Trump’s DOJ Shakedown

Speaker 1 This Halloween, the scariest ghouls aren't in haunted houses or that rando in your DMs. They're in our legislatures, courts, and even the halls of Congress.

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Speaker 2 The Supreme Court's word feels final. Until it's not.

Speaker 2 After Roe v. Wade fell, I wondered, could something like this happen in Canada?

Speaker 2 I'm Felon Johnson, and on my new podcast, Seewen Court, we explore eight cases that shaped a country fighting to protect its stance on everything from abortion to gay rights to junk mail.

Speaker 2 Find and follow CUN Court wherever you get your podcasts. Because as Americans know, case closed doesn't mean story over.

Speaker 2 Mr. Chief Justice, as pleased the court,

Speaker 4 it's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 4 She spoke not elegantly, but with unmistakable clarity.

Speaker 3 She said,

Speaker 4 I ask no favor for my sex.

Speaker 4 All I ask of our brethren is that they take their feet off our necks.

Speaker 3 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.

Speaker 1 And I'm Leah Littman, and this episode is off the record.

Speaker 3 More seriously. No, no, you have to stay at the end of the episode, Leah.

Speaker 1 Well, no, I learned my lesson from one Lindsay Gallagher, and I'm putting it up top. Up front.
Okay, got it. Anyways, we are between oral argument sessions at the Supreme Court.

Speaker 1 So we are going to bring you up to speed on legal news outside of oral arguments at the court.

Speaker 1 And that legal news includes ongoing litigation, challenging militarization of American cities, cities, the destruction, literal and metaphorical, of the White House, the latest presidential extortion, the latest antics of the most qualified and best people selected by this administration for positions in both Articles 2 and 3, and more.

Speaker 3 And then we're going to shift gears, also in a dark timeline, but with like some real moments of hope, or at least the actual best people.

Speaker 3 And that is Irin Carmone, the New York Times best-selling author, who is the author of the new book, Unbearable, Five Women and the Perils of Pregnancy in America, which is out tomorrow.

Speaker 3 So stay tuned for that conversation.

Speaker 3 So we're going to start with a discussion of what we will call last week in Article 2, although as you will hear, much of it is also very linked to SCOTUS and Article 3.

Speaker 3 Let's start with illustical Brett Kavanaugh style. Since we last recorded, one, the president posted a video of himself pooping on his fellow Americans, ones he theoretically represents.

Speaker 3 The Supreme Court loves to tell us the president is the most democratically accountable elected official. He represents all of us, and this is what he thinks of many of us.

Speaker 3 Two, the president has proceeded to destroy, physically, not metaphorically, though that too, a big chunk of the White House because he wants a new ballroom.

Speaker 3 And three, news came to light that he is attempting to shake down the Department of Justice and really American taxpayers to the tune of more than $200 million,

Speaker 3 like officially, not even off some sort of grift.

Speaker 1 His second agenda item, the physical demolition of the east wing of the White House, is in some ways a defining image, if not the defining image of the second Trump administration.

Speaker 1 The guy is literally tearing down the White House, which he does not own, again, because he wants a ballroom. Or in the press secretary's words.

Speaker 5 He's a builder at heart, clearly. And so his heart and his mind is always churning about how to improve things here on the White House grounds.

Speaker 5 But at this moment in time, of course, the ballroom is really the president's main priority.

Speaker 3 The priority.

Speaker 1 Okay, we all got ours.

Speaker 3 And we just wanted to briefly play some tape from this past May when the corruption scandal du jour, which somehow seems quaint now, involved the president shaking down a foreign government for a luxury jet.

Speaker 3 This is what we had to say back then.

Speaker 3 I'm going to manifest something, but I feel like some of the defenses of, I mean, these are ridiculous, but like...

Speaker 3 Some of the discourse around Trump and this like absurd and corrupt plane exchange have noted that Air Force One, the one that's currently in use, is is a little run down and in need of repairs.

Speaker 3 And I just have to say, that's kind of actually true about the White House. Like, it's like the white sky is actually not in the best shape.
It like the carpet's a little frayed.

Speaker 3 Now, I don't know if Trump goes to those parts of the White House, but like, I want to know who's going to offer him a new White House. And I'm scared I might just be manifesting that.

Speaker 1 I guess it is East, not West Wing, at least so far. But yet another prediction we take no joy in.

Speaker 1 That one was a little eerie to reflect back on. And

Speaker 1 well, now I'm worried that I said the, you know, the West Wing needs a little upgrade too.

Speaker 3 Like, I don't know. There's nothing to stop.

Speaker 1 Who's listening? Who's listening?

Speaker 3 To just turn that bulldozer just towards EOB and just make a UE.

Speaker 3 Knock the sit room down because who really needs intelligence at this point anyway?

Speaker 3 So yeah.

Speaker 1 And at the same time that he is destroying federal property.

Speaker 1 and again recall he has successfully extracted contributions for his fancy ballroom from several different corporations and corporate executives.

Speaker 1 He has also reportedly demanded that the Justice Department pay him about $230 million

Speaker 1 because of several federal investigations into him. This, to be clear, would be more than $200 million extracted from federal taxpayers handed over directly to Donald Trump.

Speaker 1 The demand arises out of the FBI's investigation into Russian interference in the 2016 presidential election, which his lawyers maintain violated his rights, and the search of the Mar-a-Lago property for the classified documents that Trump refused to turn over when requested to do so by the DOJ.

Speaker 3 So this is just a kind of an outright demand for a payment.

Speaker 3 It is ostensibly done under the auspices of this process for suing the federal government under a federal law known as the Federal Torque Claims Act.

Speaker 3 So you have to first make these demands for money, and then the federal government decides whether to pay out or settle. And if they decide not to pay out, then you can elect to sue them.

Speaker 3 So you might wonder, which upstanding Justice Department officials would be making the decision under this statutory scheme whether to settle these claims?

Speaker 3 Well, I'll tell you, they would include the current Deputy Attorney General, Todd Blanche, who served as Trump's lead defense lawyer, as well as the chief of DOJ's civil division, Stanley Woodward Jr., who represented one of Trump's co-defendants in the classified documents case, and also represented other Trump aides, including Cash Patel, in investigations related to January 6th.

Speaker 3 So to be clear, Trump's former personal lawyers in these matters would be the ones deciding whether he is entitled to compensation for these matters. Very legal, very ethical.

Speaker 1 Even Donald Trump himself recognizes this is weird AF.

Speaker 6 It's interesting because I'm the one that makes a decision, right? And, you know, that decision would have to go across my desk. And it's awfully strange to make a decision where I'm paying myself.

Speaker 6 In other words, did you ever have one of those cases where you have to decide how much you're paying yourself in damages?

Speaker 1 No shit, Sherlock. But, you know, who might not think this whole situation strange?

Speaker 1 Who might think, but of course the president himself and people the president can control, the president has to control, would be the ones deciding whether the president can extract more than $200 million from the federal law enforcement apparatus.

Speaker 3 Would it be like Richard Nixon?

Speaker 1 John Roberts, so close.

Speaker 1 You know,

Speaker 1 it was Roberts' immunity opinion, after all, that gave the president unfettered control over the investigative and prosecutorial functions of DOJ, even if he was deploying those functions for improper, corrupt purposes.

Speaker 1 Personal game. It was John Roberts who has insisted on treating the entire executive branch and specifically the DOJ as merely an arm of the president.

Speaker 1 Roberts has handed the president more and more power over every part of government and kaboom. Yeah.

Speaker 3 And this is all playing out in ways that should have been foreseeable to Roberts.

Speaker 3 We are seeing that this vision of the president with total control over his minions in the Justice Department and maybe the rest of the executive branch clearly yields corruption and autocracy, at least in the hands of this president, who John Roberts well understood was at least potentially returning to the White House to reap the benefits of this outrageous immunity decision.

Speaker 3 So, just the current iteration is the president seeking to literally pay himself millions of dollars because he controls the executive branch and the people within the executive branch and their decisions.

Speaker 3 And that is because John Roberts handed him that control.

Speaker 1 And I am wondering whether we should start calling Donald Trump a Roberts baron or like Roberts' baron or Roberts robber. I don't know.

