Will Trump Succeed in Rigging the Midterms?

Summary

STRICT SCRUTINY PODCAST EPISODE SUMMARY

Episode Title: Will Trump Succeed in Rigging the Midterms? Air date: August 3, 2026 Hosts: Kate Shaw, Leah Litman Special Guests: Rick Hasen, Farrah Diaz Tello

Overview of Main Theme

This episode of Strict Scrutiny delves into the escalating legal and political maneuvers ahead of the 2026 midterm elections, focusing on former President Trump’s efforts to influence federal election procedures through executive actions. The hosts highlight the intersection of legal challenges, policy developments, and political machinations, especially concerning the Supreme Court’s role in safeguarding democracy. The episode features expert insights from election law scholar Rick Hasen on the ongoing Supreme Court battle over Trump's voting executive order, as well as a deep dive into the criminalization of reproductive choices post-Dobbs with Farrah Diaz Tello.

Key Discussion Points & Insights

1. Major Legal News of the Week

   • Paramount/Warner Bros Merger Put on Hold
   • [05:04] Kate and Leah discuss the halted merger's significance for democracy, media competition, and federal vs. state power.
   • State attorneys general, led by Rob Bonta, argue the merger would "extinguish competition in big parts of Hollywood and harm consumers.” (Kate Shaw, 07:22)
   • "Film and television are not commodities. They are principal means by which Americans encounter stories, ideas and perspectives beyond their own experience." (Paramount/Warner complaint, 08:15)
   • The Trump DOJ approved the merger, but state-led litigation secured a temporary restraining order, showing the importance of fighting back in court.

2. Arrest of Influential “Manosphere” Figures

   • [09:26] The hosts highlight the arrest of Andrew and Tristan Tate for rape and sex trafficking, noting their ties to Trump world and the broader danger of violent misogyny compounded by political influence.
   • "These vile figures are extremely well connected in Trump world." (Leah, 11:49)

3. DOJ Subpoena Scandal & Qatari Jet

   • [17:00] Kate revisits the aborted DOJ subpoenas to the NYT over reporting on the so-called “Qatari Air Force One,” indicting significant procedural failures.
   • “These kinds of efforts can have chilling effects on vigorous reporting, whatever the ultimate legal disposition. And, and that seems to be the point.” (Kate, 17:24)

4. Jim Comey “Seashells 8647” Case

   • [18:37] Leah gives an overview of the prosecution of former FBI director Jim Comey for a cryptic Instagram post allegedly threatening Trump—describing wild prosecutorial conduct, including surveillance and reliance on notorious mobster Sammy ‘the Bull’ Gravano as a star witness.
   • “You truly cannot make this up. It turns out that despite the unimpeachable testimony of the bull… the theory that is being advanced here… is that Comey would have to be familiar with this in group use of 86 and thus knew that he was conveying a threat to President Trump.” (Kate, 21:40)
   • Selectivity: Merchandise with “86 45”, “86 46”, “86 47” exists in huge numbers, “and there have been zero, count them, zero law enforcement inquiries to Amazon over a single one of those products.” (Kate, 23:09)

5. Trump Administration Cancels Grants to “Blue States”

   • [25:36] The administration admitted to targeting federal clean energy grants away from Democratic-leaning states strictly for political purposes.
   • Quoting government report: the terminations, “with one exception, all… had a recipient location and or… in a state that awarded its electoral votes to Kamala Harris in the 2024 election and has two Democratic caucusing senators.” (Leah, 26:14)
   • “Omg he admitted.” (Leah, 26:40)

6. Uncertain Confirmation for Trump’s AG Pick

   • [28:21] Todd Blanche’s confirmation as Attorney General is in question due to a controversial IRS lawsuit settlement and an allegedly dead “slush fund.”
   • Trump threatens senators: “John Cornyn of Texas and Thom Tillis of North Carolina, both of whom I refuse to endorse, also capitalize, and whose political careers have been ended by my action, are refusing to vote for this great nominee… I have no objection to temporarily withdrawing Todd's name if they do not do the right thing…” (Trump, via Kate, 30:17)

7. [Discussion Segment] Trump’s Executive Order on Election Rules
   With Guest Rick Hasen (Election Law Professor, UCLA)

   • [39:00–59:06]
   • Trump’s Executive Order seeks to:
     • Assert presidential control over federal elections—traditionally under state authority.
     • Enforce new controls on non-citizen voting (DHS lists, DOJ criminal prosecutions, USPS role).
     • Impose new rules on mail-in ballot processing (mandatory “intelligent barcodes”).
     • “Federal law says that noncitizens can't vote. This executive order purports to direct parts of the federal government to assure that noncitizens are not voting.” (Hasen, 39:49)
   • Massachusetts district court enjoined parts of the order due to ongoing harm and uncertainty for states: “They've got to divert resources to prepare for the possibility… costing them money, it's costing them time. They've got standing.” (Hasen, 42:21)
   • Trump Administration's Argument to SCOTUS: Claims suit is premature (no final rules yet), dodges merits of the EO entirely.
   • Rick Hasen’s prognosis: Even a temporary win for Trump is unlikely to actually allow massive changes for November. Warns about chaos, administrative inability to process ballots/lists so close to the midterms.
   • “It is just—we are in a terrible state where the federal government is the greatest threat to the integrity [of elections].” (Hasen, 55:51)
   • Three bulwarks remain: courts (so far), states/local election officials, the people.

8. [Interview] Criminalization of Abortion & Pregnancy Loss Post-Dobbs
   With Guest: Farrah Diaz Tello (Legal Director, If/When/How)

   • [64:18–90:49]
   • Early history of If/When/How—organization helping with legal defense, policy, and direct services for reproductive justice.
   • Rise in criminal prosecutions post-Dobbs: Prosecutions have evolved to use old or tangential statutes (e.g., “concealing birth,” abuse of corpse) against individuals for pregnancy outcomes.
   • "Ending one's own pregnancy actually isn't a crime in any state in the country but Nevada right now." (Farrah, 70:40)
   • Impact story: A Texas woman prosecuted after stillbirth despite no actual illegal act; plea vacated due to ineffective counsel (incredibly rare).
   • “This is the most human thing in the world… her grief was used to punish her, really robbing her of the dignity of that grief.” (Farrah, 75:24)
   • These prosecutions can happen anywhere, not just “red states.”
   • If/When/How’s hotline provides legal guidance and rapid defense, while 2025 saw the fund post $2.3 million in bail—highlighting the pernicious effect of cash bail systems on criminalized repro justice cases.
   • Farrah draws hope from transnational solidarity, especially with Latin American activists: “Abortion is something that has always happened since before the law had anything to say about it… and we're there for you.” (Farrah, 87:02)

Notable Quotes & Memorable Moments

• “Once again, the lesson is if you fight, you will sometimes win.” – Leah Litman, 09:14
• “You truly cannot make this up… This is the guy [a mobster] the government goes to, to help shore up their case against former FBI Director Jim Comey.” – Kate Shaw, 21:40
• “Omg he admitted.” – Leah on Trump admin’s open admission of targetting blue states for funding cuts, 26:40
• “It is just… we are in a terrible state where the federal government is the greatest threat to the integrity [of elections].” – Rick Hasen, 55:51
• “Abortion is something that has always happened since before the law had anything to say about it…and we're there for you.” – Farrah Diaz Tello, 87:02

Timestamps for Important Segments

• [05:04] – Paramount/Warner Bros. merger discussion
• [09:26–11:49] – Arrests of Andrew & Tristan Tate / manosphere commentary
• [17:00] – DOJ subpoena scandal & Qatari jet update
• [18:37–25:36] – Jim Comey “8647” case
• [25:36–28:11] – Trump admin cancels blue state grants
• [28:11–33:39] – Todd Blanche AG confirmation drama
• [39:00–59:06] – In-depth segment on Trump’s Executive Order re: voting, with Rick Hasen
• [64:18–91:18] – Interview with Farrah Diaz Tello: criminalization of abortion post-Dobbs, If/When/How legal aid

Episode Tone & Style

The hosts, constitutional law professors Kate Shaw and Leah Litman, blend in-depth legal discussion, clarity, and sharp irreverence (e.g., “This is the worst timeline I know,” “Omg he admitted”). Expert guests offer both substance and plainspoken warnings about high-stakes, often outrageous developments. The language is accessible, yet deeply informed, targeting lawyers, students, and engaged listeners alike.

Recommendations / Closing

Book, music, and column recommendations, including reflections on the administrative state, music recs (Charli XCX), and the Supreme Court’s low approval rating. Farrah Diaz Tello closes by expressing hope in cross-border reproductive justice solidarity.

---

This summary covers the major topics, contextualizes legal developments, highlights memorable dialogue, and provides a roadmap for listeners seeking key insights from the episode.

Transcript

[Leah Litman]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's everywhere right now, a celebration of America's 250th and we're in the thick of it this month. Christian nationalists are using this milestone not to unite, but to divide. They're pushing the lie that America was founded to be a Christian nation where just one religious movement gets to decide who fully belongs, instead of the truth that America was founded as a democracy committed to liberty and justice for all. That's propaganda, not patriotism. It's a dangerous lie meant to justify censorship, discrimination, attacks on public schools, assaults on LGBTQ plus rights, restrictions on reproductive freedom, and government favoritism toward one extremist version of Christianity. Americans United for Separation of Church and State is here to fight back against this dangerous and egregious misinterpretation of our founding documents. AU fights daily for everyone's ability to live as themselves and believe as they choose, so long as they don't harm others. Novel idea in the day and age when almost every day we're seeing Christian nationalism weaponize a faith to attack individual freedoms across the country. Do something patriotic this summer as you're dodging the propaganda flying at you from all angles. Become a member of Americans United. By supporting au, you're committing to stand up and protect church, state separation in every area of life. Learn more about how you can Support and how AU protects everyone's [e-mail] Crooked

[Rick Hassan]

hey, it's Tommy from Pod. Save America and Pot Save the World. Last year, 2,500 people joined us at CrookedCon for conversations with some of the smartest organizers, least annoying politicians, and most interesting voices in politics to talk about how to fix this mess. Even President Obama made a surprise appearance. We're doing it all again November 5th to 7th in Washington, D.C. with even more podcasts, panels and workshops. Plus, there'll be drinks, which we'll need after the midterms. No matter which way they go, get [e-mail] if you're a friend of the pod, you get a discount too.

[Farrah Diaz Teo]

See you there. Mr. Chief Justice.

