ICE Freezes Out the 4th Amendment

Jill (00:10)
Welcome back to #SistersInLaw with Barb McQuade, Joyce Vance, Kimberly Atkins Stohr and me, Jill Wine-Banks Kick off the new year with some #SistersInLaw gear. Hoodies, which you really need now, and t-shirts are available at politicon.com slash merch. You can find the link in our show notes. We also have some exciting news. We’re launching a companion podcast called Sisters Sidebar, where we’ll answer more of your questions than we do during our show. The ones that we couldn’t get to in the main show. Dive deeper into our opinions on the news and share more about our legal journeys. It airs on Wednesdays and the first episode is next week. Today’s show, we’ll be discussing it’s icy in Minnesota, Doge and what’s happening with Social Security Administration and the Lisa Cook arguments where Jerome Powell actually came and sat in the audience with her. But before we get to those really important and heavy topics, I want to talk more about Sister’s Sidebar and let our listeners know what it is. Barb, do you want to just give a brief outline of what it is?

Barb (01:21)
Yeah, you we always say this is our favorite part of the show and it really is. We get tons of great questions from our listeners about things. know, sometimes when you’re a lawyer, you don’t even think about these things. And we try to answer three questions a week because that’s about what time permits for our show. But we always have questions and we say, gosh, I wish we could do more of these. We’ve often talked about doing a questions only show. Well, now we will. We’re going to do a short questions only ⁓ segment in the middle part of the week. so that we can answer more of those questions.

Jill (01:52)
And is there a way that people will know how to access that show?

Kim (01:56)
You can get it wherever you get your pods. If you’re subscribed to Sisters in Law, you will be subscribed to Sister Sidebar. But you want to make sure that your friends know about it too, just so that they can hear all of the things that we are saying. But ⁓ I do try from time to time when I can to answer questions on social media because I really enjoy it. So I’m really psyched to have. just a little bit more time to answer people’s questions. The questions are so good and it just shows the way our listeners are really thinking critically about what’s going on, I love.

Jill (02:30)
I find it amazing. I love the questions we get. They really challenge me to think about things in a different way and to try to explain things so that people will really understand without going through three years of law school and God, for me, 50 plus years of experience. And Joyce, I know you love these questions too.

Joyce (02:51)
I do love the question and answer part of the show. And for people who are listeners, who’ve maybe thought about sending in a question but haven’t done it because they were worried we wouldn’t have time, now’s your opportunity. We really do want to hear from you. We want your questions. We want to know what’s on your mind. And we will do our best to give you more answers every week. It’s going to be a crazy year heading into the midterms. And now more than ever, knowledge is power. So let’s all go for it together.

Jill (03:21)
It’ll be really worth your while, so tune in to Sisters Sidebar.

Kim (03:35)
Joyce, I have to tell you something hysterical. Snickers has learned to talk.

And I’ve realized this because usually, you know, we feed her after a walk. And increasingly, once we get back from the walk, like before I even can take off my coat or my shoes, she’s looking at me going, I’m like, what? Like, what’s your problem? And I realize it’s because she’s like, essentially saying, feed me now. And this has happened ever since I started feeding her the pets table.

Right? So it’s the pet’s table is this prepared delicious set of meals that you can give to your dog. You know, I know we talked about cat food in the past, but our dogs deserve the best too. And Snickers clearly is over the old kibble that I used to give her. And you know, I can’t really blame her if I was eating kibble and then I got something far more delicious, I’d go crazy too and I’d probably talk about it. Snickers knew there had to be a better way.

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She literally whoops it down, pun intended. I sometimes worry that she’ll choke herself because she eats it so fast,

Joyce (05:15)
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Jill (06:12)
With choices like fresh beef with sweet potatoes and turkey with blueberries, your dog will live his best life. It’s practically a Thanksgiving feast with every meal. And based on how quickly the food gets eaten, I know that your dog is gonna be a fan. It’s been great seeing Rizby with such an appetite. I feel so much better knowing that he’s getting real food that is designed with his health in mind.

He even seems like he has better skin and more energy. And that’s something we’d all like to see.

Barb (06:47)
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This week saw reporting of stepped up immigration enforcement in Minnesota. The Associated Press actually reported something that I think is very disturbing to all of us. And that’s that ICE, Immigration Customs Enforcement, has authorized its agents to enter homes to make arrests using what are known as administrative warrants. So I want to talk about this and help our listeners understand why this is so concerning. Jill, can you tell us about what it is the AP is actually reporting and what their source is.

Jill (08:15)
Absolutely. And I just want to start by saying my first arguments in court when I joined the Department of Justice were on the Fourth Amendment. And so I really am a big fan of its protections. The AP reported that they had been shared a copy of a memo from May 12th, 2025, so right after the Trump inauguration, that said that the Office of Legal Counsel had now said,

forcible entry to arrest a person with a final order of deportation with only an administrative warrant, which means there’s been no independent judgment by a judicial officer. There’s been no approval by someone outside the agency so that they would be free to just, hey, I want to get this person. I’m going to knock down their door. And it came to AP from some whistleblowers, ⁓ two federal officials.

who really felt that this was going way too far. And so they wanted to try to make everybody aware of it. And aside from getting ⁓ somehow a legal copy, because they go out of their way to say, we found a way to legally obtain this copy of the memo, which is attached to the whistleblower report, which everyone can see. In fact, we’ll attach it to our show notes so that you’ll see it.

