
Friday, May 12th, 2023 Today, in the Hot Notes: E. Jean Carroll is weighing suing Donald Trump for defamation again after his appearance on the CNN Town Hall Wednesday night; Merrick Garland gives the green light to transfer forfeited Russian funds to Ukraine; a three-judge panel is poised to uphold January 6th obstruction cases; the FDA ends the ban on blood donations from gay and bisexual men; plus AG and Dana deliver your Good News. Our Guest Steve Vladeck One First https://substack.com/@stephenvladeck https://twitter.com/steve_vladeck The Shadow Docket How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic https://www.hachettebookgroup.com/titles/stephen-vladeck/the-shadow-docket/9781541602632/
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Allison Gill
MSW Media. Hey, everybody, it's ag. And welcome to Refried Beans, where we play an episode of the Daily Beans podcast from the same week either one, two or three years ago so we can see how far we've come. So please enjoy this episode from days gone by and note the date in the intro. Refried beans. I like refried beans. That's why I want to try fried beans because maybe they're just as good and we're wasting time. We swearing. J Beans.
Dana Goldberg
J Beans. Daily Beans.
Allison Gill
Hello and welcome to the Daily beans for Friday, May 12, 2023. Today, Eugene Carroll is weighing suing Donald Trump for defamation again after his appearance on the CNN Town Hall Wednesday night. Merrick Garland has given the green light to transfer forfeited Russian funds to Ukraine. A three judge panel is poised to uphold January 6th obstruction cases. And the FDA ends the ban on blood donations for gay and bisexual men. I'm Allison Gill.
Dana Goldberg
And I'm Dana Goldberg.
Allison Gill
Hey, Dana. Happy Friday. How are you?
Dana Goldberg
I am good. And I just want to say this. When we preach, take care of your mental health. Ag and I practice what we preach. I just had a very good therapy session and I got an applause break at the end. So I think things are going very well.
Allison Gill
Nice applause breaks in the therapy session.
Dana Goldberg
I got applause from my therapist. She was very happy with the way things are going.
Allison Gill
Oh, good. That's good to know. Yes, we do practice what we preach. I go every week as well.
Dana Goldberg
Yes.
Allison Gill
So, yes, take care of your mental health. We'll talk about that at the very end of the show in the last remaining seconds. Also, hold on tight. Also, I have some very good news that CNN town hall that happened with.
Dana Goldberg
Donald Trump, if that's what you want to call it. Yep. You mean the Trump rally.
Allison Gill
Yeah, the Trump rally. The televised Trump rally in front of Trump fans with Trump. Yeah. So I, you know, I was like, don't watch it. Nobody watch it. We have to teach CNN that there's no more money in Trump. Right. Because that's what this is about. This is about legitimizing him as a candidate, making him look like he's got a much broader audience and a broader base than he does. He only has like 17 to 19% of this country. So they wanted to make it look like he's legit candidate. He's not. He's, he's just not. And, and they do that because he, he made so much money for legacy media. And so that's, that's the reason I, I think that they gave him that platform. Well, he only got that, that whole town hall only got 3 million views last night.
Dana Goldberg
And think about that. When you think about how many votes that SOB got in the last election and only 3 million views on CNN.
Allison Gill
And I know that it seems like 3 million is a lot, but like one of my favorite shows from 2009 to 2014 called the Sing off, the finale there had 11 million and the Cassidy Hutchinson testimony had 13 million viewers.
Dana Goldberg
Wow.
Allison Gill
So if we're going to compare apples to apples, because I know a lot of people are comparing their 3 million views to what that time slot normally gets on cnn, which isn't much like, or, you know, like it's increased, like they've got like four times as many views, maybe up to 500,000 during that time slot as normal. But if you're gonna compare like a major political event and you're gonna compare apples to apples, I would compare it to the Cassidy Hutchinson testimony in the January 6th hearings. 13 million views.
Dana Goldberg
And just a word of advice to Trump, if you're gonna go on a station maybe for four years previously, don't just call them the fake news every time Acosta got up to ask a question. Because if cnn, you've been calling the fake news for what, six years now, chances are your viewers aren't gonna turn in, right?
Allison Gill
No. And you know, that was, I think the majority of those viewers are like lost Tucker Carlson viewers that are just like roaming the streets saying, what do I watch now? Also later in the show, I'm gonna be talking with the author of the Shadow Docket. It's a new book that comes out May 16th. It's called the Shadow Docket, how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. And Steve Vladek, one of the premier constitutional law professors in the country, and his book is really, really important and prescient right now, especially given all of the scandal that is enveloping the Supreme Court at this moment. So you definitely want to check out that interview that'll come in the B block today. So wonderful. With all that said, let's hit the hot notes. Hot notes. All right, first up, from Ben Weiser at the New York Times, E. Jean Carrol is weighing whether to file a new defamation lawsuit against the former president in the wake of his diatribe against her during the CNN town hall Wednesday night when he said her claim of a decades old sexual assault was fake and a made up story. And that's according to her lawyer on Thursday. Mr. Trump's comments on CNN came one day after a federal jury in Manhattan awarded Ms. Carol $5 million in damages after finding Trump liable for sexually abusing her in the mid-90s and liable for defaming her last year when he described her claim of assault as a complete con job and a hoax and a lie in a social media Post. Now, Ms. Carol said on Thursday morning that she had been asleep as Mr. Trump talked about her on the town hall. She said that her lawyer, Robbie Kaplan, had sent her the transcript of his comments and that she had read only the first paragraph. And she replied, it's just stupid. It's disgusting, vile, foul. It wounds people. That's what Ms. Carroll told the New York Times, adding that she had been insulted by better people.
Dana Goldberg
I love that.
