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International law expert Rebecca Ingber of Cardozo Law joins Leah at the top of the show to talk about the US and Israel’s war on Iran. Then, Leah welcomes guest co-host Chris Geidner of Law Dork to run through domestic legal news, including the omission of allegations against Trump from the Epstein files, the President’s MAHA Surgeon General nominee Casey Means’s confirmation hearing, the administration’s wildly illegal halting of Medicaid funds to Minnesota, the role of independent media in Trump 2.0, and some of the stories Chris has been breaking. They also unpack last week’s oral arguments and opinions before Leah is joined by Marc Elias, chair of Elias Law Group and founder of Democracy Docket, to discuss how voting rights are under attack from all three branches of government.

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TRANSCRIPT

Leah Litman [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word. 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.

 

Leah Litman Hi listeners, it’s Leah. On Saturday morning, I woke up to news that at 3 a.m. Eastern time, the FIFA Peace Prize recipient, President Donald the Dove himself, had announced that he launched yet another war. This one with Iran at one o’clock in the morning. There’s no pretense that these were limited strikes. Saturday morning he was calling for regime change and saying there might be casualties, which unfortunately there already have been. At the time we’re recording this Sunday morning, the federal government announced that three U.S. Service members were killed in action and five wounded. Many Iranians have also been killed in the strikes. And we also know that the Supreme Leader of Iran was killed in strikes. The president announced this war and also seems to be managing it from his dinner club at Mar-a-Lago, because of course. We wanted to include a law splinter, both for the people in the administration who don’t seem to get it, but also for all of you so that we can begin to call for a restoration of some sensible constitutional and international order. Chatting law amidst all this lawlessness might seem like rearranging deck chairs on the Titanic. So we are also going to talk about why it’s important to do so. And to help me with all of this, because international law is way above my pay grade, is our expert Professor Rebecca Beck-Ingber of Cardozo Law School. Professor Ingber is a former counselor on international law in the Office of the Legal Advisor at the US Department of State. Beck, welcome back to the show.

 

Rebecca “Beck” Ingber Thanks so much for having me back on.

 

Leah Litman Should I just introduce you as God of War now, or encourage our listeners to play that as your walk on music? Because it seems like there’s a pattern here, Beck.

 

Rebecca “Beck” Ingber Yeah, I know. I sort of fell backwards into doing more national security as someone who was sort of a bleeding heart. But I actually think maybe we need more of me in this field.

 

Leah Litman Great, so.

 

Rebecca “Beck” Ingber More of my types, not more of me specifically, but more bleeding hearts.

 

Leah Litman Why not both? So there’s much to say about the appalling brazen illegality of what the administration is doing, and we are going to focus on that. But I don’t want that to obscure the insane recklessness and irresponsibility of launching a war to achieve regime change in the Middle East, since we know that always goes so well. That will also have staggering human costs. So Beck, we will focus on the law and laws there in part to prevent the unhinged amoral project of war mongering. But this sounds insane to even ask, and I’m Why shouldn’t countries with strong militaries just go around bombing countries that have leaders they don’t like?

 

Rebecca “Beck” Ingber Yeah, I’m really glad you asked this first, because maybe it sounds insane, but I think for a lot of people, and we’ve seen this even in the reaction of states around the world, if these are bad guys who have done bad things, it’s good to take them out. And to be very clear, right, this is a monstrous regime. It’s most importantly monstrous to its own people. And many have looked forward to a day when they would fall. But when you permit states to go around using force whenever they think it’s a good idea without strict objective parameters, like for example, the ones we have in international law, they’ve come under attack and are simply repelling that attack, what you get is the Putin’s of the world saying, well, hey, my next door neighbor, Ukraine is run by a quote unquote Nazi government. We need to invade and take over. Or you have, you know, Pakistan just this week bombing Afghanistan. When, when you break down. The international system that has been created to resolve disputes, you have states invading one another over resources, over territory, over any dispute. And even in those circumstances where states have a clear objective, even a legal basis to use force, you still can’t control what happens in a war. And so, you know, narrowly cabining it is important for that reason. Sometimes using force is gonna be necessary, sadly, but it is lighting a flame to a haystack. There’s so much destruction. People on both sides will die. People will be displaced, perhaps permanently. Terrible mistakes will happen. Civilians will be killed. Children will be. And when you take out a leader and destabilize a country, especially without a clear plan for what happens next, that is organic from the people themselves, you can’t put the genie back in the bottle and we cannot know the conflagration that’s going to erupt from these acts. And so, you know, I mean, just look at the destruction that the U S war on Iraq. And 2003 wrought on the entire Middle East, right? Saddam Hussein was a bad guy. He was a terrible guy. And hundreds of thousands of people were killed in the war and the ensuing chaos that followed, which continues to this day.

 

Leah Litman So with that setting the table, let’s go to the law and maybe start with the international law angle since you gestured to it. So a refresher about the UN Charter, which we last talked about with you last month when the president launched military strikes against another foreign power. The UN Charters pledged, quote, to save succeeding generations from the scourge of war, end quote. And the Charter. Which the United States signed, provides that signatory states must, quote, refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, end quote. How does that cash out here? It seems pretty straightforward.

 

Rebecca “Beck” Ingber Yeah, this is actually a good segue from what we were just talking about, right, because the free-for-all that I just described is the world that came before. So there’s a reason states came together in the early part of the 20th century to try to outlaw war, and this culminated in the UN Charter. So this rule from the UN charter that states may not use force against the territorial integrity of other states, that is a bedrock rule of the modern international system in my view. And that prohibition on using force is not absolute. It has two very narrow exceptions. So states may use force if there is a UN Security Council resolution authorizing them to do so, obviously not in question here, and if they have been the victim of an armed attack and are acting in self-defense to repel it. And that also includes the collective self-defense of another state that has suffered an armed attack and has requested help. So there’s been some chatter of anonymous officials, maybe we’ll get more color by the time this plays, talking about some imminent threat. Um, and so I want to be clear about what eminence means and why it even comes up in this context. So I said states can use force in self-defense if they’re the victim of an armed attack. They can use that is necessary and proportionate to repel that armed attack, they can also use it to repels an imminent armed attack so you don’t have to wait until the bombs that have already fallen, right? But an armed is the focus of the equation and that sometimes gets lost in this concept of eminents, which people throw around sort of casually. And necessary and proportionate are also key rules. So in 1991, for example, when the US and several states went to war with Iraq, again, or before the 2003 war, on behalf of Kuwait, so Iraq had invaded Kuwait. The US and many states go to war to push Iraq out of Kuwaite. The UN Security Council authorized a limited use of force to push a Iraq out Kuwait and the coalition did that. And that satisfied both the UN Security Counsel Resolution and. Their authority as to act in this collective self-defense. And so the use of force needed to cease at that point. They couldn’t say, oh, well, we had self-defense, so everything goes, we can do everything. Now we can bomb Baghdad or unseat Saddam. And so just coming back to this, there has been no armed attack here, right? There has been an armed attack that we are responding to with necessary and proportionate force. There have been attacks in the past, of course, but we are not responding to those attacks. We’re not trying to repel those attacks with these actions.

 

Leah Litman Yeah. So as we noted last time when we were talking about the war against Venezuela, you know, the administration seemed to have taken the position in that instance that the federal statutes governing the FBI somehow authorized the president to conduct law enforcement operations by force, including military strikes on foreign countries. You know, that was just extremely odd and baseless. And they also argued that somehow superseded the UN Charter, or maybe that the Charter was binding but not enforceable against the president. So at least as of the time we are recording this update, there doesn’t even really seem to be a pretense of the administration gesturing to the UN charter or explaining how the strikes on Iran might be consistent with it. Is it better or worse that they’re not even trying at this point to pretend it’s consistent with the UN Charter?

 

Rebecca “Beck” Ingber Yeah. And in that, that, um, the Venezuela operation, the OLC memorandum that you mentioned, um they, they kind of admitted in the memo itself that they didn’t have such a justification. So this is a question I’ve been mulling for ages, honestly. And I’m, I’m kind of on a few minds on this. So I certainly think it’s better for government officials to have some felt need to comply with law. Um, I think that itself is constraining and we tend to think of the requirement that you provide legal justification and explanation. As itself a disciplining mechanism. Certainly if there’s any shame involved, it would work that way. But it is also true that sometimes legal argument, legalese can sort of cloud things for the public and for Congress, frankly, who are the people who are supposed to check the president. So often, you know, when the administration says it has some secret legal memo that explains everything, just you wait, everyone sort of focuses on that rather than what is self-evident before their eyes. We know what the administration’s view is we know from the dog that does not bark, we know that they do not have some smoking gun that would give them legal justification. And so sometimes I worry that the provision of some kind of legal mumbo jumbo might be clouding things and allow Congress to say, oh, well, they have a theory that they can act without us. So in a world where the president doesn’t appear to care at all about law, and perhaps more importantly, when he’s surrounded by people who themselves. Don’t seem to know the value of law, or even surrounded by people who don’t seem to the value of responsible decision-making processes, then I’m not sure that just throwing words on a page is in fact working as a disciplining process. And maybe it’s better to just have the mask totally off and let people see exactly what’s going on. But that only works if there’s a reaction. If the president says, I don’t care about law and everyone just shrugs, that’s kind of my worst case scenario.

 

Leah Litman Yeah, and it seems like we are trending quickly in that direction, since we had the attack on Venezuela. He doesn’t experience real consequences for the last bad thing, and then does a worse thing. And this is also just the lesson of the second Trump administration. They got away with a lot, no consequences, and so they’re back at it even worse. So since you brought up Congress, let’s shift to constitutional war powers, where, again, I would remind listeners that The Constitution gives to Congress the power to declare war. Now, it’s long been understood that, of course, the president can respond to an immediate or perhaps imminent invasion. Past presidents have also argued that power justifies the preemptive uses of force against imminent attack. And still, back in light of what Jack Goldsmith has called the permissive promiscuity of past executive branch interpretations of their war powers, this still feels like an escalation. To me beyond those past practices and theories. Is that fair?