It lays out how secretive the existence of this memo was. It indicates that they knew that it was definitely not legitimate. ⁓ It led to the resignation of a training officer because he believed that the Fourth Amendment had to be in place and he wouldn’t train people on doing a forcible entry without having a judicial warrant. It’s really a serious problem because a neutral arbiter is essential

Because there are mistakes even when you go to court and convince them that there’s probable cause to do something. But know, we’ve seen mistakes made. Now, you don’t even have to get it reviewed. You just say, want it, and you get it from your own agency.

Barb (10:27)
Kim, Jill mentioned the Fourth Amendment. ⁓ Can you just tell us what the Fourth Amendment says, you know, maybe the text of it, what it says about searches and seizures? And it talks about a warrant. It doesn’t actually use the word judge, but we know about the way it’s been interpreted, you know, as Jill said. ⁓ There are such things as immigration judges, but I believe this memo, which is an authentic memo, actually says ICE supervisors themselves can sign these warrants, right?

Kim (10:56)
Yeah, this has nothing to do with actual immigration judges, which are not ⁓ Article 3 judges. That’s part of the judiciary. But at least there are people who have some experience with adjudicating these kinds of things. So the text of the Fourth Amendment says, the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause.

supported by oath or affirmation and particularly describing the place to be searched and the persons or things being seized. That’s the actual wording of it. And you know, there is a reason for that. Those set out legal standards. And so for that to be, ⁓ you know, it’s meant in part to keep the foxes from guarding the hen houses, right? If just to allow.

to say, we, okay, we did it. Trust us, we have this. That is not in comporting with what the framers had in mind here at all. It’s really unbelievable.

Barb (12:04)
So as I agree with Kim, that the idea of an ICE supervisor signing a warrant is really concerning because that is an executive branch employee. ⁓ Joyce, I know you do some of this training to help people know their rights and it has long been expressed that even a warrant from an immigration judge is not enough under the Fourth Amendment. Can you explain why a warrant signed by an immigration judge

is still not sufficient to satisfy what Kim just talked about, idea, and Jill, this idea of a detached and neutral magistrate signing off on these warrants.

Joyce (12:42)
Yeah, so for starters, it’s important to understand that immigration judges are not Article 3 judges. They are actually executive branch employees, and they are fireable by Donald Trump at will. So, you know, I’m not feeling too hot these days even about immigration judges issuing these kind of orders.

But leaving that aside, and look, I will just say there are some technical legal arguments on both sides about whether or not an immigration judge can sign a qualifying order. I think that the answer is no, but there are good arguments to be made on both sides there. But that’s not what this is about. So to understand the question that you’re asking, Barb, you have to know the difference between a judicial warrant and an administrative warrant.

And a judicial warrant is one that’s signed by a judge who hears whatever evidence the agents have and makes an independent decision about whether it rises to the level of probable cause that you need to search someone’s home. know, law enforcement can’t enter your home or private parts of your business without a judicially approved search warrant. So this new ICE policy claims that something called an ICE form ⁓ I-205, which is a notice that there is a deportation order.

for someone who is a non-citizen, that’s a document signed by, quote, any immigration officer. So to your point and Kim’s point, an ICE employee. Now ICE is saying that that document is sufficient, and it just isn’t. The Fourth Amendment provides that law enforcement cannot search your home without a search warrant that has been supported with probable cause to believe that there’s evidence or fruits of crime there.

That applies even if they’re going in, right, to grab someone who they have a deportation warrant for. And so ICE can’t just blow past the Fourth Amendment with their little form ⁓ I-205. They can’t change what the Fourth Amendment has provided for in this country for almost 250 years. And you ask a great question about how the law has worked in this area. The Supreme Court has made it really clear.

that a search warrant has to be signed by a judicial officer or a magistrate. The idea is the detached neutral judge that Jill was talking about, not someone who’s involved in investigating the case or someone who’s on the same team as the agents who are investigating the case. This has to be an independent assessment. So the Supreme Court explained it really well in 1948. This is not new law. This is law of long standing.

in a case called Johnson v. U.S. where they wrote, the point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise

of ferreting out crime. Bottom line, you can’t have someone from your own agency sign your warrant and bust into my house tonight.

Barb (16:02)
Yeah, and you know, these orders of deportation certainly allow an ICE agent to arrest somebody in a public space. But the idea that they’re going to enter your home, I think, is where they’re crossing the Fourth Amendment line. And Joyce, just one last quick question, if there is such a thing in this arena. I don’t know if you saw in Lawfare, an online blog, Orin Kerr, who is a Fourth Amendment scholar, shared your view about the Fourth Amendment.

But he also said he’s concerned that individuals might not have a remedy to sue because of qualified immunity, which requires that an officer breach a clearly established constitutional right. Do you agree with him or do think the Fourth Amendment here is clearly established?

Joyce (16:44)
You know, unfortunately I do, and I thought it was really interesting. Oren did something in his piece for law fair that you don’t see lawyers do a whole lot. He just said, this isn’t really my lane, so I’m not going to weigh in too heavily. But I have concerns that it might be hard to get into court. And I find myself in very much the same position. You know, there is a civil remedy called Bivens ⁓ that people can use when law enforcement violates their constitutional rights.

But this Supreme Court is not super friendly to Bivens claims. They’ve really narrowed their scope. And beyond that, what’s really necessary here is a vehicle for telling ICE, not just in one case after the fact, after they’ve broken down somebody’s door, telling ICE, look, going forward, you guys can’t do this. You want to go into a house, get a search warrant. Y’all know how it’s done, or at least you used to. ⁓ And so the problem will be finding that vehicle to get into

court. The Supreme Court has said no nationwide injunctions. So perhaps we will see some clever lawyers, maybe our friends at the ACLU, go into court seeking some form of declaratory judgment designed to prevent ICE from breaking down people’s doors as cold weather descends on the country in what’s just got to be the clearest violation of the Fourth Amendment I can imagine.