Allison Gill
I love her. Ms. Carol said she'd been infuriated when her longtime stylist told her that her 15 year old son was talking about what Trump had said. I'm upset on behalf of the young men in America, that's what Ms. Carol said. They cannot listen to this balderdash and this old timey view of women, which is a caveman view. Now, in addition to the case that ended Tuesday, Carroll had an earlier defamation suit against Trump that's still pending. Trump has argued in that case that he cannot be sued because he made those comments as part of his official capacity as president. On Thursday, Robbie Kaplan said no decision had been made on whether a new defamation suit would be filed in light of Trump's latest comments. But everything is on the table, she said, quote, obviously, and we have to give serious consideration to it. We have to weigh the various pros and cons and we'll come to a decision in the next day or so probably. Now, Mr. Trump, in response to questions from the CNN moderator about the Manhattan jury's verdict against him Tuesday, called Ms. Carol a whack job and said her civil trial was a rigged deal. His comments drew laughter and applause from the audience, drawn primarily from Republican groups and others who were said to identify with no political affiliation. Mr. Trump mocked Ms. Carol's story, quote, what kind of woman meets somebody and brings them up within minutes you're playing hanky panky in a dressing room. That's what he said. And so it will know in the next couple of days or so. Again, they're weighing the pros and cons, and there are pros and there's a lot of cons, too. You know, we shouldn't put this on Eugene to have to do this, but they are considering it.
Dana Goldberg
I think so. And I would Just say this. I hope that this empowers some of the other women who he definitely sexually abused, if not raped, to come forward if he did face them in any way publicly, if a statute of limitations has not run out. Just, it would be wonderful if they felt empowered in some way to come forward now. Thank you, A.G. thank you for that. And we'll see what happens with that story. This is from Reuters. U.S. attorney General Merrick Garland has authorized the first transfer of forfeited Russian assets for use in Ukraine. He said this on Wednesday. The Justice Department last year charged Russian oligarch Konstantin. Will you say his last name for me?
Allison Gill
Malaviev.
Dana Goldberg
Malaviev. Wonderful. Malaviev. With violating sanctions imposed on Russia after its invasion of Ukraine, saying he provided financing for Russians promoting separatism in Crimea. Now, at that time, Garland said he also announced, quote, the seizure of millions of dollars from an account at US Financial institution traceable to Malevaev. Say it again.
Allison Gill
Malafiev.
Dana Goldberg
What?
Allison Gill
Malaviev. Sanctions.
Dana Goldberg
Yeah, Malafiev. We're just gonna do this on air so y' all can figure out how I figure these things out. Malafiev. Okay. Sanctions violations. In February, Garland said. I'm so glad this is a short story. In February, Garland said he authorized the transfer of that money for use in Ukraine. While this represents the United States, he said first transfer of forfeited Russian funds for the rebuilding of Ukraine. Garland said it will not be the last. He said that in a statement.
Allison Gill
Booyah. Well done, Malaviev.
Dana Goldberg
See, I'm good now.
Allison Gill
Yeah. And there's going to be a lot more. We've seen so many oligarch stuff like, you know, and we've already done the thing where we took the aluminum Deripaska aluminum plant and we're giving that to Ukraine. So like, this is really, really awesome. So I'm glad that we're doing this.
Dana Goldberg
Wonderful.
Allison Gill
Next up from Kyle Cheney at Politico. The Justice Department appears poised to win another significant appeals court victory in a case that threatened to upend hundreds of January 6th prosecutions for obstruction of an official proceeding. That's 18 U.S. code 1512. Two members of a three judge panel for the D.C. circuit Court of Appeals hinted strongly on Thursday that they largely agree with the DOJ and prosecutors interpretation of the Enron era obstruction law that the Justice Department has leveled against hundreds of January 6th defendants. The law, known as obstructing an official Proceeding carries a 20 year maximum sentence and is the most severe felony charge other than seditious conspiracy that prosecutors have doled out in the January 6 cases. As of May 9, more than 300 defendants have been hit with this charge. The law captures anyone who corruptly obstructs, influences or impedes any official proceeding or attempts to do so. January 6 Defendants have challenged the DOJ's use of the statute on several grounds, but have largely been rebuffed by federal district and appeals courts. Most recently, several January 6th defendants challenged prosecutors interpretation of the word corruptly, contending that the Department of Justice's definition would sweep in a broad array of conduct that would make even minor disruptions at the Capitol subject to a 20 year felony. They've argued that to prove the defendant acted corruptly, prosecutors must show that January 6th defendants didn't just break laws at the Capitol, but that they also intended to illegally benefit Donald Trump. That requirement of an unlawful benefit is an important limit on obstruction charges that would safeguard legal activities like lobbying or protesting to influence Congress. But their interpretation would threaten hundreds of January 6th cases in which defendants have claimed varying degrees of ignorance about the congressional proceedings that day or a good faith belief that the election was actually stolen from Donald Trump. Prosecutors, on the other hand, say the defendant's interpretation of corruptly is too narrow. The Justice Department says it simply needs to show that the defendants broke the law in service of disrupting Congress, regardless of whether they thought it was to obtain an illegal benefit for Donald Trump. Now, Thursday's argument suggested that the appeals court may be on the way to clarifying the issue in favor of the Department of Justice. And I've been saying this, the law hasn't changed. Nothing has changed the law, and I don't think it's going to change. The panel's two liberal judges, Pillard and Pan, indicated they would lean toward a broader definition of corruptly, one that would capture the open attempt by January 6 rioters to derail the Electoral College proceedings that day. The panel's lone conservative, Karen Henderson. Karen said she leaned toward the narrower view but noted that she was likely to be the minority on the panel. But even Henderson bristled at the notion raised by the defense counsel in the case that corruptly obstructing required secrecy, like a backroom deal or a quid pro quo. I think I could name several political figures who've been openly corrupt, henderson said. I won't, but we'll disagree about that. The panel, regardless of its ruling, may not be the last word, though. The losing side could seek a review of the full bench, which is called en banc. Or they could seek a Supreme Court review in addition the defendants who were on the losing end of the divided ruling of the earlier panel are seeking a rehearing that could upend the calculus as well. But I'm not worried here. I think that their reading is correct. All but one judge, Judge Nichols, reads it the same way. And Nichols wasn't even worried about corruptly. Nichols was worried about the word otherwise. And the DOJ is probably going to win that case, too. So that, remember 18, Title 18, U.S. code 1512 is the crime that the January 6th Committee referred to the Department of Justice on Donald Trump. And it's also the crime, one of the two crimes that Judge Carter, the person, the judge out here in California that was reviewing the John Eastman emails also said under the crime fraud exception had to be handed over to the January 6th Committee because Trump and Eastman committed obstructing an official proceeding and also 371 defrauding the United States.
Dana Goldberg
Just a small point. Also, and I know that we're going back to the town hall, there's been several articles from specialists, from experts that say that Trump probably incriminated himself further in all three cases, by the way, that are still pending federally. So that's kind of a beautiful thing.