 

Rebecca “Beck” Ingber Yeah, no, I think it is an escalation beyond those past theories. I think in many respects, the government has sort of been picking from all the different examples of places where past administrations have perhaps stretched things or used interpretation to try to take things just a step further. And they’ve sort of combined them all at one and thrown them at the wall to see what sticks. I mean. Yes, the constitution gives Congress the power of decisions to go to war and also a host of other war related powers, like raising and, you know, armies and funding and regulating, right? And the president is just the commander in chief, but it was also understood at the founding that the president could repel an attack on the country. And you could think about how hard it was to get Congress to sort of congregate back then, right. You don’t want to have to wait for everyone to rally the horses before you could defend the country, but in the meantime, Congress has given the president a standing army. Presidents have used force in more expansive ways, and executive branch lawyers have created a theory for trying to explain this constitutionally. And this is part of what I’m saying might sort of create, you know, cloud things for Congress a little bit because they hear that they’ve got this theory. And so the theory is that the president can use force when it’s not war in the constitutional sense. And they’ve long looked at all these factors like the nature of the operation. Is it a targeted strike or is it boots on the ground? Does it? Regime change, that was usually a factor in favor of thinking it might be war in the constitutional sense. Are soldiers likely to be injured or killed? That’s also going to weigh more heavily in favor congressional involvement. And so even if they haven’t in past context thought, well, maybe the first strike doesn’t look like war. If it’s going to escalate into war, if it’s likely to escalated, then that is also a real factor. And we know all this because OLC writes this up in memos, which it sometimes publishes. And they actually did published one immediately after the Venezuela operation. And if it’s Monday when you’re listening to this, I have a piece out on this today on just security, but it’s relevant to the Iran operation because it’s the only example we have really right now on how this administration lawyers war powers or whether it lawyers war powers. And I want to be clear. These memos are just the president’s lawyers views on the president powers, right? These are not ratified by courts, which almost never see use of force cases. These are not ratified by Congress. OLC tends to think of itself, right? Because the courts never see these questions, OLC, tends to think of themselves and present itself as if it’s like the Supreme Court of the executive branch. But, you know, obviously it’s not an independent branch, right. These are lawyers working for the president. But there’s also a very less obvious way that it doesn’t operate like the Supreme Court, which is that lawyers don’t tend to enshrine the times they say no, right? Courts will say, no, you can’t do this. And we know that’s a red line. But, OLC doesn’t tend to write the red lines and more powers into memos. They don’t say this is legal, but this isn’t legal. Instead, you’re going to see we have X, Y, and Z factor here, but we don’t have A, B, and C, and so now it’s lawful. And then in our next case, we have A B and C but we do not have X Y and Z, right? And so it’s Lawful. And now we’ve got in the Venezuela memo, we’ve A,B, and C and X,Y, and z, but in each of these, you know, we had examples in the past where A,b, and c were lawful or when X,y, and,c were lawfull, we’re going throw it all together. And so. While it’s true that I don’t see a justification even under OLC precedent, what Jack Goldsmith has called the promiscuously permissive OLC understanding of Article 2, I love that line. I understand what he means when he says that he doesn’t think it’s effectively constraining and maybe wouldn’t be in this context, even though I do think this is radically a radical departure from what’s come before, and again, not a theory ratified by courts or Congress. And at odds, in fact, with how Congress itself has explained its view of when the president can use force.

 

Leah Litman Since you brought up the courts, I did want to remind our listeners of this moment from the oral argument in the tariffs case that seemed to preview the administration’s views about their war powers and what Congress can or has done. You can hear it here. Justice Gorsuch will be asking the question.

 

Clip Can you give me a reason to accept it though? That’s what I’m struggling and waiting for. What’s the reason to except the notion that Congress can hand off the power to declare war to the President? Well we don’t contend that again. Well you do. You say it’s unreviewable. There’s no manageable standard. Nothing to be done.

 

Leah Litman And since we are a Supreme Court podcast, I did want to note that the court isn’t blameless in all of this, even though they don’t often get these cases. Just to take one concrete example, there was what’s called a legislative veto in the War Powers Act, the law that provides a framework for United States use as a force, including by the executive. When Congress enacted that law, it said Congress could pass a resolution to withdraw troops and strikes if they disagreed with the president’s determination that there’s an emergency warranted. Calling for the use of force. And the Supreme Court struck down the legislative veto in INS versus Chadha, handing more power over to the president and influencing the allocation of authority between Congress and the executive branch. And if you’re interested in this aspect of the separation of powers, our friend Steve Vladek at One First has a great post on this at One First, and then Josh Hayfitz, a professor at Georgetown, has an article forthcoming, The Chadha Presidency, that goes into this more. So I do want to return to how or why this is an escalation. And I think it is an escalation both with respect to the scope of the attacks and also the justifications plural for them. So on the scope, when Trump announced the attack on Iran, he described it as a, quote, major combat operations in Iran, not a small operation. That wouldn’t amount to full-out war in the constitutional sense, and that feels like an expansion from past presidents’ preemptive uses of force. Is that fair or somewhere in the specter of possible?

 

Rebecca “Beck” Ingber Yeah, I mean, there are so many examples of the president and this administration using whatever language feels right to this particular audience that is often entirely at odds with their legal theory to the extent they have one. So to the extend you can imagine the extent there are lawyers in there who both believe in the president’s agenda and law. You can imagine they’re just sort of pulling their hair out every time he speaks. But you know, just in the Western Hemisphere, you’ve got the president claiming Venezuela has invaded us for the purposes of invoking the alien enemies. You’ve got to. Saying we’re at war with drug cartels for the purpose of blowing up suspected drug traffickers at sea. And then you’ve got them saying it’s not hostilities, so that it can get out of war powers reporting. And when he actually does start a real war on the same basis, invading Venezuela, capturing its head of state, then the administration claims, well, no, that’s not a war, so then he could do it all without going to Congress under the OLC, not.

 

Leah Litman It’s like Schrodinger’s war. It’s both war and not war, just depending on, yeah.

 

Rebecca “Beck” Ingber The context, right? Depending on what you’re trying to do and whatever will get you the most power. So to your point here, yeah, you can’t have major combat operations and say that’s not a war, nothing to see here, Congress. This is exactly the kind of scenario Congress would or at least should want to play a role in determining, right. And in fact, getting dragged into Vietnam without sufficient information or sufficient ability to weigh in and the resulting carnage was exactly what prompted Congress to come together. Work across party lines to pass the War Powers Resolution to try to reset the balance in the first place.

 

Leah Litman Yeah, so I also want to talk about the justifications and how I think the purported justifications they’ve been throwing out are another escalation in addition to the escalation and scope. So Trump made noises about Iran being days away from building a nuclear bomb that could reach the United States and also that he was concerned about the quote freedom of the Iranian people. Now, the former claim… On Iran’s nuclear capabilities just seems to be false. And these are, of course, different justifications. It doesn’t even seem like they bothered to settle on a rationale. They were saying different things to different outlets on the very same day. And on the specific justifications, you know, on the first, in addition to it just being a lie, they were claiming all of last year, they had destroyed Iran’s Nuclear capabilities, you know, Saturday morning, they still had up on the White House website. A post that said, quote, Iran’s nuclear facilities have been obliterated and suggestions otherwise are fake news, end quote. You know, another kind of mark against the unitary executive branch, it seems, or unitary executive theory. And on the second theory, you know, it’s unclear if, you know, successfully removing the supreme leader will bring into power a regime that wouldn’t tried to continue to develop nuclear weapons and murder protesters and repress the people. I mean, Reuters reported that a CIA analysis suggested more hired liners would ascend to power. So these are also part of why this struck me as an escalation, just like the transparent moving target of the justifications and how not tied or related to this combat operation they seem to be.

 

Rebecca “Beck” Ingber Right, and none of those are, of course, illegal justification, but I’ll just add that this question of humanitarian intervention, right, to the extent that’s somehow part of the mix, they’re sort of nodding at that. This is this longstanding question of whether states can use force to stop significant human rights abuses, genocide, crimes against humanity. This is a live and extremely fraught question. You’ll notice that it wasn’t one of the exceptions I mentioned to the prohibition on using force, and states have been bandying about what to do about this for a long time. As a legal matter, the thing to do about it is to go to the U.N. Security Council and get an UNSCR. But of course, for important reasons that were built into the system, it’s extremely difficult to do that. But I’ll note that even under the most good faith of circumstances, even when states do come together multilaterally, get a U.S. Security Council resolution, have legal grounds to act, things can go and have gone wildly wrong. Yeah. It’s just not that easy for states to sweep in and make good government happen, even with the best of intentions. Um, and as a policy matter, the most significant argument against crafting an exception for humanitarian intervention is that it can be used pretextually. So for example, you know, Putin falsely accused Ukraine of genocide as part of its justification for its attempts at territorial expansion. So there’s no question, as I said, that this regime in Iran has been a monstrous one, but I also don’t really see a pro-human rights agenda as a cornerstone of this administration. And I just don’t believe that insuring human rights is part of the plans that they have drawn up to the extent they have drawn up any plans or that it’s going to be a component of any plans they have going forward.

 

Leah Litman Um, so on this justification, moving justification that they are just throwing out, I mean, honestly, it seems to me they are like a half new cycle away from just saying we did it because the Dow, the Dow is at or below 50,000. I mean this is just how ludicrous it all is because the president also truth out that quote, Iran tried to interfere in 2020, 2024 elections to stop Trump and now faces renewed war with the United States. So, maybe a third justification is election. Denialism, which just puts layers upon layers of illegality on it, in addition to layers and layers of BS, because I can’t even keep track of who supposedly interfered with our elections, Iran, China, Venezuela, the radical left. And we started out with policy and went to law. And I want to get back to the question I previewed at the beginning, which is the does this matter question. What’s the point of discussing whether these strikes comply with international law, the constitution or federal statutes, when it just seems like the administration and at least some other countries just don’t seem to care.

