transcript

Speaker 1:
[00:00] Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You're not alone if it feels like Groundhog Day, every morning when you read the news or even listen to what we're talking about here on Strict Scrutiny. And while it's overwhelming, seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors, and to fight for democracy. Our friends at Americans United have been doing the same thing, day in and day out, for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti-Christian bias task force, which, spoiler alert, is anything but unbiased. AU has been tracking every mention of Christian nationalist rhetoric from this administration and partnering with many allied organizations to sue and protect our constitutional right of church-state separation, the right that protects all of our abilities to be who we are and live as we choose so long as we don't harm others. It's easy to get apathetic as we're all seeing and hearing these attacks on our freedoms every single day and watching a religion be weaponized for a power grab. Now isn't the time to give up, though. Now is the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. Learn more by visiting au.org/crooked because church-state separation protects us all.

Speaker 2:
[01:16] Mr. Chief Justice, please report, it's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 3:
[01:29] She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Speaker 4:
[01:59] Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Kate Shaw.

Speaker 1:
[02:05] I'm Leah Litman.

Speaker 5:
[02:06] And I'm Melissa Murray. And today, we're going to preview the cases that the court will hear during the March sitting, and then we'll briefly chat about some legal news.

Speaker 1:
[02:15] So the March sitting is a two-week sitting jam-packed with big cases. The most discussed case of the term, Trump versus Barbara, which is a challenge to the birthright citizenship executive order, will be heard on Wednesday, April 1st. No, that's not an April Fool's Joke. That day also happens to be Sam Alito's birthday. That too is not an April Fool's Joke, although he might be. But the first week of the sitting has some significant cases that we want to pay close attention to, like Watson versus Republican National Committee.

Speaker 5:
[02:44] It's a pretty harrowing electoral landscape out there, and it is that electoral landscape that is the backdrop for Watson versus RNC. The president, as you know, has tried to strong arm states to tilt the electoral map in his favor. We know that at the court, Louisiana versus Calais may hamstring the remnants of Section 2 of the Voting Rights Act. And depending on the court's timing in that case, it may actually have an impact on the 2026 midterms. We've also seen the president continue to push for the passage of the SAVE Act, which is now at the Senate. That act would likely overhaul and dramatically limit who can vote. So that's the landscape. It's all pretty grim.

Speaker 4:
[03:25] Okay, so Melissa set the stage and now enter Watson vs. RNC. The case challenges the long-standing practices regarding the counting of ballots that are cast by election day but received after election day. Now, for years, Republicans seemed pretty agnostic about absentee ballots, maybe because absentee ballots actually favored the GOP, at least in some cases. So, for example, enlisted military personnel, a group that historically tends to lean Republican, have long been entitled under federal law to use absentee ballots when they're deployed during an election cycle.

Speaker 5:
[03:55] But COVID and the 2020 election cycle really upended things. So, you will remember election night 2020 when very early on, it seemed like incumbent President Donald Trump was posting some big wins and would likely prevail. But as many voting rights experts predicted, the red wave was really a red mirage. Once absentee ballots were actually counted, the picture really began to shift. However, because it took a while to count all of those absentee ballots, the election wasn't called for Joe Biden until the weekend. That lag between election night, the counting of the ballots and the calling of the election fueled the GOP's fantasies of a stolen election and led to attacks on absentee ballots.

Speaker 1:
[04:38] I have to say, the moment the election was called for Biden, I still remember we were out for a bike ride and we just heard the local community banging pots and pans, and we knew that the election had been called for Biden.

Speaker 4:
[04:51] It is one of those where you obviously knew where you were a moment ago. We were upstate and on this long autumnal walk in the woods with some friends, and then started getting text messages when we came back into range, and but we missed the pot banging and euphoria in New York City.

Speaker 5:
[05:05] We were in the Bay Area and let's just say, Oakland was hella excited.

Speaker 6:
[05:09] Yeah.

Speaker 4:
[05:11] Remember what it felt like to experience political joy?

Speaker 1:
[05:15] Yes.

Speaker 5:
[05:16] Electoral joy.

Speaker 1:
[05:17] Big recollection.

Speaker 6:
[05:19] What is electoral joy?

Speaker 5:
[05:20] That's the butterfly meme again.

Speaker 1:
[05:21] Is this electoral joy? Speaking of not electoral joy, this case, Watson. Currently, 16 states permit absentee ballots to be counted if election officials receive them within a certain period of time after election day, so long as the absentee ballots are postmarked and thus cast on or before election day. Mississippi, where this case originated, allows five business days for absentee ballots postmarked by election day to arrive at the local election offices where they will then be counted.

Speaker 4:
[05:49] So in this lawsuit, the Republican National Committee argues that the Mississippi law that Leah was just describing violates a federal statute that the RNC says requires all absentee ballots to be received by election day, not just postmarked on or before election day, as again has been the long-standing practice in many states. But here is the thing. If you look at the relevant federal statutes, the one the RNC is grounding their argument in, there is nothing about the plain meaning of the word day or election or in the concept of election day that requires that an absentee ballot be counted by a local official by election day. In fact, the much better reading of the statute seems to be that if the ballot is cast by election day, the federal law requiring that voting be complete on election day is satisfied.

Speaker 5:
[06:33] And other federal statutes, including recently enacted statutes, reflect that view. So in the Uniformed and Overseas Citizens Absentee Voting Act, which was enacted in 1986, Congress required that absentee ballots be made available to overseas and military voters in a way that would allow them to return their ballots by the deadline prescribed in their states. And when Congress enacted that law, it knew that some states allowed absentee ballots to be returned after election day as long as they were cast and postmarked by that date. Likewise, when Congress in 2009 enacted the Military and Overseas Voter Empowerment Act, MOVE, it added supplementary rules to facilitate absentee voting again among military and overseas voters. And it did so with the state's long-standing ballot counting practices in mind. So again, nothing in the statute required or even suggested that absentee ballots had to be counted by election day. That wasn't the practice, and the statutes reflected the flexibility.

Speaker 1:
[07:33] And finally, there is the Electoral Count Reform Act of 2022, a bipartisan compromise negotiated in the aftermath of the 2020 presidential election. So in that law, Congress added a new definition of election day, and that new definition recognized that in-person voting at polling places could continue past midnight on election day, if but only if certain strict conditions were met. Now, when Congress adopted this compromise provision on the extremely limited extension of election day voting, it was thoroughly aware of the various state practices regarding the deadlines for the arrival of absentee ballots cast on or before that date. After all, this happened in the 2020 presidential election that the 2022 Act was responding to. And so it kind of beggars belief to suggest that Congress, as part of this painstakingly negotiated bipartisan compromise in response to the 2020 presidential election, intended silently to disturb all of these existing state practices concerning absentee voting.

Speaker 4:
[08:28] It seems rather much more likely that Congress intended the ECRA to leave intact the long-standing understanding that the meaning of election day in federal law permits states to count absentee ballots cast on or before election day and postmarked by then even if those ballots arrive after election day. And a group of senators filed an amicus brief that basically says, hey, we know the RNC wants you to think that the ECRA people refer to as ECRA changed everything, but we were there, we voted for the law, and we understood that we were not changing anything to require absentee ballots to be counted on or before election day, you know, without saying a word about disrupting long-standing practice.

Speaker 5:
[09:07] So obviously, this case is going to pit the Republican appointees' zeal for textualism against their zeal for ensuring the electoral fortunes of the Republican Party. And all of this hand-wringing would be amusing if it weren't actually grim and really consequential. We all know that in the context of the made-up Major Questions Doctrine, as it applies to Democratic presidents and their policies, this court loves to insist that Congress has to say what it means plainly and clearly in the text of the statute. You can't intuit what Congress means. You can't do a vibe check on Congress, unless, of course, the vibe check involves disenfranchising millions of absentee voters whose ballots haven't arrived on or before election day. So, it's got to be a toss up.