Allison Gill
Yeah. And Andy McCabe and I are gonna go over those potentially incriminating statements on this Sunday's episode of the Jack podcast. If you're listening, fantastic. If you aren't listening, now's a good time because shit's about to get real.
Dana Goldberg
I love it. And this to me is a good news story. Before we get to the other good news from Christina Jewitt at the Times, the Food and Drug Administration announced on Thursday that it had formally ended the agency's wide ranging prohibition on blood donations from gay and bisexual men. And this is a long standing policy that had been denounced as discriminatory. And it is because it's, and let me hear me out when I say this, it's not just gay men that are having anal sex.
Allison Gill
It's.
Dana Goldberg
And it's not your, this is going to get your mind around this. It's not just gay men that are having sex with other men. Okay? So there's a lot of people, there's some men that enjoy sexual intercourse with other men that don't consider themselves gay. This is a very discriminatory policy that came decades before. Now, instead, the FDA is finalizing guidance that includes a questionnaire for all donors that is aimed at learning about their recent sexual activity. The more targeted questions will focus on whether someone has had new or multiple sex partners and anal sex in the last three months.
Allison Gill
That's like if they've been light brighted.
Dana Goldberg
Or, you know, pegged by a democrat.
Allison Gill
Yep.
Dana Goldberg
Potential donors who had recent sex with new or multiple partners and anal sex under those screening criteria, well, they could still be turned away. The revised policy would also preclude blood donations from people taking oral PREP to prevent HIV infection, a restriction the agency said was designed to avoid false negative results during blood screening. Understandable in the revised policy, the FDA took its cues from Canada and the United Kingdom, which adopted similar approaches. The US Agency has been working on the change for months and said it also reviewed data from other nations and from a US Study examining this method. Blood donations are sorely needed at this time. They fell during and after the pandemic with a decrease in school and office based blood drives. The old rules were far more restrictive in screening out gay and bisexual men, while the update allows blood donation companies to use a more evidence based way to reduce the risk of HIV transmission while also maximizing donations. And this is a quote. The shift toward individual donor assessments prioritizes the safety of Americans blood supply while treating all donors with the fairness and respect they deserve. And that was from Kate Fry and she is the chief executive of the Americas Blood Centers. That organization represents independent blood centers that supply 60% of the nation's donations. Yeah, GLAAD. And if you don't know what that is, it's an LGBTQ advocacy group. They applauded the change as end to a dark and discriminatory past rooted in fear and homophobia. But the organization criticized the FDA's decision to turn away donors taking PREP medications. And this is where that comes in, saying the measure would add unnecessary stigma. True, because everyone, not everyone, a lot of people think that HIV is just a gay issue. And again, it's not. This is a quote. The bias embedded into this policy may in fact cost lives. That's what Glad said. In a statement Thursday, the agency said that PREP drugs were effective in reducing the spread of HIV through sexual contact, but warned that blood transfusions could carry a higher risk of infection. Another quote from the story. Although HIV is not transmitted sexually by individuals with undetectable viral levels, this does not apply to transfusion transmission of HIV because a blood transfusion is administered intravenously and a transfusion involves a large volume of blood compared to the exposure with sexual contact. This is from the fda. They say that in the news release on Thursday. So this is a huge step forward. There's obviously some kinks that still need to be worked out. But this is an end of decades of discrimination against gay and bisexual men.
Allison Gill
Yeah. And, you know, folks of a certain age have, have been kind of living with this discriminatory practice for decades, Indeed, literally decades.
Dana Goldberg
Yeah.
Allison Gill
Yeah. And I mean, I remember this going all the way back to the late 80s, early 90s. And, you know, I mean, you know, the history, it's just this is a really, really, really big deal, especially in the community. And I'm surprised it took this long, honestly.
Dana Goldberg
Yeah, me too.
Allison Gill
So, good news. That is good news. And we'll have more good news. We just have to take a quick break. If you have any good news you want to send in, you can send it to us@dailybeanspod.com and click on Contact. We'll be right back with it. Stick around after these messages. We'll be right back. Hey, everybody. Welcome back. I'm happy to be joined today by professor at the University of Texas at Austin Law School, co host of the National Security Law Podcast, and author of the new book the Shadow how the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic out to the public on May 16th. Please welcome Steve Vladek. Hi, Steve.
Steve Vladek
Hey. Gee, how are you?
Allison Gill
Ah, I am really good. And I'm really glad to have you on. I've got this book a month ago, I chewed through it, and it's gonna be out and available to the public just here in a couple of days. And I'm really excited to talk to you about it. But first I want to just put it out there because I. We all know vaguely what the shadow docket is, but can you tell us, like, more specifically define the shadow docket for us?
Steve Vladek
Sure. I mean, so it's, it's a term that was coined by a Chicago law professor in 2015, Will Bode. And he meant it not as any especially fancy thing. It was just this evocative shorthand, a descriptive umbrella to cover basically every ruling that the Supreme Court hands down, other than the what we often call the merits docket, other than the 60 ish sign decisions in cases that had oral argument that we get in quick succession in May and June like we've been getting these last couple weeks. And Will's insight, which I really stole and tried to expand upon, is that the merits docket is important, but it's not the sum total of what the Supreme Court does. And even though what happens in the rest of the Court's work is usually unsigned, unexplained orders, that doesn't mean that we shouldn't talk about them doesn't mean that those orders don't have a massive impact. Indeed, it doesn't mean that those orders aren't actually a big part of how the Supreme Court has so much power today. So the term is basically like, hey, everybody, it's an invitation to pay more attention to what the Supreme Court does in the less glamorous, less visible part of its docket, which is most of it. I mean, it's over 99% of what the Supreme Court does is unsigned, unexplained orders.
Allison Gill
Yeah. And let's pick a recent example of something that made it to the shadow docket and had a decision, a shadow docket decision, so that we can sort of have a real life example of how the shadow docket works. How does something get to the shadow docket? How is it decided upon? Is it behind the scenes? Are there opinions? You know, that kind of thing? And I'm sure there's tons of recent examples. I know there are.