Jill (18:08)
And the real problem is they’re deporting people before they could even think about bringing a civil suit.

Barb (18:15)
Well, we’ve also seen DOJ using some federal statutes to investigate a protest that occurred at a church in St. Paul last Sunday. And I would not have seen these particular statutes coming. Apparently protesters found information on the church’s website that a top ICE official in the Twin Cities is a pastor at the church. And so they entered the church during services on Sunday, shouting things like, out and justice for Renee Good. Renee Good, of course, is the motorist who was shot and killed.

by an ICE agent a couple of weeks ago. They used the ICE, the KKK Act and the FACE Act. Jill, first, what’s the FACE Act and how could it apply here?

Jill (18:53)
You know, it’s so interesting because Joyce just mentioned she was hoping that some clever lawyers from like maybe from the ACLU would find a way to seek justice for violations of constitutional rights. This was not something you would have necessarily automatically thought, I can use the FACE Act. But the FACE Act is freedom of access to clinic entrances. It’s clearly an act that at least two of its sections relate to the right to have an abortion and not be interfered with.

But there is one section that, the name is kind of misleading because there’s one section that says, you can’t interfere with someone’s exercise of their First Amendment right of religious worship in a place of worship. And it has been used before, it was used in New Jersey in summer of 24 or 25 for disruption of a synagogue event. And now it’s being used here to say that when they entered and interrupted the service.

that they were violating the FACE Act. And the law does say that, so we’re going to have to see what happens in court.

Barb (19:59)
Yeah, I was really surprised to see the use of the FACE Act because of course it stands for freedom of access to clinic entrances, as you said, ⁓ I think most frequently thought of as protecting people who are ⁓ trying to enter a clinic facility, an abortion facility. And I get the sense that they just sort of relish this idea of taking these ⁓ progressive laws and turning them on the lips, right? Don’t you get that sense? Absolutely.

⁓ But you know, I am sympathetic if somebody is worshipping that, ⁓ you know, protesters are disruptive, but you know, is it a crime? And Kim, the other one that they are looking at is the KKK Act. Can you tell us what that is and how that could apply here?

Kim (20:46)
Yeah, so the KKK Act, the Ku Klux Klan Act, has been on the books since 1871. And as its name suggests, it was passed in response to the terror that the Klan was reigning in southern states during Reconstruction and beyond, trying to prevent Black people from fully being able to exercise the rights that they had been granted under law.

and under the Constitution. It came after the 14th Amendment. And what it does was make it a federal crime for ⁓ anyone to deny someone based on the group that they belong to, ⁓ any group or individual, their rights, privileges, immunities, or protection named in the Constitution. And it’s basically been a vital tool that prevents people

from discriminating in communities and elsewhere widely based on race. Well, they’re bringing this now under a claim that these protesters who were, in my opinion, exercising their First Amendment rights, were somehow ⁓ taking someone’s privileges, immunities, or protections away due to their religious beliefs, which anyone who saw what was happening knows that that was not in fact.

And I think you’re right. I think there is this idea of like turning the Libs rules back on the Libs, although this is a principle that should not be liberal or conservative. It should just be American. There’s a bit of projection there. And this is not an administration that is acting in good faith. The White House put out a photo of one of the people who was arrested and doctored her face to make it look like one of the council members doctored her face to make it look like she was crying.

when she was not. She was let out when she walked out with dignity, but they took her dignity away on the White House’s official. It’s dehumanizing. It’s more than childish. It’s really awful, but that gives you sort of an idea of the intent of those in charge here.

Barb (22:47)
It’s so childish, isn’t it? It’s so off- ⁓

I don’t care about good faith, law, integrity. I’m gonna do whatever I can to make you suffer. Really has that vibe. you know, I’m no fan of disrupting a church service, but the idea that this is somehow attacking people because of their religious beliefs. Like, no, they just hate this guy. He’s an ICE. They want to protest about ICE conduct. So, ⁓ yeah, maybe not ⁓ the best time, place, or manner for protest, but I don’t know that violates one of these crimes. ⁓

Kim (23:03)
That’s right.

Barb (23:25)
Joyce, Pam Bondi and Kash Patela have now announced that three people who arrested in this investigation, including the woman that Kim just mentioned, Nakeema Levy Armstrong, who’s the head of the local NAACP, and another woman who’s a member of the Board of Education for the St. Paul Public Schools, Chantelle Louisa Allen, have been ⁓ arrested. ⁓ What do you make of their arrests? And do you think that these are legitimate criminal charges?

Are these crimes or are these sort of, I don’t know, acts with which reasonable people could disagree?

Joyce (24:04)
Surely you’re not suggesting, Barb, that this administration would bring weak charges that won’t hold up anymore?

Barb (24:14)
suggest that like that I agree with their conduct. I think it’s wrong to disrupt the church service personally.

Kim (24:21)
Probably a local noise ordinance or something that they may have violated, which I think would suffice as punishment here, right, in the grand scheme. This is not a federal criminal offense.