[Leah Litman]

Please, Court. It's an old joke, but when I argue man argues against two beautiful ladies like this, they're going to have the last word.

[Kate Shaw]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. 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 host Today. I'm Kate Shaw.

[Leah Litman]

And I'm Leah Litman. As you can tell, we are continuing our summer of rotating responsibilities. But fear not, you will get Melissa back next week and before you know it, the three of us will be back in the usual swing of things. But here's what we've got in store for you today. We are going to start with the week's big legal and law adjacent news.

[Kate Shaw]

We're then going to have a conversation about what exactly the President is trying to do and what he has gone running to the Supreme Court to ask for its blessing to do when it comes to voting, and in particular, voting in the fast approaching midterm elections. For that conversation we will be joined by UCLA's Rick Hassan, friend of the show and one of the nation's leading experts on election law.

[Leah Litman]

And finally, we will bring you a conversation Kate recently had with the legal director of the organization if, when, how about what they are seeing and working on when it comes to the use of criminal law to target both abortion and people who experience pregnancy loss in the wake of Dobbs. So stay tuned for that.

[Kate Shaw]

Okay, but before we get to the substance of the show, we have some exciting news. Leah mentioned this last week. I am excited to talk about it too because we've been working on this for a while. If you are a lawyer looking for fun new ways to get your CLE credits, you can now get those by listening to our podcast. We just launched our first course that's eligible for CLE credit. It is our SCOTUS term recap episode. It came out in the first week of July and it is now approved in California, New York, Texas or Wow, this is more than last week.

[Leah Litman]

This is exciting.

[Kate Shaw]

Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington and Oregon. And we'll keep you posted as more states are added. This is an experiment. This is something new we're trying and if enough people sign up, we will hopefully get to maybe add some more states and definitely add more episodes in the future. So to listen to the show for CLE credit if you haven't had a chance to listen to it, or if you did but we talk so fast you probably wanted to listen to it a second time anyway. You can do that and get some CLE credits when you do so you can go to crooked.com,/strrict_cle again crooked.com strict cle and you can learn more and buy the course there. Once you have purchased, you will head over to our partners at Lawline, which is an accredited CLE provider. Responsible for CLE administration to access it for course credit. So happy continuing educationing.

[Leah Litman]

I love that it's now available for CLE credit in Texas. I just think this is the best thing to do.

[Kate Shaw]

Feels a little troll y, doesn't it?

[Leah Litman]

CLE credits by listening to strict scrutiny. But now onto the news.

[Kate Shaw]

So we're gonna start with an important piece of good news. And there have been some bright spots recently, so I guess this is one of them. And that piece of good news is the announcement that the Paramount Warner Brothers merger is on hold. So this is a huge victory, although at least right now it may be a temporary one. And it's a victory that could have significant consequences for both news and entertainment. And honest, that means for democracy, which is obviously very much impacted by the information environment that we all live in. And the fact that this merger is on hold is a huge credit to the state attorneys general that spearheaded the litigation, as well as the attorneys and Hollywood figures who really built a constituency and put pressure on states to make this move.

[Leah Litman]

Federalism for the win, indeed.

[Kate Shaw]

Just the background here. At issue is the effort by Paramount, which is technically now Paramount skydance After a 2024 merger to acquire Warner Brothers. And Warner Brothers includes CNN N and Warner Brothers Pictures and just tons of other really important entities.

[Leah Litman]

So back in 2025, Warner Brothers was looking for a merger, and initially it looked like Netflix was going to be the lucky winner. But Paramount, which is run by the billionaire Trump buddy David Ellison, ended up topping the Netflix bid and emerging victorious. Paramount already includes cbs, Paramount plus tons of other properties. And this acquisition merger would make it an absolute behemoth in the news and entertainment space, and possibly one with a very particular orientation since Ellison is a, well, supporter of Trump. And we've all seen what's happened to CBS News, AKA Now Free Press or the Federalists. But on TV under Ellison's stewardship last month, the Trump doj, not surprisingly gave its blessing to the merger, despite what struck some people as pretty serious potential problems under federal antitrust laws, which are, among other things, supposed to protect against too much consolidation in any particular industry. Side note, this is part of why the loss of agency independence is a problem, or at least an illustration of the problem, because a formerly independent agency, the Federal Trade Commission ftc, also has authority over antitrust enforcement. But now that the Supreme Court has solved the separation of powers by giving the President control over the administrative state except the Federal Reserve Board, the President can impress demands on the Federal Trade Commission more easily as well, right?

[Kate Shaw]

So this wholly controlled federal government of one Donald Trump, again not surprisingly, blessed this merger. But a group of state attorneys general, which included California Attorney General Rob Bonta, former guest at our San Francisco Live show, filed a lawsuit raising their own antitrust concerns. They argued that allowing the deal to go forward would, quote, extinguish competition in big parts of Hollywood and it would harm consumers, particularly moviegoers and cable customers really across the United States. So they pointed out that this proposed deal would combine two of the five legacy Hollywood studios, two of the five providers of basic cable, two of the five major film distributors, really reducing competition in all of those areas. They also noted that Paramount and Warner Brothers, right, the would be mergers have long been competitors and that kind of competition has actually been good for the industry and for consumers. So they say in their complaint, basically like, this is why the stakes are so high. And I want to quote from it here, quote, Film and television are not commodities. They are principal means by which Americans encounter stories, ideas and perspectives beyond their own experience. The competitive health of markets where professionally created media is produced, distributed and exhibited determines not only price, quality and output, but the breadth of voices and viewpoints that reach the public. Close quote, like we said, like genuine democracy.

[Leah Litman]

Implications the states asked for a tro, a temporary restraining order to prevent the deal from closing. And in July, a California district judge granted that request for two weeks. And then last week Paramount announced that it would be pausing the deal pending the outcome of the trial that is now scheduled for next June. It's possible that as negotiations unfold pre trial, CNN could be spun off and that would be huge. It's also possible other changes could be made or the deal might fail completely. But what looked like a fait accompli is very much not. And that's because of a bunch of hard working lawyers devising a serious legal challenge and filing it in the lower federal courts where law still happens. Once again, the lesson is if you fight, you will sometimes win.

[Kate Shaw]

Indeed. So next piece of news we wanted to mention is the arrest last week of the brothers Tate, that is Andrew and Tristan. If you are fortunate enough not to know anything about these guys, these are manosphere figures who glorify and encourage, including broadcasting these views to millions, tens of millions of boys and men, a violently toxic brand of masculinity and misogyny. So that's them. And these brothers found themselves arrested in Florida on charges of rape and sex trafficking in the uk. And just a quick digression. So I said maybe you haven't heard about the Tates. I Actually had heard about them a little bit, but the first time I really encountered them was a few years ago when I was unfortunate enough to spend some time reading about them in. In conjunction with a book review that Leah and Melissa and I wrote of Josh Hawley'. Manhood. That's the title of his book subtitle is the Masculine Virtues America Needs. And in that review essay for the Michigan Law Review, which was titled, and I think, am I remembering correctly, this was entirely credit to Melissa for this excellent title of Might and Men. We referred to Hawley as an aspiring thinking man's Andrew Tate, which I think I still stand by. Although he does in the book go out of his way to criticize some of Tate's violence and explicit misogyny. But anyway, my point is I distinctly remember that that kind of like research jaunt being my first exposure to both the term and the place of the manosphere. And again, that's a few years back. It has been regrettably much harder to avoid since then.

[Leah Litman]

Yeah, that was a formative experience, I would say. And in some ways it's led me. I have a manosphere adjacent manosphere related project, or at least a project that touches on the manosphere that's in the works that I hope to be able to announce next month. And that is how I came across the Bill Pulte with a swinging dildo emblazoned with Bill Pulte fuck clip. Be very glad you were not hosting with me that week, Kate, as I sprung that one on Melissa with zero warning.

[Kate Shaw]

I was, I was not on that episode but I of course listened to it and I remember Melissa like listening and then saying something like what the fuck did you just make me listen to? Basically speechless. I would have melted into the floor. I am not sorry that I was not co hosting that episode. I'm sort of sorry that I had to kind of listen to it. But I also really can't wait because I also know nothing about the this project and I am excited for you to announce it to the world and also to us.

[Leah Litman]

Yeah. So anyways, back to the Tates. Yes, these vile figures are extremely well connected in Trump world. Earlier in the administration, according to reporting by the New York Times, Megan Tuohy and Isabella Kwai lobbying by the Trump administration led to the lift of a travel ban in Romania, where the brothers were living at the time and where they were under investigation for coercing women into pornography and in one case allegedly raping and beating a 15 year old girl after the travel restrictions were lifted. The Tates return to the US where they've been in Florida and DC moving about freely, including in MAGA circles. There have also been more allegations of abuse here, though these arrests don't grow out of those allegations. Instead the 38 new charges filed in the United Kingdom bringing the total number of UK charges to 59. The Tates are in federal custody in Florida as the UK extradition process plays out. I believe as part of that process a judge is going to have to determine they're eligible for extradition and then Britain, you know that they have enough to actually extradite them. Right now it seems that the Tate's one time friends in the administration, Don Jr. Barron, Alina Haba, they're staying quiet as the Tates are held in custody. Carolyn Levitt has also said from the White House podium last week that the White House would not interfere in the extradition process, but we will see if that holds strict scrutiny Is brought to you by Wild Alaskan Co. We only cook fish for meat at home, but sometimes it's really hard to count on the grocery stores, at least here in Michigan to have the fish I want. And I'm me so I want what I want and nothing else will do because buying stinky fish or not the right kind of fish, that never works. Wild Alaskan Company offers the best way to get wild caught high quality seafood delivered to your door on your schedule. So every box comes with individually portioned fillets, vacuum sealed, easy to prep and great for any meal, which is super convenient and useful for me because I don't actually like preparing the fillets, I just like having them on the ready to stick in the oven or the pan. Plus all their fish is quick frozen fresh from the Alaskan waters which helps lock in the freshness, texture, flavor and key nutrients like omega 3s and fresh just means there are no GMOs, antibiotics or other additives. It's so wholesome it's even good for the earth. Every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and practice. So we got our first box from Wyatt Alaskan Co. Might have been last summer I think. Anyways, we were so excited to try the varieties. My favorites ended up being the Pacific Halibut which offers some nice firmer fish and the Pacific Rockfish which is super good but offers a softer variety. So I use the halibut in the sheet pan tikka fish that I make and the rockfish in the miso marinade fish that I use. Wild Alaskan Co. Is so confident that their fish is the best that they offer a 100% satisfaction and money back guarantee. So you can try your first box risk free. Go to wildalaskan.comstrict for $35 off your first order of Premium Wild Caught Seafood. That's wildalaskan.comStrict for 35 dollars off your first order. Thanks to Wild Alaskan Company for sponsoring this episode. Strict Scrutiny is brought to you by Jones Road Beauty. People who know me know I am not a makeup person. I'm lazy and selfish with my morning routine and I don't want to add to it or add too much to it. I hate heavy caked on looks. I could go on, but I'm sold on the Jones Road Beauty Miracle Balm. I feel like it gives me a glow up rather than a cover up, like an effortless natural vibe rather than I was processed at a facility1 and I like how the Miracle Balm takes the place of many other possible steps in a routine. It's a summer, I don't want to spend time on a full routine. Just like reach for something to get that put together look but faster. I just dab some on after swimming and I'm good to go. And when I'm traveling it means there's no need for a full makeup bag, you know, and just stick this in my purse and go. The best part of Jones Road Beauty is that all of their products are actually good for your skin. Every formula is packed with skin loving ingredients. It nourishes your skin instead of clogging or caking it. It looks and feels natural, like you're not wearing makeup at all. And they have a new product, the foundation stick. It's for the days you still want a little more coverage just without going back to a full complicated makeup routine. And Jones Road actually just launched their foundation stick that fits perfectly into that. It's a foundation stick that even foundation stick skeptics will love. It's a skin care forward foundation and it delivers buildable real coverage while feeling completely weightless on your skin. You'll love how it gives you medium to full coverage without ever looking cakey or feeling heavy. It's dermatologist tested and packed with skin loving ingredients like ceramides, squalane and sodium hydrolonate to nourish while you wear it. And the finish is just really natural. Not too matte, not too dewy, just smooth even healthy looking skin. It's available in 30 shades to match a wide range of skin tones. Modern day makeup that's clean, strategic, and multifunctional for effortless routines. For a limited time, our listeners are getting a free full size mascara on their first purchase. When they use code strict at checkout, just head to Jonesroadbeauty.com and use code strict at checkout. After you purchase they will ask you where you heard about them. Please support our show and tell them our show sent you.