Speaker 1:
[09:55] You really cannot rule out the possibility of a vibe check in these election law cases. Think back to, for example, Bernovich v. DNC, where the court reported to interpret Section 2 of the Voting Rights Act in vote denial claims that is where state laws prevent people from voting, not redistricting cases. And there, the court basically did a vibe check and engaged in what Justice Kagan called a law-free zone that just left the text behind and basically said these amendments to the Voting Rights Act that had been intended to overrule a Supreme Court case and thereby prevent more state laws actually created a safe harbor for discriminatory practices that existed at the time. Now of course if Bernovich was correct that Congress doesn't lightly displace state laws, you would think that logic would also mean that this federal law wouldn't displace all of these state practices and yet unclear if one Sam Alito, the author of Bernovich, would hold true to that principle here. Now, absentee voting not perfect but in-person voting isn't always easy. Lines can be long and that is a species of voter suppression because it often discourages electoral participation. And there are also voters who aren't physically present in their communities to vote on election day. So there are many aspects of voting that already make it hard to make your voice count and this effort in Watson to limit the counting of absentee ballots would only exacerbate those pressures, which might be the point.

Speaker 4:
[11:17] So that's essentially what's at issue in Watson. Maybe let's just note, since I don't think we have, that the Fifth Circuit panel opinion that bought this, I think, pretty insane theory that the RNC is pushing was the rare Stuart Kyle Duncan, Jim Ho, Andy Oldham special. I mean, they're-

Speaker 6:
[11:33] The three amigos!

Speaker 4:
[11:36] Luckily, that alignment happens only so often, but this was one of the cases in which we saw it.

Speaker 1:
[11:42] I remember seeing the panel draw when this case was being read.

Speaker 5:
[11:47] And you were just kind of like, democracy, it was nice knowing you.

Speaker 1:
[11:50] Exactly. Democracy, you a danger girl.

Speaker 4:
[11:52] Because I'm obviously like, despite the many years of having it kind of beaten out of me, I'm still sort of naively optimistic. I was like, even this trio of psychos cannot possibly accept this theory.

Speaker 1:
[12:04] They sounded a little sane during argument. And yet, they reserved their cray for the opinion itself.

Speaker 4:
[12:11] Indeed. Anyway, the other thing to note just about the kind of configuration and players in this case is that this is the state of Mississippi saying serious nuts.

Speaker 1:
[12:20] That dobs Mississippi.

Speaker 5:
[12:22] That Mississippi, the one who wants women to die in parking lots, that Mississippi.

Speaker 1:
[12:26] Yeah, that one.

Speaker 4:
[12:27] This is too much even for them. I mean, obviously, I wouldn't rule out the possibility that this is, because the problem is that like the disenfranchising that adapting this kind of theory might do might, you know, sweep in the kinds of voters that the Mississippi, you know, attorney general like wants to vote and they'd be okay with disenfranchising other voters.

Speaker 5:
[12:49] I just want to know, the white ones? Right. Can't do that.

Speaker 1:
[12:52] The right voters, Melissa? I'm sorry.

Speaker 6:
[12:55] The right ones.

Speaker 5:
[12:57] Did I say white or did I say right? It's hard to tell sometimes.

Speaker 4:
[13:01] Right.

Speaker 1:
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Speaker 4:
[16:55] Let's turn to the next big case we're going to be watching this week, and that is still captioned, Gnome. Although I guess the caption will change if Mullin is confirmed. We will get to our secretary designate later in the hour. But anyway, for now, the case is called Gnome versus Al Otro Lado. And that's a case that's going to have major implications for asylum seekers. And it's being argued at a time when avenues for asylum have already been severely curtailed. So the question in this case is the meaning of the phrase, quote, arrives in the United States in the Immigration and Nationality Act, which provides that an alien, quote, who is physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival may apply for asylum. So under the law, non-citizens who arrive at a port of entry and indicate they want to seek asylum are inspected and screened by border officials. They are then channeled into the asylum system. But the specific question in this case is, can officers essentially block individuals at ports of entry and refuse to entertain their asylum applications by deeming them not to have arrived in or saying they are not someone who arrives in a port of entry because they are physically located on the Mexico side of the US-Mexico border?

Speaker 5:
[18:06] So here's the backdrop of this case. In 2016, in response to a surge in the number of Haitian immigrants seeking asylum in San Ysidro, which is outside of San Diego, the Department of Homeland Security initiated a policy known as metering. So customs and border patrol officials would turn back asylum seekers before they entered the United States. So, again, sort of timing and limiting the number of people who could come over and then turning back others who were outside of that system. Al Otrulado, an immigrant rights group and 13 asylum seekers, filed suit in a California district court challenging that metering policy. And while the litigation was ongoing, the federal government adopted a regulation, which is known as the Asylum Transit Rule, that generally required people traveling through a third country to apply for asylum in that third country before then seeking asylum in the United States. For many asylum seekers who had already been turned away under the metering policy, the impact of the Asylum Transit Rule was to effectively bar them from qualifying for asylum if they were ever able to apply.

Speaker 1:
[19:08] So the district court declared that the metering policy was illegal, and then as part of the remedy, the district court blocked the government from applying the Asylum Transit Rule to non-citizens who had been turned away under the metering policy. So the court also ordered the government to unwind past denials of asylum to those individuals. Now at some point, the government rescinded the metering policy, but because the government was appealing, the district court's remedy, and because the remedy turned on the legality of the metering policy, the legality of the metering policy was a question on appeal.

Speaker 4:
[19:40] And by a vote of two to one, the Ninth Circuit agreed that non-citizens who were turned away at the border had quote arrived in the United States and were therefore eligible to apply for asylum. Writing for the panel majority, Judge Michelle Friedland explained that quote the phrase arrives in the United States encompasses those who encounter officials at the border, whichever side of the border they are standing on. Moreover, she continued, an asylum seeker who arrives at the border must then be inspected and processed.

Speaker 5:
[20:05] The government predictably sought and was granted en banc review. There, a deeply divided en banc Ninth Circuit declined to reconsider the case. And in a dissent joined by 11 other judges, Trump appointee Judge Daniel Bress wrote a dissent that basically served as the blueprint for the Trump administration's petition for Scotus review. In that cert petition, Solicitor General John Sauer argued the Ninth Circuit's ruling, quote, defies the plain text of the governing statutes. In ordinary English, a person arrives in a country only when he comes within its borders. An alien thus does not arrive in the United States while he is still in Mexico.

Speaker 1:
[20:43] But like it's not plain English, it's immigration law, which is like rife with terms of art and technicalities. I'm sorry, just those sentences were mildly triggering to me.

Speaker 5:
[20:51] Again, in the context of foreign relations, the idea that when you go to an embassy, it's in France, but it's really the United States.

Speaker 6:
[20:59] Cole agrees.

Speaker 4:
[21:02] Cole is right, as always. But also as the Otro Lado brief makes clear, what the government is trying to do here is literally pluck the word in out of its context. Yeah, I guess if literally the one word we're looking at is in, that does probably mean like not just outside of, but actually physically present in. But in the full context, even just of the language, let alone history, purpose, understanding, all the other things that should inform our reading of a statutory phrase, of course you are arriving in when you are at a port of entry. But they just love to yank words out of context in the kind of version of textualism that they do. And so, yeah, I'm very nervous about this case.

Speaker 5:
[21:45] Well, the challengers here counter that, quote, because the government rescinded the metering policy years ago, the question that the Trump administration has actually put before the court has, as they put it, almost no present implications and likely no future implications. So they're trying to provide the court with an off ramp here. And maybe that's an avenue for avoiding doing some really dastardly shit. Doesn't matter, though.

Speaker 4:
[22:07] Do you think this court is going to avoid the opportunity to do dastardly shit in the immigration context?

Speaker 5:
[22:10] Well, they could have avoided it by not granting review. Exactly.