Speaker 1 Or maybe this particular grift of using the federal government as the president's personal piggy bank, bank, like the long John Con.

Speaker 1 I'm still workshopping this.

Speaker 3 It's been a long week, but those are some of the things that we're going to do.

Speaker 3 I think Roberts Barron's very good.

Speaker 1 I liked the Roberts Barron one.

Speaker 1 But, you know, even Trump and his lawyers recognize not only that this is weird AF, but that John Roberts gave them a leg up in their quest to extract or extort more than $200 million from the federal government and American taxpayers, because in Trump's demand letter, ostensible demand letter to the Department of Justice as part of this federal tort claims act scheme, the memo argues that prosecutors, quote, should have foreseen that he had immunity from prosecution for official acts and cites John Roberts' opinion in Trump versus United States.

Speaker 1 It argues that, quote, given the Supreme Court's immunity decision and Judge Cannon's dismissal of the prosecution on grounds, you know, et cetera, et cetera, that the special counsel was unlawful, there was no constitutional basis for the search or the subsequent indictment.

Speaker 3 It is just all too much. And,

Speaker 3 you know, I like Robert Sparron, but whatever like catchphrase you land on, like it will be the Kavanaugh stops of corruption.

Speaker 3 But however we term it, I really just think there is no question that John Roberts bears an enormous amount of responsibility for what we are seeing on display at this White House right now.

Speaker 1 Yeah. I mean, like, I think that also probably includes what's going on with the East Wing, which are Roberts' renovations.

Speaker 1 But, like, less than one year, right, from him telling the president, you are above the law and you have immunity, the president is literally raising the White House.

Speaker 3 And these strikes, the Roberts strikes on what may just be fishing vessels in the Caribbean.

Speaker 1 We will get to that.

Speaker 3 We are attributable to John Roberts, too. So, yes, okay.
So, not to get ahead of ourselves.

Speaker 3 But we do think it is important to continue to link the Supreme Court and its immunity decision to the accelerating lawlessness and corruption that we are seeing in the White House.

Speaker 3 And, you know, on that topic, how else is Donald Trump using the essentially boundless powers over the Department of Justice and federal investigations and prosecutions that the Supreme Court handed him?

Speaker 3 Well, turns out DOJ is for Divas now because President Trump commuted the sentences of George Santos, the former Republican congressman, who pled guilty to wire fraud and identity theft and was serving a federal prison term for those charges.

Speaker 3 But no longer because Trump sprung him last week. Let's just stop and quickly assess some of the other beneficiaries of Trump's pardons and commutations.

Speaker 3 And this is a non-exhaustive list. So Chris Collins, Republican from New York, Duncan Hunter, a Republican from California, Steve Stockman, a Republican from Texas.

Speaker 3 These are all former Republican office holders, all congressmen convicted during Trump's first term, subsequently pardoned. Let's go on.

Speaker 3 Rick Renzi, a Republican from Arizona, Robin Hayes, a Republican from North Carolina, Mark Siljander, a Republican from Michigan, Duke Cunningham, a Republican from California.

Speaker 3 According to the Washington Post, by the end of his first term, Trump had pardoned more than half of the Republican congressmen convicted of felonies in the 21st century.

Speaker 3 It's a longer list than I remembered.

Speaker 1 Yes, I know, I know. I was shocked when I went back and was looking at it.
Oh, and that guy, and that guy, yeah.

Speaker 3 So that was all in the rearview mirror when John Roberts took a look at the landscape and decided the way the Constitution should work is that we should remove any constraints on the person who wields this part in power and, in fact, enable more of it.

Speaker 3 And just like a couple more names to throw in. Michael Grimm, Republican from New York, Brian Kelsey, a former Tennessee state senator.
And that list doesn't even include...

Speaker 3 people in Trump's inner circle like Steve Bannon, Paul Manafort, Charles Kushner, Sheriff Joe Orpaio, Roger Stone, Las Vegas council member Michelle Fiore.

Speaker 3 Again, I don't think that list is exhaustive, but it is pretty stunning.

Speaker 1 No, and he's still on a roll. He was asked about another recent pardon of the Binance founder, Chang Peng Zhao, who was convicted and sentenced for money laundering.

Speaker 1 As a question will make clear, Zhao's company, Binance, does a lot of business with, you guessed it, the Trump Family Crypto Company. How cozy.

Speaker 8 On the pardon of Chang Peng Zhao, apologies if I'm mispronouncing that name,

Speaker 8 Binance has significant business interests with World Liberty Financial, the president's family's crypto company. How do you respond to the allegations from Democrats that this is a corrupt act?

Speaker 5 I would respond and say the president is exercising his constitutional authority.

Speaker 1 Once again, thank you, John Roberts, for clearing the way for corrupt exercises of exclusive presidential powers and official duties.

Speaker 3 This is what he meant by I won't forget it.

Speaker 1 Yeah, exactly. No, seriously, thanks.

Speaker 1 I'm not going to forget what you allowed me to do. Yep.

Speaker 3 So we have all of this kind of beneficence and mercy toward his kind of friends and political fellow travelers and compare that with recent moves to indict and prosecute critics and opponents.

Speaker 3 The takeaway is clear. The law does not apply to Trump's allies, but made-up laws apply to opponents and dissenters.

Speaker 3 And sort of more, to return to something we mentioned a couple of minutes ago, kind of this week in the Unitary Executive Theory News, we also learned that the president authorized more strikes, these are lethal strikes, against individuals he appears to have unilaterally, and unclear based on what evidence, declared narco-traffickers.

Speaker 3 So this was the eighth known strike, the first in the Pacific. This was off the coast of Colombia rather than in the Caribbean.

Speaker 3 Two or three people were killed in this strike, which brings the total to more than 30 people who have been killed across all of these strikes.

Speaker 3 The New York Times reported that President Petro of Colombia has said several strikes killed Colombian nationals and he accused the United States of murder.

Speaker 3 Trump has said he is cutting off foreign aid to Colombia in response to that accusation. And I want to just quote briefly from the New York Times Charlie Savage on the kind of strike campaign broadly.

Speaker 3 So Savage says very clearly that legal experts say these strikes are unlawful.

Speaker 3 And then he kind of relays this sort of legal opinion in what I thought was actually really refreshingly direct language for a piece of news analysis.

Speaker 3 So he says, quote, they, being the legal experts, say the premeditated extrajudicial killings have been murders, regardless of whether the 43 people blown apart, burned alive, or drowned in 10 strikes so far were indeed running drugs.

Speaker 1 There are many, many, many, many reasons to be skeptical of the administration's claims that these strikes are necessary to stop narco-traffickers because of the fentanyl trade.

Speaker 1 I mean, fentanyl doesn't come from Venezuela or Colombia.

Speaker 1 Another is that what happened when the administration apprehended survivors of some of these strikes, it repatriated them, sent them back to their home countries, which is definitely what you would do with individuals you are very confident are big, bad, evil narco-traffickers responsible for the deaths of Americans.

Speaker 1 And prosecutors in one of those countries, Ecuador, declined to charge one of the men, saying there was no evidence he had committed crime in Ecuador.

Speaker 1 The other survivor is hospitalized in Colombia with brain trauma and is on a ventilator. And like, we don't know exactly what will happen to him in the event he ever becomes conscious.

Speaker 3 And the president recently spoke about the lethal strikes in.

Speaker 3 Well, let's just play the audio clip. It's a way we thought people should hear.

Speaker 9 And Mr. President, if you are declaring war against these cartels and Congress is likely to

Speaker 9 approve of that process, why not just ask for a declaration of war?

Speaker 10 Well, I don't think we're going to necessarily ask for a declaration of war. I think we're just going to kill people that are bringing drugs into our country.
Okay? We're going to kill them.

Speaker 10 You know, they're going to be like dead.

Speaker 1 So

Speaker 3 to underscore what the experts quoted in the Savage article, and really every expert I have heard from says is not at all a close question. This is wildly illegal.
It is also terrifying. It is brazen.

Speaker 3 Killing civilians with no process is illegal. And not to bring this back to SCOTUS, but remember those SEAL Team 6 hypos in the immunity case? They do not look so far-fetched right now.