[Kate Shaw]

One other piece of news we wanted to mention. Leah actually mentioned this briefly last week week, but we wanted to spend another minute on the withdrawal of the subpoena the administration issued to the New York Times over the Times is reporting on security concerns about the Qatari jet that is maybe the new Air Force One. I feel like now there are some doubts about that. Anyway, as Leah recounted with guest host Emily Amick, the withdrawal of the subpoenas came after a truly unbelievable hearing at which DOJ lawyers acknowledged all kinds of things lawyers don't typically do, like omitting the fact that at issue were journalist records. That was in one request. They also mistakenly included reporters, spouses and in one case a parent in a records request. And then they just generally made a hash of procedures and protocols and the rule of law. So fortunately, after being basically filleted by the district judge during this hearing last week, the government voluntarily withdrew the subpoenas. But as one of the Times lawyers noted in the hearing, these kinds of efforts can have chilling effects on vigorous reporting, whatever the ultimate legal disposition. And, and that seems to be the point. So while we obviously, you know, celebrate the withdrawal of these subpoenas, it is an outrage that they were issued at all. And as a postscript to the episode involving these subpoenas, the White House has now announced that Qatari Force One will actually be offline for a stretch for some security upgrades. Carolyn Levitt referred to this as plane maxing. I mean this is just the worst timeline I know. But anyway, the point here is that that, that seems to fully vindicate. The Times is reporting about the security concerns that were what prompted these short lived subpoenas in the first place.

[Leah Litman]

We also have some developments in the seashells by the Seashore instagram Jim Comey Post 8647 case. And yes, that is the description. So on the topic of government misconduct, there were some big developments this week in the case against former FBI director Jim Comey for his Instagram photo of some seashells spelling out 8647. Comey, represented by legendary Chicago lawyer and former special counsel Pat Fitzgerald, is trying to get the case against him dismissed on the grounds of selective prosecution and vindictive prosecution. And in support of that motion, Fitzgerald filed an affidavit on Wednesday, walking through a lot of the events in the case, and they are wild. So just a few highlights. First, Trump is all up in this investigation begging for details of the FBI's Comey interview from Air Force One. Obviously a presidential priority, not like anything else is happening right now. Second, the feds allegedly tracked the location of Comey's phone, despite people inside the Secret Service saying it was, quote, a bad idea and legally dubious to do that. And to get authorization to do this, they told a judge that such surveillance, quote, related to an emergency involving danger of death or serious physical injury to a person, necessitating disclosure, without delay, of information relating to that emergency seat. I'm sure that representation is going to go over super well with a federal judge, especially from the New York Times

[Kate Shaw]

hearing, and especially where you literally have communications in writing where you have members of the Secret Service saying that this is legally dubious.

[Leah Litman]

Exactly.

[Kate Shaw]

Then they just go ahead and did it.

[Leah Litman]

Yes. And then part of what they did was surveillance that was conducted, and that included a visit that Comey and his wife paid to the grave of their deceased.

[Kate Shaw]

I know that was one of many truly stunning details in this, like, 20 plus page affidavit. Okay. But the maybe best part, I thought, I don't know if you read this entire affidavit with your jaw on the floor on Wednesday the way I did,

[Leah Litman]

but I think I read it Thursday. But, yeah, okay.

[Kate Shaw]

But this was. This is just, like, truly wild, but this detail in particular. So basically, the feds are so desperate to corroborate this notion that is obviously at the heart of their theory of the case, that 8647 conveys a threat of violence, that they paid a visit to one Sammy the Bull Gravano, a former New York Mafia underboss who eventually turned cooperator and finally helped the Feds bring down legendary mob boss John Gotti of the Gambino crime family. This is an enormous event in, like, the history of New York city in the 1980s. And one fun fact that I did not know about Sammy the Bull Gravano is that so he turned state's witness. He really does bring Gotti down. And in the course of his. His really critical testimony, he is asked how many murders he participated in during the course of his involvement in organized crime. And the answer he gives is 19. 19 murders. Okay, so this is the guy.

[Leah Litman]

Great witness.

[Kate Shaw]

Government goes to to help shore up their case. Against former FBI Director Jim Comey. So Gravano had been in witness protection for a while, but I think, think, you know, very shortly thereafter emerged, and it's like, now just back in the general public and I gather is now like kind of a MAGA guy. And so he was, I guess, happy to receive a visit for 25 minutes of conversation with some agents and basically said to them, yeah, 86. That generally means to get rid of someone. And as a gangster, he was providing his expert opinion that it means to kill. Okay, this, I shit you not, is who is shaping up to be the star witness against Jim Comey. You truly cannot make this up. It turns out that despite the unimpeachable testimony of the bull running searches of FBI records of, like, various Mafia cases that the FBI and DOJ handled, turned up zero references to 86, which, again, the theory that is being advanced here, and that Gravano was. Seemed to be trying to corroborate, is that Comey, as a former mob prosecutor, among other things, would have to be familiar with this in group use of 86, and thus knew that he was conveying a threat to President Trump when photographing and posting the photograph of the Seashells. Anyway, in addition to that episode, which, again, is my favorite, there also is, I think, some. Some pretty compelling evidence of selectivity, which is that Amazon vendors sell a lot of items of various sorts that have 86, 45, 86, 46, 86, 47. So Trump and then Biden and then Trump again. And the number, I gather, is if you add all of those different 86s together, like north of 200,000, and there have been zero, count them, zero law enforcement inquiries to Amazon over a single one of those products.

[Leah Litman]

I'm shocked. So this is the pending motion to dismiss the current prosecution against Jim Comey on the grounds that the prosecution is selective and vindictive. There's also a motion to dismiss the prosecution on the grounds that the indictment is facially insufficient and a violation of the First Amendment protections for speech. There's also a pending motion to unseal the grand jury transcripts. And we know those grand jury transcripts sometimes go kaboom, as we saw in the Broadview six case and many others. So this particular motion is on the ground grounds that the known irregularities in the old case against Comey out of Virginia, that was the perjury case that Lindsey Halligan bungled, including through some pretty wild misconduct before the grand jury that included vouching, mistaking, the law, you know, fairly normal fare for These Trump folk and together with some of what's come out in discovery here, you know, they are asking the judge to authorize Comey to have access to the transcripts. That may never happen because the case might be dismissed first. But I am flagging that for now that we are going to need to set aside a lot of time for it if we do get those transcripts because my guess is they are going to be really epic.

[Kate Shaw]

I feel very cross pressured here because I do think that this is a ridiculous bogus case that should be dismissed at the earliest possible juncture. On the other hand, I think that both like the kind of prurient entertainment value, but also like maybe the shaming value of seeing shaming the Justice Department officials who, whoever they were and whatever they did in front of the grand jury, I just think we know that there's a lot of dodgy stuff happening in these grand ju. I feel like there could be some real utility in seeing that. So I don't know what to refer

[Leah Litman]

chronology in the Broadview Six case because there was a hearing at which the judge basically got the prosecution to agree to withdraw charges. But then I thought the transfers were released. So I'm not sure what's necessarily.

[Kate Shaw]

You're totally right. Yeah. Yeah, that's. That's definitely right. So I. So I think it's. It could be. We get. Why not both. Yeah, exactly. You're totally right.

[Leah Litman]

Okay. Some other news. I don't know if this is exactly news, but the formal announcement of it or making it explicit is news. And that's. The Trump administration admitted to canceling federal grants to Democratic leaning Democratic voting states. This, of course, is another abuse of government power. And this is just bombshell reporting that confirms something that, as I was suggesting, had been pretty clear already, but is now beyond dispute. And that is when the administration canceled. Canceled hundreds of grants last fall for clean energy projects. It targeted blue states or states that voted for Kamala Harris. The government admitted that the terminated grants, with one exception, all quote, had a recipient location and or at least one place of performance in a state that awarded its electoral votes to Kamala Harris in the 2024 election and has two Democratic caucusing senators, end quote. These terminations, the government noted, were not, quote, based on any programmatic statutory cost reduction or performance based fact actor, I. E. They just did it for.

[Kate Shaw]

This is what. This is what you often refer to as just. He admitted.

[Leah Litman]

Omg he admitted. Yes, exactly.

[Kate Shaw]

Nailed that.