Speaker 1:
[22:13] Here we are. Exactly. I mean, I just think I worry that the birthright citizenship case they are going to view is giving them a ton of cover, including for this case, which is flying under the radar. So the next case is for you, B Hive. That's the bankruptcy hive. So at issue in Keefley versus...

Speaker 6:
[22:31] Deter, deter, deter, deter.

Speaker 1:
[22:34] Exactly. At issue in Keefley versus Buddy Iyer's construction is a question about judicial estoppel of civil claims.

Speaker 5:
[22:43] Damn, that sounds sexy.

Speaker 4:
[22:46] Just turn some more Beyoncé and everything you own in a box in the bankruptcy court. Exactly.

Speaker 1:
[22:51] Let's just please keep them coming.

Speaker 5:
[22:53] We're going to start calling it Bay Court.

Speaker 1:
[22:54] Okay. So generally in Bay Court, when you file for bankruptcy, you are supposed to disclose all assets and potential assets that might be used to satisfy your creditor's claims. But what happens if you don't disclose potential civil claims from which you might recover? Should you be barred or what's called stopped from bringing the claim at a later time?

Speaker 6:
[23:16] All I'm thinking of is, can you pay my bills? Can you pay my credit card bills?

Speaker 1:
[23:22] Exactly.

Speaker 4:
[23:22] Creditor's bills. Yeah, you need to bear in mind.

Speaker 1:
[23:24] Beyonce saw all of this coming decades ago. Now, on this issue of estoppel, most bankruptcy courts have said, yes, if you don't disclose potential civil claims from which you might recover, you are barred from bringing the claim at a later time. But the courts apply different approaches to determining when to estop a future claim. Some courts do a totality of the circumstances test that is intended to get at whether the debtor intended to mislead the court, whereas other courts treat the failed disclosure as something like an immediate bar to filing the future claim, regardless of the debtor's intent.

Speaker 4:
[23:58] So in this case, Keith Lee, the debtor, who's Thomas Keith Lee, filed for bankruptcy in 2019. And more than a year after the bankruptcy plan was approved, he was involved in a serious accident that required surgery and physical therapy and reduced his ability to earn a living. He told his bankruptcy lawyer about the accident, but the lawyer didn't disclose it to the bankruptcy court. The construction company, whose truck was responsible for the accident, relied on that failure to argue that Keith Lee should be barred from suing them for the accident. And the lower court, supplying the Fifth Circuit's relatively strict disclosure standard, agreed. In the Supreme Court, the debtor is asking the court to adopt a totality-of-the-circumstances approach that's used in the majority of circuits to determine which claims and when claims are stopped. Interestingly, the United States, I'm trying to think of a Beyonce hook here, but I can't, but Melissa, feel free to jump in if something.

Speaker 5:
[24:44] Interestingly, Jay-Z decided to get on this track.

Speaker 4:
[24:48] Aka the United States federal government or the trustees.

Speaker 7:
[24:53] Gov, if you will.

Speaker 4:
[24:56] G to the is-o-v.

Speaker 5:
[25:00] Aka, the United States.

Speaker 6:
[25:01] They call me Gov.

Speaker 4:
[25:05] Is the part of the federal government that.

Speaker 1:
[25:07] He's not a business man, he's a business man.

Speaker 4:
[25:12] That's actually maybe true.

Speaker 1:
[25:13] Exactly.

Speaker 4:
[25:14] Yes. So that's the case. The trustees actually administer the bankruptcy regime. The federal government is also the nation's largest creditor, so they have real interest in the outcome of this case. The government is arguing that the Fifth Circuit's rule is unduly narrow. It doesn't account for innocent mistakes that a debtor might make in disclosure requirements, and it wants the court to remand the case to the bankruptcy court to apply the totality of the circumstances standard. Melissa, land this.

Speaker 5:
[25:41] What else is there to say? It's a hard knock life for us.

Speaker 6:
[25:50] I mean, this might be the one time, you know, maybe I'm rooting for the federal government.

Speaker 5:
[25:53] Like, I think it's like intervened here on behalf of this hapless debtor.

Speaker 4:
[25:58] And against a rule generated by the Fifth Circuit.

Speaker 6:
[26:00] Yeah.

Speaker 4:
[26:01] Sounds right. These are tough choices, but I think in this case, we're probably going with the federal government.

Speaker 5:
[26:07] All right. Listeners, we've got a little throwback for you. You'll recall that two years ago, the court decided Bissonnette versus LePage Bakeries Park Street. In that case, the court concluded that an exemption to the Federal Arbitration Act for, quote, any class of workers engaged in foreign or interstate commerce did not apply only to workers in the transportation industry. It applied more broadly. Well, that case was brought to you by LePage Bakeries, which is the distributor for Flour Foods, the company that makes Wonder Bread, among other things. Well, it seems that Flour Foods has additional questions about the scope of the FAA. And this time, it has presented a new case, Flour Foods vs. Brock, which asks whether workers who deliver locally without ever crossing state lines are, quote, unquote, engaged in interstate commerce for purposes of that FAA exemption. Below, the Tenth Circuit agreed that those workers are engaged in interstate commerce, and basically the court there focused on the fact that the products that are being delivered move between states, even if the delivery personnel work within the state. The distributor is now challenging that ruling. As with the Bissinet case heard two years earlier, this new challenge is significant in that it will determine whether workers can bring claims in federal court or whether they'll be forced to have their grievances resolved through arbitration under the Federal Arbitration Act.

Speaker 1:
[27:37] We also got one opinion from the court in Olivier v. City of Brandon. The case was brought by a Christian evangelical street preacher who challenged a Mississippi ordinance restricting where protests may occur. Olivier had previously been convicted of violating the law and according to the city, that meant his lawsuit was barred by a previous Supreme Court decision, Heck v. Humphrey, decided in 1994, which held that these civil rights suits couldn't be used to collaterally attack convictions or sentences. The city argued that Olivier's suit seeking to enjoin the ordinance in the future was effectively a lawsuit that would call into question the validity of his earlier conviction under the ordinance. The Supreme Court disagreed unanimously ruling in favor of the street preacher. Writing for the court, Justice Kagan said that Heck did not bar suits seeking purely perspective relief except maybe in a narrow set of cases that weren't presented here.

Speaker 4:
[28:31] Now, Olivier did not overrule the great man's opinion in Heck, that great man, of course, Justice Scalia. But instead, Justice Kagan said that language in Heck, and specifically the language on which the city in the lower courts relied, might have swept too broadly and was not meant to reach suits like the petitioners that sought future-oriented relief only.

Speaker 5:
[28:50] Olivier connects to Fred Smith's work on abstention doctrine. I just want to highlight this for listeners and those who are interested in federal courts. Fred, of course, is a professor at Stanford Law School, has written two really interesting pieces. The first is Abstention in the Time of Ferguson, which is published by the Harvard Law Review. He also has a new piece out called Younger and Older Abstention, which is out in the Michigan Law Review. Both of these pieces point out how civil rights plaintiffs often face a timing vice. So the timing vice works like this. If you sue before criminal proceedings commence, then you have a standing problem because the harm is too speculative. But if you sue while state criminal proceedings are ongoing, courts can invoke younger abstention and say hands off, you have to let the state courts complete their adjudication. However, if you sue after a criminal conviction, then Heck vs. Humphrey kicks in and creates yet another barrier to bringing your case. Here, the court's unanimous opinion in Olivier ostensibly refuses to extend Heck that far and thus serves as an important pushback. We'll also note, however, that this is one of those cases where the interests really did converge here. We had strange bedfellows and the Republican appointees who care a lot, I think, about Christian evangelical preachers and the Democratic appointees who care a lot about getting civil rights plaintiffs into court. So I love when that happens, but not sure if the plaintiff were different, if we'd get a different kind of result. So we shall see.

Speaker 1:
[30:18] I'm going to hopefully write a piece in the Supreme Court review about this case. And I actually think that the Fifth Circuit's rule was just pretty indefensible. And anyways, you will see how it gets read.

