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- [00:00]
Leah Litman
Strict scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers. Specifically, a multi faith group of federal employees filed a new lawsuit against the U.S. department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out, saying the proselytizing Easter email sent by Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right. Not only is it in the First Amendment, it's in the first sentence of the First Amendment. Quote, no law respecting an establishment of religion and no means no as in no proselytizing government employees. The hits just keep on coming from this administration and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org crooked to learn more about their work and how you can get involved.
- [01:16]
John Green
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- [02:19]
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- [02:49]
Leah Litman
Mr. Chief justice, please support. It's an old joke. But when a man argues against two beautiful ladies like this, they're going to have the last word.
- [03:01]
Mary Moriarty
She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.
- [03:12]
Kate Shaw
All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I'm Kate Shaw.
- [03:38]
Leah Litman
And I'm Leah Littman. This is, alas, another Just the Two of Us episode. We are without Melissa Murray today, but fear not, the Department of Justice may have beclown themselves just enough that we think we have some gags even without Melissa. Jokes and humor. Okay, so today we're going to be covering the opinions that the Supreme Court managed to release. Spoiler, not that many. So most of it is going to be a smorgasbord of news that includes judges going wild, as in feral, the Department of Justice doing a lot of oopsies, and the White House signaling that it basically views all of anti discrimination law as unconstitutional. More precisely, it appears to think that conventional anti discrimination law is unconstitutional because anti discrimination law is itself discrimination. As always, it will make a lot of sense and we will explain it two things.
- [04:28]
Kate Shaw
One, when you said it is just the two of us, the rhythm of your voice saying just the sounded like you were saying this is a just the tip episode. And I just wanted to say that it is not a chip.
- [04:36]
Leah Litman
I was honestly thinking of the Just the Two of Us song as I was saying it, like in that rhythm.
- [04:42]
Kate Shaw
Okay, well, why not both? And yes, as Leah said, the DOJ has been very busy this week. We will explain. But does it sort of feel to you like there's this little bit of a gap because the Supreme Court is taking its sweet time in issuing like the horror show of decisions to come. And so DOJ has seized the opportunity to kind of step into the breach. Anyway, we will elaborate and because we will spend a fair bit of time talking about the Department of Justice, including what prosecutors should not be doing, we're going to end this episode with a segment about what they should be doing. And that is a segment with a first time strict scrutiny guest that we cannot wait to share with you. So if you are wondering what can be done to check federal law enforcement and their overreach and protect our democracy in the lead up to the election, please tune in for that last segment.
- [05:31]
Leah Litman
And now to Supreme Court opinions. So we got three opinions last Thursday, none of the big ones. This means There are now 20 opinions left in argued cases and potentially just two weeks left of the term. That's going to make for a completely bananas next two weeks and possibly more. If they go into the week of June 29, it seems like they are likely to start adding opinion days. So brace yourselves for that and possible bonus episodes to go along with those good times. I just want to say, like, what is taking them so long? Because I wrote an updated version of Lawless while you guys were doing shit and it's actually out tomorrow. So if you are looking for something to read and it's in the absence of Supreme Court opinions, you can get the paperback version of Lawless out tomorrow. Just an FYI, it is an antidote
- [06:29]
Kate Shaw
both to the Supreme Court's bad decisions and also to the absence of their bad decisions. It will cure all your ailments. Why not both the paperback and its new material and newly lighter format, you know, for easy shoving in your, you know, shoulder bag, on your bicycle wherever you're going.
- [06:48]
Leah Litman
The beautiful, the flawless version of Lawless.
- [06:51]
Kate Shaw
Exactly. But just, just in terms of the kind of opinion pace issue. So you know, people who've been following this for a long time will I think know, but maybe sort of newer listeners don't realize like it is. You know, the end of the Supreme Court term is always insane, but they are really concentrating so many huge cases in the last two weeks of the term like gird your loins, hydrate and rest. It's going to be a wild stretch and as Leah said, it could be the next two weeks and they're just going to get a ton of this dump, tons of them on us in like three or four opinion days. Or they could go into the week that ends on July 4, which they typically really try to avoid doing. But I don't know if they can get everything out before then. So it will either be two or possibly three more weeks of this anyway. So I guess marathon, not a sprint is the tldr. Okay, on to the three opinions that we did get last week. The first, Abuomo versus United States, is a case in which the court unanimously held that a defendant who was charged with knowingly falsifying a document with intent to obstruct a federal investigation, had to be charged in the district where the alleged falsification occurred, rather than where the federal investigation was located. So here the defendant, who was a former Twitter employee, allegedly took a bribe from the Saudi government in exchange for giving them information, information about Saudi dissidents and their activity on the platform, and then made a false invoice to support his claim that the payment was just like for consulting services. He made this false invoice in Seattle. So he was actually being questioned by federal officials, said it was just payment. They said, you know, do you have any supporting material? And he like went upstairs and printed out a allegedly fake invoice. So all that happened in Seattle, but he was charged in California where the investigation was based. And here the court, in a unanimous opinion authored by Justice Kagan, said that this California charging was improper. He had to be charged in Washington.
- [08:48]
Leah Litman
It is possible that this case might affect DOJ's ability to continue to persecute a Rhode island hospital for providing gender affirming care. Recall that DOJ is using a Texas district court to issue subpoenas to the Rhode island hospital, maybe saying it's investigating this from Texas. And the Texas district judge went along with it issuing an anti suit injunction that purports to forbid the Rhode island hospital or patients from filing to challenge this conduct anywhere other than the Texas district court or fifth Circuit. At a minimum, the Supreme Court's decision suggests that any prosecution resulting from this, perhaps none. Right. The investigation hopefully might be the point. But any prosecution would have to be in Rhode Island.
- [09:31]
Kate Shaw
Yeah. And hopefully there's no criminal prosecution. And I gather there are statutory venue issues that are distinct from the kind of general constitutional venue issues at issue in the case we just talked about. But the kind of high level observation that there's something troubling about doj, like in one place seeking to target conduct that happens somewhere totally different does seem, you know, at least to have echoes of the Rhode island situation where this Texas district judge and DOJ together are trying to affect activities in Rhode Island. Okay, next case. Keith Lee vs Buddy Ayers Construction Inc. Is a case involving this situation where a debtor who files for bankruptcy might lose their ability to pursue a potential tort claim because they didn't list that toward claim as part of the bankruptcy estate. So the bankruptcy code has a lot of parts of it. One of them requires debtors to list as part of an estate, quote claims against third parties whether or not the debtor has filed a lawsuit or made a demand for payment. Here the debtor filed for bankruptcy, then was in an accident, then filed a personal injury lawsuit growing out of that accident and informed bankruptcy council that he was doing so. But the bankruptcy court was never informed. The defendant in the tort suit filed to dismiss the debtor slash tort plaintiff's suit on the ground that the debtor hadn't disclosed it to the bankruptcy court 18 months into the litigation. And the Supreme Court said that the right inquiry in this case, which wasn't the inquiry that the lower court had used, is to ask whether the totality of the circumstances suggests that this omission was inadvertent or mistaken.
