counsel are some really top notch lawyers. They will come in and there may be some unresolved legal question that the White House or some other part of the Executive branch will ask for a legal legal advice. The two famous OLC opinions are, can a sitting President be charged with a crime? Both the Nixon White House and the Clinton White House wrote an opinion that the answer to that is no. It was OLC that wrote the torture memos in the post 911 era justifying it. So, you know, there is some politics intertwined with what the Office of Legal Counsel is doing, but what they're supposed to be doing is giving their best expert legal opinion to the Executive Branch so that it can act accordingly and lawfully. But what we've seen so far in this Office of Legal Counsel to date has been efforts to skirt the law legal opinions suggesting that the Trump administration can do things it wants to do. For example, there was a secret OLC opinion justifying the capture of Nicolas Maduro in Venezuela. So. So I've been a little skeptical of this particular Office of Legal Counsel and whether it is actually giving genuine, unbiased, independent legal advice or simply providing cover for the Trump administration to do what it wants to do.

[B]

Yeah, I mean, I think that that's a fair assessment and of course, we'll find out. We actually will get an answer to this question of whether the OLC is outside of his lane. Because, Kim, there's now been a lawsuit that's been filed challenging the memo. Can you talk about the two plaintiffs that have brought that case and the relief that they're Egan?

[A]

Yes. So God bless historians. Right. So I love this lawsuit so much. 2. Two lawsuits brought by two groups, American Oversight and the American Historical association, assert, in my opinion, correctly, that the OLC pointed to no congressional authorization, no judicial precedent, no Supreme Court case, no nothing to come to this conclusion that this is unconstitutional. It's all right for the Office of Legal Counsel to determine that something is unconstitutional, but they have to base it on something. And the abject lack of that in the OLC memo at all should mean that this should be struck down completely. And the fact that it's important is because historians rely on these records. This is how we know what we know from the founding, from throughout history, that judges rely on when they're determining if something is unconstitutional that we understand to not repeat the mistakes that we have made, like in Watergate, and pass laws in order to fix them. So the fact that they are attacking. Let's talk about the irony that they are attacking the very kind of future proofing that the Congress in the 70s did after the Watergate scandal in order to wipe that away so that they can do goodness knows what with these records, hide them, burn them, throw them in the fireplace, flush them down the toilet, is absolutely gobsmacking. And I'm really grateful that people who believe in history believe that we need to preserve and restore it in order that we don't miss repeat. The worst mistakes that we can make as a nation are the ones that are suing to protect. This act, I think, is absolutely perfect.

[B]

Yeah. Could not agree more. I mean, this is so much. This is the legal equivalent of Donald Trump taking his Sharpie marker and changing the trajectory of a hurricane because he didn't like where it was going to make landfall. Barb, when you look at this lawsuit, what do you think the strongest arguments are? Kim has pointed out that there's nothing good on the White House's side. What do you think the best thing that the historians and the transparency proponents have in their arsenal is?

[C]

Well, how about some Supreme Court precedent? How about that?

[B]

Oh, my.

[C]

When this, you know, when this got passed, the Nixon administration filed a lawsuit to challenge it. There's a. It went to the Supreme Court, Nixon vs General Services Administration, and he raised the exact same argument that I'm the executive branch. You can't tell me what to do. Congress. And of course, what they argue in the lawsuit is that this is not one of Congress's enumerated powers. But what the court said there, as they often say, is Congress must act according to its enumerated or implied powers. And so anything that is sort of necessary and proper in carrying out their express powers are also granted to them among these implied powers. And they say they have the power to legislate and to legislate effectively for the American people. They should look to history, they should look at records, they should understand what's happening in the world. They should understand what's happening in the White House with the President. And so being able to review those records and share them with the public is an essential part of their legislative function. So it makes logical sense, it makes constitutional sense, and there is legal precedent for this. So I think, you know, it's always hard to predict what this Supreme Court is going to do. It seems to me that the Trump administration is taking a little flyer that, just as they did in Dobbs, and decided that, eh, we're just going to overturn precedent. Maybe this court will do it again, but I don't think so. Although this court is extremely conservative, I don't think they're maga. I don't think they're in the bag for Trump, and I don't think they're going to buy this argument.

[B]

You know, it's, you make a really important point here. Right. The court has pumped the brakes a little bit this term. I mean, Kim has written some great pieces talking, for instance, about tariffs or about what might be coming with birthright citizenship, and those are on substantive issues where the White House is clearly wrong. I will say this one makes me nervous, although I agree with you. I think that they ultimately won't say yes here, but it makes me nervous because this is a court that has been very on board for the unitary executive and the idea of a community expanding presidential power. So I, I guess, Kim, it might be time for us to pull out our ledge again and start creeping out.