Speaker 5:
[30:32] It always makes sense to bench slap the Fifth Circuit.

Speaker 1:
[30:34] Yes. So and now to the legal news, we are going to kick off this roundup of the legal news with a look at the lower courts.

Speaker 5:
[30:42] And Leah is so excited about this. I just want to tell you, she is literally vibrating right now.

Speaker 1:
[30:48] So exciting. I made many notes about how we were not adequately hyping up this first piece of legal news.

Speaker 5:
[30:55] Yes, you did.

Speaker 4:
[30:56] There's many caps, full sentences in all of this. Yes. It has dropped into the show notes, but you'll hear her in the caps shortly.

Speaker 1:
[31:03] Oh, yeah. It's also going to appear in My Favorite Things. It will go on.

Speaker 5:
[31:07] All right. Well, as with everything good, let's begin in New Jersey. As Lin-Manuel Miranda told us once, everything is legal in New Jersey, or is it? As we know, a federal judge determined that Alina Habba's appointment as the US. Attorney for the District of New Jersey was unlawful. And two weeks ago, a federal judge determined that the three-person leadership team that the DOJ installed to replace Habba was also unlawful. So the question remains, who exactly is running things in the New Jersey US. Attorney's office? That's what Judge Zaid Karachi in the District of New Jersey wanted to know last week. The question surfaced in a hearing involving a defendant who is pleading guilty in a child pornography case. Indeed, for months, federal courts around the country have warned that the administration's failure to properly appoint US attorneys has posed public safety risk because the prosecutors, if they are illegally appointed, then cannot bring these charges and the cases have to be thrown out, even in cases where the charges are pretty bad, like child pornography. We'll come back to that.

Speaker 1:
[32:12] The Law and Order Administration.

Speaker 5:
[32:14] Yes, we're going to make it safe for everyone. Let's remember.

Speaker 4:
[32:18] Yeah, I mean, it's literally the case that the combination, the heady brew of malevolence and incompetence, specifically in their designations of the heads of US attorney's offices literally threaten to allow all kinds of people charged with very serious crimes to walk free. So anyway, let's move on. Leah's been patient. So the particular plea agreement at issue here, you know, the one that drew the judge's attention, offered the defendant a sentence that was significantly more lenient than the sentencing guidelines advised. We will come back to the specifics on that in a second. So Judge Karachi proceeded to question the line prosecutor who was in court accompanied by a Mr. Mark Coyne, a veteran of the office and a supervisor, but someone who had not filed a formal appearance in the case. When Coyne attempted to answer on behalf of the Moore Jr. line prosecutor, the judge was not having it. In fact, he told Coyne that while Coyne could offer the line prosecutor moral support and could even pass notes, he could not directly address the court.

Speaker 1:
[33:17] That summary is not doing it justice. So the first few pages of this transcript had me levitating because at the very beginning of the hearing, the judge says, Mr. Coyne, did you file a notice of appearance to which Coyne says, I did not? And then the judge says, are you here for moral support? Because you're not going to speak like right off the bat. I loved it.

Speaker 5:
[33:37] Okay, Dua Lipa. The judge then proceeded to question the very junior line prosecutor about the details of the plea agreement, which apparently had been negotiated without having all of the relevant evidence on hand. And then he also proceeded to interrogate the very junior line prosecutor about the leadership structure in the office. And the TLDR of that line of questioning basically was, who is running this shit show? When the judge specifically asked the line prosecutor if Alina Habba was continuing to run the office, the younger lawyer replied, I saw Goodie Habba dancing with the president in the pale moonlight. Just kidding, crucible stans, that did not happen, although I wish it had. Instead, the young lawyer said nothing because Mr. Coyne interjected to disclaim Habba's involvement in the office. And at that point, the judge was absolutely over it and threatened to throw Coyne out of the courtroom. Security was called, but Coyne left of his own volition, taking the shards of his dignity with him.

Speaker 1:
[34:44] Again, summary, not beginning to convey it.

Speaker 6:
[34:47] That was a good summary.

Speaker 1:
[34:48] It was fine, but you need to read it for yourself. So I'm going to offer a brief dramatic reading.

Speaker 5:
[34:54] He takes Seth of summaries, OK? I reject that.

Speaker 1:
[34:58] Sit down, Mr. Coyne. If you speak again, I'm going to have you removed. I already told you not to speak. You didn't file a notice of appearance. You don't get to blindside the court and do whatever it is you guys want to do. So if you continue to speak, you can leave. And then he continues to speak, which you don't do when the judge tells you to STFU. And then the judge says, I'm directing the court's security officers to remove Mr. Coyne. And only then does the guy leave.

Speaker 5:
[35:20] I really got the impression that for the judge, maybe this wasn't just about Coyne talking.

Speaker 1:
[35:24] You know, it definitely wasn't. And I think we are going to get into some other stuff going on in this case.

Speaker 4:
[35:30] Yeah. So let's do that. So Judge Krochi, then after Mr. Coyne departed, continued questioning the line prosecutor about both the insane details of the plea, which it appears the federal government offered before actually looking at the horrifying evidence in the case and also pressing the line prosecutor about whether Haba was influencing the office's operations. At this point, the judge said that before he would proceed with sentencing the defendant, which he was giving the government the opportunity to ask to delay. And for reasons I actually just still don't at all understand, the government kept saying, Nope, let's go forward. Nope, let's go forward.

Speaker 5:
[36:03] I think it's because this is a really junior line prosecutor. Like, I don't think he's super experienced.

Speaker 4:
[36:07] I don't know. In any event, the court said, I know you're not asking, but I am going to pause. And before proceeding with sentencing this defendant, I'm going to call the office's three ostensible leaders, Philip Lamparello, Jordan Fox, and Ari Fantecchio, to testify under oath about the office's operations.

Speaker 1:
[36:23] Again, wanting to make sure there is a legal leadership structure in place before imposing sentence. But again, cannot recommend reading the full transcript enough. We've alluded to how the judge was concerned that the prosecution had negotiated the plea agreement here in the absence of all of the evidence. So we didn't actually say what the missing evidence was. So the US. Attorney's Office for the District of New Jersey agreed to a plea deal with a specified sentencing range for the defendant before actually completing a search of the defendant's phone. And when they actually searched the defendant who was charged under a child pornography statute, what did they find? More pornography, child pornography, child sexual abuse material. I am sure Josh Hawley is outraged by the administration. I mean, it's just astonishing conduct.

Speaker 4:
[37:14] And the judge makes clear this is just like young children, like absolutely horrifying. He doesn't get into details, but just is so appalled that the US. Attorney's Office seems to be taking as lenient a posture as it is to this kind of conduct.

Speaker 5:
[37:29] Some more context is in order here. It's my understanding that Judge Karachi, prior to taking the bench, had been a prosecutor in this office. So he knows this office really well. He knows the procedures. And I think he's asking about the leadership structure because something has gone terribly wrong if this kind of plea agreement is being negotiated in the absence of a consideration of the really horrifying evidence here. And this triumvirate is signing off on it. And it's just like a shit show. And he basically says that. And at the conclusion of this incredibly fraught hearing, Judge Karachi advised the embattled young prosecutor to go back to the office and warn his colleagues that, quote, You have lost the confidence and trust of this court. You have lost the confidence and the trust of the New Jersey legal community. And you are losing the trust and confidence of the public.

Speaker 2:
[38:23] Boom.

Speaker 4:
[38:24] I just want to underscore the Leah's earlier urging, like, just maybe sit down and read this transcript in its entirety. We have given you, I think, a pretty good account, but it's also worth just reading for yourself. The Times has it on its website. We'll put it in the show notes.