Joyce (24:33)
Well, look, ultimately that question will be up to a jury. If these cases get that far, like Kim, I sort of have my doubts. ⁓ But you don’t have to take Sisters-in-Law’s word for it today because as we were getting ready to tape the podcast Friday afternoon, a federal judge declined to force these folks to stay in prison pending trial. The government asked to keep them in custody. Judge said,

No, this ain’t the kind of violent crime that qualifies. And the government with a straight face, you know, the FACE Act is a fairly violent ⁓ prone statute. As you said, Barb, it’s used more frequently for abortion clinics. I have some experience with using it and indicting cases under it. And those are usually fairly violent ⁓ acts that involve a lot of interference with other people. You know, I agree with you. There might have been a better way to do this sort of protest.

But using the FACE Act and the KKK Act, it’s just overkill, and the judge very clearly said that in declining to detain these folks pending trial.

Barb (25:38)
Yeah, you know, I also recall, remember when Pam Bondi first started, she ⁓ issued that memo about the weaponization of government. And one of the things she targeted was prosecutors who worked on face-hack prosecutions. Now, I think she was thinking of the… Yeah, right? Charging them with crimes for weaponizing the Justice Department. And now, you know, here we go with using that very same statute. Well, Jill, in a very improbable ⁓ series of events, there’s also this crazy twist to the whole thing.

Joyce (25:50)
me, she was thinking of me

Barb (26:07)
In addition to the three people who were arrested for protesting at the church, prosecutors are now attempting to charge Don Lemon, the former CNN anchor. What was that all about?

Jill (26:19)
It is insane, of course. He joined the protesters entering the church and they were disrupting the service with their shouts. But as you said, not related to religion, related to the pastor who’s an ICE official. He said, I’m here as a journalist, not a protester, and even though the prosecutors are trying to charge him as a protester.

He did report, by the way, from Chicago, from the Broadview facility when Operation Midway Blitz was going on. The judge in this case in Minnesota has rejected the bid to bring federal charges against Lemon, as other courts have in other cases because they are going way beyond the intent of laws. He was fired by CNN, but he has a YouTube channel and is reporting.

Joyce (27:08)
He

Jill (27:14)
should have a First Amendment right to cover a news event.

Barb (27:19)
Yeah, Kim, what do you think about this? You’re a journalist. ⁓ Do you agree with Jill that he has a first memory to cover this, even if it’s occurring in a church?

Kim (27:31)
Of course he does. Anybody who is covering this has the right to attend and see what is going on in that. But here’s the problem with protections like that. mean, you talk about the First Amendment protections that these protesters or members of the press have.

or constitutional protections of people who, you know, even may be detained by ICE. Those protections don’t help you in real time. It’s some time down the road. ⁓ It’s used as a defense when criminal charges are already filed against you and you may already have been jailed. You can try to assert it if you’re harmed and you’re trying to ⁓ bring a case alleging that your constitutional rights are violated and you want some civil redress. It’s after you’ve put out money. It’s after you’ve already ⁓ really

suffered the problem that the First Amendment was supposed to protect you from. So in this way, it’s not an even game.

Barb (28:28)
Yeah, right, that’s right. you know, regardless of what happens to Don Lemon, like he still has faced some consequences, right? Some suffering. Yeah.

Kim (28:38)
It may stifle members of the press, particularly smaller independent outfits who don’t have lot of lawyers and money to try to defend or get, you know, if they get arrested, it could have a chilling effect on the press. And that’s exactly what they’re trying to do.

Barb (28:54)
Yeah. Now, after this protest, President Trump made some comments about how despicable this conduct was. Joyce, what’s your sense of whether this is an effective strategy for protesters and whether there’s something unlawful here? You you have said before, there’s this whole idea of ⁓ awful but lawful. And just because something is something we find disagreeable doesn’t mean it’s criminal. ⁓

Do you think this is an effective way to get people’s attention or is it likely to have a boomerang effect? You I sometimes worry when people talk about defunding ICE. ICE is engaged in some despicable conduct, but we do need a border law enforcement agency. And I often worry that tactics like this can be counterproductive. What’s your view?

Joyce (29:40)
Yeah, so you know, I don’t want to discourage anyone from exercising their First Amendment rights. I I think this is a moment to exercise democratic muscle and protest. I do think it’s important for us to be smart because doing this in this way gave the administration a free, you know, in essence, a free throw to use a bad sports analogy. And we don’t need to be giving them free throws. So I think when we figure out ways to

protest, we should do it in ways that are smart, in ways that are effective. If you read my newsletter, Civil Discourse, you know that I’m a huge fan of following the teachings of Dr. Martin Luther King, who taught the principles of nonviolent protest and taught that the right way to stand up to power was to speak truth to it. I think those are some great touchstones for us to use right now as we move forward.

Jill (30:38)
you

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Kim (36:58)
Well, happy weekend to everyone, but especially to Lisa Cook, the Federal Reserve official who Trump is trying, not very successfully, to fire on an unproven claim of mortgage fraud. The Supreme Court hinted strongly during oral arguments on Wednesday that Cook can probably keep her job, at least ⁓ while her challenge to her firing is proceeding through the courts. And that is teeing up.

one of Trump’s likely biggest high court defeats. We talk a lot about how the Supreme Court gives him what he wants. I don’t think it’s going to happen this time. And one of the justices who seemed to be mostly on Cook’s side is an appointee of Trump, Joyce. Before we delve into how the argument went, remind us why Trump is trying to fire Lisa Cook. And why do you think Fed Chair Jerome Powell, a very busy man,

took time out of his schedule to be seated there inside the court watching these arguments along with Lisa Cook.