[Leah Litman]

Nailed that. Kate, thanks. And this again should be a presidency ending scandal that the president is withholding, canceling federal funds, not for any reason related to the actual substance or use of those federal funds, but just to penalize people who did not support him politically. Again, I just go back to the small scandal of Richard Nixon having what now are like mere pennies to gin up dirt on political opponents. And now you have Donald Trump literally canceling energy sustaining grants to states and programmatic grants. And it's just appalling.

[Farrah Diaz Teo]

Yep.

[Kate Shaw]

Yeah.

[Leah Litman]

Wanted to remind everyone that one Pam Karlin, professor at Stanford Law School, tried to warn us. So she testified at Donald Trump's.

[Kate Shaw]

Oh, that was in the House. Right. She was testifying in the House at that point. That was amazing testimony.

[Leah Litman]

Right, exactly. And during that testimony, she said, quote, imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the President to discuss getting disaster aid that Congress has provided for. What would you think if that president said, I would like you to do us a favor? Now, she was talking about the possible favor of beginning an investigation into a political opponent. But the point still stands. We knew he was going to do this because he already did it. And that should have been disqualifying. It is.

[Kate Shaw]

And it has just only exponentially increased this second time around. I had, I'll be honest, I had forgotten about that testimony. But it was great then and I'm

[Leah Litman]

sure into my mind.

[Kate Shaw]

Yeah. So last piece of big news we wanted to cover was is a Blanche confirmation question mark update. So AG nominee Acting Attorney General Todd Blanche, AKA I'm his lawyer, or was his lawyer. That guy is right now facing sort of uncertain prospects in his quest to become the actual Senate confirmed Attorney General of these United States. So we're recording this episode on Thursday afternoon and as of now, there is a real question whether Trump has the votes to get him confirmed. Now, there should be many, many reasons confirm Todd Blanch, but we don't want, nor do we have time for a four hour episode. So we will just focus on what seems to have the most legs, which is the appalling slush fund slash immunity deal that purported to, quote, settle the $10 billion lawsuit that Trump filed against his own IRS. Recall that as the initial pushback to the announcement of that deal got steam, Blanche went before Congress. This is an earlier testimony, not his confirmation hearing. And he assured them that the fund was not going forward forward. Then jump ahead to the actual confirmation hearing. Outgoing Texas Senator John Cornyn seemed less than fully satisfied by Just taking Todd's word that the fund wasn't happening and made clear that he wanted something in writing to that effect. Well, it seems the administration, or maybe just one Donald Trump does not want to provide that. So we may be at kind of an impasse. Now. I'm not totally sure about the math, but I think with Mitch McConnell out and not voting and every Democrat, Democrat presumably voting against Blanche, if you don't have Collins, who I think needs to vote against Blanche to have a chance to win her Senate seat, and Murkowski, who had seemed to have some real doubts anyway, then Blanche absolutely needs both Cornyn and Tillis, the two outgoing Republican senators who are pretty clearly on the fence. So I don't know, seems like a real question.

[Leah Litman]

And on Wednesday night we learned that the committee vote that had been scheduled had been. And that is likely because seems to be because there just were not the votes. So it's not clear that Blanche is going to get a vote before August and the ultimate fate of his nomination isn't clear. This cancellation, of course, was followed by a Trump truth post on Thursday. I am just going to quote it. Quote, todd Blanche is a star and everyone knows it. He has the potential to go down as one of the greatest attorney generals of all time. Time that's obviously capitalized. However, John Cornyn of Texas and Thom Tillis of North Carolina, both of whom I refuse to endorse, also capitalize, and whose political careers have been ended by my action, are refusing to vote for this great nominee who will remain in any event as acting. Remember, both Cornyn and Tillis voted for Merrick Garland, blah, blah, blah, blah. I have no objection to temporarily withdrawing Todd's name if they do not do the right thing and putting him back after Cornyn and Tillis are out of office. Office. What that seems to suggest to me is that Donald Trump is so attached to his dead Slushman that's supposed to be dead and the promise of immunity that he's willing to throw his Attorney General nominee and nomination under the bus over it. Like he would rather withdraw the nomination and keep the prospect of this deal and hopefully count on a different constituted Republican controlled Senate after the midterms because you know, Ken Paxton would be down with that and whatnot.

[Kate Shaw]

So I am sad. I am. Yeah, it seem, it does seem like he, you know, that Blanche was literally up there saying, no, it's dead, dead, dead in order to get confirmed. And Trump may just not agree with that. It may have just been entirely self serving. I'm also Though I. I'm so curious about Cornyn and his motivations and his expectations here. So, like, was he just making a kind of pro forma gesture of principle and actually expected some paper to emerge that that would give him the COVID that he felt he needed, you know, in terms of his conception of self and standing and whatever else, to vote yes on Blanche, or did he actually realize he was going to throw a wrench in the whole thing? I am genuinely unsure. Like, but this is incredibly revealing that this fairly straightforward ask, which is to just formalize what Blanche has always said. I don't need to formalize it. I've said it in sworn testimony. That's as good as a written document. But I actually turns out maybe it's not.

[Leah Litman]

Yeah, no, I agree. I'm also kind of curious what Cornyn wanted and might expect, but who knows? Like, maybe his vote alone might not be enough. We shall see. Yeah.

[Kate Shaw]

And this news item, right, so that this potential nomination going down in flames over this IRS lawsuit and deal is a nice opportunity for us to note that the article that we author, the two of us and Melissa, titled Unsettling the Presidency and forthcoming in the Northwestern University Law Review, is now up on ssrn. We've mentioned it a couple times in the show. We have now finally posted it, and it talks at length about the president's abuse of judicial and quasi judicial processes, of which this whole IRS episode is really just the most egregious example. Anyway, it's up there. You can read it if you'd like to. It's still in edits with Northwestern, so if you read it and you have feedback for us, please feel free to let us know.

[Leah Litman]

Yes, one other update on the liquor cabinet, someone who's actually in the liquor cabinet, and that is Secretary Whale Juice, Bear caucus, raw milk. RFK Jr. Is reportedly going to be hosting a cooking show.

[Kate Shaw]

This cannot be true. This is like an onion piece. No, no.

[Leah Litman]

It was recorded in the Hill and I will try hate watching it once and that will probably be it. But I am curious.

[Kate Shaw]

This reminds me of I once or twice took one for the team and listened to an episode of, I think the now defunct Ted Cruz podcast called Cruise Control. Do you remember he had a podcast he co hosted with somebody. I forget who, and I don't think he does anymore, but I listened to an episode or two anyway. And for the team, these are the things we do. So, Leah, thank you very much for

[Leah Litman]

volunteering as tributed this episode on YouTube and I have watched it yet.

[Kate Shaw]

Oh, there's one. Oh yeah, we don't know what he cooks, do we?

[Leah Litman]

I, I don't because I haven't watched it.

[Kate Shaw]

All right, well, next episode, I don't

[Leah Litman]

think it's, I don't know, like raccoon penis or something, but I don't know.

[Kate Shaw]

Can't rule it out.

[Leah Litman]

Yeah.

[Kate Shaw]

Anyway, well, we will revisit on a future episode what exactly the recipes are, but in the meantime, stay tuned for our content conversation with Rick Hassan about the President's effort to undermine the midterm elections.

[Leah Litman]

Strict scrutiny is brought to you by Remy. I'm intense. The world is what it is. This combines for a lot of stress and not a lot of outlets for the stress, which can mean some stress induced teeth clenching. Chomp, chomp, chomp. Seriously, I didn't realize how much I was clenching until some of my stretching classes included self massages, self face massages. And I was like, why would I need that? Turns out I do because I stress clench. And Remy helps protect my teeth using their custom night guard. Along with over 350,000Americans, Remy night guards are the only FDA cleared and clinically tested at home impression kit night guards on the market. Not only do they help prevent teeth damage from grinding, they also help reduce jaw tension and facial muscle strain and improve your sleep quality. You'll get the same professional quality and comfort as a night guard from the desk dentist for 80% less of the cost. By taking your own impression from the convenience of your home, Remy saves your impression so you can enjoy the convenience and savings of Remy Club, where they'll ship a new top and bottom night guard to you every six months. Which means you don't have to like take it to the dentist and get it cleaned all the time. Another plus. So here's how it works. After you purchase, your impression kit comes straight to your door. You follow Remy's step by step instructions to get your perfect impression. It's really like a little, I don't know, like clay playtime at home. And Remy crafts and shapes ships you your custom fit nightguard. You get your night guard back and start protecting your teeth. And I sleep better knowing I'm protecting my chompers and not going to exacerbate my face tension. Protect your teeth with Remy by using code strict to get 55% off your new night guard from now until the end of August with Remy Club. Subscribe and save. That's 55% off at shop r e m I.com strict with code strict strict. Thank you Remy for sponsoring this episode. This episode of strict scrutiny is brought to you by Alloy Health. Here's something nobody tells you. The skin changes that start in your 40s aren't just aging. They're actually hormonal. Specifically estrogen loss. Estrogen naturally helps maintain collagen, support elasticity and keep skin hydrated. As estrogen declines, skin gets thinner, drier and more crepey. That means your expensive cleanser retinol moisturizer. None of them were designed to solve what is a hormonal problem. My skin just now feels a little thinner, saggier and I do not want to go down a skin spiral or skincare spiral like one Sam Alito did. I will not do that to myself, but no one was there telling me my routines needed to change. Aloi, however, has an answer. M4 Skincare the first head to toe line of Estriol powered skincare. Estriol is a safe, gentle and bioidentical form of estrogen clinically proven to rebuild collagen, restore elasticity and visibly reduce restrictions wrinkles. For M4 face cream, 88% of users saw improved elasticity. For M4 body treatment, 95% felt smoother skin. The full line targets face, eyes, body estrogen powered skin care. Everywhere you notice changes. It's prescription strength without the appointments, pharmacy trips or insurance hassle. It's also HSA and FSA eligible and delivered right to your dorm. Here's how it works. You complete your intake. M4 is available by prescription, so you'll start with a quick online form. Then you get your prescription. You'll be matched with a menopause specialized physician who reviews your intake and prescribes what's right for your skin. Plus you get $0 unlimited messaging with your doctor. M4 is then delivered to your door. Once it's approved, your prescription ships straight to you. No pharmacy, no hassle. Try M4 Skin Care from Alloy and see results in as little as eight weeks. Head to myalloy.com and use the code STRICT to get $20 off your first order disorder. Your menopause specialized doctor will tailor your skin care to your needs. Plus you get $0 unlimited messaging with your doctor. Head to M-Y-A l l o y.com and use code Strych to get $20 off your first order.