Steve Vladek
There are. Although perhaps the most visible is the mifepristone case, which produced a unsigned, unexplained order from the Supreme Court late on a Friday afternoon in April. So to take a step back ag right, the typical case gets to the Supreme Court after years of litigation. You've had, you know, litigation in the trial court, you've had litigation in an intermediate appeals court. If it came from state courts, you might even have an additional round before the state Supreme Court so that the typical case doesn't get to the Supreme Court until it's really been fully vetted and aired and ventilated. Right. In lower courts, the type of stuff that typically gets to the shadow docket is one of two things. Either one, in one of those cases that took years to go through the lower courts, a party is now asking the Supreme Court to take up the case and add it to the merits docket that's resolved through unsigned, unexplained orders, either granting or denying what we call certioraries, or, and this is the mifepristone example, early in that process, long before the case ever gets to the Supreme Court, someone wants the Supreme Court to adjust the status quo to either prevent a lower court ruling from going into effect that was the mifepristone case, or to unfreeze a lower court ruling, it can go in both directions. And these are typically called emergency applications, because the whole idea is that the party that's seeking relief is claiming that there's some emergency justifying premature intervention by the justices to you know, allow for the status quo to be one thing as opposed to the other in the time it takes for the case to work its way all the way back up. Historically, those decisions were rare and they were small and they were not especially divisive. But in the last five or six years, like the myth of pristine case shows us, they become much bigger, much more frequent, and much more divisive. And I think that's a really important story about how the Supreme Court has consolidated power and how the Supreme Court uses these unsigned orders in ways that ag for better or for worse. We could, you know, fight about that till we're blue in the face. Right. Has impacts on all of us, on millions of people.
Allison Gill
Yeah. And let's talk about that, too, for better or for worse, because the subtitle here is how it helps the court amass power and undermine the Republic. How does the shadow docket do that?
Steve Vladek
So there are two pretty different claims there, I think. The first one's actually not controversial at all, which is the amassing power. And so one of the things the book does, I mean, I wrote this book, and this is why I'm so glad to get to talk to you about it. I wrote this book not just for lawyers. I wrote this book for smart people who are interested in the courts but don't necessarily have law degrees. So a lot of the folks, I suspect, who are listening to us, for whom I really want to make the technical stuff accessible. And one of the stories about the Supreme Court that we never tell is that it's really a series of overt and covert power grabs by the Court in the early 20th century that gets the Court to where it is today. Because what happened was the Court claimed all this power to decide what cases it was going to hear, to decide what questions it was going to even consider in the case it was going to hear power it had never had before 1891. I mean, for the first 101 years, the Supreme Court's on the books. The Court had to hear every single case Congress said it could hear. That's totally not where we are today. So one of the stories the book tells is about how certiorari, the discretion to decide what cases to decide actually is directly responsible for the rise of the Supreme Court's power. And indeed, that was the point. The real architect behind giving the Supreme Court that much more control over its docket was former President and Chief Justice William Howard Taft, who saw Sir Shirari as a way of making the Court more powerful, as a way of giving the court more discretion as a way of allowing the Court to flex its muscles only when the Justices wanted to, as opposed to the parties or Congress. It's a huge part of how we got to where we are today with the Supreme Court having all this control over so many facets of American life.
Allison Gill
Yeah. And let's talk about where the Court is today, because, you know, I want to quote Ellie Mostall, who said that this court is closer to, to the dread court than the loving court. It's just couched in Federalist Society terms, buzzwords. They just now have the Federalist Society to help them kind of explain the things that they do. And now we're running into the intersection of this amassing of power and the ethics concerns that we're seeing. All in the news now with Harlan Crowe and Gorsuch and finally selling his house nine days after he's been confirmed and all of these public ethics, you know, stories that are coming out. And it seems like we have a sort of a weak check on the Supreme Court. What is that supposed to look like in the balance of powers?
Steve Vladek
So this is, I mean, this is such an important question. And this gets to the second part of the subtitle, the undermining the Republic part of the story. The ethics issues are actually, I think deeply of a piece with how the Court has been using unsigned, unexplained orders in the last six years because they're both symptoms of the same disease, and the disease is a court that's no longer being checked by anybody. So part of the story that the book tries to tell is that for most of the first 200 years of the Supreme Court, there's this really dynamic, and I would argue typically pretty healthy inter branch conversation going on about the Court, about its work, about its docket, about the Justices. There's an especially. One of my favorite episodes is an 1802 Congress makes the Court basically not meet for a year because it was mad at the Federalists. Like, hey, Supreme Court, just, you know, 1802, you can skip it. Right. We'll see you again in 1803. There's a really famous case during Reconstruction where after oral argument in the Capitol, because that's where the Supreme Court literally used to sit, right? Congress said, you know what? We don't really want you to decide this case anymore. And they just took away the Court's jurisdiction. There were all these levers Congress used to pull to basically keep the Supreme Court from getting too far out of kilter with what the political branches thought. The Justice's role ought to be. And those levers, they haven't disappeared AG it's just no one's trying to pull them anymore.
Allison Gill
It reminds me of the inherent contempt power. Right. Nobody's pulled that lever in a hundred years or so.
Steve Vladek
Right. And so, you know, you get things like John Roberts in his response to the invitation to testify from the Senate Judiciary Committee saying, oh, it would raise separation of powers concerns if I testify. No, it wouldn't. I mean, or at least.
Allison Gill
Yeah. The concern that you're not being checked.
Steve Vladek
Well, Right. And so. Right. I mean, the notion that the Court. So, you know, it's a common charge these days that, like people like me, are basically attacking judicial independence. And this is, this is really something that I think the history disproves. You can have branches that are both independent and accountable. Right. Independence and accountability are not mutually inconsistent. And so I think part of what's happened is that as Congress and our politics have become more dysfunctional and more polarized, the institutional pieces of this conversation, the idea that it's good for Congress, whoever's in charge of it, to check the Supreme Court, whoever's in charge of it, has fallen by the wayside. And I think what we're seeing is flashpoints, whether it's ethics or particular decisions or how few cases the justices are decided, they're deciding on the fewest merits cases these days since 1864. Right. These are all just symptoms of the same disease, which is that the separation of powers has completely broken down as a meaningful check on the court. And AJ you take any nine people who have life tenure and who don't have to fear for anything and who are not remotely worried about backlash, you know, what's going to happen. And I think that's part of the story that I'm trying to tell in the book that we ought to be telling about. It's not conservatives bad, progressives good. It's institution unchecked. And that's a bad thing regardless of the politics.