Speaker 1 Aaron Ross Powell, no. And those hypotheticals were: well, what if the president orders SEAL Team 6 to assassinate someone? You know, there, the specific hypo was a political arrival.

Speaker 1 But again, this is how these things begin.

Speaker 1 And, you know, just to clearly, more clearly link this to the court as well, the Savage Peace you noted, Kate, says these strikes draw on two claims that the president has made about the presidency and the law that thus far I think the Supreme Court Court is kind of in agreement with.

Speaker 1 And one of those claims or premises is that the president's determinations are the determinations of the executive branch. They're controlling, and executive officers can't question them.

Speaker 1 The president can fire them if they do. And the other claim is that the president just declares certain conditions, factual or illegal, to be the case, to give himself additional powers.

Speaker 1 You know, he did this in the Alien Enemies Act case, tariffs and more, and now these strikes.

Speaker 1 And the combination, I think, lines up well with John Roberts and his fellow aristocrats' views about the presidency, that the president gets to control everyone in the executive branch, and everybody, including courts, have to defer to presidential determinations.

Speaker 3 And on that topic, specifically tariffs, which you just mentioned, the president has given us some insight into how he is making decisions about those tariffs, which has obviously been a key sort of central fixation of his presidency.

Speaker 3 And these are the tariffs that the Supreme Court will decide if he has the authority and legal basis to impose.

Speaker 3 And given that we we suspect that these guys, meaning the Supreme Court supermajority, are going to insist on treating this president as normal and entitled to deference, and they are likely to continue invoking the presumption of regularity, we wanted to, as a corrective, highlight for your consideration the recent tariff decision on Canada.

Speaker 3 The president was clearly quite triggered by an ad that Canada ran against the Trump tariffs, which suggested accurately with video evidence that Ronald Reagan wasn't so into tariffs.

Speaker 3 So the president went on a rant on Truth Social, which included.

Speaker 1 Tariffs are very important to the national security and economy of the USA. Based on their egregious behavior, all trade negotiations with Canada are hereby terminated.

Speaker 1 Thank you for your attention to this matter. President DJT.

Speaker 3 So when Leah's voice gets a little louder there, that's in the all caps portion of the truth, which I think actually, you know, kind of translated.

Speaker 3 Right. So these are the bases personal peak that Trump is imposing tariffs based on.
And

Speaker 3 the Supreme Court may just give him essentially unlimited power to keep doing that.

Speaker 3 And on that topic, a reminder that we are going to be breaking down those oral arguments on tariffs at Crooked Con in D.C.,

Speaker 3 which is as good a reminder as any to ask whether D.C. stricties or, you know, anyone in the Maryland, Virginia, D.C.
area, or or really anyone who can get to DC.

Speaker 3 Have you gotten your tickets yet for Crooked Con on November 7th? So it's a full day of programming.

Speaker 3 We're going to be closing out the day with a live pod at the Reagan Center, and there are still some tickets available. So head to crookedcon.com if you want to pick up tickets.

Speaker 3 It is less than two weeks away. It is a really fantastic lineup for the whole day, and we are very excited to be.
wrapping the day up and we would love to see you there.

Speaker 1 Yes. And speaking of live shows, we have a a very big announcement.
Thank you for your attention to this matter. We are heading to the West Coast for the first time ever.

Speaker 1 So plan to spend your kids' spring break with us next year because we will be at the Herbs Theater in San Francisco on March 6th. Then on March 7th, we're heading to the Palace Theater in Los Angeles.

Speaker 1 And because you all are our favorite dissenters, you get first dibs on tickets before they go on sale to the general public. So the pre-sale starts Tuesday, October 28th at 10 a.m.

Speaker 1 Pacific time and runs through Thursday, October 30th at 9 a.m. Pacific time.
The password is Dissent. All caps, one word, that's D-I-S-S-E-N-T.

Speaker 1 We'll put the code in the show notes and grab your tickets now at crooked.com slash events.

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Speaker 3 On the topic of the West Coast, which is, I think, kind of like Melissa Murray-esque segue.

Speaker 1 She's the queen of Saint-Chief. We try in her absence.

Speaker 3 We do our best to muddle through.

Speaker 3 But there is news from the West Coast that we should bring you up to speed on, and that involves the challenges to the president's deployment of the National Guard, which are very quickly developing.

Speaker 3 And we're going to stop for a minute to take stock because there is litigation unfolding in a few different places, and this litigation challenges the president's deployment of the National Guard in Los Angeles, also in Portland, also in Chicago.

Speaker 3 And each of these cases is at a slightly different stage of the litigation.

Speaker 3 So the Ninth Circuit heard oral argument in the appeal from Judge Breyer's initial ruling invalidating the deployment of the National Guard in L.A., which we've talked about a couple of times.

Speaker 3 The Ninth Circuit stayed that ruling while the litigation remained ongoing. And the full Ninth Circuit opted not to revisit that ruling on bunk.

Speaker 3 So the next stage of this case will be the Court of Appeals formally affirming or vacating the decision on whether the president can federalize and deploy the National Guard in Los Angeles.

Speaker 1 Now, in the the case involving LA, there's also a separate ruling, another ruling by Judge Breyer that concluded some of the National Guardsmen were in violation of the Posse Comitatus Act because the Guardsmen were engaged in ordinary law enforcement, which they cannot do.

Speaker 1 So Judge Breyer stayed that ruling himself, and there is an appeal pending on that ruling.

Speaker 3 In the meantime, however, there have been big developments in the litigation concerning not L.A., but Portland.

Speaker 3 The last time we updated on this topic, a Trump-appointed district court judge in Portland had blocked the administration's deployment of the Oregon National Guard and deployment of other states' National Guard to Portland in a truly epic opinion that meticulously went through the facts and concluded that the president's determination that there was a need to deploy the Guard was simply untethered to reality or facts.

Speaker 3 Regrettably, in a two-to-one decision with two Trump appointees in the majority, a panel of the Ninth Circuit has now stayed that district court decision that had blocked Trump's deployment of the National Guard in Portland against the Portland frog and Portland chicken, among others.

Speaker 1 So the percurium opinion by the Trump appointees is like simultaneously chilling and ridiculous.

Speaker 1 It gives Trump an unreal amount of deference when it comes to characterizing what is going on in Portland, like characterizing it contrary to what the evidence shows is happening, and also deference on when the president can determine that he is unable to execute the laws of the United States.

Speaker 1 And just as a reminder, you know, under the relevant statutes, the president can federalize and deploy the National Guard when the president is unable to execute the laws of the United States.

Speaker 3 So the panel relies on some pretty sketchy evidence to rule in favor of Trump here.

Speaker 3 So it begins by talking about the shooting at the ICE facility in Dallas, as if that justifies the deployment of the National Guard in Portland.

Speaker 3 The panel says Trump can basically gesture toward anything that happened this year, seemingly anywhere, and use that as a basis for federalizing and deploying the Guard at the end of September.

Speaker 3 So the district court had, to my mind correctly, focused on conditions on the ground at the time that the Guard was deployed.

Speaker 3 And the panel criticizes the district court for that choice, basically saying the district court was wrong to impose time limits on what circumstances the president can point to.

Speaker 1 I mean, there was some pretty intense activity in the Boston Harbor and Lexington and Concord, you know, more than 200 years ago. Can he federalize the Massachusetts National Guard on that basis?

Speaker 1 But like more seriously, how about the Minnesota National Guard, you know, in response to Black Lives Matter protests?

Speaker 3 Yeah, you're giving them ideas again.

Speaker 1 We have to say that.

Speaker 1 I don't want to have to replay this tape.

Speaker 3 So

Speaker 3 I know.

Speaker 1 The

Speaker 1 panel in this Portland case also faulted the district court for pointing out that the president makes shit up.

Speaker 1 Literally, the panel wrote that the court, quote, erred by placing too much weight on statements the president made on social media, including, you know, having described Portland as as war-ravage, writing that, quote, the president may exaggerate the extent of the problem on social media, end quote.

Speaker 1 So unitary, you get to unite reality and imagination.

Speaker 3 What John Roberts would approve. Yeah.

Speaker 1 And again, just to come back to who is the guy this panel insists on deferring to and acting like they are engaged in very serious determinations.