 

Rebecca “Beck” Ingber I mean, this is really important. Jack Goldsmith had this piece over the weekend saying law doesn’t matter, right? And now to the extent what he was saying was the debate over whether OLC could justify this under its ever expanding legal theories is stale and not particularly useful. I don’t disagree there. But to the extend he means that legal debates over war powers are empty. You know, what’s his own solution? His solution in his, in that piece is for Congress to step up and do its job and constrain the president. Well, why is it Congress’s job? Why do we even say that it’s Congress’s job, right? Why can Congress constrain the president? It’s Congress’ job because of the law and because the Constitution says so. And in the public law space, whether we’re talking about international law or the Constitution, there’s no overarching decider. There’s no cop that shows up at the door and hauls off the United States to jail or the president, right. Public law is enforced through the reactions of other states on the world stage. And domestically it’s enforced through the actions of other actors like Congress and the public, which is exactly what he’s proposing to happen. So the question I think for all of us should be, as a matter of international law, do we want to live in a world where there are neutral rules that govern, where states can rely on the promises that they make one another, where states don’t accept the use of force as a tool for policy? Or do we wanna revert to that world where states could just use force where they please, resolve. Disputes or grab resources or territory? Do we feel safer in that world? Because, you know, like I said, it wasn’t that long ago that states came together, you know, to ban the use of force as a tool of policy. The UN Charter is just 80 years old, give or take. These rules require careful tending and vigilance, lest it all fall down. And on the domestic side, without law, without insisting on a role for Congress and the courts, we’ve got the entire national security state, the intelligence community, DHS, the FBI, by the standing military. Unimaginable weaponry, wildly increasing surveillance power, in the world of AI, God only knows, all of this funded by trillion-dollar annual budgets from Congress, all of it in the hands of one man, one man. Does that make any of us feel safe? And so I’m more afraid right now of the lack of reactions by Congress, by other states. It’s not the violations of the law themselves that are going to ultimately bring the system down. Any legal system is gonna have to account for violations and be able to survive those violations. What’s going to bring the system down is a failure to respond and for violations to become expected and commonplace. And so that, I’ll just end here, but that is on all of us. There should be no more, who cares? You know he’s gonna violate the law anyway, so what? That kind of nihilism is just self-fulfilling. If you wanna have a system that is ruled by law and not by one man’s whims, then you have to care when it is violated and you have to fight for it every single day.

 

Leah Litman So since you brought up automated weapons, I do just want to kind of take stock about what has happened and what we have seen, because it kind of seems to me like the neocons kind of wanted another war because Venezuela wasn’t enough for them. They like seeing the strikes on the TV, thought the Venezuela war was cool, so they did another. And this isn’t exactly law, but I can’t help but pause over just the grotesque specter of. Everything we have seen and will be seeing. We have a Fox and Friends, former host and guest running a war from a private club for millionaires, a war that has already killed US service members, many Iranians, and provoked Iranian retaliation in the region that has killed even more people. This is happening on the heels of a fight between the Secretary of Defense slash Secretary of War Crimes and Anthropic, an AI company, when Anthropic wouldn’t give the federal government access to their automated war bots to use for strikes. And Uncle Drunky was so upset, he declared Anthropic a threat and interrupted their supply chain. And then OpenAI jumped into the fray. And the Wall Street Journal reported that the federal government was indeed using Claude in intelligence assessments. And this is all after we were assured that the Manosphere’s opposition to Kamala Harris wasn’t about misogyny or misogynoir, but just about how men didn’t want to go off and fight reckless wars. And the Manisphere was obsessed with this idea that Kamala would send us into wars and Trump wouldn’t. That was part of many people’s cover stories. I mean, J.D. Vance had an op-ed, you know, in 2023, it said Trump’s best foreign policy, not starting any wars. And it was transparent bullshit and utter misogyny that got us here, like to an attack that includes an airstrike on a girls school that reportedly killed 85 students. Like that misogyony helped bring to power a president who literally launched a military strike against a girls’ school. And that is one of the images that at least to me will be most associated with these attacks. And violence and depravity related to and resulting from the misogyny was just very hard for me to miss in the first 24 or so hours of this entire thing. Beck, you said you wanted to end it on it all us, but I’ll also give you any final thoughts or last words.

 

Rebecca “Beck” Ingber Yeah. Well, he’s watching all of it in like a baseball cap from Mar-a-Lago. It is grotesque. I mean, you know, I’m just sitting here kind of devastated and fearful. I’m worried about the people of Iran. I hope that they can take control of their country and live without fear of either totalitarian rule or bombs from above. I am worried about the broader region. I’m worried about the state of the world going forward and I’m thinking a lot about what we can do. You know, the rules based order that we’ve been living under, um, for, for you know, just about a century was, or less than a century, it was far from perfect, far from perfect. Um, but I do want to live in a world that is governed by the rule of law and not by the whims of tyrants or for that matter, by AI. And so, you know we have to figure out together how to learn from and improve upon what we have done. Right. I think it is nihilism to say everything that came before that this is no different that because states have violated the law before This is no, different than that because politicians have sometimes You know lied or politicians have sometime stepped over the the rules that this Is no different and it’s all we can ever expect right? I think we have to figure out how we have To figure out what we can take from what we had Um, what was good what we need to improve upon and just you know figure out how to move forward together.

 

Leah Litman Well, thank you, as always Beck for joining, especially on short notice. We greatly appreciate it, as I know our listeners do as well. Because the parallels to 1984 have to be heavy-handed, the president truth-doubt, quote, the heavy and pinpoint bombing will continue uninterrupted throughout the week or as long as necessary to achieve our objective of peace. Yep, bombings will continue until there is peace. And now for our regularly recorded episode.

 

Leah Litman [AD].

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court, and that’s lowercase, based on a complete lack of respect, as the president indicated in a truth social post complaining about the supreme court. Anyways, this is Strict scrutiny, your podcasts about the lowercase supreme court and the legal culture that surrounds it. I’m your host for today’s episode, Leah Litman. For the first part of this episode, I’ll be going through legal news with the wonderful Chris Geidner who runs the indispensable outlet Lawdork that we often We’ll cover different developments in the in-cell frat boy administration, including allegations of sexual misconduct in the Epstein files. I’ll also be talking to Chris about some of the journalism he’s been doing that has brought to light different aspects of the administration’s misdeeds. This episode is kind of going to be a love pod to independent journalism and an F-U to the right-wing, prologarchy’s takeover of the media, but I digress. Chris and I are also going to talk bad decision season. Then goings on at the Supreme Court last week, including oral arguments and opinions. Then I’ll be joined by Mark Elias, who will talk with me about how all three articles of government have trained their sights on democracy and upcoming elections. But first up, legal news. And as promised, I’m joined today by guest host Chris Geidner, who runs the incredible Lawdork substack. Welcome back to Strict Scrutiny, Chris.

 

Chris Geidner Hello Leah

 

Leah Litman We were kind of talking before this got started about this wonderful world we are living in. So thank you for joining me to help me process this last week of that wild, wild world.

 

Chris Geidner Of course. Yeah, there is never a dull moment. And I was saying last night, Thursday night, that it was one of those days that it wasn’t even the best laid plans that got held awry. It was literally any laid plans that got taken off the off the docket

 

Leah Litman Indeed. I could stand to live in boringer times, but such as it is, we have a lot to cover. So the first chunk of legal news we’re going to talk about is basically how I think we are all being governed by some weirdos of the manosphere. And one example is the latest Epstein files escandalot. So several outlets reported and then representative Robert Garcia, ranking Democrat on House Oversight Committee confirmed. That the Department of Justice seems to have excised and declined to disclose material in the Epstein files that included an interview with a witness who alleged that Donald Trump sexually assaulted her when she was a minor. Reporting on those admitted documents initially came from independent journalist, Roger Sollenberger, again, independent media. We heart you. My pan to independent media comes on the heels of news that Paramount is apparently the winning bidder for Warner Brothers, the company that owns CNN. Paramount is also the entity that took over CBS and facilitated the barry-wise-ification of that once-grade outlet. Paramount is led by Larry Ellison and Larry Ellison’s large adult son, some uber-Trumpers, who also now control TikTok. Basically, they’re building a right-wing media empire that runs the risk of stifling great journalism. I’ll get back to the Epstein example in a bit. But Chris, what’s the role of independent media in this era of Manosphere media? And yes, I include Barry Weiss in that. The woman literally made a prime time show into a whiskey hour and has made an entire career out of telling powerful men what they want to hear and ensuring them that everyone else, not them, is the problem.

 

Chris Geidner Yeah, no, it is alarming and continues to snowball in terms of where the problems are and who they’re affecting. And I think that independent media, there have been a lot of discussions this week. There will certainly be as this paramount of vacation of the media landscape continues. And I think that like. The examples that we have seen from independent medias like Roger, who you mentioned, my work, Marissa Cabas. There are a good number at this point of journalists who are working independent of a large newsroom who can bring out a lot of important work. I do think, and there was some discussion that I had on Thursday night online. That that there are limits to that. And I think that we don’t want to lose the fact that like, it would be very bad if we don t have big newsrooms that can do big in-depth investigations that have deep pockets to protect their reporters both abroad and like now in this era from Lawsuits at home? Um, that are able to do deep dive investigations. I mean, I remember like, you know, me from back in the golden days of Buzzfeed and I mean, we would literally, we, the investigations team would, would be able to spend time and money on allowing, um, a journalist like Chris Hamby, who was great, is great, um, to like go off and spend six months working on one story. And obviously I couldn’t do that if, if I go more than two days without publishing, I feel like my head’s going to explode because I’m not giving my, my readers the latest news. And so like independent journalism can do a lot. And like, I mean, I was at the Supreme court this week. I was in front of judge Lamberth, not in front sitting in the gallery. Thankfully, I wasn’t in front of Judge Lamberth, but I… The day after the Supreme Court was done with its arguments, I was in front of Judge Lamberth, watching him dress down a Justice Department lawyer. And there was no other journalist there. I was the only journalist in the courtroom before Judge Lambert on Thursday. And that’s because I know that my readers care about about and are expecting me to care about. What’s going on with trans prisoners who might be a doubly unimportant character in some media outlets.

 

Leah Litman But back to this story that independent journalist Roger Sollenberger broke, you know, the excision of materials implicating the president from the Epstein files released to the public, you on its own, that would be bad. But there are other clues about the specific interview and witness that make this even worse. So the FBI reportedly interviewed this person multiple times. So this wasn’t something or someone just immediately dismissed as not credible and written off. And the accuser included a similar accusation in a lawsuit filed in 2019 against. Epstein. So Chris, you know, we have been treated to slash subjected to Epstein and Epstein files now for weeks and months as DOJ has blown the deadline. Why is this latest revelation a big deal?

 

Chris Geidner I mean, I think it’s a big deal one because it is Trump, right? This is this is actual direct Trump related information. It’s not a, oh, these are his friends, which again, is its own damnation. Um, but like this is an actual Trump accusation, which is similar and is particularly like a, a, sexual assault allegation and not. Um, even sort of the allegations that have led to significant changes in the careers of, of people like Kathy Rumler and, um, Brad Karp. And like the allegations there were, I mean, uh, with Kathy was more about like advising him and with Brad Kharp was essentially about being too close to them. And I think that what we’re learning is that there is a lot of there, there. And as it becomes more difficult for the people who have been saying there’s nothing there to argue that we’re actually starting to see consequences because it is very clear that this was not something that Epstein was doing off by himself. It was part and parcel of what those around him knew was going on if they were not actually involved in. And as more evidence comes out, we’re seeing that.