[A]

Come on. I have at least one foot on the ledge on this one.

[C]

I gotta say, Joyce, you wrote an excellent substack on this, on this topic. And you, you led off with a quote from George Orwell in 1984. I think sometimes people overquote 1984 and George Orwell because it's so present in what we're doing. This one was still on. I wonder if you wouldn't mind ending this segment by reading that particular passage.

[B]

Wait, you want me to actually find it while we.

[C]

I have it at my fingertips, if you'd like. Would you like me to read it?

[B]

Yes, you read it.

[C]

So, as George Orwell wrote in 1984, Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered, and the process is continuing day by day and minute by minute, history has stopped. Nothing exists except an endless present in which the party is always right.

[A]

Oof. Ooh, child.

[B]

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[A]

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[B]

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[C]

Okay. All right. Good to know. Yes. Are you dropping hints? Are we getting close to a gift giving opportunity?

[A]

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[C]

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[A]

So we've talked a lot about ice raids and the horrific events that have happened in cities like Minneapolis. But there is another part of President Trump's mass deportation gambit that is getting a little less attention, and that is the purge of immigration judges. The New York Times this week did a good deep dive into it, and I want to talk about it, because according to that reporting, more than 100 of the 750 immigration lawyers have been fired by Trump since he's returned to office. That's a huge percentage. And it gets worse. The people who have been appointed to replace them have either been lawyers that come from other agencies like the Department of Defense, or they are former immigration prosecutors. So you know what he wants out of them, or they're just people with no immigration litigation experience at all. And the judges that remain are feeling the pressure to either pick up the deportations or lose their jobs, too. So I want to start with Joyce. What are immigration judges, and how are they different from the judges we think about, which are Article 3 judges?

[B]

You know, this is a super important question, and I'm so glad that you wanted to do this topic, because I've had a piece half written on this for the last two months that I've never had the time to finish and publish. So great opportunities, opportunity for us to make this point very clearly. Federal judges, Article 3 judges, they have life tenure, they're independent. Ain't nobody that can tell those folks in black robes what to do. Right. And there are some pitfalls to that situation, but also the strength is the independence it produces from, in this case, the executive branch. That's not how it works with immigration judges. Immigration judges are hired by, paid by, and serve at the pleasure of the President, technically the Attorney General. But in this administration, that means the same thing. And so if, for instance, immigration judges don't give the answers in cases that the administration wants, they simply can lose their jobs and the administration can bring somebody new in, period.

[A]

So, barb this to me, the fact that these judges can just be fired and that they're pushing through deportation to keep their jobs, don't the people who come before them have due process rights? And also, what does Stephen Miller have to do with all of this?

[C]

Yeah, you know, you would think so. And in fact, what's often going on in these deportation proceedings are one of two things. Either somebody has been, you know, found in violation of, maybe they've exceeded their stay on a visa. Maybe they have entered the country without lawful place of entry, without permission to come in. But oftentimes we have individuals who've made asylum claims and Asylum claims are permitted under the Immigration Nationality act, and it says that any foreign national may ask the United States for asylum that is seeking permission to stay in the United States. So for any of those reasons, and those are the reasons people end up before immigration judges. They have due process rights, a right to notice, and an opportunity to be heard. Anybody within the territorial jurisdiction of the United States has full constitutional rights, whether people like it or not. But what does Stephen Miller have to do with it? Well, he has famously misstated the law, but has said the only process invaders are due is deportation. Now, of course, that just completely disregards the Immigration and Nationality Act. It's not the law. If he wants it to be the law, we need to change the law. And that's been one of the real problems is we have an Immigration and Naturalization act that a lot of people just don't like, but that doesn't mean you get to disregard it.

[A]

Yeah, and that's right. And a lot of times these people who are making their asylum claims, they're doing it on their own, have an attorney, they're representing themselves. It is part of a system that is a greater immigration system that is, frankly, badly broken. Joyce. And we have had in past administrations, a huge backlog of immigration cases that takes years and years for them to actually be processed. So just playing a little bit of devil's advocate here, there are some people who say, good, something needs to be done to fix this backlog, to address this influx of people who get to stay for years and years before their claims are even adjudicated. What do you say to people who don't get why this is a problem?