[Kate Shaw]

And now the pressure President's Hail Mary application to the Supreme Court to allow him to enforce his voting slash anti voting executive order. And for this conversation we are delighted to be joined by our friend Rick Hassan, professor and founding director of the Safeguarding Democracy Project at ucla. Rick, welcome to the show.

[Rick Hassan]

It's great to be back with you.

[Kate Shaw]

So, Rick, we want to talk to you about the application that Trump filed last week in the Supreme Court in Trump versus California. So at issue in that application is the March executive order that would largely assume assert presidential control over federal elections, which, just as a reminder to our listeners, under the Constitution are the province of the states, subject to congressional, but very much not presidential override. Okay, before we get into the details of the application that's pending before the Supreme Court, can you just remind us what this executive order purports to do?

[Rick Hassan]

So this is Trump's second executive order. There was an earlier one on voting in 2025. Parts of that were put on hold or killed by courts finding that the president didn't have authority to do certain things. The key part of the second executive order relate to, in one bucket, non citizen voting and another bucket, rules for mail in ballots. So let me talk about the noncitizen voting piece first. So federal law says that noncitizens can't vote. This executive order purports to direct parts of the federal government to assure that noncitizens are not voting. And it does so in three ways. First, it tells the Department of Homeland Security to create a list of of citizens who are at least 18 years old and provide those to states. Second, it says that the United States Postal Service has to come up with a rule where they're going to get states to opt in to provide their own citizenship lists to the usps. If they don't, USPS won't deliver mail ballots. And third, it directs the Department of Justice to, to criminally prosecute election officials who don't adequately police noncitizen voting. So reading between the lines, it seems to be saying if a state doesn't match its list to the DHS list or doesn't sufficiently explain why someone's on their list but not the DHS list, they could be criminally liable. So that's the citizenship piece. Yeah.

[Leah Litman]

And then there's also, you know, the implicit threat of and we won't deliver your ballots if you don't do what we want as well. But there's also kind of a broader attack on mail in voting in the executive order as well. Right.

[Rick Hassan]

So, yeah. So the executive order purports to require new security measures on mail in ballots, including something called an intelligent barcode, which allows for better ballot tracking. Some states already do this. Not all states do. The 23 states and district of Columbia that are plaintiffs in the California vs Trump case, a lot of them don't do this, and they've already purchased their envelopes for use in November.

[Leah Litman]

Yeah. So at every stage, opportunities abound for huge amounts of disenfranchisement, which is probably the point. And so, unsurprisingly, a number of states whose election administration would be impacted by the implementation of this executive order filed suit. In late June, there was a decision out of a Massachusetts district court enjoining parts of the executive order. What did that district court opinion say, Rick?

[Rick Hassan]

So. So what makes this case weird procedurally is that the executive order says USPS and dhs. You need to start a rulemaking process, and your rules need to say X. Well, the rules have not come out yet. Now, we're getting into August here, when states are heavily into actually getting their elections running. So we're really running up against the clock here. But there's no rule yet from DHS or from USPS, and I believe that the USPS was supposed to have that rule out by July 29th, and it's not out. And so what the district court said was, this is already hurting the states. They've got to divert resources to prepare for the possibility that this rule's gonna require what the executive order says should be required. And that's costing them money, it's costing them time. They have uncertainty. They've got standing. No more rulemaking. This can't go forward in time for this election. But maybe we'll see what happens later on once the rule comes out as to future elections. That's a subject for a different. A different day.

[Kate Shaw]

Right? So, yeah, this is what's so sort of strange about the posture of this case. And we'll talk about the application in a second, but everything you're describing, as Leah just mentioned, seems like it has the potential for enormous disenfranchisement. The federal government, like this federal government, which we've just talked about about, is like a clown show in all kinds of ways, is supposed to produce the authoritative list of voters which states already have on their own, and then provide that to states. And states then have the burden of explaining any divergence between their lists, which are probably much better, and the federal lists, which are cobbled together from federal data. But it's there. It's enormous potential for destabilization. But as you said, the rules that are directed by the EO haven't yet been promulgated. So that is sort of the. The strangeness of the posture right now. Okay, so district court says, notwithstanding the fact the rules aren't out there, this is already burdening the states. You know, there's a controversy here. They're standing here. We can enjoin, at least for this election cycle, the implementation of these new rules. The appeals court declined to stay that district court order. And I was going to ask what did the administration do then? But of course that's a rhetorical question because what it always does is it runs to SCOTUS to ask SCOTUS to bail it out. And that's what it did with the application that it filed. But as we were just sorting of alluding to the application actually isn't squarely about the underlying legality of the executive order. Right. Or about the President's authority to make these sweeping changes to federal elections. It's mostly an argument that the suit is premature. So can you elaborate a little bit on that?

[Rick Hassan]

Yeah. I go even further than your question. I'd say that they don't defend the order at all, except at the most general level to say that the President has an interest in assuring that laws are followed and there's election integrity. Integrity, which is true as far as it goes. So the argument is no standing. It's not ripe yet. You can't really sue because we don't know what the rules are going to be. So they say some weird things. They say, well, the executive order only directed what should be in the proposed rulemaking as opposed to what's in the final rule. And that rulemaking has to be, according to the executive order, consistent with law. So maybe the Postal Service is not going to come up with a rule at all. So let's let this process go forward. And as to the questions of the list that DHS is going to come up with with the non citizens, it says, well, you know, it's really speculative to think that there's going to be criminal prosecutions. This doesn't direct anybody to do anything. You create a list, we create a list. There's a bunch of lists out there. That's all. No harm. Now, what's really, I think, interesting here, the injunction issued by the district court and the order that failed to stay at the first circuit says, you know, this is only for the 23 states and D.C. so the other states are still potentially bound by this. Nothing's stopping these rules from coming out that are not out yet. So it would be nice to know what the rules are. I'm wondering if they're just holding those rules so that the plaintiffs in this case can't go to SCOTUS and say, look, now we see what the rules are. Here's our concrete in.

[Leah Litman]

Wow.

[Farrah Diaz Teo]

Yeah.

[Leah Litman]

So Justice Jackson has ordered a response to this application. It's due this week. I know predictions are always hazardous, Rick, but when do you think the court might likely rule? And do you have any predictions for how the court might rule?

[Rick Hassan]

So let me step back for a second and talk about that other case that's happening in the D.C. circuit. So this was a case brought by political organizations, and the District Court Judge Nichols said, you know, you Democratic organizations, you haven't shown you're facing any harm yet. We don't know what the rule looks like yet. Unlike the election officials who have to prepare ballots, you don't have to do anything. And the D.C. circuit, in a panel opinion, I think it was at a Biden judge, an Obama judge, and a Trump judge, they all agreed this is premature, but they dropped a little hint there. And they said, of course, if the government comes through and they actually have a rule and it's really burdensome on the states, that would be a pretty good reason for us to act expeditiously and maybe stop that rule from going into effect. So I could easily see the Supreme Court doing the same thing, saying, hey, it's premature for states to bring this, but come back in a week. So that could happen. That would be kind of maybe. I can imagine a Robert Kagan compromise behind the scenes, express real reservations about the merits, but say, no, stay just yet. The fact that Justice Jackson has done this before, the fact that she gave up what I would consider a more leisurely time, a full week to respond maybe indicates that she doesn't think that this is so urgent for the federal government. Or maybe she's shared the timeline with the justices and they agree. I mean, this is a key point. The Solicitor General asked for an immediate administrative stay and just to explain that he wanted to be able to keep going forward with the rulemaking while the justices continued this, and the court said no. So that's a kind of a very small thin read on which to say, maybe the court's going to deny this. But the bottom line is, even if the court says government, you can go forward and come up with your rules rule, that's just kind of punting this down the line for a week. And I think there's going to be a very strong case to enjoin the final rules if there's a reversal here. And that's because, aside from the disenfranchisement point, it's too Late. Kate, you mentioned how good a job is the government going to do in coming up with these lists. The USPS has never had to decide which mail it gets to deliver. It's never administered election. We know that DHS's list is full of false positives and missing people and people who are naturalized and people with same names. And so it's just a, you know, I think the Latin term is a shit show of what we would end up seeing if this was actually tried to be implemented for November. So even when this came out in the spring, I thought there's no way, even if courts allow this, that it could actually happen in time.

[Kate Shaw]

So you did say, I think, Rick, initially, that you wouldn't be that surprised if the court does stay the district court injunction, which would be, even if not a sign that ultimately they're going to be able to implement these crazy provisions for November, that at least for now, they can move forward. And what does that mean in terms of the burden on states to begin to think about how they would come into compliance if the Supreme Court does allow the implementation of this order before November? It seems insane to contemplate, but I think we have to. To.

[Rick Hassan]

Well, I think they have to prepare as though it may come out, but there's going to be a point in time where this can't be. So ballots need to be printed, they need to be put into envelopes. There need to be return envelopes printed. Right. And I think maybe it was Massachusetts, one of the states that spent $3 million on envelopes. You know, it's like it's expensive to run an election and there's these tremendous reliance costs. And so they would have to keep incurring those costs, which is a reason why the court might just decide this is too close to the election, it should not happen. But I think the standing arguments are not frivolous. The rightness arguments are not frivolous. And so it's possible the court looks for a compromise here. But the telling point that they kind of back away from what the orders are going to do and they don't defend on the merits what the those proposed rules would do. They don't even mention what they would do. They say, oh, the president wants certain things to be done and doesn't explain what even those things are. So, I mean, that really is a tell. I think that they know that there's weakness on the marriage. It reminds me of the birthright citizenship case where it was really all about, you know, this is the Casa case, not the Barbara case. But the earlier case where the question was, you know, can you issue a universal injunction, like a procedural thing, they went all in on procedure and they won on procedure and then, and then ultimately lost on the merits nine months later.