Speaker 1:
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Speaker 4:
[41:43] Let's shift gears to lower court rulings, actual rulings, right, not just, you know, this kind of dressing down at a status hearing, but rulings against the administration. So, listeners, cast your memory back to that time when the Trump administration tried to dismantle the voice of America, the venerable, long-standing public radio outlet that the government established during World War II to counter propaganda in Nazi-occupied regions around the world. So that's the origin. During the Cold War, the agency expands to provide news to countries that lacked a free press. In many ways, the voice of America served as a model of what journalism could look like in a pluralistic democracy, incorporating dissenting views and critiques of the government and also, right, to be fair, trying to sow pro-American goodwill around the world. But this was at a time when America was actually pretty decent, at least in comparative terms. Obviously, things look pretty different today. Anyway, it does feel as though these days we could use a VOA reminding us of what the media in a pluralistic democracy could look like.

Speaker 1:
[42:44] We're getting ahead of ourselves. So the administration sought to dismantle the voice of America because it thought that dissenting views were too woke or maybe anti-Nazis are too woke. But jokes on them. About a month ago, Judge Lamberth in the US. District Court for the District of Columbia ruled that Kari Lake, the Trump appointee who was running Voice of America, had unlawfully assumed authority over the agency and that her action since joining as Senior Advisor to the agency were invalid. What is it with these guys and illegal appointments? Unclear. But last Tuesday, Lamberth weighed in again, ruling that Lake had violated the law on additional grounds. The court concluded that Lake had failed to take into account Congress' intent in setting aside money for the agency and the network or to consider the implications of effectively shutting it down.

Speaker 5:
[43:29] I'm here for it. Sounds great. Again, I'm sure Cari Lake was like, what is Congress again? Because they basically rolled over for this one. I'm glad Judge Lamberth was here to assert Congress' prerogatives. Also in the District of Columbia, Chief Judge James Boesberg of the US. District Court is back on his hustle, basically telling Judge Karachi to, hold my beer, Playboy. This time, Judge Boesberg issued a ruling quashing the government's efforts to subpoena members of the Federal Reserve's Board of Governors. As Boesberg explained in his ruling, there was, quote, a mountain of evidence suggesting that, quote, the government served these subpoenas on the board to pressure its chair, that is Jerome Powell, into voting for lower interest rates or resigning. And that's kind of basically what everyone's been thinking. I'm glad he just said it. Among the mountain of evidence that Judge Boesberg cited were the president's truth social posts, including this banger.

Speaker 6:
[44:29] Quote, Jerome, too late, Powell has done it again.

Speaker 5:
[44:32] He is too late and actually too angry, too stupid and too political to have the job of fed chair. Put another way, too late is a total loser and our country is paying the price. Thank you for your attention to that.

Speaker 4:
[44:48] I feel like his nickname game has really declined.

Speaker 1:
[44:50] It's too late, that's too late. Yeah, oh my gosh.

Speaker 5:
[44:53] There's no a little region. Yeah, shifty-shift was pretty good, I think, a little on the nose.

Speaker 1:
[44:59] Little Marco Rubio.

Speaker 4:
[45:01] Little Marcos, yeah. Too late, Powell. Okay, but back to Boasberg. His ruling notes that the president and his deputies have made at least 100 statements attacking Powell and trying to pressure him into lowering interest rates. So while there is, on the one hand, ample evidence to support the view that this investigation is a personal attack aimed at getting Powell to dance to the president's tune. On the other hand, federal prosecutors produced, according to Boasberg, essentially zero evidence to suspect that Chair Powell had committed a crime. So indeed, the administration's claims were, quote, according to Boasberg, so thin and unsubstantiated that the court can only conclude that they are pretextual. Correct. Remember the point? Yes. Boasberg wrote that the investigation into Powell was consistent with what he termed a pattern of conduct by the DOJ against the president's perceived adversaries. Refreshing to just see it all laid out. In other news, which were sure is totally unrelated, Chief Judge Boasberg announced a new policy in the district concerning indictments, specifically a grand jury's decision not to indict. So Chief Judge Boasberg ordered the administration to notify the courts when a grand jury rejects the administration's attempts to secure a grand jury indictment. This of course follows a grand jury issuing a no-bill in response to the administration's efforts to charge six members of Congress for making social media videos, advising military officers that they are not obliged to carry out illegal orders. This policy that Boasberg announced also requires the government to disclose when a prosecutor decides to drop a case.

Speaker 1:
[46:30] The administration had some thoughts and feelings about Judge Boasberg's ruling. So, in one response, a box of Francia, I mean, US. Attorney for the District of Columbia, Jeanine Pirro, called Boasberg's ruling on Powell quote wrong and without legal authority and claimed it was quote untethered to the law. She also had this to say from a presser.

Speaker 7:
[46:52] Oh, cut it out. Do you know how many convictions we've got? Cut it out. You're in one lane. We have cleaned up this city. Yeah, historic, really? I'll tell you what's historic. What's historic is that I prosecute everything other than 10 percent of the cases, where the United States Attorney before me didn't prosecute 67 percent of the cases. That's what's historic. I'm willing to take a not guilty. I'm willing to take a no true bill because I'll take all the crimes and put them in. Thank you.

Speaker 1:
[47:24] I don't even know what she's saying.

Speaker 4:
[47:26] It's just nuts.

Speaker 5:
[47:28] Anyway, the president also had a response. He posted on Truth Social, a lengthy statement, which we are going to exert for you. You may thank us in the comments. One truth began as follows, quote, The courts treat Republicans and me so unfairly, always seeming to protect those who should not be protected. At this point, the ladies of Strict Scrutiny stare in the immunity opinion. What, sir? Anyway, the post then continues, complaining about the terrible Federal Reserve Chairman, Jerome, too late Powell, and the horrible job he does, and the, quote, wacky, nasty, crooked, and totally out of control Judge Boasberg, who, according to the president, quote, suffers from the highest level of Trump derangement syndrome.

Speaker 1:
[48:13] I didn't realize it had levels. It's like stage one, stage two, or what?

Speaker 5:
[48:20] I mean, of course it has levels.

Speaker 4:
[48:21] Red, yellow, black, yellow, gray.

Speaker 1:
[48:22] Exactly.

Speaker 5:
[48:23] Okay. The truths end somehow with a rant about, quote, prosecutor deranged Jack Smith and the unfortunate and unwarranted tariff decision. Like, how did Jack Smith get it? He's like, I might catch him strays.

Speaker 1:
[48:38] And in a post about how the courts treat Republicans unfairly, right? It's just too much. But that's not all. The president obviously had more to say about tariffs. And so in an extra long truth, that was not an extra long truth. That was a huge. This one was even longer. Yeah. This one began.

Speaker 4:
[48:57] I did not even read the whole thing. That's how long it was. I lost steam.

Speaker 1:
[49:00] OK. Well, I did you all a solid and I did. And this one began, quote, The decision that mattered most to me was tariffs. Once again, we are staring in the immunity opinion. The president insisted that, quote, The court pointed out that I had the absolute right to charge tariffs in another form. Fact check. Not true. The president did say he wanted to, quote, Thank Justices Alito, Thomas and Kavanaugh for their wisdom and courage because other Republicans, quote, openly disrespect the presidents who nominate them to the highest position of the land, end quote. Then maintain that the tariffs decision ransacked the country. And then in a brief shining moment of clarity, the president added, quote, The Supreme Court has become little more than a weaponized and unjust political organization, end quote. The sad thing is they will only get worse. They are hurting our country and will continue to do so. Thank you for your attention to this matter. Indeed, sir, we are on it.

Speaker 5:
[50:00] We've said this for a while.

Speaker 6:
[50:03] Welcome to the pod, Mr. President.

Speaker 5:
[50:10] Oh, my God. So when the President of the United States basically gets up and shit talks your whole institution in a truth post, what do you do if you're one John G. Roberts?

Speaker 6:
[50:24] Well.

Speaker 4:
[50:26] Kind of shrug.

Speaker 1:
[50:27] Exactly. Shrug emoji.