[B]

Yeah, I mean, so, Kim, I lived through the backlog during the Bush administration, actually, where they took cases out of the immigration section, sent them out across the country, and in. And I ran the Appellate Division in my office. Then we were arguing cases in the Second Circuit and the Ninth Circuit and the Third Circuit, as well as in our own circuit. And these were mostly asylum cases. They can be complicated. They require careful consideration because people's lives were at stake. I mean, the example of what some of these cases are about, right? Women in China who are forcibly getting abortions, people who are being denied religious freedom in some countries, people who are at risk of being executed in their home countries. Asylum petitions aren't just fun and games for Stephen Miller to flick at and pretend that these people aren't entitled to having some form of process in the greatest democracy in the world. So, yeah, I get all of that, but, you know, Our budgets, they're moral documents. And if you want to have more process and speedier process in this area, then you do exactly what needs doing. You hire more immigration judges, you put more lawyers on the problem. You don't give people fewer rights. You don't endanger them more. Instead, you have to make a decision that you're willing as a country to invest in the machinery that lets these cases move more quickly. And I don't have any problem with that. I mean, I think that that would absolutely be a value here. But on the back end, in many of these cases and the reason that my office was involved in them, we weren't involved in the internal administrative process. Right. That's happening inside of justice, inside of the immigration sect. We were only handling the ones where people had a right of appeal out into courts of appeals. That's a limited subsection of the cases. That's not going to go away just because this administration doesn't want people to have their rights. So it's at the same time much more complicated than Stephen Miller and his ilk want to pretend it is, and also far more important and just not something we should pay short shrift to.

[A]

And, yeah, I appreciate so much that you're talking about the people involved here, because I feel like the administration is just looking for numbers. Like they're setting quotas, they're looking at numbers. And it has nothing to do with the real lives that are impacted by these policies. Barb, I was really struck by the judges who had the courage to speak to the Times. What stood out to you among the judges who. Who spoke in that report, which we will put in the show Notes?

[C]

Yeah, there were a couple, one who's already fired. One of the fired judges said that he was getting pressure from a Trump administration official to reject asylum claims and to have very, very high standards for who would receive asylum. And this judge said he was told,

[A]

I can only bet what those standards are.

[C]

Well, here's the standard. Here's what they say. Maybe, maybe if you were Jewish and escaping Nazi Germany in 1943, you should get it. So they're suggesting that the standards just maybe. Yeah, maybe. Maybe that one.

[A]

Oh, my God.

[C]

And, you know, one of the things I think it is useful to share is what asylum is. You know, there is a statute called the Refugee act of 1980 that allows judges to grant asylum to individuals who are fleeing persecution on account of of religion, race, nationality, political opinion, or membership in a particular social group that has been persecuted. And one of the challenges is sometimes migrants who come to the United States are fleeing situations that don't qualify. Maybe it's I'm living in poverty, or there's gang violence, or there's climate change that's caused problems in my country.

[A]

Those aren't.

[C]

Those don't qualify. So the judges are asked to make these very individualized assessments. It isn't easy to put everybody into a box. And so what they're supposed to do is to make these decisions based on the law and the facts to decide if this person should be permitted under this statute to remain in the country. But what we're seeing now is what this other judge said who is still on the job. And she said, so I'm supposed to decide these cases on the law and the facts.

[A]

Right.

[C]

But I'm looking over my shoulder all the time because I feel like if I make a decision that can be easily second guessed, I'm gonna lose my job. And so that really is putting intimidation and threats of retribution on the table instead of just the facts in the law that these judges are supposed to be using.

[A]

So what's the solution? Can Congress step in here? Is there a way to get these cases to be heard by independent judges? How do we fix this?

[B]

You know, I think we fix this like we fix the rest of our broken institutions by voting. The midterm elections are a start, but this one really is going to take administration change.

[C]

Yeah. You know, because as Joy's described, these judges are employees of the executive branch. Unless we were to change that, which is something we could do, we could make them part of the judiciary, which I think people kind of think of them as they wear black robes, they're in a courtroom, seem like judges, and call them judge.

[A]

Particularly immigrants may not understand that subtle difference that they are making. Their pitch to the administration, not to an. An independent arbiter.

[B]

Yes.

[C]

Yeah. And so maybe, you know, maybe that's due process says you get notice a hearing from an impartial arbiter. Is a administrative law judge who works for the Department of Justice truly independent? Maybe that's a place to make a change.

[B]

I mean, it's fascinating. We use administrative law judges in a lot of other places, labor cases, for one thing. And maybe it's time to rethink that whole regime.