[Kate Shaw]

Right, but, and I had the same thought. It does feel like they are running that playbook again, coming up to the Supreme Court with a basically purely procedural argument that doesn't really focus on the substantive, you know, underlying substantive legality. And maybe this ends up the same way. Maybe they get a short term procedural win, they ultimately lose on the substance. But just as having this uncertainty out there with respect to the meaning of the citizens and chip clause of the 14th amendment, I think did real damage in even more concrete terms here, like the protracted uncertainty has real costs. And so I just, it, it makes me very nervous to hear you say, like, yeah, they, the administration might notch a short term victory here. And, and so, you know, I, I, I think that it would be crazy for them to win at all. And I think it's really, I guess, important for us to underscore the two things. One, the court should be criticized forcefully if it allows even a week or two of implementation. I mean, not again rulemaking implementation. It's not that the states have to do anything immediately, but they do have to engage in readiness immediately. So that, that's something that we should criticize forcefully, but also understand that that does not mean ultimately that this executive Order actually goes into effect.

[Leah Litman]

Can I add one other example to the mix? And it's not just the birthright kind of process that this was calling to mind for me, where the administration got a short term procedural wren that allowed them to come up with some guidance for how it would implement this wildly illegal order that it was then never given the chance to implement, which I think, you know, could be the same here. It was also reminding me of the challenge to the mass firings and agency reorganizations where the Supreme Court also granted a stay application after a lower court had enjoined an executive order. And it did so partially on the ground that that executive order asking for these mass layoffs and reorganizations had directed everything to be done in accordance with law, just like this executive order directs all rulemaking to be done in accordance with law. And so I'm also very worried that there's going to be this two step where they give the administration this may be temporary win. There are some noises about what the administration might do that creates chaos that I don't know if it all can just be put back in the bot if and when the court goes ahead and blocks the order and the relevant rules later on.

[Kate Shaw]

Totally. And one more thing, just as a former White House lawyer, can I just say that consist as consistent with existing law or that kind of thing is like pro forma for executive orders. They always say that. So that's not like any kind of concession that they're going to pull back on like the full maximalist implementation of what they're trying to do. Like that's just always in the orders.

[Farrah Diaz Teo]

Okay.

[Kate Shaw]

So Rick, can we ask you to situate this executive order and the fight against it in the larger context of this administration's efforts to interfere with, slash, undermine the upcoming midterm elections? This is not like a one off.

[Rick Hassan]

Yeah, that's true. Let me just go back for a second and respond to your earlier point.

[Kate Shaw]

Yeah.

[Rick Hassan]

The kind of delay that we might see in the context of this executive order is going to be much shorter than what we saw in the birthright citizenship case because the rule's going to have to come out within a couple of weeks.

[Leah Litman]

Weeks.

[Rick Hassan]

And it's even in the papers, the application, they say by mid August we need to know what the rules are. So it's not going to be a very long delay. If it happens that that might militate the Supreme Court just putting the stay in now because they know it's coming back to them on an even shorter fuse in a couple of weeks. The other thing I would say is that for the remaining states, the 27 remaining states, they're going to have to hustle too. And I think they're not going to want to have to do do this either to get their mail in ballots out. And so I wonder if behind the scenes this rule is not even going to come out. So you know, I just can't see how it's actually going to get implemented. So as much as I share with you disdain for what the administration is trying to do, I'm a little bit less concerned that it's actually going to lead to these lists coming out and actual disenfranchisement. Yeah.

[Kate Shaw]

So it now is to the bigger picture. Yeah.

[Rick Hassan]

Yeah. So I think we need to understand the unique point we are in American history where the greatest threat to the integrity of American elections is the federal government. So the federal government, that was the one that came in and sent registrars down to Alabama to assure that black voters could be enfranchised in the 1960s and that observed elections and the federal government that has been doing cybersecurity assistance for states and Local and that has been providing guidance on the best voting machines through the Election Assistance Commission. All of this is being dismantled. So Trump fired the commissioners on the Election Assistance Commission. It's a question of whether that's allowed or not. Is this a slaughter case or a Cook case or something else? He's decimated cisa, which is the agency that deals with cybersecurity. So if it's actually serious about, about dealing with election problems, he would do something positive to try to help states have secure elections. He's doing the opposite. He's using his bully pulpit. This is one of the most important things to undermine confidence in the fairness and integrity of the process. And he's just trying at every stage to get the Senate to pass the Save America act, which would be hugely disenfranchising. And I should say voter ID laws have not all proven to be so disenfranchising. There's a lot of counter mobilization things that take place. But documentary proof of citizenship laws which require you to produce a birth certificate or a naturalization certificate and maybe a marriage license in order to register to vote, those would be hugely disenfranchising. We know from experiences in Kansas and elsewhere. So he's trying the full court press. And I'm worried after the election there are all kinds of things that he could try to do if it's a close election for control of Congress, including trying to seize ballots, including trying to lead on election officials. There was just a poll that came out from Gallup where I think over majority of Americans are worried that there's going to be pressure on election officials to do the wrong thing. I mean, so it is just we are in a terrible state where the federal government is the greatest threat to the integrity. The good news is there are three bulwarks against interference. There are the courts who've done a pretty good job so far against election subversion, even though as they've done a horrendous job on voting rights more generally, the states, because we have this diffused power, Trump can't just go in and cancel elections if he wants, declare some emergency. Like some people are worried about the states and localities run elections and then ultimately it's the people. So if Trump is stupid enough to try and send ICE agents to the polls, I think you're gonna see people forming human chains and getting, you know, they will crawl over glass to vote and I think would actually have the opposite effect. And I should say many of the disenfranchising things that Trump is trying to do are most likely to to hurt the base of Trump's support. And it's really counterproductive. And I think it just shows it's not very smart political strategy in addition

[Kate Shaw]

to a moral abomination. Well, moral, constitutional, legal. No, I know it does, but it can't hurt to say it again. But yes, also may be counterproductive for him politically.

[Rick Hassan]

Yes.

[Leah Litman]

Rakasen, always great to learn from your expertise. Before we let you go, can we ask you to stick around and join us for recommendations or your favorite things of the past last week?

[Rick Hassan]

Sure.

[Kate Shaw]

Awesome. Okay, so I will kick it off. I am finally reading the novel that's a couple years old now, Olga Dies Dreaming by Shoshel Gonzalez, about halfway through and really, really enjoying it. I want to shout out Michelle Goldberg's column from last week on the blocking of the Paramount merger, which we talked about earlier. In the episode, he says a great shout out to our friend Norm Eisen, who's dubbed, I think it's the attorney general of the legal response to Trump. Anyway, really like that. Mark Ruffalo makes a cameo. Anyway, very good call. On also on a more serious note, a wonderful piece by Emily Golagowski, can ballet help in the fight against Alzheimer's? A beautiful piece about dementia and Alzheimer's and movement and embodied kind of practice is actually maybe a way to stave that off. And then finally, I am rereading Jerry Michelle's masterful Creating the Administrative Constitution. And I am just getting enraged afresh over the abomination that is the opinion in Slaughter, like this austere conception of presidential power and control that is the Slaughter majority opinion just could not be less faithful to the actual reality of the standing up of the federal government and personnel within the federal government that the first decades of our history reflect. So if you want to get even matter about Slaughter or just because it's an excellent book and you haven't read it, pick up Jerry Michaud's Creating the Administrative Constitution.

[Leah Litman]

So my recommendations, I've got some music, Charlie X, new album music, fashion, film, been described as slacker girl rock. I like that. Also, Audrey Hobart, who's the clown? Not as new, but just gotten into it recently. And then Ben Wickler's recent book this Is the Plan, and Jamelle Bouie's column, why do we tolerate Elon Musk's Racist commentary? Great question. He's got some important analysis. And finally, a recent Gallup survey shows that the Supreme Court's approval has sunk to a record, record low 33%. Wow.

[Kate Shaw]

Lower than Trump by a couple points. Right? That's really saying something. I think.

[Leah Litman]

I think he's around the same. Yeah. I don't know. Yeah.

[Kate Shaw]

Yeah.

[Leah Litman]

All right.

[Kate Shaw]

Sorry, Rick, over to you.

[Rick Hassan]

So when I'm trying to not think about Donald Trump, I've been watching Detective Hole on Netflix, which is kind of a Norwegian noir, serial killer type escapist thing, and Lucky on Apple tv, which is a pretty good distribution distraction. I've been writing a book for the last couple of years on American democracy from 1964 to 2024. I'm working on the first draft of the last chapter on the 2024 election. I've been reading a couple of books to explain Trump's hostile takeover of the Republican Party. One is by Seth Maskett called the Elephants in the Room. That is a great book, which includes surveys of local Republican Party officials and what they think and just how much Trump has been able the traditional Republican hierarchy. The other book is by Julia Azari, who's a political scientist as well. She's at Marquette, and she wrote a book called Backlash Presidents, which goes back a long time ago, back to Lincoln and Johnson talks about when a president tries to achieve racial justice, whether that's Abraham Lincoln or Barack Obama, they're often met in response with a backlash president, whether that's Andrew Johnson or Donald Trump. And that often leads to impeachment. And it's kind of cycle in American history, and it kind of puts the current moment into a broader historical American perspective.

[Kate Shaw]

All right, well, those are great recommendations, Rick. Thank you so much again for joining us. We're going to take a quick break. And after the break, my conversation with Farah Diaz Teo, senior counsel and legal director for the organization if when how

[Leah Litman]

strict scrutiny is brought to you by honeylove. So one of my co hosts, I'm not sure if I'm allowed to allowed to say which one didn't ask for permission. Anyways, they were a huge Honey Love fan, so I was super excited to get to try a product and came in with high expectations and I was not disappointed. The Honey Love bra is awesome. I have the Cloud Embrace one, and it's an everyday one that kind of functions as activewear, but also provides shape like both. And that's what you get in the cloud embrace. And it's comfortable enough for all day. They're perfect for summer office work days when I'm more on the go or summer weekends when I'm similarly out and about, but also need to look more profesh in case, you know, I run into people. I am an associate dean now after all. Anyways, I also feel great about supporting HoneyLove. HoneyLove is an independent female founded brand Women Supporting Women. Think about that one for a second. All Honey Love products are intelligently designed by women who actually wear them, including founder Betsy who is highly involved in the development of each product. We also deserve to treat ourselves and support ourselves because comfort isn't a luxury, it's a non negotiable and support shouldn't mean sacrificing how you feel in your own own skin. At the end of the day, this isn't about changing your body, it's about supporting it in a way that actually feels good. And honeylove delivers that at every stage. Treat yourself to the most advanced bras and shapewear on the market. Use our exclusive link to save 20% off [e-mail] strict that's honeylove.com strict after you check out they'll ask where you heard about them. Please support our show and tell them we sent you experience a new standard and comfort and support with Honey Love.