- [11:01]
Leah Litman
We also got a very interesting federal court's opinion. And by interesting, I mean another opinion that makes amok of federal courts, private rights of action and statutory interpretation. Only bright side here was a dissent by Justice Jackson defending consideration of legislative history and trying to reorient, you know, the enterprise of statutory interpretation. So in this case, FS Credit Opportunities vs Saba Capital, the Court held that the Investment Company act does not provide a private right of action, which is the legal authorization for an individual or entity to bring suit for private litigants to challenge contracts that allegedly violate the act. The opinion by Justice Barrett leans heavily on an opinion by the great man himself, Antonin Scalia, that narrowed the availability of private rights of action, which he had said must be created by Congress. And because Scalias and now the Court's method of interpreting what Congress has done is a wooden form of textualism that asks, did Congress use the words private right of action? They concluded there was no private right of action here. Now, that's a little bit of an exaggeration. They didn't actually require Congress, say the magic words private right of action, but close to it. There has to be rights creating language that focuses on a particular class of people. And if Congress explicitly created another remedy, as it did here by giving the securities and Exchange Commission enforcement authority, then the court infers there's no private right of action.
- [12:24]
Kate Shaw
So, Leah said the opinion leans on the great man, Justice Scalia. It definitely does that. It also leans on him not just as jurist, but also, I don't know, like author of treatises. There's this treatise by Scalia and Garner
- [12:36]
Leah Litman
reading Omnipresence in the sky, authority on all things.
- [12:41]
Kate Shaw
Yes, it uses him in all those ways. Also Judge Easterbrook's statutes domain, another sort of, I don't know, foundational text in textualism. But it feels to me like these are some pretty dated citations here, Justice Barrett, like these very tired critiques of a caricatured version of legislative history. It's improper, it's undemocratic for us to read things that committees of Congress wrote or that were said in the course of considering statutes or amendments. These are critiques that have been around for decades. I feel like they're actually more interesting, recent sort of like discussions in statutory interpretation that don't really go mentioned at all. But there's also one thing that's a little bit of, like a kind of in the weeds observation. But if you'll indulge me, I want to quickly make it so. The opinion uses statutory history, like amendments to a statute, and reads significance into those amendments. Here's what Congress was trying to do with amending the statute that is actually trying to divine legislative intent, which is also what legislative history is supposed to speak to. And I'm not sure Justice Barrett quite realizes that she's not really, really doing anything very different when she is assigning meaning to Congress's again, changing or retaining statutory language. You know, that doesn't feel very different from doing legislative history. I, I was thinking about this because Anita Krishna Kumar has a forthcoming book about textualism and has, I think, a really convincing argument that much of the time when the Court uses this statutory history, it's not really very different from the way the Court uses legislative history. But of course, the great man would say statutory history was okay and legislative history was not, and so she is trotting those canards out. In any event, I find it a pretty maddening opinion. The three Democratic appointees agreed, although two different degrees. The principal dissent, the one that found the majority opinion the most maddening, is by Justice Jackson, who, after concluding that text, structure and statutory history support a private right of action, also explains that properly contextualized legislative history does, too, and as Leah already alluded to, gives this really forceful defense of considering that legislative history. Justice Kagan didn't join those portions of the Jackson dissent, wrote a very short separate dissent, basically saying her views on legislative history fall somewhere between the majority and the dissent's views, but that she generally agrees with the dissenters that even without legislative history, other material makes clear that there is a private right of action here.
- [15:14]
Leah Litman
The observation that the majority opinion is relying on these old sources of textualism is interesting because to me, it just kind of reinforces a sense in which at this point, this is just dogma, right? Totally.
- [15:25]
Kate Shaw
Totally.
- [15:25]
Leah Litman
You have to believe a particular thing. It doesn't matter how that debate has evolved. You just cite the foundational texts and then you're in the club and you're doing the right thing. And it's just so silly, right?
- [15:36]
Kate Shaw
And you throw in, doing legislative history is like picking your friends out of
- [15:40]
Leah Litman
a crowd like, yes, yes, yes, yes.
- [15:42]
Kate Shaw
Like, we need to update this. At the very least least, if this is the.
- [15:45]
Leah Litman
If this is what we're going to make it interesting.
- [15:47]
Kate Shaw
I know. Yeah.
- [15:48]
Leah Litman
Speaking of interesting, though, Justice Jackson's dissent, we can't read the entirety of it, but you should, ideally with Doja Cat's boss bitch playing in the background. Just a few lines to highlight, quote, the reports, as in the legislative history reports, say what they say. She adds, unable to explain this compelling evidence of Congress's intent, the majority pivots to arguing that I ignore the most relevant portions of the legislative history parenthesis. I welcome the majority's close reading of the report. Yes, girl. She also describes analyzing legislative history as a quote worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people, ever the pro democracy justice. And then she asks what I just think is the most devastating question, which is, quote, what interest does it really serve to blind ourselves to the Congressional Record when we interpret Congress's handiwork? Who benefits from that? There's no flattering or straightforward answer to such questions. I just love that she has this fight in her.
- [16:44]
Kate Shaw
Yeah, yeah. This is like, I mean, I can't tell if it's because we're sort of steeped in these debates that we sort of see just like, how spicy the exchange, I mean, on both sides is, but it's not a friendly disagreement, I would say, between Barrett and Jackson here. And she's also like, I just think now, I don't know, I think Kagan, you know, just actually does feel differently about legislative history and statutory interpretation in general. But I just feel like it could be tempting if you were Justice Jackson, to just say, like, the legislative history fight is not one that we're going to win in my lifetime. And so, like, let's, I don't know, pick other battles. And I actually think that she is principled and right, not in saying some committee report should decide definitively what a statute means, but in just saying it is crazy and dogmatic, as you said, Leah, to just refuse to put on these blinders as this article of faith. Like, we won't look at that stuff. And so she is just not willing to let this one go. And I too, really appreciate it.
- [17:43]
Leah Litman
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- [21:07]
Kate Shaw
So while we are on the topic of SCOTUS opinions, let's continue on with some judicial crimes. That was my attempt to doing a Melissa Marie esque segue. I'm not sure how well it worked, but, but you know, we press on. Okay. And here we're talking about literal, actual, not using the sort of hyperbole that we sometimes are prone to when discussing what the court these are literal, actual crimes. And if you somehow missed this story, let us bring you up to speed. Last week, Judge Ryan NELSON on the U.S. court of Appeals, this is a court of appeals judge, was charged with misdemeanor battery. He was appointed to the bench by Donald Trump during the first Trump administration. He's on the 9th Circuit and he was actually on the panel that stayed the district court's injunction that had blocked the president's federalization and deployment of the National Guard against, remember this, the Portland chicken, the Portland Frog. The National Guard was not explicitly deployed against those adversaries, but they did have to face the Guard when the Guard was deployed in Portland. So the majority had. So there was a panel that he sat on. That panel had blocked the injunction because that the lower court had issued because the panel concluded that the president had a colorable basis for deploying the National Guard given the very serious crisis that the Portland Frog presented. That's not what they said, just the crisis in general. But Judge Nelson concurred to go like way, way further and basically to say the President's decision to deploy the National Guard was not reviewable by judges, full stop. That the President could just terrorize the country at whim, and judges were powerless to do anything about it.
- [22:46]
Leah Litman
Speaking of terrorizing people at their whims, let's watch the video of the events that led to Ryan Nelson being charged with misdemeanor battery. It's gonna be kind of hard to hearmake out what's happening, but you can see the video linked in the notes and on our YouTube channel if you watch the episode there. And we're also going to try to narrate it for you. So at least what I gleaned from the video is, first, Ryan Nelson can't park for shit. Right.
- [23:17]
Kate Shaw
He's like, basically he's very angled into another spot. Yes.