Speaker 5:
[50:31] Anyway, the Chief Justice could barely muster up a response. At a forum last week, he had this to say, quote, Judges around the country work very hard to get it right, and if they don't, their opinions are subject to criticism. But personally, directed hostility is dangerous, and it's got to stop.

Speaker 1:
[50:48] What a true hero of our times, the brave institutionalist who couldn't even mention Donald Trump's name or Chief Judge Boguesberg's to defend him.

Speaker 5:
[50:57] Hear me out. Is he talking about the president, or is he talking about us?

Speaker 4:
[51:00] Talking about us.

Speaker 1:
[51:00] Well, this is the thing, is like the generalize language basically preserves his ability to both sides this and suggests that critics of the court are doing the exact same thing as Donald Trump instigating violence against these judges who are ruling against him. You know, it did make me, no?

Speaker 5:
[51:19] Well, I'll just say, I agree with everything. I'm just like sort of thinking about the terms. I don't know that we are personally directing our hostility. We're mad at the decisions. I think we're pretty substantive when we talk about it. There are some personal barbs. They're really more adjacent and more about intellect, right?

Speaker 1:
[51:35] Right, like Brett Kavanaugh's intellect.

Speaker 5:
[51:36] I knew you were going to say his name.

Speaker 1:
[51:38] But, you know, it's right. Exactly. I'm willing to say names. The Chief Justice is not. But, you know, sir, it's not even June and I promise you, it's only going to go up from here. So keep listening. Keep listening.

Speaker 4:
[51:52] Yeah. Okay. So Robert's response was- Pretty milk toast. But there actually were last week some kind of real responses from federal judges and we wanted to kind of lift those up as sort of a counterpoint to Robert's response. So last Thursday, a group of federal judges publicly denounced the rise in threats against them and their colleagues, including hateful messages aimed at a judge who ruled against part of President Trump's immigration agenda. So this event actually featured five judges appointed by both Democratic and Republican presidents. This is a virtual event. I think this is sort of part of the new organization that Judge Esther Solis has been really kind of instrumental in getting off the ground. So these judges recounted receiving disturbing emails, wishing them dead, mysterious pizza deliveries. We've talked about that before, those arrive at private homes. And the judges essentially said that these are the reasons we cannot remain silent. And so there was a lot of additional detail. I just wanted to highlight some comments made by Judge Ana Reyes in DC. So she said that she had received messages that said, quote, I hope you lose your life by lunchtime, you worthless whore. This is in an email directed to Judge Reyes. She was a Biden appointee. She's openly gay. She has been targeted in some of the vitriolic kind of messages for being gay. She's also Uruguayan-born. And that, too, has come up in some of the vitriol directed at her. She said that some of the, quote, most painful threats came from individuals who said, quote, you're being un-American, you're being undemocratic, you're an immigrant, you should go back to your country. So I just appreciated the sort of candor and detail that these judges brought. And then also the degree of alarm that they broadcast. The sort of threats to judges are real and terrifying. And it's really important to talk about them.

Speaker 5:
[53:46] In other news of things that are terrible and need to stop, we have another installment of our recurring segment, Water is Wet and the Fifth Circuit is Terrible. On Thursday, the Fifth Circuit issued another ruling in the ongoing saga that is known as Ford versus McKesson. Listeners, we actually began covering this case way back in the day when we were but a baby podcast. And here's the gist of it. In 2016, DeRay McKesson, who is a well-known activist and a host of Pod Save the People, joined hundreds of others in Baton Rouge, Louisiana to protest the police killing of Alton Sterling. During the protest, John Ford, then an officer with the Baton Rouge Police Department, was hit with an object that was thrown by a third party, not McKesson. Ford, however, sued McKesson, not the third party who threw the object, and he sued him on the theory that McKesson, quote unquote, should have known that the protest would become violent, as other similar riots had become violent. That's his language. Now, to be clear, Ford did not claim that McKesson authorized the throwing of the object, and indeed, to this day, no one knows who threw the object that hit Ford, but he nonetheless continued to press this suit against DeRay McKesson.

Speaker 4:
[54:56] It's just so insane. So the case has had a long and tortured history, as Melissa mentioned, going through the district court where McKesson initially prevailed to the Fifth Circuit, where he did not, to the Supreme Court and the Louisiana Supreme Court. Anyway, last Thursday, the Fifth Circuit decided to write yet another chapter in this story, ruling that the lower court erred in finding that McKesson cannot be held liable for the unlawful conduct of other protesters. So if this seems bananas, it feels that way to us, but this decision does open the door for a trial to proceed to determine McKesson's potential liability for actions, again, committed by individuals that he had nothing to do with. All he did was organize a protest.

Speaker 1:
[55:39] And as summarized that way, it should be immediately clear why this decision is a huge threat to the First Amendment. The idea that participating in or organizing a protest somehow makes you liable for any illegal conduct that happens at the protest makes protesting illegal. And it's inconsistent with the Supreme Court's earlier decision, NAACP versus Claiborne Harbor, which we won't get into. But one judge of the Fifth Circuit seemed just absolutely breathless at the prospect of a jury trial and this case moving forward against DeRay McKesson, writing for the two judge majority, Judge Edith Jones, seemed to have moved on from one Professor Steve Vladek as public enemy number one, to DeRay McKesson, as she wrote, quote, eight years of pretrial litigation are enough. It is time for Officer Ford to have a jury assess his claim that DeRay McKesson's negligence in leading a violent protest caused him to suffer injuries at the hands of rioters.

Speaker 5:
[56:33] Can we just like, just a point here, like note, she can't even call him Mr. McKesson, even though she's calling Ford, Officer Ford. The fact that she's calling protestors rioters, I mean, it's just like, it's all right there.

Speaker 1:
[56:45] Yes. You know, she continued, quote, given McKesson's television interview, refusing to condemn the use of violence, it is unsurprising that he did nothing to discourage protestors from assaulting police officers, looting a store and engaging in other lawless acts, end quote. Again, not your duty to train absolutely everyone who appears at a protest with you.

Speaker 5:
[57:07] Well, you know, maybe McKesson could have done something. Maybe he could have issued a statement along these lines.

Speaker 8:
[57:12] We can't play into the hands of these people. We have to have peace. So go home. We love you. You're very special. You've seen what happens. You see the way others are treated that are so bad and so evil. I know how you feel. But go home and go home in peace.

Speaker 5:
[57:36] That kind of thing always seems to appease violent protesters. And if it doesn't work, if you're the president, you can always pardon them. So there's that.

Speaker 1:
[57:45] But who's going to tell Judge Jones that she's out of the running for the lady spot on the Supreme Court?

Speaker 5:
[57:51] This audition was all in vain, girl. All in vain.

Speaker 4:
[57:56] Correct. Okay. Don't worry, though. There is other bad news to report. First, we wanted to mention that a Georgia woman named Alexia Moore has been charged with murder for taking abortion pills. We have seen, of course, the criminalization of the acquisition and provision of abortion pills, but the actual charging of murder, you know, breaks entirely new and horrifying ground. If the state prosecutors do decide to move forward with this charge, this, again, would be one of the first instances of actual charges against an individual for terminating a pregnancy in Georgia in the seven years it's been since Georgia passed a law banning most abortions and obviously in the wake of the court's DOB's decision removing constitutional protections.

Speaker 5:
[58:41] Just to note, any of these homicide statutes, whether it's murder or manslaughter, all are predicated on the idea that a person has been killed. So this is another push on this fetal personhood thing, and we need to call it out for what it is.

Speaker 4:
[58:58] Absolutely. And another development in very similar vein, a Kentucky student was also indicted last week, in this case for first-degree manslaughter, allegedly because police said they found an, quote, infant, I think, in her closet. The reporting is sort of still developing here, but at least according to Jessica Valenti's Abortion Every Day newsletter, it seems like there is every possibility that that kind of reference to an infant in the charging materials could refer to a fetus. And so this, too, like the new Georgia Charge, kind of breaks really disturbing and dystopic new ground.