 

Leah Litman I can’t wait for that Supreme Court shadow docket order that says no consequences, period. But yes, consequences. Good thing. So the next bit of news is a stepper move, but in my mind, still related to the government by the Manosphere, of the Manisphere, and for the Man atmosphere vibe of this administration. And that’s a video seen around the world of FBI director Kash Patel for words that should never be strung together. Living out his frat. Pro sports ball fantasy of partying with athletes, celebrating the US men’s hockey team’s gold medal in the locker room with the team. And during the celebration, the protector of women’s sports himself, Donald Trump, got on the phone with the men’s Hockey team via Cash Patel and invited the team to the State of the Union address and joked that he’d have to invite the women’s team as well, or he’d be impeached, as you can hear here.

 

Clip We’ll do the White House the next day, we’ll just have some fun, we have medals for you guys, and we have to, I must tell you, we’re gonna have to bring the womans team…until then I do believe I probably would be impeached, okay?

 

Leah Litman Women’s team declined the invitation and instead hung out with Stanley Tucci, would recommend. Um, Chris.

 

Chris Geidner Same!

 

Leah Litman What did you make of, right? Exactly. Right. Like would prefer. Um. But what did make of this like Cash Patel Donald Trump phone call episode?

 

Chris Geidner I mean, it works poorly on so many levels that it’s hard to know where to dig into. Like, I mean this is the continuation just of the corruption of the administration, the self-dealing, the this is, we’re governing to get what we want. But then on top of that, you do have this, like you have this like, we’re going to kill woke element of this.

 

Leah Litman And by woke, they mean women and other people too.

 

Chris Geidner The responses of the women’s team have been great. The responses from women outside of the team, from Abby Wambach, from Megan Rapinoe, have been just fantastic. And then on a final level, it is this the desperation of the administration. Like some of these things, and this fits in with my broader, like, we don’t realize how good we are doing. Element of this moment. Like, they are desperate. Like they know they’re losing. They know what they’re doing is unpopular. And like, they literally believed that, like, the in for them was becoming a part of the men’s hockey team winning. And, like unfortunately for the men’s hockey team, they kind of went along with it. And I think they’ve ruined so much goodwill, as everybody’s been not even jokingly saying, like coming off of Heated Rivalry, like there was this moment for hockey.

 

Leah Litman I was literally at the Michigan hockey team’s game last night, right? Like I’ve been going to hockey more regularly, I read all of Heated Rivalry, I watched the entire series.

 

Chris Geidner And then they’re just squandering it. Like, I wasn’t able to go to the capitals. Pride night because I had something else that night, but like, I was even aware I Chris Geidner was aware of it and would have been there if I didn’t already have, I mean, admittedly tickets to theater, but that aside, I outgave pride night, but like I like two of my best friends were at the Philly pride night. Like, I was, like… A moment for expanding the universe of hockey in America and Canada and like the US men’s team sort of played along with, like even if they weren’t a part of, and clearly some of them are, but like even they weren t a part, they played along to be celebrated in this moment and I get Like, you, you… Won the gold medal and want the president of the United States to congratulate you. Like I, I get why, like instinctually you think like that’s fine. But like, you know that don’t do not accept the congratulations. Do not congratulate and do not except that, you know, that he’s going to use you and he did and tried to, and successfully somewhat use them at the state of the union, even, I mean, sad but also caveat emptier at this point if you if you if you’re going along with Trump’s shenanigans completely

 

Leah Litman And because there are many fronts to the war on women, I wanted to draw attention to a moment from the Senate confirmation hearing last week for Trump’s nominee for Surgeon General, wellness influencer slash maha aficionado, Casey Means. Not a licensed doctor, never completed her residency, but you’ll hear Senator Patty Murray speak first in this clip.

 

Clip You called birth control pills, I’m gonna quote, a disrespect of life. And you said Americans quote, use birth control, pills like candy. You also claimed contrary to established science that hormonal birth control has quote, horrifying health risks for women. There are decades, decades of evidence showing that every one of these birth control methods is safe and effective. So I wanted to ask you, help me understand. Should women trust the FDA? Which approved all 18 methods of birth control after a very rigorous look at the evidence? Or should they trust your statement that there are horrifying health risks to birth control which contradicts that evidence? Thank you Senator Murray for your question. I’m curious if you’re aware of what the side effects of hormonal contraception are. I’m curious if you are with the FDA that went through all of these. Speaking about particular women that can be hurt if there is not informed consent about their medical history, their lifestyle exposures, and their family history. I want those women, and I know you do too, to be able to have a thorough conversation with their doctor and know whether they are at higher risk for side effects when prescribed.

 

Clip Saying that as one thing, but seeing on different shows that birth control pills are a disrespect of life is very different.

 

Clip Passionate about what and I think it is disrespectful to women. Saying that people use fruit controls like candy is very different than what you just said.

 

Clip We prescribe a huge amount of hormonal contraceptive. And I do not believe most of those conversations have informed consent because of the pressures that doctors are under because of our broken healthcare system. I want what’s best for women as do you.

 

Leah Litman I mean, what is there even to say?

 

Chris Geidner Yeah. I mean, honestly, the best thing that I can say is to say nothing, like as the man on, like, literally, men need to be saying less this week. I mean. But obviously, it doesn’t matter even if it’s women. I mean, it’s just, it is part and parcel of what RFK Jr. Is doing. To the public health system in America, to research in America too, and with that global research. I mean, in addition to sort of the, I mean I obviously still get all of my Ohio news alerts and there’s like, it wasn’t even the, it was truly one of those moments even for me and with how closely I’m paying attention to things, that, like… I saw second measles in like a news alert this morning and I thought it was case. It was second measle’s outbreak in Ohio this year. And I’m like, oh yeah, that’s where we’re at now. We’re not even like counting by the case for news alerts. And now we’re going to, we have a like birth control skeptic who is most likely going to be the surgeon general. It’s, I mean, it’s it’s horrifying. It’s another example of like the Senate just like abdicating its responsibility to the American people, to the structure of government, to James Madison’s basic beliefs about what this this Constitution he was setting up would do, but here we are.

 

Leah Litman Yes, here we are. And where we are, we have a few more pieces of legal news before we step back and talk about how we ensure legal news is news and before we get to bad decisions spring training season. And the first is more news out of Minnesota. So despite the drawdown of Operation Metro Surge, that is the administration’s mass deployment of federal immigration officers, people on the ground in Minnesota and independent media and journalists and local media still continue to report a lot of contacts with ICE. And despite the alleged Tone shift. Administration still seems intent on causing as much harm as possible to and terrorizing the people of Minnesota as much as they can. The latest in this attack comes from the lips of JD Vance.

 

Clip So, we’re announcing today that we have decided to temporarily halt certain amounts of Medicaid funding that are going to the state of Minnesota in order to ensure that the state of Minnesota takes its obligations seriously to be good stewards of the American people’s money.

 

Leah Litman Chris, because JD went to Yale, can you law-splain to him why this withholding almost a quarter of a billion of dollars in Medicaid funding from the state is wildly illegal?

 

Chris Geidner I mean, it’s so illegal, like they go through no process. They go through, like this is one of the most clear, well-regulated systems for funding outside of social security that we have. And they just like declare at a news conference with Dr. Oz standing behind him. In the background and like. We don’t even get to, like, I’m not even getting to the, the impoundment of it all. And outside of that, it’s so unpopular. You are making lives more difficult overnight for, not just for the poor people that you don’t care about. Right. But… For the other people who go to those hospitals who are going to be impacted, to the nurses and doctors and even hospital administrators who you love. Right.

 

Leah Litman If you didn’t love our immigration enforcement, wait until you see our defunding of hospitals and medical care, right?

 

Chris Geidner Like, it’s just, it, it s another example of this, like, lashing out, I mean, honestly, whenever JD Vance is in charge of something, it is something that they’ve, like part of me is thinking at this point, like early on, I was thinking that they were putting him out for the unpopular things. At this point. I actually think that he’s just so stupid. That these are things he’s in charge of and he keeps just choosing bad directions to go with them. Because like, it’s just so often, like how could you decide that this would be the way to go forward with this attack on Minnesota? It’s not gonna work. It’s going to like anything as soon as litigation is there, if they actually even go through with it. Like, that’s the other thing, like, how much of this is like a press conference that, like it turns out you can’t even do it?

 

Leah Litman Right. They really want to feel like big boys and threaten people. Yeah.

 

Chris Geidner Like, to the extent they actually try to implement it, like, there’s going to be litigation, it’s going be spayed, they’re going to held up in court. Yeah.

 

Leah Litman OK, so withdrawing Medicaid funds, wildly illegal. Statute says certain processes have to be followed. They didn’t follow those, right? Statute doesn’t authorize the president just to rescind funds or freeze them, whatever he wants. A separate federal law prohibits him from doing so, the Impoundment Control Act. And then there’s a whole 10th amendment. You’re not allowed to coerce states, right, by threatening all of their federal funds to do something unrelated anyways. But I think they are partially emboldened at least to threaten this because The Supreme Court blocked lower court decisions that had halted their efforts to freeze other funds through the Department of Education, the National Institutes of Health, and elsewhere.

 

Leah Litman [AD].

 

Leah Litman There are some other pieces of news I wanted to acknowledge. There are also, in my view, cases where the court’s hands aren’t entirely clean. And the first is the absolutely horrific death of Nurul Amin Shah Alam, a nearly blind refugee who fled ethnic persecution in Myanmar. And Customs and Border Patrol dropped this man who didn’t speak English, couldn’t operate a phone, couldn’t communicate, and was blind in one eye and could see only three feet in front of him out of the other at a closed coffee shop. Five miles from his home on a cold, wintry night. And he was found dead several days later. The mayor of Buffalo, where this man, a father, lived, blamed federal immigration officers for his death. Agree, but I also don’t want people to forget who let the administration continue to deploy its crazy, excessive, and aggressive roving patrols of immigration officers stopping people based on their apparent race and ethnicity, even if they are refugees. Who aren’t to be removed. And that of course is the Supreme Court. And I just wonder if Brett Kavanaugh would call this a brief encounter where a man was promptly released.

 

Chris Geidner Yeah, it’s horrific and I do think like I’ve been doing a lot of work on the refugee specific aspect of this and some of the really aggressive ways that they’re looking at trying to essentially buy into, like it’s literally a like let’s back into Donald Trump doesn’t trust Biden says he doesn’t trust Biden’s vetting of refugees and so. Let’s back into a policy to like essentially starting the literal policy is starting January 20th, 2021. Any refugees have to be revetted. And like trying to say that they can detain those refugees while they’re being revetted, that’s being litigated in Minnesota because that’s where they first tried to implement that. But this is sort of a combination of the Kavanaugh stop of it all with this like, not just disregard, but like disrespect for the purpose of refugees. Refugees, yes. Like, and it’s just, it’s lawless and offensive.