- [23:22]
Leah Litman
Parking lot. That's true. And. And another truck pulls up, like, in a spot that's, like, adjacent to one of the spots that Ryan Nelson's truck is kind of occupying. And it sounds or looks like the person who pulled up was like, can you park? Or something. What an apple. And the judge's response to this was to grab the glasses off the guy's face and hurl them into the air. What an apple. From what I can tell, there's also,
- [23:53]
Kate Shaw
like, some seeming to, like, kind of stalking, following around the area surrounding the parking spaces. So we should say there's no audio. We don't know what words, if any were exchanged, like, after this, like, parking. It's not as though the cars came anywhere close to actually, like, coming into physical contact. So whatever the predicate was was, like, not that it would justify, like, a federal judge knocking glasses off of someone's face if that someone had, like, like, sideswiped him. But that definitely did not happen, at least as far as the video seems to reveal.
- [24:25]
Leah Litman
So free speech. They'll yank your glasses off your face when you say things they don't like.
- [24:30]
Kate Shaw
It seems, again, from what you can see in this video, sans audio, like an absolutely unhinged reaction by a sitting federal judge who has now been criminally charged with misdemeanor. I think it's both battery and maybe destruction of property. So, you know, I think that judges behaving badly in all kinds, in very different ways has been a theme of the last couple of weeks on this podcast.
- [24:58]
Leah Litman
Indeed. So in addition to judges wilding out the last week, the Department of Justice and the White House were also on one. So what we're about to talk about actually happened at the end of the previous week. But the U.S. court of Appeals for the D.C. circuit heard oral argument in the case challenging the President's destruction of the East Wing slash construction of a monster energy drink branded UFC cage. I cannot believe that is a sentence that is now utterable.
- [25:29]
Kate Shaw
And I also. Can I, can I. If people haven't seen it, it's not.
- [25:32]
Leah Litman
You have to look at it.
- [25:33]
Kate Shaw
It is. It looms over the entirety of the White House. It is so indescribably massive and hideous and gaudy and like there's this like just trashy, like weird almost disco. Disco lighting. Sounds fun. It's not disco lighting. What is it? It's like menacing flashing that travel up and down this like enormous dome of a cage. Anyway, so there's a lawsuit and here's
- [26:00]
Leah Litman
what the Department of Justice had to say about the federal court's ability to stop the executive branch from destroying stuff.
- [26:08]
Kate Shaw
The government decided to very quickly and bulldoze the Statue of Liberty. The people whose ancestors. That was the first thing they saw coming to this country, that the government moved too fast. Nothing can be done.
- [26:21]
Leah Litman
I think, I think that's right. Yes. Again, kind of hard to make out, but basically the federal government lawyer was taking the position that plaintiffs can only stop the executive branch from bulldozing things if plaintiffs get an injunction before any bulldozing happens. And to which Judge Millet, judge on the D.C. circuit, asks the federal government lawyer, so does that, that theory apply to the statute of liberty? If the government starts to bulldoze a statute of liberty before anyone can file to stop them, there's nothing that can be done. To which the federal government lawyer basically says, yeah, I don't care. Do you? No. It was just basically a yes, but same thing struck me as pretty fitting that DOJ would take the position that actually, yes, they can destroy the statute of liberty if they do it before anyone obtains an injunction to stop them. She is a woman, after all, and when you're the President, they just let you do it.
- [27:11]
Kate Shaw
That's. It's so true. And I have to say, because Trump ruins everything good. You know, I like the Statue of Liberty, so he probably wants to ruin that too. But, you know, he brought his very, very bad and destructive mojo to Madison Square Gardens last week, clearly causing the Knicks to lose the third game of the NBA Finals. Yeah, I mean, I wouldn't rule anything out, including him turning his sights on Lady Liberty. He got very booed in msg and I don't think he liked it. And I think that he is plotting his Revenge on New York. And so, I don't know, take the statue down completely, coat her in gold. Like I wonder if that's on the table. Put some kind of my pillow sponsored like water park on her or on Ellis Island. I mean it's just like the desecration of these important national like symbols and locations seems to sort of of. No, no bottom. Anyway, that's what he has done to the White House with this monster drink branded cage on the South Lawn. And I'm not sure what his sights will be set on next. Wait, I think this like just broke before we sat down to record. But have you seen the reports that there is algae blooming in the reflecting pool that he has also decided to take on as a pet project Again,
- [28:27]
Leah Litman
really nature is trying to send us a message and. And thus far we have refused to hear it.
- [28:35]
Kate Shaw
I really wonder what sort of fungus could grow on the White House lawn. Slash caves.
- [28:40]
Leah Litman
If this is the beginning of a Last of Us style virus, you know, wouldn't be surprised we brought this on ourselves. Not be surprised. Exactly. In other news that really bridges the divide between hilarious and horrifying, we were also treated to the release of the transcripts from the grand jury proceedings in the Broadview Six case case. This of course is the indictment of the protesters who were demonstrating outside of the Broadview Immigration Detention center during Operation Midway Blitz. All of the charges were dismissed after the court indicated she would review the grand jury transcripts even after the government reduced the charges to misdemeanors rather than felonies. And the judge at the hearing dismissing the charges indicated that what she saw in those transcripts was shocking. And listeners, she did not exaggerate. There are three transcripts because as we now know, even though DOJ tried to conceal this fact from the judge, DOJ had to present this case to multiple grand juries before it could obtain an indictment.
- [29:41]
Kate Shaw
Okay, so now we've actually seen the text. And the very first transcript starts off with one prosecutor saying the other prosecutor will vouch for her. As we mentioned when this story first started to come out, vouching is one of the things that prosecutors categorically cannot do in front of the grand jury. There is a literal rule against vouching. So what does this prosecutor start off with by saying, quote, matt, that's the other prosecutor will vouch for me. I said I want to go in front of the grand jury because I know you and I trust you and you know me and you trust me and I would never ask you to charge somebody if I didn't think there was probable cause. Textbook. Trust me, I'm a prosecutor. I've got the evidence. So just indict. I'm honestly impressed that the vouching was done in such an explicit Stringer bell kind of prohibited way. Like, no, you don't. I take notes or say I'm vouching.
- [30:41]
Leah Litman
In the face of vouching before the
- [30:43]
Kate Shaw
grand jury, you could literally find this. If you're like, was there vouching and you control F'd the word vouch. You hear her saying it. So you know, it's like on law school exams where the person is named P, plaintiff, or D defendant. Here it is, V for voucher.
- [31:00]
Leah Litman
So there were many highs and lows in these transcripts. For me, I think the best thing was the grand jurors making the Fifth Amendment great again. And Kate, I know Melissa isn't here. I really want to do a reenactment. It's not going to be the same without her, but we will soldier on. So do you want to be grand juror or prosecutor?
- [31:24]
Kate Shaw
Will be prosecutor. How about you be grand juror? But yes, once again, Melissa, we will do our best to do you proud, but. But we just. There's no way we can do it as well as you would have. But. All right. Onward. You begin as grand juror.
- [31:35]
Leah Litman
Okay, grand juror girl. Are you actually presenting any new actual facts or just a different viewpoint on your side? There wasn't the word girl in there,
- [31:45]
Kate Shaw
but editorial license was verbatim every other word. But girl was in fact in the transcript. Prosecutor responds. Okay, I'm feeling the skepticism already. Are you going to be able to listen with an open mind? Tell me the truth. No. Okay, then you have to go.
- [32:05]
Leah Litman
I heard this case like, last week, and I thought it was a crock of shit then, and I still think it is.
- [32:12]
Kate Shaw
Okay, thank you for your opinion, everybody.