Allison Gill
Right. Because if it weighed in the other direction, we, you know, we would probably have a few more checks coming out of a Republican Congress.
Steve Vladek
Well, I mean, I think, you know, there are folks who are going to say, well, one party is more into checking itself than the other. And that may be true historically. I guess my point is you don't even have to agree with that to think that the checks are important.
Allison Gill
Yeah, 100%. So let's start talking about solutions because I know that, you know, you mentioned these lifetime, these are lifetime seats. And, you know, back in the day when it was a lifetime appointment, we didn't live to be 95 years old. And there's. It's been suggested, you know, well, you would have to amend the Constitution to change the lifetime appointment, but couldn't you also do something like senior status or expanding the court? I mean, there's so many different things that we could do, but it just feels like the appetite's not quite there yet, which is odd to me, especially after, you know, the overturning of Roe v. Wade.
Steve Vladek
Yeah, I mean, there's a lot Congress could do. I guess I am perhaps idiosyncratic in that I think that focusing on who's on the Court is actually the wrong approach. Not because I don't think we'd be better off if, like, President Biden tomorrow got to put four more people on the Supreme Court, but because I think it misses the institutional point, which is that even if you had different justices serving with fixed terms, you'd still have the absence of checks. And so the question that I want to sort of get us to ask instead is how do we make the institution healthier? Now, there are going to be plenty of progressives who say, and I think Ellie Mistahl is actually one of them, and he's a powerful voice in this direction. I don't want to make it healthier. I want to burn it down. And that's a perfectly, I think, understandable position. I come from the perspective that we want a court. Right. That there may be a future point in which we need a court. And so the question I want us to be asking is how can we move forward, given our current political dysfunction and our current polarization, in ways that might constructively improve the inner branch dynamic that doesn't depend upon who the justices are? And I think that's a conversation we ought to be having. It's a conversation some people in Congress are trying to have, but it's just, it's there, you know, as you might expect, it's the kind of nuanced, sophisticated, sort of principled, centrist view that is really hard to build groundswell for, given the current polarization of our political discussions.
Allison Gill
Yeah, well, it's notoriously difficult to scream, be reasonable. I've tried and get a bunch of people behind you. But this book is really timely. It's very incredible. Are you thinking about doing another one?
Steve Vladek
I think I need to get to publication day first. I will say one of the things that was really remarkable about this project is that I started it by looking at the book. Now I actually Started it in the middle of the relevant narrative, and the narrative kept going as I was planning the book. If I write another book, I think I will not try to be quite so current eventually and maybe try to take something that's a little bit more historical. So I don't quite have the problem of having the entire thesis of the book evolve on a daily basis as decisions come out.
Allison Gill
Yeah, it's not the easiest thing to do, but, yeah, I think. I think it would be really important to have your views about the. The healthier court versus, you know, the political court or, you know, you know what I mean? Like, stuff like that and how to check that stuff.
Steve Vladek
And a healthier court is not necessarily a court that's going to hand down qualitatively better decisions. I mean, we have plenty of examples throughout history of how an institutionally healthy court handed down some pretty terrible stuff. But then that's a different problem. Right. And it seems to me that, like, I wrote this book to say to everybody, hey, y' all, the marriage decisions are a big deal, but they're not the only deal.
Allison Gill
Yeah, 100%. All right, this is out May 16th. You can pre order now. I appreciate your time. And everybody please follow Steve on social media because we get so much really important information, not just from this book, but from you on a daily basis. So I appreciate your time today. Steve Vladek, thank you. Thanks for having me, everybody. Stick around. We'll be right back with the good news after these messages. We'll be right back, everybody. Welcome back. It's time for the good news.
Steve Vladek
Good news, everyone, and good news, everyone.
Allison Gill
And if you have any good news confessions, corrections. You want to play what the mutt with us or the new game what the heck Wine? Where I try to guess what breed your horse is. For some reason, I'm. I'm. I'm batting a thousand on that and I'm batting like nine on dogs. You can send it all to us. If you have a shout out to a loved one or an adoptable pet in your area, or if you're a maker, you're making something. You want to give a shout out to your business or a small business in your community, send it to us@dailybeanspod.com and click on contact. All right, first up from Anonymous, a correction. George Santos. Bail is $500,000, not $50,000. My dear ladies of the bean.
Dana Goldberg
Ooh, that's a big difference, right?
Allison Gill
But you only have to pay 50,000 because it's 10%. Pay 10% of the bond but since I felt inclined to write in about this, I'll take the opportunity to give a shout out to the garage I take my car to. It's online at good. Judygarage.com Good Judy Garage is an LGBTQ owned auto repair shop located in the Denver metro area. And they are awesome. Thanks for everything you do. We're big fans and patrons here. That's so fucking cool.
Dana Goldberg
I love that. Good Judy Garage.
Allison Gill
Good Judy Garage. Thank you so much. Yes, Santos's bail as 500,000, but I think you only have to put up 50,000 cash.
Dana Goldberg
That makes sense. And I wonder who paid that because it wasn't George Santos.
Allison Gill
Yes, and I would like a FOIA request. Jason Leopold, if you're listening, please file a FOIA request.
Dana Goldberg
All right, this is from Ty. No pronouns given for Ty. Hello, AG and DG. AG thank you for your wonderful cocktail party on April 30th in D.C. and thank you for being the amazing, classy person you are. I completely fell in my face, figuratively, when meeting you in person. I swear. I had this whole thing practice about telling you how amazed and grateful I've been for your AST observations and outstanding analysis. Upon actually seeing you in person, I was overcome with nerves and I was like a deer in headlights. When I opened my mouth to speak, the only words that fell out were, you're so tall. Oh, my God. I was mortified. But you took pity, smiled kindly, nodded affirmatively, and then politely turned me in the direction of Pete and Andrew and said, look who else is here, so go say hello. Despite my foot in my mouth start, I did have a great time talking with Pete and later with Glenn Kirschner and actually invited me to visit him at his studio. Thank you, AG&DG for being the kind and caring human beings you are.
Allison Gill
Look, there he is.
Dana Goldberg
Ty, you are quite a cute person.
Allison Gill
Isn't that adorable? Look at Pete and his turtleneck. Hey, Pete. Yes, there's Glenn and I think that's Chris Simpson over on the left hiding in the corner there. Hey, what's up, by the way?
Dana Goldberg
All good looking dudes?