Speaker 1 Well, that guy provided some insight into how he is making these decisions on deploying the National Guard. Over on TrueSocial, Trump said he's fielding calls from the CEOs of Salesforce and NVIDIA,

Speaker 1 which help him determine whether to deploy the National Guard to San Francisco. I am not making this up.

Speaker 1 He says he spoke to the mayor and

Speaker 1 he's like, quote, we can do it much faster and remove the criminals that the law doesn't permit him to remove. And it's like, are you saying the law doesn't authorize you to remove these individuals?

Speaker 1 And then he says he's been getting like, you know, really great people to call him, like Jensen Huang and Mark Benioff.

Speaker 3 And do either of them live in San Francisco?

Speaker 1 I thought Benioff moved to Hawaii.

Speaker 3 I have no idea, but I do think that we have now learned that friends of Trump get not only pardons, but also a direct say in whether the U.S. military gets sicked on Americans.

Speaker 1 Well, those friends are also now apparently like paying for the U.S.

Speaker 1 military because it's now been reported that Trump received like $130 million that he is going to put to the Department of Defense during the shutdown. I mean,

Speaker 3 which I don't think there's any colorable case that this arcane-sounding but real actual statute, the Anti-Deficiency Act, I don't think there's an argument that it's not violated by the, you know, ballroom renovations, but they're making some arguments that the White House is different.

Speaker 3 So executive branch lawyers love to say the White House is different. Yeah, I find it's wrong here.

Speaker 3 But even if there is an argument that it might apply differently to the White House, I don't think there's any argument that the Anti-Deficiency Act does not clearly bar private parties from contributing hundreds of millions of dollars to the Treasury to pay salaries.

Speaker 3 Like, you can't do that.

Speaker 1 It's just, it's

Speaker 3 just wild. Yeah.

Speaker 3 This is one of those weeks, which is basically almost every week at this point. But back to the Ninth Circuit panel opinion.

Speaker 3 So the percurium to judge majority was joined by a separate concurrence by one of the members of that percurium, Trump appointee Ryan Nelson, who wrote separately to say he did not think the president's determination to federalize the National Guard was reviewable at all.

Speaker 3 So the suggestion there is it is not enough for courts to give presidents enormous amounts of deference. Apparently, they shouldn't have any substantive role in reviewing these determinations.

Speaker 1 Full stop. These guys are so thirsty for fascism.
It's unreal.

Speaker 3 And they write it down.

Speaker 1 Yes.

Speaker 1 I know. Don't read that.
Like, you know, I realized Stringer Bell was chastising people for taking notes on a conspiracy. Like, are you motherfucking taking notes on a autocracy plan, right?

Speaker 1 Not like a criminal. It's just nuts.
Anyways,

Speaker 1 the dissenting judge in the Portland case, Judge Graeber, had some things to say.

Speaker 1 So the dissent invoked the police logs and how in the two weeks leading up to the president's federalization of the guard, there were zero, that's zero reports of any incidents disrupting the execution of the laws.

Speaker 3 Even the frogs were not being disruptive. No one was being disruptive.

Speaker 3 Yeah, the dissent is very much worth a read.

Speaker 3 It concludes, and I'll quote here, quote, I urge my colleagues on this court to act swiftly to vacate the majority's order before the illegal deployment of troops under false pretenses can occur.

Speaker 3 Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer.

Speaker 3 And I read that and I just was like, oh, God, I feel like I used to issue a similar kind of creed of core occasionally on this podcast.

Speaker 1 Sounds familiar. Let's not do it.
Maintain your faith. Maintain your faith in the law.

Speaker 3 And I have to say, I reading that was sort of like,

Speaker 3 the thought of my mind was, You you sweet summer child which I used to be on the receiving end of

Speaker 3 and yet the day the opinion was issued another judge on the Ninth Circuit had already called for a vote on on bank rehearing and requested briefs to be filed within two days so that would give the full Ninth Circuit the power to override this appalling panel opinion and that all may be quickly developing.

Speaker 3 Yeah.

Speaker 1 You know, speaking of the best people that Trump put in Article 3 and also Article 2, we wanted to provide you some updates on Brett Kavanaugh and Kavanaugh stops, the federal government lawyer's projections about the implications of the Supreme Court striking down or eviscerating the Voting Rights Act, and as promised, Lindsey Halligan.

Speaker 1 But first up, Brett Kavanaugh. So, ProPublica did some incredible reporting on Kavanaugh stops, that is, ICE's practice of stopping and detaining people as part of their immigration enforcement.

Speaker 1 So a reminder that Brett Kavanaugh in voting to authorize the administration to be able to deploy roving immigration patrols who would stop and question people based on the color of their skin and where they were.

Speaker 1 Kavanaugh described these as brief investigative stops during which ICE would promptly allow people to go once they established their citizenship or authorization to be in the United States.

Speaker 3 So these characterizations, as we noted at the time, were made with zero citations and seemingly zero regard for the contrary fact-finding by the district court. And

Speaker 3 moreover, they have been thoroughly debunked by this point based on what we have all seen with our eyes and what has been reported.

Speaker 3 And that was already true regarding reporting that had happened before this Kavanaugh opinion, but it has really been established beyond any shred of doubt since.

Speaker 3 And that includes ProPublica's latest, which documented more than 170 cases, yes, you heard that number right, of U.S.

Speaker 3 citizens being detained at raids or protests in the immigration enforcement sweeps. ProPublica did totally incredible reporting work tracking down these individuals, individuals, speaking to them.

Speaker 3 More than 20 of them reported being held incommunicado for over a day. This is what Brett Kavanaugh apparently likes to call being promptly released.

Speaker 3 The cases include nearly 20 children, including two with cancer, who were held for weeks with their undocumented mother. They also include cases where immigration officers dismissed U.S.

Speaker 3 citizens' IDs as fake. One was disappeared for days.

Speaker 1 Speaking of bad decisions, we have to revisit. So this is a potential bad decision.

Speaker 1 And we wanted to go back to our discussion about the possible implications of a Supreme Court ruling nullifying, eviscerating, limiting in some grand fashion what remains of the Voting Rights Act and specifically Section 2's restriction on voting discrimination.

Speaker 1 As we documented last episode, it seems like the Republican justices on the court are inclined to severely restrict the force of Section 2 and or the ability to remedy violations of Section 2.

Speaker 3 Also remember that in the argument, the lawyer for the federal government insisted, hey, no big deal to make it near impossible to prove violations of the VRA.

Speaker 3 And adopt our reading that would eliminate only something like 15 political opportunity districts for minority voters.

Speaker 3 As we said in our last episode, that was the lawyer for the federal government suggesting it is no big deal if we just reduce by something like 15 the number of congressional representatives who are racial minorities.

Speaker 1 Well, Nick Stephanopoulos, a professor at Harvard Law School and voting rights expert, wrote on the election law blog that the federal government's statistic was, quote, highly misleading, and that the federal government's proposal, quote, would cause many more than 15 districts to lose their protection under Section 2.

Speaker 1 Professor Stephanopoulos estimated that the federal government's estimate was off by more than 300%,

Speaker 1 and that there are close to 70 congressional districts that could be stripped of protection under the Voting Rights Act.

Speaker 1 So that's 70 seats, reducing by 70 the number of districts that are political opportunities for diverse voters and diverse candidates.

Speaker 3 And we are already seeing what this would look like and what districts and which representatives states would target if they were freed from the constraints of the Voting Rights Act.

Speaker 3 So, in North Carolina, the Republican-controlled legislature passed a new congressional gerrymander that would expand on their current gerrymander. So, the current one is bad enough.

Speaker 3 It creates 10 Republican seats and four Democratic seats where the breakdown is like 50-50 or 51-49, and where Democrats routinely win statewide office.

Speaker 3 But Republicans decided apparently 10-4, not enough.

Speaker 3 Their new maps would lock in an 11-3 Republican majority in a swing state by targeting and likely erasing the district of, you guessed it, black congressional representative Don Davis.

Speaker 3 And that is just a preview of what a post-VRA world would look like.

Speaker 3 Also on the voting rights front, as we were sitting down to record, the Department of Justice announced that it was sending poll monitors to a few places in this coming November, specifically New Jersey and California, where there are important elections happening.

Speaker 3 We warned of this incredibly alarming development.