Joyce (38:03)
Well, at least to the first part of your question, the answer is, ⁓ because she’s a black woman. Is that the answer? ⁓ I mean, look, under the Federal Reserve Act, members of the Fed’s Board of Governors, they’re nominated by presidents to these really long-terms, 14 years, they’re staggered. The structure is intended to prevent a president from stacking the deck with his own nominees. And so Donald Trump wants to do just that. He wants to stack.

Kim (38:10)
Yes

Joyce (38:32)
the duck. So he ginned up these charges and y’all will remember this. think Lisa Cook was the first victim of this. He claimed that she had committed mortgage fraud ⁓ by designating two separate houses as her primary residence on mortgage documents and said that she’d committed a crime and so he was firing her. Of course, it’s never been proven. She denies that there’s any vitality to the charges.

And this is just Donald Trump trying to remove people on the Fed as he has on other quasi-independent boards, whose presence is inconvenient for him. ⁓ You know, I suspect that the reason that Fed Chair Jerome Powell took the very unusual step, I might add, of going to the Supreme Court and sitting there during oral argument is because Trump is now suggesting that maybe he should be prosecuted for perjury, resulting from some testimony before Congress.

In a case that would make even the charges against Jim Comey, those charges that have now been dismissed, it would make even those charges look like they might be a little bit stronger because this stuff about Powell, it’s just crazy sauce. So look, I mean, the reality is this case is what we all feared. This is a case where a Banana Republic dictator, a tin pot dictator is using the considerable powers of prosecutors

to pursue his own ends. The warning signs are all here, the lights are all flashing. Anyone who’s not seeing it is simply not paying attention at this point.

Kim (40:05)
Yeah, I couldn’t agree with you more, Joyce. So, Trump is arguing through his attorney, the Solicitor General, John Sauer. He’s basically arguing that he can fire whoever he wants at federal agencies because, you know, the unitary executive theory, is in control, he alone is in control of the executive branch. And not only that, he’s claiming that a court can’t even review the decision to fire, which is one of the things that the

had to consider. How did the justices, particularly ⁓ one Justice Brett Kavanaugh, who Trump appointed back in 2018, amid a lot of fanfare and such, how did Kavanaugh seem to take this argument the president was making?

Barb (40:52)
yeah, he thought this was ridiculous. And you know, I would love to hear ⁓ Donald Trump ⁓ either reading about, hearing about, or listening to Brett Kavanaugh’s questions, because you can just bet he’s fuming, right? Like, he owes me loyalty. What is this? What is he doing? Because he says, when Sauer mentioned, and you know, by the way, Kim wrote a very nice piece about this in her weekly newsletter, The Gavel, and focused on this. So this is how I know about it. But Justice Kavanaugh says when ⁓

when this argument comes up, let’s talk about the real world. And explain like, you know, if this is allowed, the president can just remove people for, you know, ⁓ perceived misconduct. ⁓ He said it would mean what goes around comes around. And he certainly, I think is, you know, suggesting that the president, number one, President Trump has the ability to ⁓ exact vengeance as he might, but also he said,

all the current presidential appointees will be removed on January 20th, 2029, if there’s a Democratic president. You know, I often wonder like, do these people not realize like this administration is only for four years or do they know something I don’t? That because if they give all these powers to a president, then a new president is going to have the same powers, right? And he said, well, aren’t we just going to be an at will employment situation? We’re going to completely eviscerate this law that requires these sort of

know, notice and ⁓ cause as opposed to at will. And so ⁓ one of the things I thought was especially good about this, I was actually discussing this with a colleague today about the notice point where they said, you know, did she get any notice at all? Like, well, yeah, she got it in a social post.

Kim (42:47)
actually said that in court, I died. absolutely died. There was like, was there some process? Well, yeah. There was a social media post and she responded with defiance. I was like, what?

Barb (42:49)
Yeah, right.

Yeah, and that was also to Kavanaugh. wondered, you Kim, I only read about this. I didn’t listen to the argument. ⁓ my colleague and I were saying like, did Kavanaugh react at all or was it just like stunned silence?

Kim (43:11)
He did, he did, he was not silent. was, I regret that I wasn’t actually in the courtroom because I would have loved to seen that exchange and also keep looking back at, you know, Jay Powell’s face. I was, I was only listening in, but Jill, you know, there was one particular part of the exchange with Kavanaugh that I thought was really great. I’m actually, I actually am going to put a clip, a YouTube clip of this exchange and the show notes if anybody wants to listen, because it is so brilliant.

Tell us about the exchange between Kavanaugh and Sauer about the independence of the Federal Reserve.

Jill (43:49)
So, you you’re right to put the clip in because no matter what I say in describing this will not capture as well as listening to the exchange, which is a tongue-tied solicitor general unable to explain or even address the question, which is asked multiple times about, what about the independence of the Fed? Why is that important? Why do we have it?

They go back and forth and it’s clear from the objections to the president’s position, including, of course, Kavanaugh’s, that I would say Trump’s chances of winning this case don’t seem very good. And some of the quotes, mean, Barb mentioned the what comes around, goes around. It’s sort of like what’s good for the goose is good for the gander. And so this is going to be just a continuation. I think that…

The notice, to the point you made about notice, is, yeah, he said you did this, but there’s never even been a charge. A grand jury has looked at it there’s no charges against her. A truth social post is not anything near ⁓ a due process notice. But yeah, the exchange with Sauer and his absolute inability to address the question about it and the…

part of Kavanaugh saying, we live in a real world. And it just makes me think, okay, maybe this will not only guide the outcome of this case, it will guide the outcome of other cases where they’re going to have to look at how is Trump actually using this? You know, I want to answer for Sauer that, you know, our economy depends on experts making independent long-term judgments. And that’s why it’s important.

and not acting on the president’s short-term political goals. ⁓ So they went way too far in the argument, and I think Sauer just got caught on his own petard.