[A]

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[B]

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[B]

Well, now it's time for our favorite part of the show where we get to take on our listeners questions. This week, like all of the recent weeks, y' all have come up with some very heavy hitting questions. There's a lot going on. If you've got a question for us, please remember that you can email [e-mail] or you can tag us on social media using the hashtag Sisters in Law. And if we don't get to your questions during the show, we'll try to answer it during our new Wednesday show, Sisters sidebar, which you can find here as well. So let's get started. We've got a number of great questions this week. Kim, I'm going to start with one for you from Lisa. This one came from Instagram of all places. And she asks, since Pam Bondi has been fired as Attorney General, can Trump retain her as private counsel so that she would be precluded from testifying against him in future congressional hearings by invoking the attorney client privilege?

[A]

Oh, this is a great question, Lisa. And I like how you think. But unfortunately, the president cannot, well, fortunately, the president can get not get away with that gambit. Could he retain her as private counsel? Yes, yes. Nothing would prevent her so long as she is duly licensed. And the last I checked, the bar complaint against her was not successful. So she is still an attorney who can practice law. He can retain her. But that does not change the fact that while she was attorney general to the United States, Donald Trump was not her client. The American people were her client. And she is just as answerable to a subpoena from Congress as, as anyone else. So that would not stop her from being called to testify and even compelled to testify before Congress on their as they carry out their relevant oversight over the executive branch. That that's something that he can hire her to be whatever, he can adopt her. And it still wouldn't stop her from being from being subjected to a subpoena there. So.

[B]

Well, we've got a great question from Thalia who asks what does an average citizen do if they feel disenfranchised or threatened at the election polls? And Thalia, I have an answer for you. This is such a great thing that everyone needs to know on election day across the country, you'll see a series of 1, 800 numbers posted. They'll be posted by groups like the Legal Defense Fund, which is the litigating arm for the NAACP Lawyers Committee for Civil Rights will also post a 1, 800 number. And if you're having a problem in real time, the best thing that you can do is skip straight to one of those 1, 800 numbers and call and ask for advice. They will have lawyers on the ground. They will be prepared to help. I've been involved in this in the past where we've even had to work with the Secretary of State to say, if you don't make it possible for these people to vote, we're going to to go to court immediately and force you to keep the polls open for longer. So this is a great way to interact on election day and protect your rights here at Sisters In Law. As we get closer to election day, we will be sharing some of those numbers and the groups doing the work with you so that you can all be prepared for election day. Last question. Barb, this one's for you from Neemo in North Carolina. We found Nemo. Nemo was in North Carolina all along. But Nemo asks, if a president is impeached and then ultimately removed from office, can that person still pardon other people between the time Congress votes to remove them and the time they are actually removed?

[C]

Well, Nemo, thanks for that question. We've got all kinds of clever legal minds out there today looking for all the loopholes. Well, I actually had to take a look at the language in the Constitution. Nemo. Article 2, Section 4 of the Constitution talks about the impeachment of the president or the vice president. And it says that the president and others shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors. So it's on conviction. As I read that, what I hear that to mean is, remember, there's two parts to impeachment. There's what happens in the House. That is the charging phase, like being indicted. You're still not convicted. And then there's going to be a trial in the Senate where the evidence comes in and the senators vote and a decision is made to convict or acquit the President. Upon conviction, they are removed. No more ability to pardon anybody. But I do think in that window, in between the time of the charge and the time of the conviction, a president can pardon someone, but the moment they are convicted, I think they are, by operation of the Constitution, removed immediately. So there's no window of. Wait, wait, wait, wait. Before I leave, I've got one last thing I want to do. They'd have to get their ducks in a row before they get convicted.

[B]

Thank you for listening to Sisters in Life with Barb McQuaid, Kimberly Atkins Storr and me, Joyce Ban. We hope we'll see you at our live shows in Denver, Colorado, at the Cervantes Masterpiece on April 23 and at the Buckhead Theater in Atlanta, Georgia, in May 3. Tickets are available at politicon.com tour but you better go run and get them because they will sell out inevitably. You can find that link in our show notes, but it's politicon.com tour. Don't forget to pick up Sisters in Law Merch and other [e-mail] merch and make sure you check out our new companion podcast, Sisters, sidebar, where we answer your questions on Wednesdays. Please show some love to this week's sponsors, Thrive Cosmetics, Gusto, Delete Me Quince and Wild Alaskan Company. The links are in the show notes. Please support them because they do make this podcast possible. See you next week with another episode, Sisters in Law.

[A]

All right, that was delicious.

[C]

Yeah, let's end that there.

[D]

Okay.