- [32:15]
Leah Litman
Do you have unlimited tries?
- [32:18]
Kate Shaw
Do we have. What did you ask?
- [32:21]
Leah Litman
Unlimited tries. Like, you keep coming back as many times as you want.
- [32:26]
Kate Shaw
Oh, I don't think we have to worry about that. Okay, another. Now we have a second prosecutor. We have to. I'll do the second prosecutor. I think the saying is the second time is the charm.
- [32:38]
Leah Litman
Just like reading the grand juror telling the prosecutor your case is a crock of shit.
- [32:44]
Grainger Announcer
It.
- [32:45]
Leah Litman
And why are you still at it?
- [32:47]
Kate Shaw
And why do you can't keep coming back again and again?
- [32:50]
Leah Litman
Like, very legitimate question,
- [32:54]
Kate Shaw
you know, in.
- [32:55]
Leah Litman
In.
- [32:56]
Kate Shaw
You're shooting free throws. Like you don't get unlimited tries until you make one like, you're, you know, giving a presentation at work, you're taking a law school exam. Like, typically, like, you put up and then you shut up. And that's kind of it. And I think it was a fair question, which is like, why, in this of all spaces, does one side just get to keep going again and again? Okay, so there is that. Then, of course, we have the prosecutors identifying the grand jurors who wouldn't vote to indict the protesters and dismissing them one by one until the prosecutors arrived at a grand jury with the minimum required number of grand jurors who would return an indictment. And the prosecutor also talking about how he spoke with grand jurors outside of the grand jury room. I mean, as I think we said in an earlier episode, like, I think we all have a reasonable basis to think we need to see grand jury jury transcripts in the many other political prosecutions this administration is pursuing.
- [33:48]
Leah Litman
And there are a lot and other prosecutions as well. So just related to this, two kind of pieces of news that are definitely tied up with the latest exposure of the Department of Justice's misdeeds. So there are now allegations of grand jury misconduct in other Chicago cases involving the same prosecutor. So in one, a judge has ordered an evidentiary hearing where the defense alleges that the prosecutor again engaged in vouching, disclosing, off the record negotiations with the defendant and more. And in what seemed like a bid to prevent said hearing into prosecutorial misconduct, the U.S. attorney moved to dismiss the charges. Note that this is what happened in the Broadview Six case, where the prosecutor also tried to ward that off. And yet those grand jury transcripts were still released case. And it looks like there is still going to be an inquiry into this case. So the judge has ordered the hearing right to continue, or a hearing to continue, even after the prosecution filed the notice of moving to dismiss the case. And this case involves allegations of fraud related to federal Covid funding. And then there's an entirely separate case where a different judge agreed to review the grand jury transcripts in a case where the defendant pled guilty because the judge said, quote, the front office has created, as you know, a credibility crisis. And that is a real problem, end quote. The party of law and order, ladies and gentlemen, indeed, genuinely wondering, is this a good time or the best time or, you know, not a good time to be engaging in crimes? It seems like they have tied up DOJ with people who are not engaged in crimes and that the crime spree might be at the doj. The calls coming from inside the house.
- [35:29]
Kate Shaw
So this reminds me of that period where Trump this happened, I think in both Virginia and Jersey. But Alina Haba in Jersey, Halligan in Virginia, but trying to install these pretty unqualified people as U.S. attorneys. This was particularly true in Jersey. And it sort of seemed like actual federal law enforcement ground to a halt in the state of New Jersey, you know, which is a state where sometimes like people like to do crimes. I mean, Illinois too. And I do wonder, and you literally
- [35:56]
Leah Litman
had judges, you know, begging the prosecutor, like, come before me and please tell me you have sorted out who's leading this office because if you're wrong, this is going to invalidate all of the cases that proceed under this invalid structure.
- [36:10]
Kate Shaw
Right. So it is a different and more under the radar set of problems, at least until now, set of problems, it seems in the Northern District of Illinois. So it's not, you know, this high profile person at the top, but it does seem as though like in the recesses of the grand jury room and who knows where else, like justice is not functioning as it normally does in that office.
- [36:35]
Leah Litman
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- [41:02]
Kate Shaw
Okay, so this is not a grand jury matter, but it is another politically vindictive prosecution that we wanted to mention. And that is one that flamed out when congressional candidate Brad Lander, hero of the Resistance all Round Mensch, full disclosure, my brother in law is working on his congressional campaign, was found not guilty on charges related to him allegedly obstructing an elevator while he was inspecting the conditions at an immigration detention facility here in New York. This was another utterly bizarre, baseless charge. Lander had been, and has continued to be a regular presence and voice in protesting the administration's egregious conduct during immigration enforcement, in particular its practice of apprehending people showing up for regularly scheduled immigration court dates. And he has been trying to hold the federal government accountable. He had been previously, even before the events that led to these charges, been taken into custody at a federal courthouse when ICE was conducting enforcement operations there anyway. So he was acquitted in that case.
- [42:03]
Leah Litman
And those weren't the only big oopsies from DOJ or Trump lawyers last week. Last week, the Department of Justice Civil Rights Division that would be the one led by Harmeet Ur Hose Dylan filed papers in the cases where they had indicted journalists who were documenting demonstrations at churches in Minnesota, indicating that actually they may have made some false statements in their applications for those words, warrants. The application for a warrant refers to Georgia Fort, an independent journalist who was indicted as chanting while inside the church and using her camera as a weapon. Here's what Civil Rights Division says about that now. The statement about Fort chanting was incorrect, but the error was due to simple inadvertence. The characterization of the camera as a weapon, though not ideal editing, is immaterial, although the government regrets any error and does its best to avoid them, them mistakes are inevitable.
- [42:57]
Kate Shaw
This is like a bullshit apology.
- [43:00]
Leah Litman
This is really like astonishing. You were saying, criminally indicting people you could not manage to dot your I's, cross your T's, determine whether the allegations were true.
- [43:10]
Kate Shaw
It's also just like it is not. It sort of purports to be a mea culpa and it isn't even like it's so defiant even in noting these
- [43:20]
Leah Litman
I'm sorry I hurt your feelings. I'm sorry if your feelings were hurt apology.
- [43:24]
Kate Shaw
I don't feel like I'm sorry if
- [43:25]
Leah Litman
you didn't like the false judge. Sorry.
- [43:28]
Kate Shaw
We will see how that goes over. But I guess honestly there is something to say for the filing in that case, which at least acknowledged error, even if it didn't fully own it. But it was a filing that stands in pretty stark contrast to Trump's personal lawyers in his case against the BBC. This, if you've sort of lost track of which one this is, is one of the many Trump cases against media entities. It's also one of several that seeks $10 billion in damages. Not totally sure what's going on with that number, but it seems to pop up again and again. This suit alleges essentially that the BBC was mean to Trump in the way it edited clips of his speech on January 6, 2021, which is obviously like a multi billion dollar wrong. Those editorial choices. And on Monday, the district court in that case filed an order to show cause as to why the plaintiff again won. Donald Trump had failed to file a response to the defendant's motion to dismiss the case. The order noted that the plaintiff filed two 11th hour procedural motions, but that didn't explain the delay or ask for the response deadline to be extended. And the judge was like, do you oppose the motion to dismiss and why shouldn't I sanction you for completely blowing that deadline? To which Donald Trump's lawyers basically said they didn't file a response because the courts protective rule order, like rules about what can and can't be unsealed and procedures for unsealing were too complicated for them to understand. I will quote here, the delay in filing the opposition memorandum on the docket was caused by plaintiffs good faith efforts to comply with the protective order entered in this case and the court's procedures governing sealed filings.