Kim (45:57)
Yeah. mean, I hate to say that a part of me feels a little bad for Sauer because there isn’t a, what you said is exactly right. The Federal Reserve of all agencies, right? The one in charge of the central bank, the one that can make or break our entire economy, they need to be acting in a way that is free from political influence. Sauer can’t say that. His client is the president, right? So that’s why that exchange was just so

It was just so, you you just couldn’t turn your ears away from it because it just laid bare. ⁓

Jill (46:35)
should make everyone who heard it realize the consequences of the unitary executive ⁓ theory and how dangerous it would be for an untethered president or even a tethered president, even somebody who really meant well ⁓ and wasn’t seeking personal aggrandizement and power. How dangerous that theory is.

Kim (46:56)
It’s a misguided one. So I don’t want to send you out on the ledge. I think the Supreme Court has already, terms of maybe they’ll act this way, you know, if they see it this way for this, they’ll see it this way for other parts of the unitary executive. They already sort of have been teeing up ⁓ in like in the Wilcox decision, for example, about the NLRB, the fact that the Fed is different, like they’re creating this, the Fed is different rule. So don’t expect this to go beyond this, but I think he is going to lose here.

Just really quickly before we wrap up, ⁓ another interesting point Kavanaugh made ⁓ to Cook’s attorney was with respect to what remedy is it that if a president cannot fire whoever he wants to, how do you remove somebody who actually is doing bad things on the Fed? Like maybe there’s somebody who is frauding on the Fed, right? Using their position to enrich themselves, doing something else that’s nefarious. Is there any other remedy?

Barb (47:49)
I guess I would suggest a couple of things. mean, one is it does say that they may be removed for cause. So if the president were to say, you know, this person hasn’t gone to any of the meetings. And so I think that’s good cause we need members to show up and participate and exercise their best judgment. They might say that’s for cause. And I suppose they would have a legal remedy. They could file a lawsuit to say that was inefficient. In fact, you know, they get notice and opportunity to be heard.

And they could challenge that in court, I suppose. And I guess the other one, Kim, that you mentioned in your note was impeachment. I suppose these individuals could be impeached.

Kim (48:27)
And Lisa Cook’s attorneys conceded as much that that is something if ultimately you have a rogue member of this board that that is a way that they can be taken out. And yeah, I’m glad you mentioned for cause. We almost forgot about that. Generally speaking, that would come if there were criminal charges or conviction maybe. That certainly I think would be seen by any court as cause. ⁓ what Trump is doing here at the very least does not seem to pass muster, not even with the court.

a third of which he himself appointed.

Jill (48:59)
I think we have to be clear that cause is not just that the president says, believe because one of my appointees has gone through the records and made an accusation against you that that’s cause. That is not. He would have to have charges brought and proved because otherwise they’re going to just be making up, sorry, I almost said something that Barbara would have totally disapproved. They’re just going to be making stuff up and we can’t have that.

Barb (49:34)
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Kim (50:07)
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So Doge was back in the news this week, and I gotta say, I have not missed them at all. I mean, this was not a welcome development. ⁓ I’m sure everybody saw the headlines. This week we learned that Doge may have misused confidential personal information held at the Social Security Administration. And the way the news surfaced is really interesting to me because it wasn’t a whistleblower. It wasn’t some intrepid reporter who broke the story.

This time it was the Trump administration telling on itself. ⁓ Jill, talk with us a little bit about how that came about.

Jill (53:44)
Well, talk about unusual things. This is the Department of Justice actually admitting its own misleading of the court. They actually filed in front of a federal judge in Maryland something called a notice of corrections to the record. And this is in a case by AFSCME versus the Social Security Administration. And for full disclosure, I’m a member of AFSCME as a former ⁓ municipal employee.

The document said that members of DOJ working with the Social Security Administration may have misused the data that it obtained from Social Security. And it said that Social Security and the undersigned consul bring these matters to the court’s attention to ensure full candor to the court. Something that’s my comment I’m quoting, but this is my comment. Something that’s highly unusual these days.

They go on to say, review of the Social Security DOJ team’s actions is ongoing and Social Security and the undersigned council will continue to ensure that the record and representations made to the court are accurate. This is different than DOJ has done in other cases where judges no longer give them a presumption of honesty and regularity because they have misstated things and lied so often and ignored ⁓ orders of the court. So this happened last Friday. ⁓

week ago from the date of our recording. And it’s really a danger. Think about how worried we all are about being hacked with our Social Security number, which gets you so much in danger. And now they may have given this to a team looking at how to affect elections. This is a real danger.

Joyce (55:32)
Yeah, so Barb, given all of that, why do you think that DOJ went ahead and made the disclosure? It seems a little bit unusual. And do we know whether not this information, whether folks’ privacy was actually violated by Doge?

Barb (55:48)
Yeah, you know, I actually know ⁓ one of the undersigned lawyers on this. I worked with her a little bit when I was at the U.S. Attorney’s Office. This is a long time career person. I think, you know, there’s still a lot of very good people left at the Justice Department. I think she was doing her work as required to do ⁓ because this is part of an ongoing lawsuit. As Jill said, there is ⁓ an order in place by a judge, a temporary restraining order that blocked Doge’s access.

to social security information and they were required to do this audit and analysis. And I think they discovered this like to their horror. And what they say in the pleading ⁓ is that, ⁓ Jill just mentioned this, ⁓ in our duty of candor to the court, we are sharing with the court that this thing happened, that it appears that this information was shared with this advocacy group. They do say that there’s no evidence that it was used.