 

Leah Litman The second Supreme Court related piece of news is that as we are waiting for the court to issue its decision about the validity of laws banning transgender athletes from participating in sports, Kansas adopted one of the most evil anti-trans laws in the country. This one purports to invalidate driver’s licenses and birth certificates of transgender Kansans who changed the gender markers on those documents, although a letter went out suggesting maybe it’s not validating those documents. Immediately, but it literally prohibits driving while trans law also bars trans people from using restrooms that align with their gender identity. But I personally can’t wait for the court to tell us that there’s no history of discrimination against trans people and therefore no reason for courts to look closely at those laws. But now shifting to the topic of legal news generally, I mean, the pieces of legal News we just touched on Chris really relate to some issues you’ve been on the forefront. Of kind of diving deeper in. And so I wanted to talk with you about journalism in this era and the stories that do or don’t come to light and how. So at Law Dork, you’ve been breaking some news that it really hasn’t been covered or has been overlooked elsewhere. And one thing you alluded to is the case involving medical care for transgender inmates. So can you share what Law Dark was able to report and find and uncover there and where that case stands.

 

Chris Geidner The January 20th executive order that Trump issued on day one that was known generally as the like definition of sex executive order also contained provisions directing the Bureau of Prisons to essentially act on that. And so really starting, I believe the first lawsuits were actually filed in January, challenging and attempting to stop. Bureau of Prisons efforts to transfer trans inmates, to discontinue medical care for trans inmates to discontinued being able to get items from the commissary that would be in fitting with their gender. And they had those cases going forward and they all got assigned to and consolidated before Judge Royce Lamberth who is a Reagan appointee, has been on the bench for nearly 40 years, but as I’m sure many strict scrutiny people know, is also a guy who is very comfortable aggressively looking at the government and the government’s actions. And he has blocked a lot of that. And one of those cases that’s have taken the lead is a class action case and There is one person who has regularly been a witness in submitting declarations for that, Grace Pinson, and had been presenting evidence that she was being retaliated against. And on February 19th at a hearing, DOJ’s lawyer there basically had no information responding to that retaliation. Lamberth was a little upset and was like, When when The DOJ lawyer said, there’s no evidence of it. He said, There actually is. There’s a declaration, it’s uncontroverted by you. You’ve not even looked into it. And so he issued a protective order saying, no more retaliation against witnesses in this litigation. Literally starting the next day, Grace Pinson in a prison in North Carolina started getting further retaliation. Um she had a visual strip search that was very invasive in front of mail guards she had her legal papers taken and thrown into another cell that had feces on it she reported in her declaration that some of her legal papers she had to throw away at that point um she was supposed to be moved and that was held off. Uh, and then the lieutenant at the facility literally told her, I don’t give a fuck what the judge says, I do what I want. And so

 

Leah Litman Royce Lambert was not into that.

 

Chris Geidner The lawyers immediately went to court, filed a motion for a show cause order for civil contempt in violation of that February 19th order. Lamberth came back within 12 hours, set a hearing on Thursday morning for 2.30 PM Thursday, in-person hearing. And I went to that hearing and. DOJ still didn’t have facts. Lamberth was not happy. He basically said, you still don’t have fax. You can say what you want, but I’m looking for facts. That argument, time went so badly for DOJ that when the ACLU of DC lawyer got back up, he made an oral motion on the spot for a TRO to protect the inmate, to protect Pinson. Including, I mean, he did go aggressively far and said to immediately move her to a halfway house, which is where she’s supposed to be moved, but then in the alternative for them to make a detailed plan for how they are going to be protecting her against retaliation. And he then went back to Chambers. He granted the show cause order. He asked for the name of the warden. Um, which DOJ initially didn’t know, which offended him further. Like he was like, this particular prison has been at issue. It’s the issue of the show cause motion. Um, and you still don’t know the name of the warden and he, so he came back with an order, uh, order for to show cause ordering DOJ, naming all of the people, including naming the wardens. That they need to respond by Tuesday and then partially granting the TRO saying they need to have a detailed plan to protect Pinson and her former roommate and then is going to have the show cause hearing next Wednesday.

 

Leah Litman And we will await that. So that was a great breakdown of where things stand on that case, which again, has really flown under the radar. And the other case that I had wanted to highlight your involvement in is the litigation concerning the administration’s new policy about detaining refugees that we had talked about previously on the show and that you alluded to earlier. And in that case you at Lawdark were actually able to. Break and share the new policy before other outlets were. And you actually kind of became involved in the litigation by filing requests for the information, if I’m not mistaken.

 

Chris Geidner We tried we filed a motion to intervene in the case for the purpose a habeas cases immigration habeas immigration cases by default under federal rules are not on the public filings aren’t on the public docket and you have to like literally get them from the courthouse and only judges orders are on the Public Docket we filed emotion to get those opened uh the the magistrate judge denied our request. Because he said you can get them from the courthouse, which is ridiculous. And you saw judges in all the Alien Enemies Act cases once the Supreme Court required them to go to habeas, almost all of the judges in those cases converted those to being open, because the federal rule that says that they’re, by default, not public filings, does say unless the judge orders otherwise. So Uh, we tried to do that, but in, in the course of doing that, I became involved in the case. And so, uh, it lawyers are, are aware of my interest in the case and I’m able to get the documents more quickly. And yeah, no, I have reported that overnight and it is a very aggressive. It’s a reading that, uh has not been the reading since the Refugee Act of 1980 became law. That basically when you become a refugee, eventually you adjust your status to lawful permanent resident. And essentially what the new policy is, is that if you’ve been here for more than a year and don’t adjust immediately on day 366, they can detain you. Yeah.

 

Leah Litman And you can’t immediately have your status adjusted like the next day. So it’s basically requiring detention for that period, which is part of what makes it so horrific. You get a year, and then you’re indefinitely detained.

 

Chris Geidner They claim that they’re not allowed to indefinitely detain people, and yet they also make clear that it can be more than 48 hours. And so it’s a bad argument. It’s under consideration at the district court, and I’ll be following it as it moves forward. I do think like one of the, since this is independent media day, one of the like really great things that independent media can do and does do successfully is draw attention to cases that other people aren’t paying attention to and like, honestly, like literally sometimes once it becomes a thing that other people are paying attention to, I can move on and I can start to pay attention to other cases, but like, and so this was a case like all of a than I was writing about it. The Washington Post was stealing my work, CBS News was stealing my work. They might have something in common. I don’t know what it is. But then all of a sudden, at the hearing, I noticed that there were like nine other publications on the hearing. And so like that is a real it is a true advantage, even if it is like, like, just like self interested media, like the independent media can lead other forces to other media to start covering it.

 

Leah Litman [AD].

 

Leah Litman So now let’s shift to talking about bad decisions, spring training season. So the Supreme Court heard oral arguments last week, not in any big ticket cases, but still going to bring you up to speed on what they did here. And then we’ll talk about their decisions. So last Monday at the court was Cuba Day. And if you like Melissa are in your John Slattery season, you could watch Dirty Dancing Havana Nights to get with the program, which lacks the abortion backstory of original, but does feature a young Diego Luna in addition to John Slattery anyways. On Cuba Day, the court heard two cases, Havana Docs versus Royal Caribbean Cruises, about the meaning of the Libertad Act and specifically which United States nationals are authorized to sue for claims that their property was confiscated by the Cuban regime. Can anyone sue a defendant who trafficked in property or does a plaintiff have to show that they’d still hold the property but for the expropriation, in which case that might bar claims like the one here where the plaintiff had a leasehold to a property that has since expired? That same day, the court also heard Exxon Mobil versus Corporacion Cimex about whether the Helms-Burton Act abrogates foreign sovereign immunity of Cuban instrumentalities, or whether the plaintiffs seeking to sue instead have to satisfy an exception under the Foreign Sovereign Immunities Act. The president, for his part, participated in Cuba Week by at the end of the week, floating the possibility of.

 

Clip Maybe we’ll have a friendly takeover of Cuba. One, two, three, four, five, six, seven, eight, nine, ten. We could very well end up having a friendly takeover of Cuba.

 

Leah Litman Back to this Supreme Court case, which generated this week’s clip without context, something I just started during the Terrace episode, which you can hear here.

 

Clip Suspenders. I don’t buy that one.

 

Leah Litman Now, last week, the court also heard Enbridge v. Nestle, which is about the 30-day deadline to remove a case from state court to federal court. If a case is filed in state court but could have been filed in federal court, in many instances, the defendant has the opportunity to take that case from state to federal Court, but they’re supposed to do so in 30 days. This case is about whether a case can still be removed after the 30 days are up. There’s one moment where it seemed like the justices were a bit bored with this.

 

Clip All we’re asking you to do is to declare that the presumption applies, that it hasn’t been rebutted by the clearest command, and to reverse. I mean, it could be an opinion that’s 160 pages less than the tariffs opinion last week. Well, if, well. Don’t look at me. That’s certainly a goal to aim for. I felt very left out in the tariffs. Ha, ha, ha. Justice Sotomayor didn’t write, and I didn’t, write opinions, but if the… We will have a chance.

 

Leah Litman Chris, how scared should America be that Sam Alito had his feelings hurt?

 

Chris Geidner Yeah, I don’t think we need to worry about it. I think it was weird to have such a technical case. It was the only case that day. And I think that just they were sort of like they knew they weren’t going to go long with this argument. It’s not like this was going to be a two and a half hour argument. And so like, yeah, like even even even Sam Alito can make a joke. That was what I thought I was like, wow, this is a day that even Sam Alito is making a joke.

 

Leah Litman I don’t know if this is like the groundhog being afraid of his shadow or what exactly this is a sign of. But yes, you’re right, a rare example. So staying on theme week, this last week was also apparently Michigan week. The court heard Peng versus Isabel County, Michigan about how to calculate the value of something, here a piece of property taken by the government to satisfy an alleged tax debt. So the former homeowner alleges the house taken to offset the debt was sold for way below market value and therefore constitutes a taking of property. The homeowner says the issue is the difference between the sale value and fair market value. The Solicitor General’s office, the federal government arguing on behalf of neither party said, eh, courts should consider the fairness of the sale process, not like the difference in prices. And Michigan is arguing the sale value is the value is, the value. I read the justices as pretty skeptical of the homeowners’ position, in part because foreclosure sales often go for less than fair market value. On the other hand, the justizes, or at least some of them, did feel like something was unfair or wrong here, as you can hear here. I want to echo what Justice Gorsuch said. I mean, it seems like there was some real unfairness to your client. I mean frankly, reading the briefs, it sounds to me like this tax assessor was like Inspector Javert, but it was even worse because Jean Valjean hadn’t stolen the bread. I mean you didn’t even know the tax. One notable moment was the following clip.