- [45:09]
Leah Litman
I tried. Math is hard, your honor. Therefore you can't criticize me. I don't know exactly what that was. Maybe he should have made some DEI hires for attorneys. Attorneys instead of dipping into the dicks as ex husbands and incel lawyers, DEI pool. And the wild thing is, something like this happened not once, but twice last week in the same case. So a separate docket entry noted that the plaintiff, again, one Donald Trump, had failed to submit a position regarding a judicial order setting the procedures for discovery. That's a, you know, stage of the case. It says, quote, while counsel are free to disagree with the relief and basis on which the opposing party may seek said relief, they are not permitted to disregard the court's orders and procedures, end quote.
- [45:56]
Kate Shaw
It's almost like actually diligently pursuing this lawsuit in a federal court is not the purpose of filing this lawsuit. Are you beginning to get that sense?
- [46:06]
Leah Litman
Yes. Yes, I am.
- [46:07]
Kate Shaw
Does feel like it.
- [46:09]
Leah Litman
Do you think they'll try to set up a slush fund out of this one? I mean, like, we settled the case with the BBC and therefore Donald Trump will be paying, I don't know, the proud boys a billion dollars, right? Like, no, no less related to try
- [46:21]
Kate Shaw
to intervene and actually set up a difference. A media fairness slush fund. Oh, my God. Let's not give them any ideas. Just BBC, please don't agree to yourself setting up a slush fund. I mean, we beg you. I don't think they would, but I mean, a lot of people have capitulated. These tactics are just so strong arm and, and anyway, just it's really important not to, even if it seems like a small thing to reward this kind of behavior. Okay, so let's pivot to the White House and Department of justice outside of the courts and some of the internal executive branch activities. It basically seems like the Justice Department and in particular the Office of Legal Counsel, or olc, which is in some ways like a mini Supreme Court for the executive branch inside of the Department of Justice. Basically, they seem to have dec decided that as the Supreme Court is taking its sweet time in issuing its decisions, they are going to get in on bad decision slash bad lawyering season. So they at least initially have done so by releasing an opinion concluding that a big chunk of anti discrimination law, and that is disparate impact liability, is probably unconstitutional.
- [47:28]
Leah Litman
So disparate impact liability is, as Kate was saying, a species of anti discrimination law, among other places in Title vii, unemployment, the Fair Housing act, and many other civil rights provisions. And what it does is it prohibits some policies that result in discriminatory effects but aren't necessarily intentional discrimination. And the Office of Legal Counsel, in all of its wisdom, thinks that is the real discrimination. The top line summary of the memo read, quote, eeocs, that is the equal Employment Opportunity Commission's Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone without regard to an employer's likely intent and pressure employers to engage in race based decision making.
- [48:13]
Kate Shaw
Okay, so basically, like Kalei said about the Voting Rights act, the thinking on display here is that these regulations, because they direct employers to avoid business practices that disproportionately exclude or disadvantage racial minorities, if those business practices aren't really necessary, that that is illegal because it requires employers to consider to think about whether they really should be excluding racial minorities and the horror that is a constitutional problem. So olc, not surprisingly, invokes the appalling decision in the Alabama case that followed on the heels of Calais. That's a case where the court allowed Alabama to implement a set of maps that lower courts had concluded were racially discriminatory, twice, in part because Alabama refused to follow the Supreme Court's own decision telling them that their maps violated the Voting Rights act. Olc. Right. The Justice Department memo we were just talking about says, quote, corrections are necessary to resolve the tension between disparate impact claims, claims under Title VII and our colorblind Constitution, and cites this Allen vs. Milligan order.
- [49:15]
Leah Litman
And like Calais did, the opinion effectively nullifies an amendment that Congress made to Title VII when Congress expanded disparate impact liability after the Supreme Court had narrowed it in a decision known as Ward's Cove. Some more news. There are still several cases challenging the slush fund for insurrectionists. In one case, Judge Leon ruled from the bench. Blanche denied Citizens for Responsibility and Ethics in Washington their request for a temporary restraining order against the slush fund. Judge Leon concluded that the case was moot after carte blanche. That is auditioning. Attorney General Todd Blanche and DOJ lawyers said the fund wouldn't go forward. Judge Leon said at the end of his ruling, quote, I give the Department of Justice fair warning. Don't play possum with this court, end quote. I'm sure that'll do it. In another case, Judge Brinkma in the Eastern District of Virginia concluded that the case was not moot and issued an injunction blocking the fund. The judge gave the Department of Justice a week to get a sworn declaration saying that the fund is actually dead, dead, dead before the judge would agree to say the case is moot and there is no longer a live controversy.
- [50:26]
Kate Shaw
I feel like Todd Blanche is going to vouch for the dead of the fund.
- [50:30]
Leah Litman
I vouch for the fund being dead, your honor.
- [50:34]
Kate Shaw
I'm sure that that will set the judge right at ease.
- [50:37]
Leah Litman
Oh, yeah, completely.
- [50:39]
Kate Shaw
Okay, so there is a big piece of news that we alluded to, but that we really need to now give its proper treatment, and that is Leah
- [50:47]
Leah Litman
Litman, the paperback release of Lawless. I am calling it Lawless, Leah's version, not only because I unironically stan Taylor Swift, but also because I got to make updates to all the chapters and add a new section on the unitary executive and how the court has enabled Trump. And I just feel like it's useful pre budding to all of the celebrations and plaudits the court is going to get for invalidating the birthright citizenship order. It just tries to put that in a kind of bigger picture and trace the unitary executive to, you know, Richard Nixon thinking he was the victim of something and his people. But yeah, so I really enjoyed writing it and I hope people will check it out.
- [51:30]
Kate Shaw
And as Leah was just saying, if you haven't gotten the book, you need to get the paperback. But even if you have gotten the book, because this is because she's. Leah has like, basically, like, written kind of a new book, like some additions and then an entirely new chapter. So even if you already have a hardcover, get a copy of the paperback.
- [51:45]
Leah Litman
It includes the dark lord of the third circuit, Emile Beauvais, among other characters. Characters.
- [51:49]
Kate Shaw
So you don't want to.