Speaker 1 Yeah, new GTL gerrymander and trial run on voter suppression by a bunch of losers. But like more seriously, like, okay, this is this cycle.
There are important elections, but it's off-cycle.

Speaker 1 It's just a few locations. It might not seem that concerning, but this is just the tip.

Speaker 3 It is just a tip. And also, wait, GTL is a jersey.
It took my moment.

Speaker 1 Jim Tan and Laundry.

Speaker 3 Okay, that was the Jersey Shore, right? I was like, Jim Tan, what's the L?

Speaker 3 I got two of three. Okay, laundry.
They did laundry. I mean, I don't think I ever saw a minute of that show, but GTL kind of crossed over into the broader culture enough that I do recall it.

Speaker 1 Okay, that's good. But this

Speaker 1 unemployment in just a few places is just the tip because it is a test run to see what they can get away with in either or both 2026 or 2028. Like, are people paying attention to this?

Speaker 3 Is there outrage?

Speaker 1 Will there be pushback? et cetera. Because this is all kinds of fucked and could fuck up democracy even more.

Speaker 3 Aaron Powell, so if you're wondering, should I be alarmed, should I be activated about

Speaker 3 the actual use of federal officials potentially to intimidate voters and to affect the outcomes of elections? Yes, you very much should.

Speaker 1 But there are some things that maybe shouldn't be triggering you into all-out alarm bells at this point.

Speaker 1 So there's been some reporting that there was the Supreme Court is going to consider Kim Davis's request to overrule Obergefell versus Hodges and that, you know, a justice had called for a response in the case.

Speaker 1 The Supreme Court schedules every single petition for sertiari, you know, for discussion at particular conferences. That is not any indication whatsoever about what the court will do.

Speaker 1 Like every single case, literally every request for the court to hear a case is formally listed. And then even a request for a response, I mean, that can be done by a single justice.

Speaker 1 That can sometimes be done by a single clerk. Some justices authorize their clerks just to do it.
Honestly, when I was there, some clerks did it.

Speaker 1 They would ask another clerk to do it so that they didn't have to write their pool memo that week, like as a delay tactic.

Speaker 1 And, you know, honestly, this could also just be like one clerk or a justice wanting to like troll or trigger people. Like, we just don't know.
And it's just not that meaningful of an indicator.

Speaker 1 So as far as things to like really be alarmed about at this point, like we're just not there yet on that particular case specifically.

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Speaker 1 Okay, we wanted to give you more updates on what all of the great people, the best people who are now part of Article 2 are up to. And oh, dear listeners,

Speaker 1 we have a great one for you. And that is the story on Lindsay Halligan.
And we should underscore, again, this is all off the record.

Speaker 1 But Halligan is the... former insurance law.

Speaker 3 This whole episode is off the record, but this part is double off the record.

Speaker 1 Exactly, exactly. It's like a special designation.
You might not have heard of it, Kate, because you're not like a real journalist.

Speaker 1 But yeah, no, this is this is double off the record anyways.

Speaker 3 It's a special term for podcasters.

Speaker 1 But okay, yeah. So Halligan, the former insurance lawyer and personal lawyer to Trump, who Trump installed as the acting U.S.

Speaker 1 attorney in the Eastern District of Virginia, where she has sought and obtained indictments against, you know, former FBI director Jim Comey and New York Attorney General Tish James, indictments that the former Trump-selected U.S.

Speaker 1 attorney and career attorneys were unwilling to touch because there are no crimes. Well, it seems that Lindsay Halligan hasn't enjoyed the reporting on her hackery.
So what did she do?

Speaker 1 She dialed up one of the people who has been reporting on her antics, and that's Anna Bauer at Law Fair. And specifically, Halligan signal-chatted her straight out of the Pete Hegseth playbook.

Speaker 3 Only with a variation, because this appears to have been intentional rather than inadvertent.

Speaker 3 Anna wrote up and excerpted her exchange with Halligan in a pretty jaw-dropping account that really must be read in its entirety.

Speaker 3 The exchange between the two spanned multiple days and featured a few highlights that we will just mention.

Speaker 3 So, quote, Anna, Lindsay Halligan here, the first message read, you're reporting things that are simply not true. Thought you should have a heads up.

Speaker 3 Halligan proceeded to complain to Bauer about the New York Times reporting, although wouldn't ID what exactly the New York Times, in her estimation, got wrong.

Speaker 1 And in the course of this back and forth in which Halligan is like, they got stuff wrong. And Anna's like, what did they get wrong? And Halligan is like, it's all wrong.
It's all wrong.

Speaker 1 Halligan says, Anna, you're biased. Your reporting isn't accurate.
I'm the one handling the case.

Speaker 1 And I'm telling you that if you want to twist and torture the facts to fit your narrative, there's nothing I can do. Waste to even give you a heads up.

Speaker 3 And then

Speaker 1 the icing on the cake.

Speaker 1 So when Anna Bauer reaches out to DOJ for comment on the exchange, because of course she reports on it and posts it at Lawfair, she then gets a subsequent message from Lindsay Halligan that reads, quote, by the way, everything I ever sent you is off the record.

Speaker 1 You're not a journalist, so it's weird saying that, but just letting you know, end quote.

Speaker 3 This is

Speaker 1 art in its highest form. You have to read the entire story documenting the exchange.
It is insane.

Speaker 3 So folks who are not familiar with this, calling up a reporter who you also say you don't think is a reporter, even though you talk about her reporting in the exchange, to complain about other reporting and then to say to the person who you say you don't think is a reporter after the fact that the conversation is off the record and that those are the rules of journalism is just chef's kiss.

Speaker 3 And I should say that Bower

Speaker 3 comes off really well in this exchange.

Speaker 1 She seems genuinely apologetic

Speaker 3 when she is handed this insane request slash demand that there be some retroactive immunity that attaches to the entire exchange.

Speaker 3 Bower says, I'm really sorry, but that is just not how any of this works. And Halligan is incensed because I'm not sure she knows how any of this works.

Speaker 1 No, she obviously doesn't. Nope.
I do wonder whether some Supreme Court justice is going to say the shadow docket is off the record at some point soon in the future.

Speaker 3 But all of these exchanges. Well, certainly they think they're hot mic asides at the end of oral arguments.

Speaker 1 Yeah, that's off the record.

Speaker 3 Like the one we played last week from the Voting Rights Act argument. They definitely think those are off the record.

Speaker 1 Yes.

Speaker 1 The exchange between Bauer and Halligan should obviously go in the Louvre to replace the jewels that have been in their space right now. I know.

Speaker 1 That story was honestly like a welcome return to a world of like old-time crime, you know, that wasn't like criming straight up out of the White House.

Speaker 3 That way it was so delightful. I couldn't tell why I thought I loved the story as much as I did.
But yeah, it was just like a quainter, simpler kind of crime. Yeah.

Speaker 1 But It wasn't just the ending of the conversation between Halligan and Bauer. It's that Lawfair had to post an update to the initial post that had described the exchanges between Halligan and Bauer.

Speaker 1 And the postscript is:

Speaker 1 Hours after Lawfair published this article, Justice Department spokeswoman Natalie Baldassery provided the following additional comment: Thank you for including my statement in your story.

Speaker 1 I just realized I spelled Lindsay's name wrong in the initial response. Would you mind correcting

Speaker 3 real prose over there?

Speaker 3 The only conclusion. Yeah.

Speaker 3 It was a rare that and the Louvre heist were sort of rare notes of levity in a grim week.

Speaker 3 In other, much more serious news, SCODIS found a shadow docket application, a request for emergency relief that it didn't want to grant. So that was a significant development.

Speaker 3 But no, it was not one from the Trump administration. This was the court continuing its trend of denying requests for stays of execution, this time in the case of Anthony Boyd out of Alabama.

Speaker 3 Boyd sought to challenge the state's plan to execute him by way of nitrogen gas.

Speaker 3 This is a protocol that asphyxiates someone, causing them to experience the symptoms of asphyxiation over a period of two to seven minutes or even substantially longer.

Speaker 1 So, Justice Sotomayor dissented from the denial of a stay, and she was joined by Justices Kagan and Jackson.