 

Clip Well, in this case, with a tax debt of about $2,200, it could have been the Peloton bike that was in the house.

 

Clip You think a Peloton bike today is worth $2,000? Well, if you go on Facebook Marketplace and you try to sell a Peleton bike today for $2.000, I don’t think you’re going to be very successful.

 

Leah Litman This raised a really important question, Chris. Is Justice Alito on Peloton? And if so, what would his handle or username be?

 

Chris Geidner It was this weird moment because it was awareness both of Peloton and Facebook Marketplace. Facebook. There was this discussion. Martha Ann and Sam are the kind of olds on Facebook. Martha Ann. Martha Ann, that’s where she gets her flag making material.

 

Leah Litman Right. Exactly. Yeah. Listeners, we invite your ideas for his Peloton handle. I’ll just throw out a few. Pelotonito. I don’t know if he wanted that one or they’re going fast, like Virgonia, but they’re doing fast. Yeah, but again, we welcome suggestions. So now we got some opinions last week from the court. Here too, none of the high profile cases, but cases that still could be quite consequential. And so one opinion was in Hay and Celestial Group versus Palmquist. And there, the Supreme Court unanimously held that if a party is mistakenly dismissed from a case, the party’s dismissal can’t cure the court’s lack of jurisdiction. Basically, federal courts have jurisdiction, power to hear cases, where there’s diversity between the parties. The plaintiffs are citizens of one state, and the defendants are citizens of others. But in order to hear the case, there has to be what’s called complete diversity, i.e. No defendant can be from the same state as a plaintiff. Here, one defendant was, but the district court dismissed that plaintiff from the suit, albeit improperly. And the Supreme Court said that doesn’t cure or fix the jurisdictional problem, and therefore, the case still has to been dismissed. We also got the opinion in GEO Group versus Menacal, case I know you’ve written about, Chris. So do you want to tell us what the court decided here?

 

Chris Geidner Yeah, I mean, this was a case that’s been going on since 2014, which in and of itself is sort of the issue, alleging essentially forced labor at the geogroup’s facility in Colorado. And the lawsuit had been going when there was originally a class-certified geogroupe appeal. To the 10th Circuit, they lost, they went back, and then there was this argument that came out of a case from the 40s that they were claiming that they had derivative immunity, and that because of the fact that they are a government contractor that they have derivative Sovereign immunity. And because of that, when they were found to have acted outside of their authority and thus illegally and not getting the immunity, that they should be able to appeal it right away as well. And that is the limited area where the government, where anybody can appeal in the love a case. And uh, the interlocutory appeal and the case got to the Supreme Court. The 10th circuit said, no, you can’t do that. This is a defense, not an immunity. And then it went to the supreme court and justice Kagan had the opinion for the court and she said the same thing. And she said, look at this. This is the, an immunity is saying, it doesn’t matter if I did it. I don’t need to answer for it. Whereas a defense is saying I’m excused from doing this. And she said that the difference between that does matter for these purposes of if you can appeal in the middle of a case, because a defense, you should have to, you can go through court and just go through the full case. And because of that, the people on GeoGroup’s side were not just the private prisons, it was also the Chamber of Commerce who was saying, no, no. All government contractors should be able to invoke that. And essentially what it was, was an argument for private contractors to be able- Drag out litigation. Like the government, and avoid accountability, drag out litigation. And the Supreme Court, luckily, 9-0, said, no, that’s not the case.

 

Leah Litman So two other decisions from the Supreme Court last week. One was in Villarreal versus Texas, where the Supreme court held that a trial court’s directive that an attorney over an overnight recess not discuss the defendant’s testimony with the defendant, which was, again, going to span the recess, did not violate the Sixth Amendment guarantee of effective assistance of counsel. The Supreme Court made clear that the defendant wasn’t prohibited from talking to his lawyer or conferring on topics, including sentencing. Justice Alito and Thomas wrote concurrences, cosplaying as an originalist. Alito noted that at the founding, defendants weren’t even allowed to testify because they weren’t viewed as competent, so NBD. And Thomas, joined by Gorsuch, wrote separately because they didn’t like all the guidance that Justice Jackson’s opinion for the court supplied. And then the other case is maybe another potential sleeper, and that’s Postal Service versus Conan. And here, the Supreme Court held that the United States retains its sovereign immunity, immunity of the kind Chris was explaining. Just now, but it retains its sovereign immunity for claims that arise out of the intentional non-delivery of mail under the Federal Tort Claims Act, the law that allows you to sue the United States sometimes. So the FTCA waives the United State’s immunity for loss of claims, but not for claims arising out of loss, miscarriage, or negligent transmission of letters or postal matters. And the Supreme Court said miscarriages and loss can include intentional non delivery, and therefore you can’t sue over. That this opinion was five to four. Justice Sotomayor wrote the dissent for the three Democratic appointees plus Neil Gorsuch. Chris, I thought this was kind of a scary ruling to come down before the midterm elections. Like what if Trump’s postal service just doesn’t deliver ballots? How real is that? Or is that even a concern?

 

Chris Geidner Mark Joseph Stern, a friend of both of ours wrote a good piece at Slate about this. His point is this takes away a tool that discouraged bad acts. And I think that that’s right. I also think, though, that litigation about the non-delivery of mail and non-pickup of mail is never going to fix. Anything that’s going wrong. And so I think it is more, it’s more I think a sign of like the unfortunate like people were confused about why Gorsuch was descending. I think this fits because uh you and I both know that Sotomayor and and Gorsich have come together a lot on moments sometimes when it’s just the two of them in opposing overreaching of government powers and so this I think was it was actually I think great to see Kagan with uh the the of the other three of them. In saying like, no, no we don’t want to expand sovereign immunity.

 

Leah Litman Yeah, that was great. Well, so on that note about elections, stay tuned for my conversation with Mark Elias about how the manosphere is trying to mansplain its way into autocracy. And listeners, stay tuned until the end of the episode to hear Chris and my favorite things. For this segment, I’m delighted to be joined by Mark Elias, chair of the Elias Law Group and founder of Democracy Docket, an independent media outlet in an era where we really need independent media. Welcome to the show, Mark.

 

Mark Elias Thanks for having me.

 

Leah Litman So today we are going to be talking about how articles one, two, and three have their sights set on our democracy. We can go quickly over article one, Congress, because this Congress isn’t doing that much besides rolling over, but they are considering the SAVE Act, the House passed it and the Senate is considering it. Mark briefly, what is the SAV Act and what would it do for elections?

 

Mark Elias Okay, so the SAVE Act is actually confusingly several different laws. So we’re actually, the one that everyone is talking most about now is the Save America Act. Donald Trump insisted that America be added to the second iteration because he thought save alone was not sufficient.

 

Leah Litman So it’s like Aave AA?

 

Mark Elias Correct. So the Save America Act would basically do four things. Number one, it would impose a very strict photo ID requirement on every state. So it would tell them both what photo IDs they must use, but also what photo ideas they can’t use. So for example, the bill specifically bans any educational institution IDs from being used. So even if you have the University of Michigan or the University North Carolina or pick your state university where the IDs are issued by the state itself, those could not be used, period. So that’s the first part of the bill. The second part of bill is what they refer to as the proof of citizenship requirement. This requires people to prove that they are citizens in order to register to vote. That may sound like a simple thing, it’s actually quite a complex thing to prove citizenship. Essentially, there are only two documents to prove citizens in the United States. One is a US passport, a valid US passport. Are current and unexpired and then the other is an original birth certificate or a birth certificate that has been obtained a certified copy that has be obtained by the state. That is also much harder to get than many people think because many people don’t have their original birth certificates and ordering them and getting them in a raised seal version from a state is not simple. Also I would remind the audience that if anyone thinks Donald Trump is just going to accept Any old state’s birth certificate? The state of hawaii uh which issued a birth certificate to barack obama and of course donald trump came to political problems

 

Leah Litman Or the state of Minnesota, which he’s just attacking left and right, I mean, you know.

 

Mark Elias Correct. Right and so the whole birther conspiracy was him denying the validity of birth certificates plus as you know Donald trump is right now in the supreme court trying to say that birth certificates actually don’t prove citizenship Uh in the birthright citizenship case So that’s the second part of the law That would also disenfranchise tens of millions of women who’ve changed their last name when they got married Because their birth certificates wouldn’t match the name on their photo ID.

 

Leah Litman Part of the war on women, many different fronts.

 

Mark Elias Correct. The third provision of this would require the purging, the regular purging of names off the voter rolls, using what has been described by pretty much everyone as a flawed database at the federal government level. And that would be, you know, yet another set of challenges that voters would face because, of course, if they’re removed by a flawed data base in Washington DC, good luck to you. Getting added back onto the voter rolls. Yep. That is of course the SAVE Act as Congress is considering it, but Donald Trump actually put a slightly different gloss on it in the State of the Union. And Lee, I think that’s important because this was in his prepared text. So this is not like Donald Trump just kind of like riffing off the top of his head. This is what the White House thought that was in the SAV Act. They added a couple of things. Number one, proof of citizen to actually vote, which would mean you’d need that paperwork not just to register, but to actually show up each and every time you voted. And then the last thing, which, you know, didn’t get a lot of attention, but Donald Trump in the state of the union also said that the safe act would ban mail-in voting except for a very narrow class of people who either have disabilities or are sick or in the military.

 

Leah Litman Yeah, unclear if Congress would just roll over and allow the president to declare what’s in laws they enacted, but I guess we might be about to find out.

 

Mark Elias It’s not actually in the text. This is the thing that’s got me very confused. It’s like literally there is.

 

Leah Litman Textualists are gonna love this, Mark. They’re gonna love it. It’s a challenge.

 

Mark Elias Mike Johnson will be like, Oh no, it’s there. It’s just in invisible ink.