- [51:50]
Leah Litman
There we go. Okay. So as we said during this episode, we spent a lot of time talking about prosecutors doing fuck knows what. And I actually wanted to add one additional pretty terrifying example of this, and that is Ms. Now broke the story that FBI agents might be terrorizing pro democracy and voting rights organizations. So the FBI reportedly raided offices of the Ohio Organizing Collaborative, a pro democracy organization that helps register voters in the state. And agents, again according to the story, reportedly showed up at the homes of people who worked for the organization. Maybe also just some canvassers asking for information and electronic devices. Some of them may have had subpoenas. It's obviously terrifying and we should all be alarmed at what, again, seems like another obvious attempt at election interference. You know, the executive order isn't going anywhere, so now they are just trying to intimidate people. So, again, having spent so much time talking about what prosecutors shouldn't be doing or what law enforcement shouldn't be doing and how some of that subverts democracy, please stay tuned for our next conversation with a prosecutor who is actually doing the thing, working to protect our democracy with a great new organization, fafo. Yes, the acronym is F A, F O. So be sure to stay tuned for that. That strict scrutiny is brought to you by Babel. When I travel, it's basically one long adventure in search of the best food, breakfast, pastries, but also, you know, dinner. And so in that quest, I need to be able to say things like which pastry has the highest sugar content or more garlic and spice, please. If you are traveling this summer and also in search of good food when you travel, here's a real travel hack. Don't wait until you land to start learning the language. Instead, try babbel. Even just 10 minutes a day with Babbel can help you start having real conversations in as little as three weeks. Instead of memorizing random vocab, you're learning phrases you'd use ordering dinner, asking for directions, or talking with locals. What I like about Babbel is it's built for real life. Not vocab lists, not verb charts, but real conversation. Practice lessons are quick, practical and built by more than 200 language experts. They have interactive dialogue, personalized review, even podcasts, all designed to get you speaking quickly and confidently. And unlike cramming before a trip, Babbel fits into your actual schedule. Coffee break, commute, or a few minutes before bed. Babbel's award winning app has sold over 25 million subscriptions and is backed by a 14 day money back guarantee. If you've got summer travel coming up, now's the time to start so you can actually use what you learn on the trip. Right now, Babbel is offering listeners up to 60%. Go to Babbel.com strict that's Babbel B-A B-B-E-L.com strict for up to 60% off rules and restrictions may apply. Dish has been connecting communities like yours for the last 45 years, providing the TV you love at a price you can trust. Watch live sports news and the latest movies, plus your favorite streaming apps all in one place. Switch to DISH today and lock in the lowest price in satellite TV starting at $89.99 a month with our two year price guarantee. Call 888-@dish or visit dish.com today when
- [55:19]
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- [55:54]
Leah Litman
And now I am delighted to be speaking with Mary Moriart, Hennepin County Attorney, also known as the district attorney in Minneapolis and surrounding suburbs and counties, and one of the founding participants of a great new organization known as fafo. We'll explain more about that later. Mary, welcome to Strict Scrutiny.
- [56:11]
Mary Moriarty
Thank you so much.
- [56:12]
Leah Litman
So, Mary, we've talked about your office on the show before, but haven't actually had the opportunity to talk to you. And we've been talking about your office because your office has been one where it actually has two cases involving state charges filed against federal officers. Can you remind us what those cases are about?
- [56:30]
Mary Moriarty
Certainly. We filed a case on a what I would describe as kind of a road rage situation involving an ICE agent named Gregory Morgan. We charged him. We had a nationwide warrant for his arrest. He did turn himself in several weeks ago, and he has this week filed a motion to remove to 15 federal court. The other case that we charged is Christian Castro, who we believe shot Julio Sosa Solis in the thigh. We also had a nationwide warrant there. He was arrested in Texas. And right now we are working our way through extradition proceedings.
- [57:08]
Leah Litman
Got it. I think of the first case as a case of what I'm calling DWI driving while an insane ICE officer. Given that this is a case where the ICE officer on the road was driving in an unmarked vehicle, pulled up and pointed a Glock at, you know, these poor people's heads. And anyway, so just a berserk kind of set of facts. So you mentioned that the second case there is right now the extradition proceedings. And the first case, the defendant is trying to remove the case to federal court. So before you make the decision to charge these cases, there's an investigation. And when you're investigating someone who is part of a law enforcement body, how is federal law enforcement or cooperation supposed to work? In an ideal world?
- [57:56]
Mary Moriarty
The way it's supposed to work and has historically worked here is that everybody works together. In fact, in our political assassination case, where the defendant just pled guilty to the federal charges, yesterday we had a joint investigation with the FBI. We were working with the U.S. attorney. We all got the investigation results. We charged and they charged. That's the way it has worked here, and that's the way it should work.
- [58:21]
Leah Litman
And that case, just to remind our listeners, involved the assassination of the Minnesota legislator Melissa Hortman, as well as her husband and her dog.
- [58:30]
Mary Moriarty
Yes.
- [58:30]
Leah Litman
Okay. So that's how it's supposed to work. How has federal cooperation been working either in the cases involving the federal immigration enforcement or the political assassination case you were just referring to?
- [58:43]
Mary Moriarty
Not well at all. In fact, when Renee Goode was shot, I was on the phone with the FBI. Our state, local law enforcement agency is the bca, the Bureau of Criminal Apprehension. So I was on the phone with them. I was on the phone with the U.S. attorney. And everybody agreed this would once again be a joint investigation. And then suddenly the BCA was kicked off the case. And so we realized then and there it was going to be a different situation. They took away Renee Goode's car. It's shrink wrapped. It's still sitting in a warehouse somewhere. They won't share any evidence that they collected or got from any statements. And then when Julio Sosas Elise was shot, we also thought we had a joint investigation. The BCA did show up at the scene. And what happened was at some point the FBI said, we're no longer allowed to work with you. But the, the good news about that particular case was the crowd got really angry. There was a large crowd of community members and kind of got ICE to leave. And so the BCAA was able to collect evidence in that case. But then when Alex Preddy was shot, it was on a Saturday morning, and we were prepared for non cooperation. But it was pretty remarkable when you saw the video, it was federal agents with their backs to the crime scene scene with batons, actually physically keeping the BCA from entering that scene to investigate, which is what the BCA is trained to do in any law enforcement involves shootings involving a Minnesota peace officer. They are the people that are directed to show up. So we were prepared. We got a search warrant on a Saturday from a judge. So a judicially signed warrant, unlike many that you see from ice, but we got a warrant and the federal, federal government refused to honor that. So we were also prepared, which is
- [60:32]
Leah Litman
funny because they don't think they need warrants. And I guess they don't think when other offices get warrants, it matters. Really? Really. Two for there, yes.
- [60:40]
Mary Moriarty
And we had been working with two law firms from Washington D.C. the Washington Litigation Group and ICAP. And they've been working with us for free and they've been tremendously helpful. But we were prepared. We filed a lawsuit, in fact, federal court asking for a temporary restraining order that they collect the evidence, that they preserve it, and that they not alter it in any way. That was actually granted by a federal judge on Saturday. So we could see the progression of non cooperation here despite continued efforts. And I'll actually say the people on the ground or the line, people really would like to cooperate and have reached out. We've had many conversations, and every time it goes to the administration, it gets stopped cold.
- [61:24]
Leah Litman
So this sounds like a just silly question to ask, but just for clarity's sake, like, what are some of the issues with this lack of cooperation? Like, what does it do? You know, in practice?
- [61:38]
Mary Moriarty
That is a great question because normally when prosecutors get cases, at least in Minnesota, we don't have our own investigators, by and large, so they have been investigated by law enforcement. So we know everything that we have and that we don't have. For instance, if there's a shooting, we know if there's video, if there's a law enforcement shooting, we know whether the officer gave a statement or other officers there. And I will say we also know who they are. And I think that would surprise most people to know that we don't even know for sure who the agents were who shot Alex Preddy. That has never been verified. ProPublica published a report on it. But you have to think about this from a prosecutor's perspective. We have to be able to prove our case beyond a reasonable doubt. And that usually doesn't have to include identifying the name of the agents who were involved in it. So it is making us approach it from a what do we actually have. Have from our own investigation with the BCA and what don't we have? And also what would they say? You know, for instance, in the Preddy case, we were told by the media, I guess, that they were all wearing body cam. We don't know that. We don't have that. We have to sit here and wonder, well, what would the agents say?
- [62:56]
Kate Shaw
Right.
- [62:57]
Mary Moriarty
And that creates barriers because you. You don't know what you don't know. You can just guess at that.