But because the whole point of this lawsuit was about protecting sensitive, confidential, personally identifiable information that they thought it was important to share this information with the court that it appears that when Doge was doing its work, it may have done exactly what people have always suspected it was doing, which is taking Americans’ information and sharing it with outside actors to ⁓ either monetize it or to use it against our

general social interests, including by interfering with elections.

Joyce (57:16)
Yeah, you know, I had the same reaction that you did when I saw the name on the signature line, that this is a career person that knows what they’re doing. I mean, the Social Security Administration was DOJ’s client in this matter. And it seems to me that they were just trying to protect their client by making sure that the court knew that they had learned that Doge had, in essence, violated.

their operating directions at Social Security Administration and that SSA’s lawyers wanted to make sure that they didn’t take the fall for that by concealing that from the court. It’s a very unusual situation and I have to say I’m a little bit concerned about whether or not there might be an effort to retaliate against the DOJ lawyers who went into court and did the right thing here. So we’ll just put that marker down for now and see where this goes. But Kim,

We’ve asked you to put your journalist hat on a lot on this episode because there’s so much at the intersection of law and journalism in this show. Can you maybe speculate a little bit about what’s going to happen next here? I fear we have not seen the last of this and that there may be perhaps more information ⁓ and maybe even a scandal here that’s about to unfold.

Kim (58:36)
Yeah, I’m glad that you sort of anticipated one thing that I fear might happen is, know, to Barb’s point, and I’m so glad that, you know, both of you know who signed, who was the signatory on this, that it’s a reminder that there are still good career folks working in our government to make sure that it operates as it should. A lot of them are friends of mine. A lot of them are friends of yours.

former colleagues, and I’m so grateful to them, but I do worry when something like this makes a headline that that person could be imperiled. So I hope that nothing, there is no retaliation, but I doubt that the DOJ is going to investigate anything because they don’t think that anything went wrong, right? What are they going to investigate? Now, can we get to the bottom of what happened? Yes, in a number of ways. If somebody’s ⁓ identity or information was compromised and they were harmed,

there will be a lawsuit. And in that, that will mean that there will be discovery and they will have to show what happened and we can learn a little bit more ⁓ that way. Also, Congress, remember them? Congress, they have an oversight role over the DOJ. first thing they should be setting, a hearing should already be set by now if it’s not. mean, you know.

And granted, this may have to happen after the midterms because the current leadership in both the House and the Senate may not be super stoked to open such an investigation. But that brings us to you, dear listeners, when you go cast your votes in 2020s, in November, we are in 2026 already. When you cast your vote in November, keep that in mind, elect people who will actually

get to the bottom of protecting things like your rights, your identity, your data, because that’s the only way that this stuff happens. If we do have a Congress come next January that is interested in that, then that is how we get to the bottom of it, regardless of who is still at the OJ.

Joyce (1:00:39)
You Jill, you flagged early on in the conversation, the risk that this data might be used to suppress voting. ⁓ And that’s one of the major concerns that hangs over the whole year, right? What is the administration going to do to try to put its thumb on the scales during the 2026 midterm elections? ⁓ Should we have any concerns that that’s what this is about? Doge getting this data? They were after all talking to an entity that has played a role.

and part of the conservative voter suppression mechanism. What do y’all think?

Jill (1:01:12)
It’s sort of like a rhetorical question, Joyce. They did talk to an advocacy group that was trying to influence elections. And, you know, if we go back to the beginning, if we can remember the creation of Doge and the things that we all said about this is dangerous for them to be getting this. And by the way, to Kim’s point, when you’re voting, just remember that it was the Supreme Court that gave Doge the right to have access to this data.

and how dangerous it is for particularly social security, but all the other data, the medical data, everything that the government has, the Medicare, Medicaid, DOGE was never about stopping fraud. It was a ridiculous idea and they have not reduced any fraud or waste in government of any significance. They cost us more than they’ve saved us.

So yes, I think that in this case, voting rights are at risk.

Joyce (1:02:23)
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Jill (1:05:21)
As we said at the beginning of the show, we love your questions so much that we’re starting a new thing called Sister’s Sidebar. But today we do have some really great questions. And I want to remind you that if you have a question for us, you can email us at sistersinlawatpoliticon.com or tag any of us on social media using hashtag SistersInLaw. And again, if we don’t get to your questions during the show, watch our feeds throughout the week and

listen to our new show, Sisters Sidebar. And we’re gonna answer as many of your questions as we can today and in that show. We have some great ones today. Our first question I’m gonna ask you, Kim, is from Elaine. I hope I’m saying your name right. It’s A-L-A-Y-N-E. She asks, with so many Robox to access to evidence, any lack of cooperation between the DOJ and DHS

and Minneapolis, can Minnesota ask for a congressional investigation with that open access to evidence?

Kim (1:06:28)
So this is a great question, Elaine. Thanks for ⁓ asking it. Minnesota doesn’t even have to ask for a congressional investigation. This involved federal law enforcement. So this is a part of Congress’s inherent oversight and investigative capabilities. Congress can open an investigation into this right now and use their power, including the subpoena power, to get access to evidence in this case.