Allison Gill
And there's the studio. There's the Justice Matter studio. Very cool. Ty, it was great to meet you. I know I'm tall. That throws some people off sometimes.
Dana Goldberg
Ty, just so you, you know, I said the same thing when I met Allison for the first time.
Allison Gill
You're tall.
Dana Goldberg
You're tall.
Allison Gill
Yeah. Yep, yep. Everybody, I'm tall. So now you know. So when I meet you, you can.
Dana Goldberg
Say something else, but everyone sounds shorter on Radio, every.
Allison Gill
Yes, I'm the perfect height for podcasting. But, Ty, it was wonderful to meet you and it was wonderful to meet everybody. I'm so glad that you were able to make it. I'm going to take the next two here because they're relatively short from Carolyn. Pronouns, she and her. I really did a spit take when you mentioned Peaches. The first time I heard the song Fuck the Pain Away, I was at my sister's who had an infant. So good, she got up from the couch and went to the laptop announcing it was breastfeeding time. Turned on Peaches and had that little girl feeding away as Peaches sang, sucking on my titty.
Dana Goldberg
I love this podcast so much right now.
Allison Gill
Carolyn, I love your sister.
Dana Goldberg
Oh, my God, So good.
Allison Gill
We used to do so many fun things when my bestie was pregnant, like. Like when she was eight months pregnant, like full on pregnant. And people like, oh, when do you do? When do you do? She would start crying and be like, I'm not pregnant, and, you know, just make them feel like. And we would just laugh or. She dressed up as a belly dancer that Halloween. She had a half shirt, you know, where her tummy would stick out of the bottom and it said, single and ready to mingle.
Dana Goldberg
Oh, my God, that's amazing.
Allison Gill
She had a purse that said nicotine, cocaine and vodka. She'd carry that around with her.
Dana Goldberg
That's hysterical.
Allison Gill
And then the ultimate thing I wanted to do is when she went in to get her sonogram to find out the gender, the sex of the baby, I should say, not the gender, but the sex. I was like, okay, whatever it is, you have to be really sad. She, like, be, like, angry. Like what? Fuck, you know, like be really mad about whatever it is. She couldn't do it because she was so overwhelmed with joy. When she found out that she was having a daughter, she couldn't pull. She couldn't pull it off.
Dana Goldberg
But that's very funny.
Allison Gill
I was hoping for that.
Dana Goldberg
So, Carolyn, I was just gonna say, if you wanna check out a great song by Peaches and Pink doing a song together, look up. Oh, my God, it's hot. The song's hot. It's hot.
Allison Gill
It's a banger.
Dana Goldberg
Yeah. You want me to take the next one?
Allison Gill
Yeah, you go ahead, because I talked for a while after that one.
Dana Goldberg
All right. This is from Anonymous. No pronouns on this. Hello to two of my favorite women. It's been a week and I just wanna give you a smile. My mother adopted this princess a few months ago. She had her Groom today. And our groomer always sends a pic of the after. Anywho, I've attached what I call awkward family dog photos. Oh, my God. This should be a new one. I laughed so hard, I cried. I hope you enjoyed it as much as I did. Much love from Lincoln, Nebraska. This poor baby.
Allison Gill
Look at this face. Oh, my God. Okay, everyone, send in now. This is a new thing. Everyone has to send in their awkward family dog photos. Oh, my God.
Dana Goldberg
That dog is not happy about the grooming.
Allison Gill
Looks beautiful, though. Very good job.
Dana Goldberg
So cute.
Allison Gill
All right, next up, from Marty, seeking advice. Hey, AG and tg thanks for being part of my day Confession. I've been listening to you so long, you're all now showing up randomly in my dreams.
Dana Goldberg
Ooh.
Allison Gill
I have a serious question. Am I tall? Okay. My mother does nothing but mainline Fox News all day and is off the deep end. A few weeks ago, she showed up at my house. Well, you know what, Marty? Fox is going to start going a little bit left now, and CNN seems to be.
Dana Goldberg
I was just gonna say.
Allison Gill
So just don't say anything. Maybe it'll be like the frog boiling. Okay. A few weeks ago, she showed up at my house for her birthday party wearing a T shirt with an American flag where the stripes were AR15s. It was her birthday, so I felt like I couldn't confront her. But her grandkids were asking their parents why Grandma was wearing that shirt. With every mass shooting, I become more and more angry with her for supporting this madness. This Sunday is Mother's Day, and I want to be a good son and celebrate her, but I just can't right now. I know I need to be a better and bigger person, but I'm struggling. How do I handle this? Hmm. This is a tough one. This is a tough one, Marty.
Dana Goldberg
I mean, listen, I would. Marty, I'm no expert in this, and I don't know what the right answer is, I can tell you that. And I didn't seek them out. The photos from the last mass shooting at the mall in Texas. I don't know what it's going to take for people that love their AR15s to realize they shouldn't be in the hands of civilians. But those photos are horrifyingly graphic. And I don't know if that's what's going to take for someone to see what these weapons of war do to human beings. If that would do something for her to understand the severity of this. I honestly, I don't know. That would be my only suggestion of. Look at the Results of this. This is what these guns do. This is what they have done in our country, and this is what they are going to continue to do if we don't do something about it. We're not coming for your guns. We just don't think that civilians should own AR15s and AG. You've got much more experience, literally with firearms than I do from being in the military. So I'm sure you have something to add.
Allison Gill
I think what I would do is, I mean, there could be some logistics things here. I don't know if she's close, if you could go to her house on Mother's Day, you know, bring her the flowers or whatever it is that you would normally get her and just maybe just have a serious talk and say, look, it's inappropriate for you to wear that shirt around my children.
Dana Goldberg
Yeah.
Allison Gill
And I love you, but I have to draw that line. And you're my mother. Happy Mother's Day. I love you, but that's what I need from you.
Dana Goldberg
I think I agree with that. I missed and I apologize the going over for Mother's Day part. Maybe don't bring over the photos on Mother's Day.
Allison Gill
Oh, no, make that a separate occasion.
Dana Goldberg
If you make that a separate occasion. But I agree with Ag wholeheartedly. I would attempt to set the boundary first. And if she can't respect that, then we can take a different step. But I think asking for a boundary with people we love and that we assume love us is the first step in actually creating closer relationships and respect.
Allison Gill
Yeah. I think boundaries are important and that can be tough with your mom, you know.