- [63:03]
Leah Litman
So you mentioned that there's a lack of cooperation, but I'd have to imagine that in addition to a lack of cooperation, there's also fears about less of a defensive posture than an offensive one, where there might be a concern that if, let's say, BCA or, you know, state or local law enforcement tries to conduct an investigation, that the federal government, or at least some in the federal government would retaliate against them. You know, has that also kind of impeded the ability to just carry out normal police power stuff?
- [63:37]
Mary Moriarty
That was very apparent as Operation Metro surge was going on. And we have something like 36 different law enforcement entities here in Hennepin county, which is Minneapolis and its suburbs, as you said. And what we were hearing from Community, what you were Hearing what you were seeing in videos too, is community members saying, hey, we're being occupied by our own federal government, who is here to help us, who is here to protect us. And I had conversations with local law enforcement chiefs and it was very interesting because they said they didn't have jurisdiction. And I said, why do you think that yes, if, if anybody from the federal government comes into your community and you believe that they may have committed a crime, yes, you have jurisdiction to investigate and try to collect as much evidence as you can. In fact, we would like you to go to the scene and collect evidence and video that may have been taped over. But here, here was something that was really telling. You know, ultimately they said our officers are afraid of being arrested or something worse. And you know, my position on that was, yes, this is unprecedented. It's unprecedented for all of us. And I totally get, get that. And yes, they could be arrested, and yes, maybe worse. However, you signed up to protect and serve your community and your community is out there with whistles. And so you need to kind of have a hard look in the mirror and figure out who you really signed up to protect and serve. So that was a big issue, and I think it remains a big issue. And something that, as I, as part of FFO, when I've talked to other DAs, I can say the things I wish I would have known before this hit us. And one of those things would be to have conversations with local law enforcement to try to bring them along and have conversations about, hey, you know, in, in a perfect world, you would get there, you might intervene, you are wearing body cam, you are collecting the names of witnesses and contact information so they, there can be an investigation after the fact. But those, as I discovered, those conversations need to happen before something like this, before they are in that situation.
- [65:47]
Leah Litman
So you've already kind of begun to gesture this. But I do want to spell it out because I think many people are wondering, you know, what can I do? What should we be doing now? You know, in order to address ongoing federal overreach and potential additional federal overreach in the lead up to, you know, potentially the election. And so you mentioned that one thing that has been useful is the fact that people on the ground, for example, suggested to ice, no, you actually need to allow local law enforcement in to investigate and that there were actually photographs taken of federal law enforcement actively not investigating Alex Preddy's murder and that all of that was useful to allowing state officers to do their jobs. So. So are there other pieces of advice you would offer either to members of the public or as you were just saying to other district attorneys who are thinking about my area, my state might be a target of some federal law enforcement searches, whether now or in the lead up to the election. What should I be doing now in order to protect my community?
- [66:53]
Mary Moriarty
I think that's a great question. And I, as you know, local prosecutors really don't have to deal much with federal law. And the administration started out by saying, and they still continue to say in some respects that federal agents have absolute immunity. And you heard people say no one can touch you, you can do whatever you want kind of thing.
- [67:13]
Leah Litman
Vice president said this. So, yeah, I heard it.
- [67:17]
Mary Moriarty
Yeah. And you have to think that that had an effect on ICE agents who were being told that. And so I think being prepared to say, no, that is not the case. And educating the community, educating, frankly, the ICE agents and everybody, police everybody, to say there is no such thing as absolute immunity and you can't come in here and commit crimes that are. That if it was anybody else other than the federal government would be a crime and that we are prepared to investigate. One of the big issues. And I think Minneapolis, like many other cities, has a lot of camera surveillance and it's taped over after two weeks. So we had opened up what we call our Transparency and accountability project, or TAP. We started out investigating 17 cases, including Bovino throwing green gas canisters at people in a park. And what we discovered was that the video had been lost. And so, so you've got to be able to preserve that video. But I think it is there's a deterrence value, and I don't think there's a deterrence value in a lot of things, especially with young people. But with this, I think being prepared and starting the messaging that if you come to our community and you commit a crime, we will do our best to investigate that and prosecute that. And I would say it's really important now with elections coming up.
- [68:37]
Leah Litman
Yeah. So you mentioned, mentioned working with other DA's, guidance with other DA's, and we've now alluded to FAFO or FAFO a few times. Do you want to share with our listeners what FAFO is? Since I've only been kind of, you know, using the acronym for perhaps obvious reasons.
- [68:53]
Mary Moriarty
Yes. And I'm pretty sure, you know, it was Larry Krasner from Philly who came up. I'm sure he wanted that acronym and we just had to find words to fill. Is the Coalition for the Fight Against Federal Overreach. And it is a very we're very serious about banding together, because right now, given what the federal government is doing, local prosecutors can be at least one lane of fighting back. And. But. But it really requires us working together because I think if you're just in this by yourself, it can be really isolating and you need help.
- [69:30]
Leah Litman
Yes.
- [69:31]
Mary Moriarty
For instance, we very fortunate have the help of the Washington Litigation Group and icap because you have to be able to understand even before you're thinking about prosecuting, obviously. But, okay, what happens if you do charge? And we came to learn that the defendant can make a motion to remove to federal court, but I think none of us, I certainly can speak for myself. I had no idea that if it was removed to federal court, we remain the prosecutors. And. And that state law applied on substantive law and procedural federal law applied. But. And a really important thing here is that the president cannot pardon a conviction because it's under state law. And so those are basic things that I think most local prosecutors just don't have to think about. And then what do you do when you have this motion to remove and the ICE agent says that they should. Should have Supremacy Clause immunity? What does that mean? And that is something that a judge has to decide, I think I mentioned.
- [70:31]
Leah Litman
Which means it's not absolute, by the way. Right. If the judge has to decide it, you think.
- [70:37]
Mary Moriarty
I'm glad you pointed that out because it's actually a potential defense that doesn't prevent us from prosecuting. But you want to know what that means, because you do not want to bring a charge and then not be able to overcome the argument that they were acting within the scope of their duty and they did nothing above and beyond that. So you need to be prepared on topics that you never thought you had to think about since law school. And so that's one thing that we are talking about in what do we need to know? How do we get prepared if this should happen in our communities? And elections are something we're really talking about because I think it's really important to prepare for the worst and hope that nothing happens. But what do we do if ICE agents show up at polling places? What do election judges do if they're told or asked or demanded by ice, hand over your ballots or something like that. So we're doing a lot of preparation on that front here in Hennepin county, and I know we're working on that in FAFO as well.
- [71:36]
Leah Litman
So that's all very encouraging. I mean, there's so much we can all do to help one another, whether it's resource sharing, you know, pooling of knowledge or, you know, just making each other not feel alone. When you see one person fighting, I think it's easier to be brave. And I like to think of your office as basically doing what the Knicks did in their recent come from behind victory. They didn't give up. They stayed in the fight. And you know what? They pulled it off. So may you bring those same vibes to not only Minnesota, but the rest of the country. Mary, I do want to ask you one last question. Question which is what's giving you hope, you know, in the work you've been doing, you know, let's say the last
- [72:16]
Mary Moriarty
18 or so months, One thing was the community response here to Metro Surge. I don't think it's really possible to appreciate everything that community members did by driving neighbors kids to school, by bringing food, by paying rent. I mean, just people coming together was just remarkable. And it was actually the community members that ultimately drove ICE out. They're still here in some respect, but it was the really negative publicity, if you want to put it that way, that I think made them leave. And that was all by the community. The other thing, and you talk about this, I'm a big fan of the podcast, too. Until you get to the Supreme Court, when you fight back, you win. You really do. Because a lot of the things that the Trump administration is doing are just illegal, but they're not entirely illegal until a court says they are. And much of what they do is to sow fear. This is what they were trying to do in Metro Surge, too. And if you just comply because you're afraid of what might happen, that's what they want. And so when you push back, either in court or in any other way that is in your lane, like our lane is accountability, you usually win. And so that gives me some hope, even though the Supreme Court is fairly tragic right now, to say the least. But in the lower courts, we're winning and they just don't want to fight much of the time. I mean, we actually, as you know, were it was announced, we found out via Twitter. I did not know that that was how the Department of Justice announced its past pattern and practices investigations, but they announced one, investigating our office for a policy that we had just put into place, while at the same time pulling out of the federal consent decree for the pattern and practice. But anyway, we fought back on that and we won. So I do want to say to people, I know it's scary and this is, I think, part of, of the reason we need to band together and talk about supporting each other because it is scary. And at the same time, when we push back, we generally win.