Speaker 1 And the beginning of Justice Sotomayor's dissent lays out in graphic and explicit detail what nitrogen asphyxiation would be like.

Speaker 1 You know, a short excerpt, quote, for two to four minutes, Boyd will remain conscious while the state of Alabama kills him. He will immediately convulse.
He will gasp for air.

Speaker 1 He will thrash violently against the restraints holding him in place as he experiences this intense psychological torment.

Speaker 1 Boyd asks for the barest form of mercy to die by firing Scott, which would kill him in seconds rather than by a torture or suffocation lasting up to four minutes.

Speaker 1 The Constitution would grant him that grace. My colleagues do not.

Speaker 3 So, because, you know, only three justices would have granted that application, the execution did go forward. It was carried out.

Speaker 3 And Lee Hedgepeth, who reported on the execution, wrote that it was the longest nitrogen suffocation execution in the method's history,

Speaker 3 making two to four minutes sound merciful. This apparently lasted for 37 minutes, during which Boyd gasped for air inside a gas mask more than 225 times.

Speaker 3 I mean,

Speaker 3 such a horrifying story and also the kind of moral clarity on display in that Sotomayor descent is, you know, the one thing that gives me hope that there's anything like law out there that will be

Speaker 3 able to be reconstituted if we are ever in the aftertimes. So it really was powerful, but obviously not enough to persuade two of our colleagues or just what it would have taken.

Speaker 3 Okay, so one last note.

Speaker 3 Arizona Attorney General Chris Mays has filed a lawsuit against Speaker Mike Johnson, seeking a ruling that would force Johnson to seat Arizona Congresswoman-elect Adelita Grajalva.

Speaker 3 Grajalva was elected to Congress, Congress, as we mentioned last week, in a special election back in September, and Johnson has still not sworn her in.

Speaker 3 And as we also described last time, there are a lot of people saying that Johnson has not sworn her in because Grajalva has pledged to sign a petition that would force a vote on release of a bunch of Jeffrey Epstein documents.

Speaker 3 She would be the 218th signature, which is the magic number for moving those documents toward release.

Speaker 1 And that is the news,

Speaker 1 which means we will now turn to a conversation with the wonderful Arun Carmon about her wonderful new book, which is out tomorrow, Unbearable.

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Speaker 1 Now we are delighted to be joined by Irin Carmone, the author of the fantastic new book, Unbearable, Five Women and the Perils of Pregnancy in America.

Speaker 1 Irin, we want to give credit where credit is due, and we hear that friend of the pod Sam Alito might have been the inspo for this book. Did I hear that right?

Speaker 12 I'd like to thank my guy, Sam. That is absolutely correct.

Speaker 12 Fun fact, I'm sure sure a lot of us remember where we were when the Dobbs leak happened.

Speaker 12 I was actually about to go live with true friend of the show, Chris Hayes, to talk about a national abortion ban

Speaker 12 that had been introduced in the Senate that day. We had no idea what was coming.

Speaker 12 And during the commercial break, I got a text saying, like, wait, read this political link 30 seconds before we go live. And Chris and I made our way through that segment live.

Speaker 12 And so I will never forget that. I believe I said, they called us Chicken Little.
Now the sky is falling.

Speaker 3 And you were on live TV when it happened. Oh my God.

Speaker 12 Yeah, both of us were like, what? Unfortunately, we couldn't say what we were really thinking, which is what the fuck.

Speaker 12 I mean, you know, as you know, the outcome was not the surprise, but the leak and, you know, and perhaps the vehemence of the opinion

Speaker 12 and its absoluteness.

Speaker 12 And so I, when I finally had the chance to read the full leak, which as we know was basically verbatim when it was issued as an opinion, of the many things that jumped out at me was the recitation of the Mississippi 15-week ban that was at issue in Dobbs, and specifically this kind of very familiar anti-abortion recitation of the week-by-week development of a fetus.

Speaker 12 And as it happened, I was six months pregnant at the time, happily so, although, you know, none of your business, Sam.

Speaker 12 And

Speaker 12 I felt a new layer. You know, I've been doing this for a long time.

Speaker 12 I don't believe you need to have been pregnant or currently be pregnant to have an opinion on reproductive autonomy, but it drove home the dehumanization of pregnant people of the opinion that nowhere.

Speaker 12 did that opinion offer a similar recitation of the burdens and the encroachments on a person who is pregnant against their will and the state is blocking their door to medical care.

Speaker 12 And so when, you know, when I got to the line, I have it right here, when I got to the line where he said, at 12 weeks, the unborn human being has, quote, taken on the human form in all respects that was in all respects okay it's saying hey what's up it's not replying to your texts um and so uh at that point i decided i would title the piece in response once i had reported on the substance of the opinion i would call it i too have a human form

Speaker 12 And it became the basis of my thinking for what is now my book, Unbearable, which is a reported narrative book that takes five women through the course of pregnancy care, their own pregnancies.

Speaker 12 One of them is a provider who's trying to provide better care in Alabama and in New York City.

Speaker 12 And to kind of answer this fundamental question of how did the person who is pregnant become so erased, dehumanized,

Speaker 12 punished by the law and by medicine? So thanks, Sam.

Speaker 3 Can I jump in and actually prompt one more sort of Sam-Alito exchange, which is, so that's Alito in Dobbs.

Speaker 3 And I do think the book is this incredibly powerful corrective to that erasure that you just described.

Speaker 3 And there's one other moment in a much lesser known, but also really important case about abortion involving IMTALA, the federal statute, that by its terms requires hospitals to provide stabilizing care to patients in crisis in general, including pregnant patients.

Speaker 3 And that stabilizing care, by again, the terms of the statute, I think sometimes includes abortion care.

Speaker 3 Anyway, so the Sam Alito clip we want to bring to our listeners involves an exchange that I think also highlights what you were just talking about, which is the fixation on the fetus, often at the expense of a pregnant woman, but also the denial and gaslighting that that is in fact what Sam Alito and the conservative majority on the court are doing.

Speaker 3 So you'll hear Sam Alito in exchange with then Solicitor General Elizabeth Prelager.

Speaker 13 But to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization, I think that that is an erroneous reading of this.

Speaker 14 Nobody's suggesting that the woman is not an individual when

Speaker 14 she doesn't deserve stabilization.

Speaker 13 Well, I think the premise of the question would be that the state of Idaho can declare that she cannot get to the stabilizing treatment even if she's about to die.

Speaker 13 That is their theory of this case and this statute, and it's wrong.

Speaker 1 He literally suggested that a few months later. Right, right, right.

Speaker 12 Yeah, there's so much that I want to say in response. I mean, of course, I have a whole discussion of this moment in the book, too.

Speaker 12 It was really important to me to show that this predated Dobbs, this kind of dehumanization of pregnant individuals, but that Dobbs clarified it and intensified it.

Speaker 12 So, one of the discussions I have in my book is understanding that despite the kind of gaslighting of no one is suggesting she's not an individual, which really does nicely bookend with the unborn taking the fully human form in all respects.

Speaker 12 is that it is not an unintended consequence.

Speaker 12 That there is in the black and white text of, for example, Apilog, the pro-life obstetricians organization that is a very well-known writer of amicus briefs in all these abortion cases, that helps draft the laws that then end up getting challenged to the Supreme Court.

Speaker 12 Sometimes verbatim taken from their practice guidelines,

Speaker 12 they themselves lay out in black and white that in weighing these emergency situations, absolutely nothing can be done that can implicate the provider in even potentially or unintentionally harming a fetus.

Speaker 12 And what it lays out is advisable instead of performing abortion care where it is indicated is so outrageously disrespectful and adds risk to pregnant women.

Speaker 12 For example, when there's premature rupture of membranes, which is a case that has come up again and again. So this is when the amniotic fluid is leaking.

Speaker 12 Somebody has gone into premature labor before fetal viability. And so even if there there were an emergency delivery instead of abortion, there would be

Speaker 12 no chance at a live birth, no chance at a baby. But so

Speaker 12 interested are Appleog in maintaining the purity of like not even looking like it's an abortion for the provider's sake, for their values, not asking the pregnant individual what she wants or needs or what would be the best for her health that they say that you should do a c-section in that instance, even though it causes significant additional risk that is completely preventable.