Dana Goldberg
Yeah.
Allison Gill
I've had to put my foot down with my mom a few times. She's an angel. She really is. She's a saint. But, you know, sometimes you just gotta put your foot down on certain things. And I have noticed she's always 100% receptive to that.
Dana Goldberg
I hope so in this case as well.
Allison Gill
Yeah. And I do as well come from.
Dana Goldberg
A place of love.
Allison Gill
Yeah. And if anybody else has any ideas, please send them in.
Dana Goldberg
Definitely.
Allison Gill
If you've had this talk, I know a lot of our listeners have had to have these talks with their parents or, you know, so if anybody else has any thoughts, let us know.
Dana Goldberg
Yeah. All right. Todd. Todd pronouns he and him. Hello, Allison and Dana, a quick thanks for bringing us the news. We need to know in such a smart and succinct way. You both bring me laughs to temper the sometimes rage inducing news of the day. Very much appreciate it. I have some good news for you and your listeners. The nonprofit organization that I've been volunteering with for over two years, she Shelter Movers Waterloo Region has completed their 300th move. Shelter Movers is an organization in Canada that provides no cost moving and storage assistance to individuals and families that are fleeing domestic violence. This is fantastic. Some personal good news is that I am only a few moves away from completing 100 of those 300 moves. Nice work. And after every move, my wife and I clink glasses before dinner and toast the fact that another person and family is a bit safer. Oh my God Todd, I love this. I wish I didn't also have to do a bit of begging for money. But the organization relies solely on public donation, so if anyone would like to donate, the website is www.sheltermovers.com Waterloo L O O Waterloo/ and we'll include that in our show notes. So thanks again for all you do to bring some good news to the masses. Cheers.
Allison Gill
What a great, awesome and incredible thing that you're doing Todd. Trust me. Trust me and sheltermovers.com Waterloo everybody. If you have a few bucks you can toss their way, that would be amazing. All right, next up from Miranda pronouns she and her I listen every morning as I sit down to sew and garden all day. I am so grateful I get to hear two awesome women tell me what I need to catch up on and provide smart conversations that I miss. Because I'm self employed now, I'd sure appreciate a shout to my business. My bit of Wonder is the name of it. Mybitofwonder.com I create handmade sewn home goods and quilt art. I've included a photo of my spicy torby cat named Pumpkin and we got her as a baby. Just as everything shut down in 2020 while my husband who worked in healthcare lived in our garage to protect my son and I while he worked through Covid outbreaks in a nursing home.
Dana Goldberg
Goodness.
Allison Gill
That's dedication y' all. Once he moved back in, this kitty was like who are you? And he's hated him ever since. Shrug emoji. Shrug emoji cats. Oh look at this. Torby is a by the way, a tabby torti, just in case you were wondering.
Dana Goldberg
Thank you.
Allison Gill
And so it's my bit of wonder and I can't wait to go check it out. And this cat. First of all, the face awkward, awkward cat family photos. And seriously, thank you for everything that you all sacrificed during lockdown.
Dana Goldberg
Oh my God, I have to read this next one. Dan and I just want to thank you Ahead of time. This is pronouns. He and him, Ag and Dana. I think we make the song a tour of GOP strongholds. The rhythm is off for this verse. The pegs at night are big and bright Deep in the heart of Texas. I am proud to support Peggy's website. So this is all about pegging the Republicans. Bright lighting, as one of us has coined it. Light bright and our light bright. Light brighting.
Allison Gill
Light brighting are big and bright.
Dana Goldberg
Tags at night are big and bright deep in the heart of Texas.
Allison Gill
Oh, Dan. I know Dan.
Dana Goldberg
Oh, Dan.
Allison Gill
So, Peggy, did you hear that? That is the official theme song.
Dana Goldberg
Oh, boy.
Allison Gill
I think Peggy's gonna fight that of Peg Amaga. So if we could put that up somewhere, maybe we could record it. I know we've got a lot of really great sound engineers and musicians among us that could probably just put that together with the. You know, I think we can make it happen.
Dana Goldberg
Yeah.
Allison Gill
Thank you all so much for your good news. It was a great Friday afternoon. We do have a happy hour for patrons tonight at 4pm Pacific, 7pm Eastern. If you're not a patron, please become one. You help make the show possible. You can do that by going to patreon.com mullershirote it's 3 bucks a month, y' all, 36 bucks a year. And if you are at the $5 a month level, you will also get the Jack podcast ad free. So it's a super, super sweet deal. Otherwise, it's free. Hey, it's free. Love it. So thank you so much. I hope everybody has an amazing weekend. Dana, are you gonna be your. You'll be here Monday, but not Tuesday, Is that right?
Dana Goldberg
We're gonna figure that out as soon as I can figure out my. I'm going to Vegas. Yes, I'm going to Vegas to raise some money for the Human Rights Campaign. So I'm on my HRC tour, is what I call it. So that's where I'll be this weekend, and we're gonna figure out when I can get back on the pod. But you won't miss me for too long. It'll just be a day or two. I guarantee it.
Allison Gill
Awesome. And of course, we'll have an episode of Jack out this Sunday. And then, patrons of cleanup on aisle 45, you will have, I swear to God, this bonus episode of cleanup on aisle 45 this weekend is a. A monologue of Just Angry Pete Strzok Swear Fest. It's amazing. I have never heard anything like it come out of Pete Strzok's mouth. But it's worth the dollar an episode to sign up. I think it's actually two bucks an episode to get the bonus. The free bonus episodes every weekend. But if you're currently a patron of cleanup on Alpha 85, you be very excited for what's about to happen this weekend on that bonus episode. So, everybody, we will see you Monday morning. Do you have any final shout outs or anything or any other shows you want to promote, Dana, before we get out of here?
Dana Goldberg
No, other than the show is sold out. But for those of you that got tickets to May 20, I can't wait to see you. It's a week from Saturday in Albuquerque. And so for those beans that did get tickets, I cannot wait for the show. And if for some reason you didn't get tickets because it sold out so quickly, and for those of you that did but wanna see me again, I'll be announcing a huge show for September in the coming weeks. So stay tuned there. I'm grateful for the Beans to be a promotional sponsor on that. And we're gonna bring some comedians to New Mexico that you are going to love. It's the Southwest Funny Fest, which I produce every year for 13 years before the pandemic. And it is time to relaunch. So I will have information about that at my May 20th show.