[Kate Shaw]

Foreign. Welcome back to Strict Scrutiny. I am your lone host for this segment, Kate Shaw and I am delighted to be joined by Farrah Diaz Teo who is the senior counsel and legal director at if when how lawyering for Reproductive Justice. She works there on strategic litigation, policy advocacy and applied research to end reproductive criminalization and ensure liberty and dignity during pregnancy and all of its out outcomes. Farah, welcome District Scrutiny hi, glad to be here.

[Farrah Diaz Teo]

Okay.

[Kate Shaw]

We're really happy to have you here because every summer since 2022 when the court overturned Roe vs. Wade in Dobbs vs. Jackson Women's Health Organization, we've done deep dives on various aspects of the Post Dobbs landscape. We've had guests from other organizations working on various aspects of reproductive rights and justice. So places like the center for Reproductive Rights and ACLU and Planned Parenthood and National Women's Law Center. For folks who don't know your organization, if when, how can you start by just telling us a little bit about it? What's its background and what sort of work did you primarily do before 2022?

[Farrah Diaz Teo]

So we do direct legal services and strategic advocacy in service of reproductive justice to end state violence in people's reproductive lives. So we want to ensure that people are able to make decisions about their bodies and their families and whether they carry pregnancies to term or not and the ability to do so with dignity dignity and be able to do that without interference or violence from the state. We use all the tools of lawyering to do that. We do litigation, including criminal defense and civil rights litigation. We run the Repro Legal Helpline, which serves as a direct source for people to get legal assistance and legal referrals. We run a bail fund that helps people who are ensnared in criminalization and policy advocacy. And we do all of this also with a network, network of law students, lawyers and legal advocates across the country who can be mobilized in service of ensuring that people's reproductive lives are free from state violence. And so the organization has been around for a while now. It's a little over 20 years and it's been through multiple iterations. And when we first started out, it was really an organization that was about organizing on law school campuses to get more classes about reproductive rights, to really train lawyers in reproductive rights issues. It was Law Students for Choice at the beginning, and through various evolutions, it was Law Students for Reproductive justice reflecting and understanding that true freedom isn't just about abortion rights, but it was really about the full spectrum of people's ability to make decisions about their lives and their bodies. And in 2019, I joined the organization. I was with a group called the SIA Legal Team, which is the self Induced Abortion Legal Team, which was, I guess a sort of repro legal startup addressing criminalization of self managed abortion. And we joined if1how and brought litigation and policy advocacy to an organization that had mostly been organizing among the legal profession. And so now we do, we do all of those things together and really try to use all of the tools at lawyers disposal to help improve people's lives in these really critical moments where we see, unfortunately, they're increasingly facing violence by the state.

[Kate Shaw]

Okay, so that's a great sort of history of the trajectory of the organization. I think I, like many people who went to law school, first became aware of it, I think maybe just after I was in or at the end of my time in law school, as, you know, kind of chapters cropped up all over the country of students who are interested in abortion, reproductive justice more broadly. And there are still chapters on lots of, and I don't know about all, but at least many law school campuses. Um, okay, but I. This is sort of implicit in what you said at the end, but maybe starting in 2019, and I think increasingly in the wake of Dobbs, you all have pivoted to providing various kinds of legal services. And one kind of critical aspect of your work, as I understand it now, is actual criminal defense. And so before Dobbs, there was still criminalization of various aspects of pregnancy, of drug use, direction during pregnancy. Right. So. So the criminal law did not just spring to life after 2022, when Dobbs removed constitutional protections for abortion, but there has certainly been much more serious efforts to criminalize because you don't have the constitutional backstop of Roe vs. Wade. As imperfect and flawed in so many ways as it was, it did act as something of a shield against certain kinds of criminalization. And of course, in the wake of Dobbs, many states move to restrict or prohibit virtually entirely or entirely abortion within their borders. So what does kind of abortion, criminal defense look like in the wake of Dobbs and today? Tell us about that work and maybe tell us about a couple of the representations that you all have handled.

[Farrah Diaz Teo]

I think it's great. It's important that you mentioned that this is something that was going on before Dobbs and even within the history of the organization. The SEAL legal team was founded in 2015, was working on these issues. We started. Started taking on cases when I joined in 2016. This is work that I've been doing myself since 2009. And so I think that's surprising to a lot of people who really think of criminalization of abortion, of abortion seekers as something that really emerged from Dobbs, and certainly it's something that has intensified since then. We have seen the nature of the types of charges that are used really change. We've seen prosecutors evolve what they're doing. So what reproductive criminal defense looks like, I mean, it looks a lot like criminal defense that you see, you know, across the country in courtrooms every single day. But it raises some particular issues. And, you know, this is a situation that's unique because it is one in which people are being charged with a crime for something that they did with their own body, which is typically not something that our law allows. And you know, in the, in the pantheon of things, it might be surprising to people about this, it might be surprising to most people to find. Find out that ending one's own pregnancy actually isn't a crime in any state in the country. But Nevada right now, Nevada is the only state that still has a crime on the books that penalizes people, charges them with a felony actually for. For ending a pregnancy after 24 gestational weeks.

[Kate Shaw]

In many other states, it is a crime to facilitate or to perform an abortion. But actually criminalizing the individual who is, who seeks to end a pregnancy, that is something that you're saying is actually far are more rare. It's really just the State of Nevada that, at least on the books, has a specific crime for doing that.

[Farrah Diaz Teo]

Exactly. That's right. And that's something that goes back, you know, all the way to the common law that when, when we say abortion is a crime or we're criminalizing abortion, we mean something that a person does to the body of another person, not something that a person does to their own body. And so what that means is that prosecutors really have to contort the law and contort the facts to punish somebody for having ended their own pregnancy. And so it's really using the legal system as a tool to enact abortion stigma and go after people using crimes. You know, for instance, one of the crimes that we see used frequently is concealing birth, which is these laws. A little more than a dozen states have such laws on the books that stem from laws from the 1700s and the 1800s that were in, intended to criminalize out of wedlock births. And this was based on a theory that somebody who had given birth out of wedlock was more likely to kill an infant. And so essentially the state can do an end run around the necessity of proving that a person actually did homicide. You know, that's the fundamental tenet of the criminal law, right, is you have to like prove beyond a reasonable doubt that the person did the thing they're accused of doing. Well, a sort of neat patch for that that they thought up back in the 1800s. Some genius thought up back in the 1800 was, you know, to say, well, we're just going to charge you with a crime whether or not this, you know, an infant was born alive. And so these laws remain on the books. You know, a lot of times the laws, you know, they just languish there until some creative prosecutor decides that they want to dredge these laws out of antiquity and use them to punish somebody for something. They, there's no other law at their disposal to do so. And then, you know, other types of crimes that we see laws that prohibit abuse of a corpse or you know, the laws that are about, really about desecrating bodies and that are intended to, you know, ham fistedly admittedly rectify the harm that comes to the families of people who are deceased, the harm that they experience from having their loved one's body mistreated and desecrated. And instead that's being used against people, you know, for instance, for experiencing a pregnancy loss and then privately disposing of the remains, like on their own property. Or, you know, we've seen situations where law enforcement have gone in and yanked the toilet and like, you know, sort of excavated somebody's plumbing to pull fetal remains out to charge them with crime after they experience a pregnancy loss. And so this is one of those things that's really evolved in the aftermath of Dobbs, is that, you know, as there's a. There's a paradox in policy, um, which is, after Dobbs, the loss of that constitutional backstop meant that states were racing to. To put in the most draconian abortion bans that they could. Um, and many of them had this political compromise that said, we're going to make it a. A crime to do an abortion. We're going to put you in prison for 99 years. It's going to be tantamount to homicide. We're going to, you know, really throw the book at people who do abortions, but we're going to put in their provisions that say that the abortions seeker can't be charged with a crime, can't be charged as an accomplice, isn't going to face up liability, all of these things, so that they can say, oh, no, we would never. We would never criminalize somebody who has ended their own pregnancy. But then what you see on the ground is prosecutors using these other types of laws and saying, no, this isn't about punishing abortion. We would never. What we're doing is we're punishing somebody because they behaved incorrectly. And so that not only sweeps people who've ended their pregnancies, but people who have lost pregnancies as well. And so, I mean, a case that really sticks out to me, it breaks my heart, is the woman whose case we worked on who was ambivalent about pregnancy, as many people are, for a lot of legitimate reasons. She had a lot of legitimate reasons to be ambivalent about a pregnancy. She was already living in poverty, doing her best to take care of the children she already had and just could not carry this pregnancy determine. And the things that she tried to do in order to end the pregnancy are things that would not end a pregnancy. She took cinnamon pills, hoping that that would end the pregnancy. You know, they advised pregnant people don't lift heavy things. So she was lifting heavy objects. Right. And all the hoping and praying in the world is not going to end someone's pregnancy.

[Leah Litman]

Right.

[Farrah Diaz Teo]

Or else if. If it did, if it were that easy as lifting heavy objects, we wouldn't be in the crisis that we're in today. Then she experiences stillbirth. And because of the fact that she had been ambivalent about that pregnancy, prosecutors. Well, this case was really actually driven by a police officer who had a personal vendetta. This is like very clear. This person had a personal vendetta. And you know, kept approaching the prosecutor's office to get them to charge her with a crime. And you know, the way that she was caught was because she had buried the remains of her baby, whom she gave a name buried on private property and had erected a cross and had posted on Facebook to other people because she had been encouraged by people in a pregnancy loss support group to create a place where she could go and memorialize her loss. And so I think this is the most human thing in the world is that even when a person feels ambivalent about it, when they lose that pregnancy, they still mourn that and grieve that. And her grief was used to punish her, really robbing her of the dignity of that grief. Her story fortunately has a happy ending. You know, she pleaded guilty and that was set aside on the basis of ineffective assistance of counsel, which is extraordinarily rare. Which goes to show like what a tremendous miscarriage of justice this was, you know, pun intended.

[Kate Shaw]

God.

[Farrah Diaz Teo]

And you know, eventually she received restitution from the state because of this wrongful incarceration.

[Rick Hassan]

Wow.

[Kate Shaw]

Prosecution. So okay, well that is obviously a very upsetting story. And it's. So you said Nevada is the setting. And I think that in the kind of, in particular in the post Dobbs landscape, we have this sense that, that there are awful things like you're describing happening, but that they're happening in Texas and Georgia and like a handful of other places. Is that accurate or are these prosecutor targeting, using these like really old statutes of, of women who either have induced abortions or have just had pregnancy losses. Like how broadly are we seeing this happen?