Speaker 12 A C-section is always a cost-benefit analysis that can harm her future fertility, that can cause complications to her own health. And so, I.

Speaker 12 Some would argue I go a little too in the weeds on this, but it to me is such an illustration of the profound contempt for the health and life of the individual who is carrying that pregnancy.

Speaker 12 And so, for Sam Alito to say no one is suggesting that it is being lived across this country, including one of the women who I wrote about, Allison, who is actually an attorney at the ACLU of Alabama, and who I met actually because she was

Speaker 12 the lawyer of one of the other women that I write about.

Speaker 12 And I learned that in the aftermath of Dobbs, when she was seeking to become pregnant through fertility treatments with her partner, she had a series of miscarriages in which she was denied miscarriage care.

Speaker 12 She was denied her options, a DNC or methopristone, because of the chilling effect of Alabama's abortion law.

Speaker 12 So, in this case, there was not even a fetal heartbeat.

Speaker 12 She had four miscarriages.

Speaker 12 She wound up driving for hours to Tuscaloosa's former abortion clinic, even though on paper, as we know, there are many instances in which on paper it's technically legal, and yet we are told this never happens or that this is malicious compliance.

Speaker 12 Yeah.

Speaker 3 So, and Allison is one of the five protagonists that you sort of structure the book around.

Speaker 3 So, there are five characters navigating in different ways various aspects of pregnancy, the law, the medicine, and the experience of pregnancy.

Speaker 3 And you use those characters to explore the really expansive scope of Dobbs' sort of harm and the radius that it has created.

Speaker 3 But you also situate the stories and the fallout from Dobbs, as you were alluding to a couple of minutes ago, in the context of very long-standing societal and legal disrespect for pregnancy pregnancy and childbearing, despite claims to the contrary, that very long predate Dobbs, but that also lay the groundwork for it.

Speaker 3 And actually, maybe to tie this for a minute to recent events, NBC reported last week that pregnant women who are being detained by ICE are reporting being shackled, being subject to solitary confinement, deprived of food and prenatal vitamins.

Speaker 3 There are allegations that pregnant women are miscarrying in ICE custody.

Speaker 3 So, you know, either specifically or kind of more generally, can you just talk for a couple minutes about how certain people and certain populations have been the canary in the coal mine for how law and society would treat pregnant individuals in this post-ops world?

Speaker 12 Absolutely. I mean, the foundation of reproductive control in this country goes back to American slavery.

Speaker 12 When, and Dorothy Roberts really powerfully in the book talks about it in her own work, of course, talks about how depending on the economic goals of the the government, Black women's reproduction was either encouraged when it was to the benefit of the plantation owner.

Speaker 12 And that is also the foundation of obstetrics and gynecology in the United States, is the experimentation on enslaved women, or controlled in the form of eugenic sterilization.

Speaker 12 And so one of the things that Dorothy Roberts says to me in the book that has rung in my head forever is that what is tested and tolerated in Black women is later turned more broadly.

Speaker 12 And so, you know, when I read about the abuses and ICE detention, I think also about how these kinds of controls are tested on marginalized women, how freighted and racist the language of the so-called anchor baby has been, and it's been so central to the Trump administration's stigmatization of certain kinds of childbearing, even while claiming to be pro-life, not to mention family separation.

Speaker 12 But unfortunately, even U.S. citizens who are pregnant in incarceration in the United States are suffering some of the same indignities.

Speaker 12 And it's being done in these cases that I wrote about in the name of the good of their children.

Speaker 12 Even if they've already given birth, their children are fine, even if they're not getting good access to prenatal care in jail. surprise, surprise.

Speaker 12 They're having pregnancy emergencies and not being taken to the hospital. In one case, there was a preventable, likely preventable stillbirth that occurred in the Alabama carceral system.

Speaker 12 And so to me, it really distills the logic of punishment. So the woman that I write about, Haley Burns, is white, hails from Alabama.

Speaker 12 She is in on maintenance medication for opioid addiction and also uses a little bit because of postpartum depression, not knowing that she's pregnant. She goes to seek prenatal care.

Speaker 12 And six days after she gives birth, the police shows up in her son's hospital room and arrests her, incarcerates her for two months.

Speaker 12 And when she is in jail, she ends up in a cell with three other pregnant and postpartum women who are being jailed for the sake of their fetuses.

Speaker 1 So another part of the story you weave together is about the implications that Dobbs has for non-abortion care, which you were already alluding to.

Speaker 1 But this also includes the implications for IVF in vitro fertilization and assisted reproductive technology.

Speaker 1 And longtime podcast listeners might recall how the Alabama Supreme Court issued a decision that basically ended IVF in that state.

Speaker 1 And the book argues that the conceptual and socio-legal moves that paved the way for Dobbs also facilitated the moves to end IVF. So, could you elaborate a little bit more on that?

Speaker 12 Absolutely. I mean, I think it is quite literally the legal framework in the IVF decision.
That happens in 2013 with an Alabama state Supreme Court case known as Ankram, where

Speaker 12 Tom Parker, a justice on the Alabama State Supreme Court who's closely associated with Roy Moore,

Speaker 12 finds that a fetus is a person for the purpose of child abuse statutes all the way back in 2013 before we had Dobbs. But he laments in this opinion that because Roe v.

Speaker 12 Wade and Planned Parenthood versus Casey exist,

Speaker 12 that his hands are tied, but that abortion stands on its own in constraining the recognition of fetal personhood.

Speaker 12 So they go ahead and they say a fetus is a person when it comes to a child abuse statute. This chemical endangerment charge, the legislative history of it is

Speaker 12 allegations of people taking their kids to meth labs. Now it's being used primarily against pregnant women.
This is one of the reasons that Alabama leads the country in criminalizing pregnant women.

Speaker 12 So a very punitive kind of regime when it comes to this. And so that's the ruling in 2013.

Speaker 12 So in 2020, when a mentally unstable person drops drops some embryos in a facility in Mobile, Alabama, and destroys the embryos of people who are obviously crushed by this situation because of a lack of security at a facility, they bring a claim under a 19th century wrongful death of a minor law.

Speaker 12 By this point, Dobbs has happened. They cite several ways in which fetal personhood, embryonic personhood has been enshrined in Alabama law.

Speaker 12 There is the abortion referendum where they recognized personhood. There is ankrom and there is now that the law of the land is Dobs.

Speaker 12 And Tom Parker happens to be by that point the chief justice of the Alabama State Supreme Court. And so when he writes that embryos in a petri dish are quote, extrauterine children,

Speaker 12 he is building on something that had already largely been tolerated, which is the criminalizing of pregnant women for crimes against their fetuses.

Speaker 12 So when it was women who were struggling with opioid abuse or crack addiction, we did not see that kind of outrage.

Speaker 12 But it proves Dorothy Roberts' observation that first,

Speaker 12 these policies are tested on disfavored people,

Speaker 12 but they are building a larger regime of control that soon expands to broader populations, including at this point, you know, IVF being largely accessed or accessible to people who have means.

Speaker 12 And so ironically, Allison, the lawyer of the ACLU, at this point, she's considering starting IVF.

Speaker 12 She finds herself going to these rallies in Alabama against the state Supreme Court decision.

Speaker 12 And she's seeing upper middle class white people who she feels, you know, okay, we're all in the same boat. We're all trying to build our family.

Speaker 12 But where were you guys when we were having these other conversations? And certainly, how do you feel about abortion now?

Speaker 12 Because you've seen the same logic of abortion bans, even though you thought it would never be you.

Speaker 12 And I think one of the themes I think that ties together the argument of the book and the individual's experiences is these silos do not exist in the minds of the people who are engaging in reproductive control and oppression.

Speaker 12 They see these as all interconnected, you know.

Speaker 12 So, people who have a more expansive, justice-oriented view of reproduction, I think also it behooves us to see the sociocultural, the political, the medical, and the legal connections, because out there in the world, these are all different, same individuals at different parts in their lives or people who they never thought it would be them.

Speaker 12 But this same logic of fetal personhood of dehumanizing the pregnant individual has come down on them when they least expect it.

Speaker 1 Which is so weird because I was assured that after the court overruled Roe, Republicans would definitely support people who chose to have children, invest in social safety nets for families,

Speaker 1 and all of the other wonderful things. Yeah, no, it's coming two weeks.
Any day now. Right.