Allison Gill
Hell yeah. I wanna come to that. I'm coming to that. All right. Anyway, I'm definitely, definitely coming to that one. All right, everybody, please take care of yourselves, take care of each other, take care of the planet, take care of your mental health.
Dana Goldberg
Vote blue over Q and take everyone with you.
Allison Gill
I've been AG and I've been dg and them's the beans. Refried beans. I like refried beans.
Podcast Summary: The Daily Beans – "Refried Beans | Re-defamation (feat. Stephen Vladeck)" | May 12, 2023
Release Date: May 11, 2025
Hosts: Allison Gill & Dana Goldberg
Guest: Professor Stephen Vladeck, Author of The Shadow Docket
In this insightful episode of The Daily Beans, hosts Allison Gill and Dana Goldberg delve into significant political and legal developments, blending progressive news with their characteristic wit and snark. The discussion is enriched by a special interview with constitutional law expert Stephen Vladeck, author of The Shadow Docket. The hosts also share uplifting good news stories contributed by their listeners, providing a balanced mix of hard-hitting analysis and heartwarming moments.
Allison Gill opens the episode by addressing the ongoing legal battle between E. Jean Carroll and former President Donald Trump. Following Trump's defamatory remarks about Carroll during his CNN Town Hall appearance, Carroll's attorney is contemplating filing a new defamation lawsuit. This potential suit comes on the heels of a federal jury in Manhattan awarding Carroll $5 million in damages for sexual abuse and defamation.
Notable Quotes:
The hosts emphasize the impact of Trump's low viewership ratings on CNN, highlighting that his recent town hall garnered only 3 million views—a stark contrast to previous major political events like the Cassidy Hutchinson testimony, which drew 13 million viewers. They argue that mainstream media's reinforcement of Trump's legitimacy is misleading, considering his relatively small support base.
Dana Goldberg reports on Attorney General Merrick Garland's decision to transfer forfeited Russian assets to support Ukraine amidst the ongoing conflict. The first transfer involves assets from Russian oligarch Konstantin Malaviev, who was charged with violating sanctions by financing separatist movements in Crimea.
Notable Quotes:
The hosts commend the Justice Department's efforts, relating it to previous actions like the seizure of Deripaska's aluminum plant, reinforcing the U.S. stance against Russian aggression.
Kyle Cheney from Politico contributes an analysis on the Justice Department's potential success in upholding obstruction charges against individuals involved in the January 6th Capitol riot. A three-judge panel from the D.C. Circuit Court of Appeals appears inclined to support the DOJ's broad interpretation of obstruction under 18 U.S. Code § 1512, which could solidify hundreds of such convictions.
Notable Quotes:
The discussion underscores the legal challenges faced by defendants and the DOJ's strategic positioning to maintain stringent obstruction charges, reflecting the broader implications for accountability stemming from the January 6th events.
Allison Gill and Dana Goldberg transition to a positive development in public health policy. The FDA has ended the longstanding prohibition on blood donations from gay and bisexual men, a move widely praised as a step towards dismantling discriminatory practices rooted in outdated stereotypes.
Notable Quotes:
The new policy focuses on individualized donor assessments based on recent sexual activity rather than blanket bans, aligning U.S. practices with those of Canada and the United Kingdom. While the removal of such discriminatory barriers is celebrated, the FDA retains restrictions on donors using oral PREP medications to prevent HIV, citing safety concerns.
In an exclusive segment, Professor Stephen Vladeck joins Allison Gill to discuss his forthcoming book, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Vladeck explains the concept of the "shadow docket," referring to the Supreme Court's unsigned and unexplained orders that constitute over 99% of its decisions.
Notable Quotes:
Vladeck elaborates on how these opaque decisions allow the Court to extend its influence without the transparency afforded to full oral arguments and recorded opinions. He argues that the increasing frequency and significance of shadow docket decisions signify a consolidation of power that poses risks to democratic accountability.
The conversation also touches upon the historical evolution of the Supreme Court's authority, the erosion of inter-branch checks, and the challenges posed by lifetime appointments. Vladeck advocates for institutional reforms to restore a balance of power and enhance the Court's accountability.
Shifting gears, Allison and Dana introduce their "Good News" segment, featuring heartwarming stories and positive updates from their listeners.
Highlights:
Correction on George Santos' Bail: A listener clarifies that George Santos' bail is set at $500,000, not $50,000.
Allison Gill (33:09): "George Santos. Bail is $500,000, not $50,000."
Shoutouts to Local Businesses and Community Members: Listeners share appreciative messages for local businesses, including an LGBTQ-owned auto repair shop, Good Judy Garage.
Dana Goldberg (34:22): "Good Judy Garage. Thank you so much."
Personal Stories and Encouragement: Heartwarming interactions, such as Ty from Lincoln, Nebraska, celebrating Shelter Movers Waterloo Region's milestone of 300 successful moves supporting victims of domestic violence.
Dana Goldberg (44:21): "Shelter Movers is an organization in Canada that provides no-cost moving and storage assistance..."
Creative Contributions: Listeners submit amusing and creative content, including "awkward family dog photos" and original song verses supporting progressive causes.
Allison Gill (36:48): "This poor baby."
Community Support and Volunteerism: Recognizing the efforts of individuals like Todd, who volunteers with Shelter Movers, and Miranda, a self-employed creator supporting her family during the pandemic.
Allison Gill (45:17): "My bit of Wonder is the name of it. mybitofwonder.com..."
The hosts encourage listeners to continue sharing their good news, fostering a sense of community and positivity amidst the often tumultuous news landscape.
Allison Gill and Dana Goldberg wrap up the episode by promoting upcoming events and addressing their audience with warmth and encouragement. They highlight Dana's participation in a Human Rights Campaign fundraiser in Las Vegas and tease future bonus content for Patreon supporters. The episode concludes on a hopeful note, reiterating the importance of mental health and community support.
Final Quotes:
This episode of The Daily Beans offers a comprehensive overview of pressing legal and political issues, complemented by thoughtful analysis and expert insights from Professor Stephen Vladeck. The blend of serious discourse with uplifting community stories ensures that listeners are both informed and inspired. With a focus on accountability, justice, and progress, Allison Gill and Dana Goldberg continue to deliver content that resonates with their progressive audience.