Speaker 1:
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Speaker 5:
[61:33] Let's shift gears a little bit. More familiar bad news, things we've talked about before. So we're going to follow up listeners on matters that we have covered in earlier episodes. As you know, we recently covered the new MAGA, Make America Grift Again, a deep dive into the Trump administration's stunning corruption business. Well, you know what they say, folks. As Strict Scrutiny goes, so goes the nation, or at least the New York Times, if only, if only, right? It's just the New York Times, but the New York Times ran a profile of Secretary of Homeland Security nominee Markwayne NOSPACES Mullin's stock dealings. And I'll just say what Mullin lacks in spaces he makes up for in stock trades. This guy, according to the Times, is one of the biggest stock traders in Congress.

Speaker 1:
[62:28] So the piece opens with an anecdote describing how Mullin, a few days after Christmas 2025, decided to buy a shit ton of shares in Chevron, the only major American company producing oil in Venezuela.

Speaker 5:
[62:42] Weird.

Speaker 1:
[62:43] And then, weirdly, so strange, five days later, the president of the United States invaded Venezuela and demanded that the country give US oil companies better terms. And then Chevron's stock price has jumped. What a grift, or gift, I mean, for Mr. Mullin. This is a perfect example of the deal dough, as we described last episode.

Speaker 4:
[63:09] I'm glad that's sticking around.

Speaker 1:
[63:10] Oh, yeah. Sticking.

Speaker 5:
[63:14] Personal hostility has no place on this podcast. General hostility, on the other hand.

Speaker 1:
[63:20] Exactly.

Speaker 4:
[63:20] Absolutely. So, listeners, another sort of important development in the Markwayne and Mullin story. So, you may remember that in our West Coast live shows, we noted that Mullin would be headed to a hearing before-

Speaker 5:
[63:31] Call him by his name, Kate.

Speaker 4:
[63:34] Oh, Markwayne NOSPACES Mullin? That's his new name.

Speaker 5:
[63:37] No more. No spaces.

Speaker 4:
[63:41] And time and a place is. Yes, I think that's him. That's the guy.

Speaker 1:
[63:45] No spaces, but a time and a place is.

Speaker 5:
[63:46] Time and a place is.

Speaker 4:
[63:47] Yeah.

Speaker 6:
[63:49] You're going to work. Keep working, Kate. Keep working.

Speaker 4:
[63:51] You're almost there. There's something to it. Anyway, stay tuned. Anyway, so we mentioned that he would be heading to a hearing in front of the Senate Homeland Security Committee, chaired by one Senator, Rand Paul, who is the guy Mullin called a, quote, snake and said deserved the ass-kicking that he had received from a neighbor. Well, listeners, said hearing took place last week and it did not disappoint. Let's first remind you of Mullin's general vibe here.

Speaker 9:
[64:18] Sir, this is a time. This is a place. If you want to run your mouth, we can be two consenting adults. We can finish it here.

Speaker 6:
[64:24] And in this quarter, we have neighborly Rand Paul. And in that quarter, we have Markwayne NOSPACES Mullin. People, let's get ready to rumble.

Speaker 5:
[64:37] Yeah, I've been waiting all day to do that.

Speaker 6:
[64:40] All day. Roll the tape, Melody.

Speaker 10:
[64:43] Pain was such that I could only sit up in bed by tying a rope to the foot of the bed and pulling myself up. But even then, the pain was that of a thousand knives. Over the year of recovery, I began to cough up blood. I went to removal of part of my lung. Complications led to an infection in the space between my lung and chest wall. I spent a week in the hospital having the infection lavaged every six hours through a chest tube. You told the media that I was a freaking snake and that you completely understood why I had been assaulted. I was shocked that you would justify and celebrate this violent assault. That caused me so much pain and my family so much pain. I just wonder if someone who applauds violence against their political opponents is the right person to lead an agency that has struggled to accept limits to the proper use of force. You went on to brag that you had already told me to my face that you completely understood and approved of the assault. Well, that's a lie. You got a chance today. You can either continue to lie or you can correct the record. You have never had the courage to look me in the eye and tell me that the assault was justified. So today you'll have your chance.

Speaker 1:
[65:54] So the hearing also gave us this week's Manosphere clip, which is the response from Mr. Markwayne NOSPACES, a Time and a Place, Mullin.

Speaker 10:
[66:03] In the days after the fight, you did many interviews in which you justified the violence as historically justified by precedents, such as caning and dueling. Is it today your opinion that the caning of Charles Sumner was not only justified but argues still for resolving our political differences with violence?

Speaker 9:
[66:22] What I was simply pointing out is some of the rules that still apply to this body. For instance, dueling with two consenting adults is still there. I was pointing out what is still...

Speaker 10:
[66:33] It's been illegal for 170 years. There's no precedent for legal dueling.

Speaker 1:
[66:39] I have to say, I had no idea Senator Paul had been injured so badly in the assault.

Speaker 5:
[66:46] Well, you know what else was also surprising to me? At one point during the hearing, Rand Paul took Markwayne NOSPACES Mullin to task because Mullin apparently did not vote to rescind funding for certain social welfare programs.

Speaker 6:
[67:00] And I almost kind of felt like maybe I should be on Markwayne Mullin's side.

Speaker 1:
[67:04] Right. I know. I know.

Speaker 7:
[67:05] That was a tough moment.

Speaker 5:
[67:06] It was a tough moment.

Speaker 4:
[67:07] Yeah. Because I was with Paul, obviously, for that, for the portion of me.

Speaker 1:
[67:11] For the first part.

Speaker 4:
[67:11] She was just taking Mullin to task. And I too, Leah, I had not realized, like, this was, it was a very serious assault. Long recovery, like huge, huge deal.

Speaker 5:
[67:20] I mean, he had, he had part of his lung removed. Yeah.

Speaker 4:
[67:22] Yeah. Yeah. Multiple broken ribs, et cetera. Anyway, so he was understandably incensed at Mullin's sort of making light of slash actually seeming to support the attack on him. But then-

Speaker 5:
[67:34] But he was also really mad about-

Speaker 4:
[67:35] He burned a lot of the goodwill. Right. When he was like, oh, yeah.

Speaker 5:
[67:39] I'm really a libertarian. No social programs for you. Yeah. Yeah. Listeners, if you, like us, worry that our politics have become too divisive, don't worry. Markwayne NOSPACES Mullin is here to help. We can all take a lesson from this man, because if you were watching the hearing, you might have noticed a familiar face sitting behind the nominee. No, I'm not referring to Mrs. NOSPACES Mullin, although she was there. I'm referring to none other than Mr. Sean O'Brien, the head of the Teamsters and the individual who once challenged Senator NOSPACES to name a time and a place cowboy. It seems listeners, the boys are no longer fighting. Let's take a lesson.

Speaker 9:
[68:23] Sean is someone that has become a close friend. We talk all the time. I've been on his podcast. We've talked through this. That's how you handle your differences. Not like this chairman.

Speaker 5:
[68:35] The kids call this podcast Diplomacy and I think it's pretty beautiful. I love it. I love it.

Speaker 1:
[68:41] Yeah.

Speaker 6:
[68:43] It brings people together. They've been on each other's podcasts.

Speaker 1:
[68:46] This seems like a deal dough. Speaking of deal doughs or at least attempted deal doughs, we have some news about community peen slash sex jet sex pest, Corey Lewandowski.

Speaker 5:
[68:58] Blanket bandit. Right.

Speaker 1:
[69:02] Many, many nicknames. NBC News reported about alleged negotiations between the GEO group, a private prison conglomerate and one Corey Lewandowski, who was allegedly in charge of DHS for some uncertain period of time or at least effectively running it in charge of some parts of it. Technically, he was a quote special government employee. Wink, wink. I, for one, I would really like to get a federal judge to do some questioning about who the F is running or was running that shabang.