- [74:29]
Leah Litman
Yes. Well, I love that as an ending note, Mary Moriarty, thank you so much for taking the time to speak with us on strict scrutiny. We're obviously going to be following all of the great things your office has been doing.
- [74:39]
Mary Moriarty
Thank you so much.
- [74:40]
Kate Shaw
Thanks again to Mary Moriarty for that great conversation.
- [74:43]
Leah Litman
So, favorite things?
- [74:44]
Kate Shaw
Let's do it.
- [74:45]
Leah Litman
Okay, so two things I had wanted to highlight, actually two and a half. So one is Jamelle Bouie had another terrific piece in the New York Times titled the Supreme Court Doesn't Own the Constitution. Definitely worth checking out.
- [75:00]
Kate Shaw
Great title and great piece. Like, just, I mean, everything Jamal is doing these days, I mean, always is so good. But this piece is really exceptional.
- [75:07]
Leah Litman
Totally agree. Second is the Supreme Court did something I will put in my favorite things, although I'm not going to give them credit. So the Supreme Court declined to stay a lower court ruling that had blocked the state of Alabama from using an execution protocol that gassed people to death after the court found the protocol constituted cruel and unusual punishment. This, of course, is a huge victory, getting the Supreme Court not to issue a stay that green lights an execution. So the district court had issued this decision after a full trial. And I really do think that the court's decision not to stay it reflected the great lawyering in the case from, among others, the plaintiff's lawyers who are at Arnold and Porter, as well as lawyering from our friend Steve Vladek, who was on an amicus brief who again explained the kind of particular procedural posture of the case and why the court shouldn't intervene because of it. My half favorite thing would be I've been listening to the new Olivia Rodrigo album, so it's not my favorite. There are a few songs on there that are growing on me. So I loved the Cure that is definitely a highlight, but that, you know, had been released in advance of the album. I like Expectations, out of My Way and Maggots for Brains. Those are also, I think, high points on the album for me.
- [76:25]
Kate Shaw
I have not listened yet. Okay, so that's a good weekend, like family undertaking because we're driving and I wonder. So also underscore what you said about the court's sort of unexpectedly correct order in denying this stay application, that I'm sure the state thought they had a good chance of winning at scotus. And I also wonder in terms of like, you know, I think excellent lawyering, Vladek and also that the court did allow a nitrogen gas execution to go forward, and Sotomayor wrote an incredibly powerful dissent. That's true. And I wonder whether the fear of drawing another dissent like that was also a factor in the court doing the right thing here. It seems at least possible. Okay, so I will just mention a couple of favorite things. I just finished the novel the Hill by Harriet Clarke, which is like kind of a memoir because it is like kind of about her life, I think. But it's written as a novel and it took. It was a little bit of like a slow wind up for me. I was not super into it at the beginning, but it's pretty amazing. So I would say if you're thinking about it, I would stick with it. It's just really beautiful and very moving and weird and just really, really good. Okay, so that's my recent fiction recommendation. I missed last week's episode because I was in Zurich, where I'd never been for this conference on global threats to the rule of law. And it was just amazing to hear from these scholars and jurists from all kinds of places. And I just learned a ton and I'm grateful to the organizers and I. I want to shout out Renata Wietz and Elizabeth Holtzleitner, who are both awesome scholars who are at the conference and who listened to the pod and it's like always a trip to, you know, you're in London, you're in Austria. Like, you're listening to our podcast. And they were. Anyway, it was great to meet you both finally. I mean, I cannot claim that I am a, like, longstanding real fan of the New York Knicks. As I've said before on this podcast, I am actually mostly a WNBA fan.
- [78:18]
Leah Litman
Yeah.
- [78:19]
Kate Shaw
Yeah. There's a great story about my husband took the kids and not me. Cause I, I was somewhere else to a Knicks game. Knicks were the Knicks and the Bulls were playing. We're like mostly a Bulls family actually in terms of the NBA and my youngest daughter, like, not a huge sports fan. And so he took our three kids. My older two, like, were super excited and they got to MSG and the players came out onto the court. And my youngest kid was like, wait, this is men.
- [78:42]
Leah Litman
Was like, where's Ellie? Basketball.
- [78:45]
Kate Shaw
It's okay, they can play. Like, they're actually pretty good at it. But I just like love that the orientation in my family is. Is like, so at least for some of us. My husband actually loves the NBA, but anyways, very WNBA focused. That said, the just like the city and the energy around this, like the whole, like, postseason, the Knicks and this, you know, NBA Finals has been just glorious and kind of reminds me of the best things about New York City, which are just really important in this moment in which, like, the worst things about the federal government seem to be, like, on display constantly. Anyway, it just feels like an antidote sometimes. Anyway, so go Nyx.
- [79:23]
Leah Litman
I can even feel the immaculate vibes here in Michigan just through the screens and whatnot. It's really incredible.
- [79:31]
Kate Shaw
I took my dog for that. I won't even talk about, like, Game four was so insane, but I took my dog for a walk in the last five minutes. I was, like, too stressed. I just, like, needed to, like, shake it off. They were, like, coming back, but I didn't think they could come back fast enough. So I was like, shadow needs to go. So we go for a walk and I just, just like hearing people screaming through their windows on my Brooklyn block and slightly in like, these, like, one or two second delays because, like, everyone's wifi and like, whatever cable news they're listening to is, like, a little bit different. So it was just like this chorus of shouts that was just so euphoric. Anyway, so it'll already be post Saturday by the time you hear this episode, so we'll see what happens. But I am excited for game five.
- [80:08]
Leah Litman
So speaking of immaculate vibes, Pride Month is here and it's time to dress like it. This season, the Crooked Store is dropping gayer than ever in two brand new designs and bringing back an old favorite, the Gay for Democracy shirt. Plus, classics like Dreamboat Willie return in a new colorway alongside the ever reliable Join or Die tee. Whether you're celebrating with your community, showing up to protest, or guilting your straight friends into buying you crooked merch in the name of gay rights, there's something here to match your Pride Month style.
- [80:39]
Kate Shaw
And let's be honest, pride doesn't end, so you'll be wearing these items long after June. Head to cricut.comstore to shop and we will be back in your ear holes next Monday, unless the Supreme Court decides to give us some big opinions between now and then. And we'll have bonus episodes come your way if that happens.
- [80:59]
Leah Litman
Strict scrutiny is a crooked media production. Our show is produced by Maldi Rowell and Michael Goldstein Smith. Jordan Thomas is our intern. Our team includes Matt de Groat, Ben Hethcoat, Johanna Case, Kenny Moffett, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.
- [81:29]
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