 

Leah Litman Exactly, exactly. Well, now that we’ve already kind of gone on to Article 2, which is bleeding into Article 1, let’s talk more about what Article 2 is doing. So the Department of Justice filed something like 28 anti-voting lawsuits in the first year of the second Trump administration. Many of these are fringe, unhinged bunk. You might have expected from Stephen Miller’s organization, America First, but now it’s coming from DOJ. Can you give us an example or examples of that and what it means for DOJ to now be the one filing these?

 

Mark Elias Yeah, so you’re exactly right. Actually, the Department of Justice has now filed 33 lawsuits. Yeah, the department of justice literally added five more in the middle of the night, like literally late last week. They decided to sue five more states, including four Republican states, four Republican controlled states for access to their voter files. So you’re right, like these are both high volume Um, and also. Meritless, so it’s a it’s the perfect. It’s the Perfect Trump in combination of do a lot of things at once, all of which violate the Constitution.

 

Leah Litman Right, yeah.

 

Mark Elias So look, the biggest class of these cases are efforts to obtain access to sensitive voter data held by the states. So every state maintains a list of every person who’s ever registered in the state, every person that ever voted in the State, and it’s quite detailed information. Like it would say, for example, like where you first registered to vote, whether you moved, whether you voted in an election or skipped the election, whether you’re registered as a Democrat or Republican, It has. Obviously your address, your name, your social security number, your date of birth. So like the opportunities for identity theft are abound. But then it has, you know, like I said, it has partisan information about whether you’re a Democrat or Republican. It has information whether you are active Democrat or an active Republican or not. Like for example, do you vote in every primary or just some of them? Do you skip midterms or not, right? A critical piece of information that if you were trying to target voter suppression, knowing who’s likely a Democrat, It who votes in midterms versus a Democrat who doesn’t vote in midterm, super important information. It includes whether you voted in mail or by person, whether you’ve voted early or on election day, whether you vote at a precinct or a vote center, right? Whether you’ve ever had your ballot challenged, whether you ever cast a provisional ballot, whether that ballot counted or not, right. There’s like a lot of different permutations to this data. Whether you use your social security number or your driver’s license to choose when you, as an identifier, when you register. It’s a- It’s a wealth of information and it is the foundation of what states need to ensure that lawful voters can vote and no one else can. And it is also the foundation of what, if you wanted to run a massive voter suppression program or a disenfranchisement program or contest the outcome of an election, it is exactly the kind of data that you would need. So that is the bulk of the cases they have filed. Now they have also. Uh, strangely enough, got involved in, um, a couple of redistricting cases. I know this will shock you. Yeah. I know. This will shock. But they’re big, big fans of the Texas map, not big fans of the California map to block the California.

 

Leah Litman Yeah, yeah, yeah. No, completely shock. And we’ll get to the developments, you know, in the Supreme Court and the courts and what they are doing by way of the midterms in a bit. But just a little bit more on Article 2, Mark, if you don’t mind. So, you we’ve talked a little bit about how the FBI seized election materials from Fulton County on this podcast. You know, I think a lot of this world where DOJ, FBI, DHS and ICE are basically acting as extensions of the Trump campaign during the election. So can you talk a little bit more about what that might look like or if people are concerned and what they should be doing.

 

Mark Elias Yeah, people should be very concerned. This is very reminiscent for me, frankly, from 2020. Because in 2020, around March of 2020, I started warning about the problems that we were going to have with people voting absentee in large numbers, really at the beginning of the pandemic. And by the summer, I was pointing out that Donald Trump was saying things about the elections that were not normal for a president to say. And then of course in the postal, you know, and a lot of people discounted that they thought it was alarmist. They thought that we were like exaggerating it in that, but you can remember all the commentary commentators who said, you know,

 

Leah Litman Of course there’s a peaceful transition of power, exactly, oh I remember, I remember my friend.

 

Mark Elias It is a little time to process.

 

Leah Litman Exactly. He’s just working it out. He is using this as therapy, election denialism.

 

Mark Elias Exactly. And I feel like in some respects, we’re in we’re living in that same progression now, right, which is that he he has gone through the the which is now a permanent feature of his politics, which is the let’s lie about elections, let’s live on the outcome, let lie about what’s going on. And he has now moved into the what I’ll call the litigation phase, right? Which is the like using the Department of Justice try to get access to using the Department of Justice to get search warrants right. He’s using the courts. And to some extent, he abides by the outcomes. I mean, you probably have a better uber sense of how much he abids by the outcome. But it at least continues to look normal-ish in that things are being litigated out in court. But what I have warned people is that Donald Trump is going to continue to escalate. I mean he thought that his ticket to maintain power in the midterms was simply gerrymandering. That has not panned out for it. Then he thought it was going to be the SAVE Act. That is not panning out for him because it’s not gonna be enacted. Then he thought that it would be these lawsuits that they’re filing. Well, so far the Department of Justice has lost every court case that a federal judge has decided involving these voter files.

 

Leah Litman Impressive. Impressive in many respects. It’s not easy.

 

Mark Elias Right, I mean as I say to folks like it’s really good for my ego because it runs up our win-loss ratio against, you know But yeah, no, it’s not great and then now he is though starting to say what comes next So what has he said? He has said that republicans need to take over the voting and he has specifically said 15 places He he has said That he wished there wouldn’t be midterm elections now there will be mid-term elections But when you start to have the president united states musing that there shouldn’t be midterm election, that Republicans should take them over. Like, that’s a red flag, right, of what is going to come. So what I am expecting is, you know, you’re wearing a Minnesota, no, ICE t-shirt. Soon you’ll be able to, as we get closer to the election, I think you’ll able to expand the number of states on that t- shirt. Because I think what he’s going to do is use the federal paramilitary forces available to him. And ICE is obviously one of them. Although. Not the only one and I think that’s an under reported story that that actually the the shooters in at least some of these cases in

 

Leah Litman Right our CBP.

 

Mark Elias Yeah, yeah. Yeah, right. So like it’s not just I like it It’s a he’s got a lot of paramilitary forces available to him And I think you’re going to see them active and it doesn’t require them to be at the polls With guns it just means that they need to cause the kind of mayhem that you saw in minneapolis in the streets because like honestly If you have ice Officials blocking off streets and pulling people over and breaking their windows and people pulling people out of driving

 

Leah Litman Dragging them out of the street. Yeah

 

Mark Elias That’s going to create the kind of environment that frankly, U.S. Citizens who have nothing to worry about are going to be like, I don’t need this trouble. I don’t need to try to work my way through traffic. I don’t need to, you know, wind up in a situation where voting rather than taking me a half hour is going to take me three hours and it’s going be like going through the gauntlet. So I think you’re going to see a lot of that. And then finally, if that doesn’t work, then we’re going to see more ballot seizures and more efforts to just overturn the results.

 

Leah Litman Well, that is uplifting. But as your last answer suggested, a lot of what Article II is doing has been involving the courts. And because this is the Supreme Court podcast, wanted to end on a lightning round of Article III and how the courts are doing things that are already influencing and will continue to shape the landscape for the upcoming midterms and future elections. So Mark, you already kind of alluded to the redistricting. And the Supreme Court’s or federal court’s actions on partisan gerrymandering, how have the courts been shaping this redistricting war?

 

Mark Elias Look, I think that we don’t know, and one of the, we don’t know yet, and I’ll tell you specifically, but I think, and this is a lesson, frankly, I’ve learned from you, listening to you over the years, and frankly, in talking to you about this. Like, the Supreme Court, and I don’t whether it’s on purpose or not. I leave that to you and the experts on your podcast. But the Supreme court seems to have this way of operating, which is. They kind of give the pro-democracy forces some win relatively early, then to be followed by an avalanche of stunning defeats. And like we can talk about this in past cycles, but like, I was thinking about you recently because of course, you know, the people were very, very excited by Justice Gorsuch’s language at the end of the tariff decision, which is not in and of itself a voting decision, but you can read it. As like an affirmation that actually Congress is in charge and the president is in fact not able to do whatever he wants, right? So in that sense, it got read as something that is not just a tariff decision, but kind of a broader democracy decision.

 

Leah Litman Also, just like a side note, how much are they breadcrumbing us that we have to salivate and celebrate as victories? The idea that Neil Gorsuch ends an opinion with the suggestion that the president isn’t an all-powerful king. Anyway, sorry, you were.

 

Mark Elias No, I’m actually glad you mentioned this because I actually have made this point not quite that directly, but like number one, it’s a concurrence. It’s remarkable that you couldn’t get a majority of the court for that. And then the second is it has this feel and, you know, I don’t want to digress too far, but it has to feel like every sovereign Supreme Court justices are like, you know what, I just want to write something that’s not really for like the courts or for lawyers, but might wind up on a hallmark greeting card. I kind of remember like Justice Kennedy, you know, would occasionally do this, and it felt like at the end of this opinion, like Justice Gorsuch was like, okay, I guess one more thing to say, which is just gonna like fit really well on like a placard or a plastic.

 

Leah Litman They’re all aiming for this wolf comes as a wolf line, and they’re never gonna get it, but darn it, they’re gonna keep trying.

 

Mark Elias So look, the lower courts have been relatively strong in democracy, but there’s a lot of cases pending for the Supreme Court. I mean, right now, we are waiting on a big Supreme Court case involving redistricting out of Louisiana. As we’re recording this, we’re waiting on the Supreme Court to see whether it’s going to grant relief to Republicans in the state of New York on an emergency petition. We’re going to wait and see whether the Supreme grants cert on a voting case out of the Third Circuit involving technical errors or technical irregularities that voters make and whether that should disqualify their ballots. There’s a lot of stuff, plus the argued cases that we talked about, but if you ask me sitting here right now, the Supreme Court has basically taken hands off. It basically said we’re not going to stop Texas, and we’re going to not stop California. So it basically said, we’re out of the redistricting emergency docket, shadow docket world, at least with respect to those two states. But there’s a lot more opportunities in front of us.

 

Leah Litman Right, stay tuned for Louisiana versus Calais, you know, the challenge about whether the Voting Rights Act is basically going to restrict states’ ability to district, you know, minority voters out of power, like that’s one of the ones we’re waiting for.

 

Mark Elias But Leah, can I just like take a slight issue and challenge you?

 

Leah Litman Yeah, yeah, yeah.

 

Mark Elias This actually was not about section two.

 

Leah Litman No.