[Farrah Diaz Teo]

Yeah, so there are definitely clusters and I would say that the clusters align with where people are less likely to have access to health care systems, where people are less likely to be able to access abortion care, where people are less likely to be able to access pregnancy related care. And states where we hear from the most on our helpline are the states that you would expect. States like Texas, Georgia, Florida, North Carolina. Right. States where, where people's access to care even prior to Dobbs was pretty abysmal and now is virtually non existent. But I mean, I will say like this is something, it can, can happen anywhere. Over the course of my career, you know, I've definitely, I've worked on cases in New York, I've worked on cases in California. I think it's important to remember that A prosecutor's fidelity of their idea to law and order isn't necessarily something that's dictated by politics. And, you know, we've had prosecutors who, who say, I'm pro choice. My wife held a fundraiser for Planned Parenthood. This is not about criminalizing abortion. This is about somebody who did something wrong. And the state needs to respond to that. I think it really speaks to the fact that we have to be continually vigilant everywhere we are. And also just, I think that's, maybe that's one of the lessons from Dobbs too, is that like, like, you know, stare decisis can be yanked out from under you. The opposition wishes and, and works hard enough. And so that means that we cannot afford to be asleep at the wheel in any way. Right? It means we can't afford to have laws like the types of laws that are used against people now to punish them in the aftermath of an abortion or a pregnancy loss. Like, there's, there's no excuse to continue to have these laws on the books when we know exactly how they're used against.

[Kate Shaw]

Gets people right. I think that's such a broad, important point, which is I think that right. While Roe was the law of the land, legislators in a lot of states, like, just didn't think they needed to repeal a lot of the laws that were, you know, impossible to actually enforce under Roe. There's obviously an argument that Congress should have codified a federal protection for abortion. But again, in the, you know, kind of world of Roe, it didn't seem to a lot of people necessary. And I think both repeatedly repealing the kind of damaging and destructive laws and codifying either by statute or in constitutions protections while you have political power is critical because the judicial winds can and do change quickly. So I do think that's a really important takeaway. And it sounds like in a lot of the cases that you're seeing, the cost of just not worrying about cleaning up statute books that contain these, like, really appalling, you know, once dormant laws is, is sort of being borne by the individuals that are reaching out to you guys for legal help. Okay, so two other things I wanted to ask you about. One, you mentioned the hotline. Can you tell us a little bit about your hotline? And then bail is something that I know that individuals charged with different kinds of reproductive crimes have had to come up with. What is your role in bail funds?

[Farrah Diaz Teo]

I love to talk about the helpline because I am really proud of the work that my colleagues on the helpline do. So they essentially, they Provide legal services for any variety of issues that a person might have related to their abortion, their pregnancy loss, their birth. When the helpline first started out in, I think in 2018 was when we took our first call. It was really created to address people's concerns about criminalization for self managing abortion. And especially in the aftermath of Dobbs, when you have a name that is as broad as the repro legal homage helpline, you're gonna get a lot of different types of repro legal issues that people have. So it wasn't just people who were concerned about ending a pregnancy, whether they could get in trouble for ordering abortion pills, you know, those sorts of questions that people have. Just the general, is abortion even legal in my state? Right. But we were hearing from people who were being denied care, people who were really struggling to figure out, you know, what, what even was available to them in their state. People who were being sent into the park parking lot to bleed out until, you know, they could qualify for miscarriage management. So recently we spoke to abortion every day about a case that came up where a person was pursued by the state for trying to help her daughter access abortion care. And they feasting violence from the family regulation system. And the young person was, wasn't able to get the abortion she needed because of the state's interference. So really the, the variety of issues that we see, you know, is not just restricted to people unable to access abortion care, being criminalized for, for doing so. It's people who are afraid that they're, you know, people whose immigration status is now being called into question because of decisions that they've made in their reproductive lives. People who are, you know, losing their children. Right. Like this is, these are all, all reproductive justice issues. It's not, it's not just about abortion care. So we really.

[Kate Shaw]

So you can handle, you, you take calls and you can provide people with some guidance or direction sort of for problems or questions running kind of the gamut that you just sort of walked through.

[Farrah Diaz Teo]

Yeah. So they're able to provide rapid legal response. They may refer folks for criminal defense to our litigation team or they may also draw upon our network of lawyers, law students and advocates to place people, refer them out to cases. Because we have lawyers across the country. So if it's an issue that's not specifically something we work on, something that's within our capacity, we can help them find a lawyer who's, who's going to understand the issues underlying this.

[Leah Litman]

Right.

[Farrah Diaz Teo]

Because it's not all lawyers are the same. And so our team that runs Our network does a really good job of ensuring that people are going to, if we refer to somebody from the Repo Legal helpline, they're going to be met with somebody who's going to take their case and is going to deal with them with compassion without stigma or judgment. Yeah. And so, I mean, the numbers of calls really exploded after 2022. I think that since jobs, they've answered more than 12,000 calls and, you know, calls from, from all across the country, they're able to answer people's legal questions across the country and in U.S. territories. And they've supported over 2,500 callers from Texas alone. I pick on Texas because it's my home state, but yeah, so the work is really critical work so that people know that they're not alone. And I think that that's one of the most important things is that, like, you know, fundamentally nobody should need a lawyer to get an abortion, but if people are having an issue, the state, you know, if they are facing state violence, they should be able to have a lawyer who's going to. Who's going to understand them, meet them where they're at, and provide rapid support. And so that's. That's what they do.

[Kate Shaw]

Okay, well, we will, of course, include a link to the Repro helpline in our show note, so people are able to access that if they meet it. And vera, the bail fund. So. So if people are targeted for any of this conduct, find themselves actually incarcerated and needing to post bail, I gather you guys are also able to. To help there.

[Farrah Diaz Teo]

Yes, yes, absolutely. And this is something that's really critical in these cases. So across the board, people are more likely to stay out from behind bars if they are back in their communities while they're waiting for their case to be resolved. And you know, in some of the cases that I've worked on, from, from the time of arrest to the time that their case is resolved, I've had clients who've been incarcerated for three years, years more. Right. Like this can take a very long time if somebody's not able to afford the costs of their own freedom. And so that's why the Repro Legal Defense fund exists. In 2025 alone, they paid out $2.3 million in bail and bond. I mean, our system of cash bail is one that's really designed to extract money from people who can least afford it. So we stand with them and provide more than just that as well, because there are many other costs that are associated with being involved in the criminal legal system in the Family regulation system. Very often, you know, people need things like money for their cell phone to be able to like talk to their attorney and raise their defense or they may have to pay for the costs of being on under community supervision. So having to pay for the cost of an ankle monitor, having to pay, you know, pay fees related to drug tests, other things like that. And these are, these are the things that the Repro Legal Defense Fund helps people, helps people bear those costs so that they're more likely to be able to, to fight and win the case against them.

[Kate Shaw]

Okay. What in this really difficult line of work that you do is giving you hope right now. I feel like we, we all need places to look for hope because the work is essential and it's helpful if we can find these points of light. So what gives you hope?

[Farrah Diaz Teo]

Yeah, one of the things that's giving me a lot of hope right now is the real groundswell of support and the outpouring of solidarity that we've seen from people in other countries. Being of Mexican descent, myself and having grown up in Texas, the cross border solidarity between activists in Texas and activists in Mexico and you know, especially in a moment where we were facing such retrogression and they had made so much progress in the law and sort of the, you know, the message of solidarity, that's like, we have been where you are. We have solutions, we have support, and we're not going to let borders stop us. Abortion is something that has always happened since before the law had anything to say about it. And it's unstoppable and we're there for you. I think that's something that's been really incredibly moving. And I think that's something that wasn't restricted to them. It continues to the present day. And seeing the ways in which our movements have learned and evolved and really sort of reached out, I think, you know, there is nothing that is good about Roe being overturned. I'm not going to be one of those people who's like, well, you know, there's a silver lining there. But what it did do was it forced us to look for other solutions and really look beyond American exceptionalism and see what other worlds are out there. And so, you know, the, the fact that we are now really contending with that in a serious way, I think that's something that gives me hope. Especially in the moment where, I mean, the rise of fascism, all the many, the parade of horribles that we're seeing right now, seeing that we can envision other futures, I think is really giving me hope.

[Rick Hassan]

Right.

[Kate Shaw]

I think it is true that the attacks on all the freedoms are connected on democracy, on liberty, on autonomy, on reproductive freedom. And that that's true here and that that's true elsewhere. And there are places that feel like they are on the other side of something truly hor and we are on the wrong side of it. And yet like learning about how one makes a path out from sort of other traditions is incredibly helpful and important right now. So that kind of cross border solidarity I think is a lesson about kind of repro justice and also a broader kind of lesson. Maybe the last tiny question is how can people who are hearing about the work that you all are doing help?

[Farrah Diaz Teo]

So there are lots of ways folks can help. If, if you are interested in this, if you feel like this is the work for you in your life, please come join us. We have a, that includes law school chapters. I'm sure probably you have a lot of legal nerds listening right now. I think, you know, your constituency and ours are. There's a, there's a overlap. So if there's a chapter on your law school campus, join it. If there is not, you can start it. We can help you do that. If you are a lawyer or even an advocate, you don't have to be a lawyer. You can join our network so that you can help. You can be one of the people who provides direct support when people need it.

[Kate Shaw]

It.

[Farrah Diaz Teo]

And then, you know, certainly I always have to make a plug for just supporting the work of the repro Legal Defense Fund. Donate to the defense that's, you know, that your dollars are extraordinarily important. Are the person who directs it says it costs the state nothing to ask for $2 million. It costs us $2 million. And so certainly like if you want to provide that support, that is something we're certainly it is deeply meaningful to the people who receive that help.

[Kate Shaw]

Great. And on the student chapter point, shout out to the Penn student chapter. They've been doing these regulatory comments for the last year or two and they've done incredible comments when the administration is proposing various kinds of measures to kind of push back and help create a record for litigation. Really important work. And yeah. So find your chapter or start one if there isn't. If you are a law student or on campus at a law school. All right, well, we'll have to leave it there. Farrah Diaz Tello, thank you so much for the work that you do and for joining me for this conversation.

[Farrah Diaz Teo]

Such a pleasure.

[Kate Shaw]

That's all for this week. Stay tuned. We'll be back in your ear holes next week with Melissa in the chair. Strict Scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt de Groat, Ben Hethcote, Johanna Case, Kenny Moffat, Adam Lippert and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America East.