Speaker 5:
[69:34] Shabang being the opposite word.

Speaker 1:
[69:36] I used that word. I used that word. Yeah, you did.

Speaker 5:
[69:39] You did.

Speaker 4:
[69:41] Some federal judge picks this up. That would be great. NBC maintains that Lewandowski told the GEO group founder that he wanted to be paid in exchange for protecting and expanding GEO group's contracts with DHS, which has obviously been very private prison forward. According to NBC, when GEO offered to put Lewandowski on retainer, Lewandowski said no, he won a compensation based on contracts secured with DHS.

Speaker 1:
[70:05] Only quid pro quo. Only quid pro quo.

Speaker 4:
[70:09] Yep. And then reportedly, GEO group's federal contracts shrank and GEO thinks it is because they did not agree to submit to Lewandowski's proposed deal dough. I mean, this is a deeply reported story. It is deeply disturbing. It describes rank, quid pro quo, pay to play corruption, where even the private prison company was down to go quite as quid pro quo as Lewandowski seemed to be asking for.

Speaker 5:
[70:36] You lost the private prison, like, you know, really.

Speaker 4:
[70:39] No, this is a bit too much even for us.

Speaker 1:
[70:41] I mean, too much for Mississippi, too much for private prisons, right? The story of the Trump administration. Absolutely.

Speaker 4:
[70:47] That is perfect distillation. Anyway, it requires not just addressing down by a federal judge, but congressional hearings, you know, maybe all of the above. But like, this is a really important story that it's, you know, we cannot just let go despite the kind of whirlwind that is this news cycle. All right, that was very much not one of our favorite things. But let's end by mentioning some. I can go first. I'm going to mention a couple things I read in the last week. Oh, I did finish the Hail Mary Project, which is I think the movie is coming out this weekend. It's really fun.

Speaker 1:
[71:21] I downloaded it on my Kindle. I'm going to read it.

Speaker 4:
[71:23] Yeah, it's really a fun. It's a fun. I mean, you know, there are genre kind of moves that I don't love, but I think it's like pretty great storytelling and that's like kind of fun science. Anyway, people will feel differently about it. I really enjoyed it. Okay, and more seriously, I finally read Zack Beauchamp's How to Stop a Dictator, a long piece that he wrote for Vox maybe a couple of weeks ago. And it just it's a very, very good deep dive on some of the literature on not just how to diagnose but how to stop democratic backsliding. And it's like there's much less on the how to stop than how to see or kind of diagnose sort of side of the ledger, but a very, very good piece I highly recommend. And I also want to recommend an episode from a week or so ago of The Daily, The Case of Kristie Metcalfe. Metcalfe is like an amazing character and just the complete destruction of the enforcement of civil rights in our federal government is devastatingly told by both Kristie and Sarah Koenig, who is of course the host of Serial, now part of the New York Times, and it is just an enraging, enraging 30 minutes of podcasting. Highly recommend it.

Speaker 1:
[72:33] So my favorite things, I already previewed one of them, which is the transcript in the New Jersey case. So we will provide a link in the show notes. This is very easy and accessible for you to read, and you should read it. Second is Hilary Duff Luck or Something album. So you all probably remember or not, whatever. I recommended Mature, which is the last single off of that album. When the rest of it was released, I wasn't sure. And now it all hits. Like I love Weather for Tennis. I love Adult Size Medium. I like Roommates, which was the second single, and it didn't initially click for me. But now it really does. I like the Trippin song. There's just one on there that I'm like not totally into. But anyways, totally got into that album. And third, and finally, my favorite things are the T-shirts that I designed for one, Melissa Murray's forthcoming book, The United States Constitution, A Comprehensive and Annotated Guide for the Modern Reader. So we are running a giveaway now through Sunday, the 29th, that's March 29th. If you pre-order a copy of Melissa's book, The US. Constitution, A Comprehensive and Annotated Guide for the Modern Reader, you can enter to win the merch that I made. So we will provide a link to that giveaway in the show notes. It will also be posted on our socials on Blue Sky and Instagram. So again, pre-order the book, enter to win some sick merch. It's designed by me and approved by Melissa, which means it is high order stuff.

Speaker 4:
[74:06] Like fire, like many fire emojis. I just occurred to me, Melissa, that the For the Modern Reader has almost like a Bridgerton feel to it. I totally agree. I hadn't quite appreciated.

Speaker 6:
[74:17] Gentle reader.

Speaker 1:
[74:18] Exactly.

Speaker 4:
[74:19] Yeah. It's sort of which is like very on brand.

Speaker 1:
[74:22] I love that part of the title.

Speaker 5:
[74:23] Call me Lady Whistledown, bitches.

Speaker 4:
[74:26] If you want us to, we will.

Speaker 5:
[74:28] Leah doing this merch giveaway for me, which again is entirely of her creation. I would never have been able to do this independently, is one of my favorite things this week. So thank you, Leah. Kate?

Speaker 4:
[74:42] I have to come up with some other way. My comparative advantage is not in t-shirt design, as I think we all know. I'll figure out other ways to show my love.

Speaker 1:
[74:50] Girl, I'll be here.

Speaker 5:
[74:51] It's OK.

Speaker 4:
[74:53] I have already pre-ordered multiple copies.

Speaker 5:
[74:55] Thank you. That's my small part, but there's also a favorite thing, like order for your friends, for everyone. So my favorite things this week, one, I'm so grateful to the Stricty who listened to last week's show and sent to me a link to the Spotify Love Story playlist with all of the songs from Love Story. Thank you so much. That is one of my favorite things this week. This week, I also started watching Paradise featuring Sterling K. Brown. I will just say this is taking me back because nobody knows this, but back in the day when I was a law student, Sterling K. Brown used to hang out with us because he was friends with a guy I went to law school with. They knew each other from college. Sometimes we'd have parties and he'd be there. And I just remember he was trying to make it as an actor in New York. And a bunch of us were kind of like, do like maybe you should just go to law school, like get a job.

Speaker 6:
[75:50] Jokes on us, jokes on us.

Speaker 5:
[75:52] Exactly. In addition to Paradise, which again is dystopic and kind of amazing, I'm also enjoying Aziza Ahmed's Risk and Resistance, How Feminists Transformed Law and the Science of AIDS, which just came out from Cambridge University Press. And she's been working on this book for a long time. It's so fantastic and deeply, deeply researched, just absolutely a plus.

Speaker 4:
[76:15] That's great. All right.

Speaker 5:
[76:17] We have some housekeeping to get to before we leave.

Speaker 4:
[76:20] We do. And first item involves merch. So we are, as you know, gearing up for the midterms, literally with merchandise from the Crooked Store that does the yelling for you. You can yell, but you can have your yelling amplified. Or if you don't want to yell, just have it done entirely by the merch. So you can grab a due process freak T-shirt and get ready to fight for the basic rights that Trump is bent on destroying. And you know, might be due process, might be something else that gets you out of bed and into a phone bank shift. But whatever it is, the Crooked Store has merchandise to help you spread the message. So peruse the entire catalog at crooked.com/store. You can shop there.

Speaker 1:
[76:58] Second piece of housekeeping is also about gearing up for the midterms because we are less than nine months away from the midterms and we have a lot of work that you can do right now. November will decide control of Congress. And if Trump maintains his Republican trifecta. And our friends at Vote Save America are here to help. They'll give you tips on how, when and where to donate to make sure your money goes the furthest, how to confidently talk to the people in your life about midterms and key issues and opportunities to take action with your community in real life. Go to vote save america.com and sign up to be part of the work this year. Then send the sign up link to five friends. This was paid for by Vote Save America. Learn more at vote saveamerica.com. This ad has not been authorized by any candidate or candidates committee.

Speaker 5:
[77:51] Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper, and we get production support from Katie Long and Adrian Hill. Matt DeGroote is our Head of Production, and we're really grateful for our video team, Ben Hethcote and Tohana Case. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcasts so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.