 

Mark Elias Like the only people who made this case about section two were the justices on the Supreme Court. This actually didn’t go to the Supreme Court for them to decide whether the Voting Rights Act still is constitutional. This case went up on a much narrower and different legal theory and then the court on its own, like literally on its, own just announced, oh actually we want you to argue this other thing, which is whether section two is constitutional

 

Leah Litman Yes, I know. And honestly, I’m not sure if they are going to go that route, since they seem to be so interested, or if they’re instead going to weasel through the back door and try to do a Justice Alito Bernovich special, where they basically rewrite the section two redistricting test. So it’s almost impossible for plaintiffs to actually ensure that redistricting is representative. I’m, not sure I’ve really decided which route I think they’re going to, but I do worry we are staring down the barrel of one of those.

 

Mark Elias Yeah, I think that the I think that I don’t know what the right, you know, my generation, we refer to it as shepardizing cases.

 

Leah Litman Keysighting. Right.

 

Mark Elias But I think that that just the chief and probably some of the others don’t want there to be a little oh, you know, when you use a little Oh, if something was overruled, you don’t want that they want like a baby was like distinguished, right?

 

Leah Litman They want a yellow flag, not a red flag.

 

Mark Elias Okay, that’s the most now that’s right. And but it will have the same impact. Right. So I agree. I don’t think you’re going to overturn section two, the Voting Rights Act. What they’re going to do is they’re gonna adopt one of two tests that are going to effectively overrule the Voting Right Act. They’re either going to say fine, you can draw a you can draw district that gives minorities opportunity to elect as long as it meets the political consideration of the legislature, which means good luck. You can draw majority black district as long as it’s going to elect a Republican.

 

Leah Litman Right, exactly. As long as all the black voters vote Republican, then you can have your district. Right. Exactly. I can just see the stepmother from Cinderella saying, if, right? I said, if, like, you can get that district, if. But yeah.

 

Mark Elias Yeah and then this other alternative is they’ll say you can draw a section two district if it so happens you drew a district that just so happens to be section two but you can’t you can do it on purpose and that also will have the same impact. So yeah that’s my I think that that’s probably what we’re staring down the question of timing is really what a lot of people are right now focused on is whether it will be now. I think the court just announced more decisions for next week more opinion days for next or whether it will be the end of June.

 

Leah Litman Um, so in addition to Louisiana versus Calais, you know, we are also looking at two other big voting rights cases that are already on the docket. One is something you already argued, and that’s a case about campaign finance regulation. Um, and another is an argument that has yet to occur. And that is the case about whether states can continue to count ballots that are received after election day. So. Mark, can you just kind of zoom out and talk for us about the stakes of either or both of these cases?

 

Mark Elias Yeah, so they’re both my, they’re both my cases, both for both both cases, my law firm are involved in. So I argued the campaign finance case in December. This would allow national parties and state parties to spend unlimited amounts of money on their candidates in full coordination with their candidates. And a lot of people hear this and they kind of shrug their shoulders and say, well, why is that such a big deal? Don’t we want strong parties? Isn’t the system already broken? And my answer to you is Burt Newborn, who was the head of the ACLU in New York, I think, for many years, once said that Buckley v. Valeo, which is the seminal campaign finance case from the 1970s, he described Buckley as a dead tree that is being pushed on the left by justices and on the right by justizes, and therefore it remains standing. And you know, that is true. And so like, yes, it’s a dead tree, but it is standing and If if the conservative justices are able to push that over It it doesn’t just open the flood of money from parties. There is no way to distinguish in the long run I mean in this case, they’ll distinguish it but in the but analytically the buckley framework will have fallen if The supreme court says that a contribution limit is unconstitutional because once you once you say a contribution Limit is un-constitutional then like everybody gets to say their contribution limit unconstitutional, I think that’ll unravel.

 

Leah Litman So I just want to unpack that for our listeners who aren’t immersed in this area, because the specific regulation at issue in that case limits the amount that a party can give to a candidate and coordinate with the candidate. And if you say that contribution limit is illegal, then you are potentially opening the door for individual contribution limits to also be unconstitutional. And there was this weird, to my mind, just hair-raising exchange during the argument where Justice Kavanaugh was asking. No francisco you know an advocate who is challenging the campaign finance regulation like oh are you sure you want to actually say those other limits are also constitutional wink wink because won’t you be here challenging those as well so yeah analytically right if this one goes then other ones potentially go as well or at least they are inviting challenges to them.

 

Mark Elias Absolutely. And importantly, Francisco refused to rule out that he wouldn’t be back challenging those limits. And just so the audience understands, here’s why this just becomes inevitable. What the Supreme Court has said is that limiting the amount of money that people can spend on their own independently, that is subject to strict scrutiny. You cannot limit that without really compelling reasons. And the Supreme court has said there are no basic reasons to do that. Contribution limits on the other hand, they have upheld almost universally because what they’ve argued is that making a contribution is in and of itself symbolic speech. In other words, the speech you are engaged in when you make a contribution is associating yourself with the candidate that you are approving of. But that therefore, whether the limit is set at $500 or $5,000 or $50,000, or $500,000. Legislatures get to do that because they have to be given the ability to set those limits and it’s not really impinging on your first amendment Right. Once you say that a contribution limit can be Constitutionally held to strict scrutiny then honestly all the limits fall because you’re never going to be able to show quid pro quo corruption For every individual who make a contribution I mean after all Leah if you wanted to give rather than give $3,500 you wanted give $5,000 to you know, Kamala Harris’s campaign, you would go to court and be like, well, but you know at $5,000, I’m not corrupting anyone. And like, that’s true. There’s no difference between 3,500 and $5 thousand. So you could just see this is just gonna unravel itself. And eventually the Supreme court conservatives will say, well, you know isn’t this over inclusive and under inclusive because it’s covering some speech and not other speech. And as you know for strict scrutiny, that wouldn’t survive.

 

Leah Litman Right, so let’s just blow the whole thing up. So Mark, I guess I would invite you just for any final thoughts as we are kind of ticking through the different branches of the federal government and how, again, the Manosphere really seems to be trying to mansplain our way into a deeply undemocratic country.

 

Mark Elias Yeah, I’d say two things. First of all, very quickly, people should pay attention to the Watson case. You mentioned the Mississippi ballot receipt deadline case. That also will have dramatic impacts. The question there is whether if the U.S. Postal Service takes a few extra days to get your ballot that you mailed before the election and postmarked for the election, whether it gets thrown in the trash or whether it’s gets counted. And so people should Pay attention to that. But I wanted to end Leah on your article one versus article two. Analysis because it’s something I’m spending a lot of time on I’m actually thinking I’m outlining a book that I may want to write and it’s very much like in my mind because I think what I’ve come to conclude is that Article one was intended to be the most important like I went back and reread I was writing for democracy docket about the State of the Union and so if you look at article two, the very first thing in article two of the duties of the president is from time to time to report to Congress on the state of the union. And to make recommendations to them on things they should take up. And I was reflecting on this, that like the state of the Union in the constitution is an obligation of the President to show up at a time that the Congress wants him to give his recommendations that Congress can then take or leave. And it has transformed into this, Donald Trump shows up, treated like a king with pomp and circumstances and people having their tie autographed while Congress is there as like the, just the doormat of Article One. So, I mean, I don’t really have a.

 

Leah Litman Well, now Republicans in Congress are asking Trump for permission to do things, right, rather than the other way around.

 

Mark Elias Right. So my, my, the question I’m asking myself and the question I’m struggling with is like, how can you have our system of government? If article one is not just not preeminent, but it’s actually not even what you say. They didn’t show up. I loved you. Whatever you’re afraid like, they’re just like they’re not in the game. So what’s the answer?

 

Leah Litman I do not pretend to have an answer to that big question, but I’m glad to hear you’re maybe writing a book about it. So we can work out that problem together. Mark Elias, of the Elias Law Group and Democracy Docket, thank you so much for joining us. Again, listeners, independent media celebration. If you’re not following Democracy Dock it, please do so and subscribe. In this era, the commentary and journalism and public information is more valuable than ever. Thanks so much, Mark, for taking time out of your very busy schedule to join us.

 

Mark Elias No, thank you for having me. I love your podcast. I always listen.

 

Leah Litman Thank you. Well, that was something, probably something other than uplifting, I’d say, but on a lighter note, let’s end with our favorite things. Chris, do you wanna go first or do you want me to go first on favorite things?

 

Chris Geidner I’ll go first. My favorite things are things that I haven’t done yet. Jonathan Groff is going to be doing as you like it for the Royal Shakespeare that, obviously, that I know you’re well aware of already. Next summer, we have Jonathan Bailey and Ariel Nagrande doing Sunday in the Park with George. But more close to now, I am excited. To see Sam Pinkleton’s Rocky Horror on Broadway. Sam Pinkerton directed O’Mary. And this is his next Broadway production. And so I’ll be seeing that later this spring. Theater is my favorite thing. And I am looking forward to exploration in DC, New York, and over in London.

 

Leah Litman I love it. Some of my favorite things are also forthcoming things. So yeah, totally works. Yes. So one of my favorite things is our upcoming live shows next week, or I guess this week, when you’re hearing it in California, I am beyond excited. I’m so excited. I’m doing something I never do, which is taking it easy and giving myself a break for a few days so I can actually enjoy the California live shows. Yes. Um, another favorite thing is the article I mentioned on last week’s episode and that I manifested in acceptance for also looking to the future Chris, uh, the pass of vices was accepted into Georgetown law journal. I’m super excited about that and to work with the editors. Um, also favorite things are the friends of the podcast we’ve been able to have on the show while we all are traveling, whether that is Steve Vladeck who runs one 1st Street, Chris Geidner, Lawdork. Mark Elias, Democracy Docket, and independent media more generally. And so yeah, that has been a really fun part of this segment and wanted to highlight just two quick specific independent media things. So Steve Vladeck at one first had this post, the Supreme Court is not reigning in executive power, unnecessary rebuttal and corrective to this hogwash piece, be it for yourself. Also. We at Crooked Media are now going to be on MS Now. So we are going to airing Saturday nights at 9 p.m. And it’s gonna be an amalgamation of different Crooked media shows, including us. So be sure to tune in for that. Chris, thank you so much for joining us this week.

 

Chris Geidner Thank you.

 

Leah Litman And for being our independent media icon. Again, listeners, if you’re not subscribed to Lawdork. You really should be, as we recounted in this episode, Chris is doing really necessary work. And it’s so important, more important than ever, to support great independent media. So thanks, Chris.

 

Chris Geidner Thank you, Leah, so much. It was great to join you.

 

Leah Litman Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, 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. We get production support from Katie Long and Adriene Hill. Matt DeGroot is our head of production. And thanks to our video team, Ben Hethcoat and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube, at Strict Scrutiny Podcast, so you never miss an episode. And if you want to help other people find the show, please rate and review us.