Speaker 3 Well, not that that claim needs rebutting, but there is a lot in the book that does rebut it. And one aspect that we wanted to ask you about is the story of Dr.

Speaker 3 Yashika Robinson, who's an amazing character. And the part of the story I wanted to ask you about was: so, Alabama, she's an abortion provider.

Speaker 3 Alabama law forces her to close her abortion clinic in the wake of Dobbs.

Speaker 3 She then moves to open a birth center that would provide alternatives to the hospital care that she had found very wanting as a provider, and also training for black midwives who wanted to offer culturally competent care.

Speaker 3 And she encounters just tons of resistance in those efforts and you report those. So could you just share a little bit of that story with our listeners?

Speaker 12 So we just talked about one kind of irony of these walls between what we think of as different experiences of reproduction coming down and only finding out when things go really wrong.

Speaker 12 Well, people who are familiar with legal restrictions on abortion remember trap laws. In some ways, they're kind of quaint in the world of draconian fold bans.

Speaker 12 But of course, these bad faith regulations that bore no relationship to medical need that were levied on abortion clinics, turning them into ambulatory surgical centers,

Speaker 12 giving really

Speaker 12 onerous requirements for licensing and for admitting privileges. Well, I mean, you wouldn't think of necessarily out-of-hospital birth midwifery, which includes many anti-abortion people, by the way.

Speaker 12 Most of the midwives in Alabama consider themselves pro-life. You wouldn't think of that as being a threat to the state of Alabama, giving people options for safe birth.

Speaker 12 This is something you could imagine like an anti-abortion campaign being like, wow, we shut down the abortion clinic and now it's a birth center. Well, no, because there's also

Speaker 12 a business interest

Speaker 12 and a legal political control interest in birth. that is deeply enshrined in a lot of state governments, including in Alabama.
And so, so lo and behold, when Dr.

Speaker 12 Yashika Robinson and her husband, who was the owner of the abortion clinic in Huntsville, Alabama,

Speaker 12 find out about new restrictions on birth centers, which midwifery was actually banned in Alabama for a long time for the same reasons I just laid out. So slowly they are fighting for better options.

Speaker 12 So what happens? They're sitting and they're listening to what these regulations are on birth centers, and they sound exactly like the trap laws.

Speaker 12 They're the width of the hallway and they're the stretcher. And I

Speaker 12 take you through the trial and one of the reasons in which they challenge these restrictions and the parallels between the contempt for these providers who were fighting for their patients when they were on the stand trying to offer abortions to their patients and now trying to offer them another outcome to a safer, healthier pregnancy and birth drives home how much this is not about, also to quote another antique term, the state's sincere respect for fetal life, to constrict the options of the people who are bearing that fetal life for business reasons, for legal reasons, for control reasons, I think tells the fuller story of what all this is really about.

Speaker 12 And it's not about babies.

Speaker 1 Well, it is an account that is enraging, but also where the players are genuinely inspiring. Thank you, Irin, so much for joining.

Speaker 12 Thank you so much for having me. Love hanging out with you guys.

Speaker 1 Again, the book is Unbearable: Five Women and the Perils of Pregnancy in America. It is out tomorrow.
You can pre-order your copy now. There's a link in the show notes, but get it ASAP.

Speaker 1 We have been recommending the book ever since we had a chance at a sneak peek and discussed it in our Dobbs retrospective.

Speaker 1 And if you want to hear more Strict Scrutiny and Orin and Unbearable Crossover, Irin is doing an event with our very own Melissa Murray at the New York Public Library on Wednesday, October 29th at 7 p.m.

Speaker 1 Again, that's at the New York Public Library on Wednesday, October 29th at 7 p.m. And there will also be a link to that event in the show note.

Speaker 3 Everyone, thanks so much again for joining us. The book is fantastic.

Speaker 12 Thank you.

Speaker 3 Hopefully that gave our listeners a sense of this must-read book. And before we go, we're just going to share our favorite things for this week.
You want to start, Leah? Yeah.

Speaker 1 So I really liked Quinta Jurassic: Resistance is Cringe, but it's also effective in the Atlantic as someone who has embraced and self-identifies as cringe. I just liked that.

Speaker 1 I also liked Mr. Kate Shaw in the New York Times, The Democrats.
AKA Chris Hayes, aka Chris Hayes, The Democrats' main problem isn't their message.

Speaker 1 Just talking about how Democrats basically need to find good communicators who are willing to basically be a little bit more unpolished and off the cuff and kind of entrepreneurs in how they reach people.

Speaker 1 We've already invoked this piece, but Charlie Savage's piece in The New York Times: The Peril of a White House that flaunts its indifference to the law, was just fabulous, like in its really straightforward clarity in describing what the administration is doing and how wildly illegal it is without the kind of hedging both sidesism and obfuscation that I think oftentimes accompanies reporting about law and legal news.

Speaker 1 Then, on a very different note,

Speaker 1 there was a mashup this past week launched by A.J. McClain of the Backstreet Boys,

Speaker 1 who blended a Backstreet

Speaker 1 song with Taylor Swift's Elizabeth Taylor on his Instagram. You have to listen to it.
I've missed this entire

Speaker 1 solar audio is on SoundCloud. Loved it.
It's the mashup I didn't know I needed.

Speaker 3 Okay, I'm going to run and listen to it as soon as I'm recording. And just to underscore what you said about the Charlie Savage piece, yeah, like the fact that it was not an opinion piece.

Speaker 3 It was a news piece. And

Speaker 3 but sometimes there aren't two sides. And this is one of those times.
And I think it was very clear-eyed about that. A couple things I will recommend.

Speaker 3 I am still on my Lily King bender, so I've now read her short story collection, Five Tuesdays in Winter, which I loved. Shout out to University of Chicago 3L Abby Berman, who I met at O'Hare.

Speaker 3 I had to go to Chicago just for one day this week. And Abby had been at our Chicago live show a couple of weeks ago.
And we were on the same plane back to New York. Abby, it was awesome to meet you.

Speaker 3 And then finally, on that same plane, I was flying very late at night. And I'm usually very productive on planes, but like I was too brain dead.

Speaker 3 So I watched a movie and I watched the Brazilian film, I'm Still Here, about life under dictatorship. And,

Speaker 3 you know, maybe that's a heavy sounding choice, given that, you know, it's not really a way to escape our current timeline.

Speaker 3 But it was, it is a beautiful film and incredibly acted. And, you know, I don't think I'm spoiling anything to say.

Speaker 3 It's bad and dark, but there is an after time.

Speaker 3 And I took some comfort in that. So I highly recommend that film.

Speaker 1 So one additional note before we go. In our unrelenting media ecosystem, the news moves so quickly it can feel like we're watching our country whiz past us.

Speaker 1 The car is moving so fast we can't possibly see the individuals being left behind, or worse, run over.

Speaker 1 On her new podcast, Runaway Country, veteran journalist Alex Wagner talks to the voices at the center of the headlines, from the fringes of the resistance to the marrow of MAGA, to the many people who found themselves smack dab in the middle of a fight they never asked for.

Speaker 1 Because if you want to understand our unreal times, you've got to talk to the very real people who are experiencing it all firsthand.

Speaker 1 Join Alex as she brings together the stories of everyday Americans trapped in our national car with no brakes, alongside conversations with some of the smartest thinkers in politics.

Speaker 1 Buckle up, this road could lead anywhere. Tune in to Runaway Country with Alex Wagner every Thursday, wherever you get your podcasts or subscribe on YouTube.

Speaker 3 Strict Scrutiny is a crooked media production, hosted and executive produced by Leah Lippmann, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell.

Speaker 3 Michael Goldsmith is our associate producer. Jordan Thomas is our intern.
Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper.

Speaker 3 Production support from Katie Long and Adrian Hill. Matt DeGroat is our head of production.
And thanks to our digital team, Ben Hethcoat, Joe Matoski, and Johanna Case.

Speaker 3 Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes.

Speaker 3 Find us at youtube.com slash at strictscrutiny podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode.

Speaker 3 And if you want to help other people find the show, please rate and review us. It really helps.

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Use as directed.