If the government, the ⁓ executive branch wants to fight that, they can fight it in court. That can already happen. And again, it just takes the political will and that gets back to elections and why they matter and why they happen. do hope, I do hope that the fact that there is an election this year, then it would not take that much time for the next Congress. If it is one made up of people who are willing to do this, that this can happen before too much time passes.

Jill (1:07:26)
And Joyce, there’s a great question that I want to ask you from Bebo in Springfield, MO. In the case where the Washington Post reporters’ devices were seized, if a court determines that they were obtained unlawfully, is the evidence gleaned from their seizure inadmissible against the investigation’s target individual?

Joyce (1:07:46)
Yeah, it really is a great question. This is one of those sort black letter law rules that has a little bit of a surprising twist to it because not all of the evidence from an illegal search is automatically suppressed. The exclusionary rule, the rule that excludes evidence that’s illegally seized, generally prevents the use of illegally seized evidence and its fruit, sort of secondary evidence that comes from it in court proceedings.

But there are a couple of ⁓ exceptions to be aware of. The biggest one is the good faith exception that comes from a case called Leon. There’s also an inevitable discovery rule and something called independent source. And so just quickly, because it’s not clear to me that any of these will apply here, I rather suspect that if the judge does ⁓ indicate that this evidence was obtained illegally, that it will be suppressed.

But the good faith exception involves law enforcement officers who are ⁓ executing a search warrant that they have a good faith reason to believe is good and subsequently it’s found out that there’s a flaw in it. Maybe the law changes or something like that. And so it’s a very narrowly construed exception. Inevitable discovery is used for evidence that law enforcement would have found anyhow. If they didn’t get it in this search, it was inevitable that they would have discovered it through other lawful means.

And then finally, the independent source doctrine simply says that if the law enforcement folks obtain this evidence from both the improper search, but also from a separate lawful source that’s completely independent of the bad search, that they can use it. So a couple of exceptions, I know that’s sort of intricate stuff to try to cram into a short answer, but I think by and large, the rule here is going to be excluding the evidence

from the government’s case. And of course, as Barb knows, ⁓ often if you’re a prosecutor and your evidence gets excluded as the evidence that you’ve obtained during a search, your case is over and you’re going to have to dismiss it.

Jill (1:09:52)
And finally, Barb, I have a question for you from Rev. Diana. She says, as I watch people being grabbed off the street, I never hear anyone read them the Miranda warning. Is it required? And if so, does that give these people any legal recourse?

Barb (1:10:09)
such a good question, Rev. And I hope that means you are Reverend. ⁓ Reverend Diana, I will call you Rev, if I may. ⁓ You know, of course, we don’t know that we’re hearing the whole exchange. We don’t know if ⁓ rights are being read that we’re missing. But ⁓ I will tell you why it is quite possible we are not. ⁓ Miranda warnings are required if there is a custodial interrogation. Both of those elements are required.

And it is a requirement of the Fifth Amendment. It’s part of the right against compelled self-incrimination. And that is people have a right to be warned so that they can exercise that right knowingly. That is the right, of course, dear listeners, that you’ve all seen on these cop shows. You have the right to remain silent. You have the right to an attorney, et cetera. ⁓ But it only kicks in for custodial interrogation, those two components. So what does it mean to be custodial? Well, under arrest. So the first element here is met.

But the second one is interrogation. I’m going to question you. And for the answers to be admissible in court, you must have been Mirandized so that we know that your confession was not just voluntary, but knowing. In most of these immigration cases, there’s not going to be any trial. There’s not going to be any questioning. I’ve got a warrant for your arrest. You have been ordered deported already by an immigration judge. So I’m just scooping you up, and I’m going to have you deported.

So there’s unlikely to be any need to question or any need for this information. Now, sometimes there is a verbal exchange when they’re talking about, I’m a citizen and other kinds of things like that. So ⁓ my guess is that they are not interrogating these people. And that’s why there may be no Miranda warnings given.

Jill (1:11:58)
Thank you for listening to #SistersInLaw with Barb McQuade, Joyce Vance, Kimberly Atkins Stohr, and me, Jill Wine-Banks. Follow #SistersInLaw wherever you listen, and please give us a five-star review. That’s what other people will use to help find the show. Don’t forget to pick up Sisters-in-Law merch and other goodies at politicon.com slash merch. And get ready for the debut episode of Sisters Sidebar on Wednesday. We can’t wait to have you there.

And please show some love to this week’s sponsors, The Pets Table, Gusto, Boland Branch, Wild Alaskan Company, and Laundry Sauce. The links are in the show notes. Please support them because they make this podcast possible. See you next week with another episode. #SistersInLaw.

Joyce (1:12:50)
You guys, it’s snowing right outside my window and it’s unbelievable.

Kim (1:12:54)
It’s snowin’ in Alabama!

Barb (1:12:56)
Haha

Joyce (1:12:57)
No, it’s not Alabama. I’m in Maine.

Barb (1:13:00)
⁓ big deal. Big deal, then.

Kim (1:13:05)
So a dog barked, Joyce, a dog barked.

Barb (1:13:08)
Exactly.

Joyce (1:13:09)
I got banished from home because I have a torn ligament in my hand and our German shepherds were tough on me, so Bob sent me up here for Ellie to take care of me. But the snow is quite a fringe benefit. I know no dogs is really bad, but snow is good.

Jill (1:13:24)
Did you ever get snow in Alabama?

Joyce (1:13:27)
⁓ so I’m flying home Saturday. We’re supposed to get it. I think we’re going to just get ice, not snow. That’s the Alabama way, right?

Barb (1:13:37)
They’re getting a lot of ice in Minnesota too.