Don’t Stop Appealin’

Barb (00:03)
Welcome to this episode of Sisters Sidebar with Joyce Vance and me, Barb McQuade. If you have a question for us, please email us at sistersinlaw at politicon.com or tag us on social media using hashtag SistersInLaw. But don’t just type them. Your voices are so important, which is why we want to hear them too. So you can email us using a voice memo using one of your notes apps, and we might play it on the show. In fact, we’ve got a couple to play for you today. So let’s get started.

Here’s a question for ⁓ you, Joyce, that comes from Kathy.

Joyce (00:39)
Hey sisters, this is Kathy in Albuquerque, New Mexico. I am a regular listener to both of your shows and love them. Today I am reading Joyce’s Substack post about a lawsuit brought by John Brennan against the Trump administration asking the judge to order the government to preserve records in

Barb (00:46)
Love all of you. I am

In the event

of a future prosecution, can you do that? Can you preemptively do?

Joyce (01:03)
Can re sue

like that? And most importantly, I listened to several of your commentaries talking about standing and that someone armed to have standing in a lawsuit. Well, Kathy, this is a really interesting question. You know, John Brennan, the former CIA director

Barb (01:19)
Please clarify. Thank you.

Joyce (01:27)
Who is widely believed to be a target of this massive investigation going on in the Southern District of Florida, home to Judge Aileen Cannon, ⁓ has not been indicted yet. But rather than sit back and waiting for that to happen, his lawyers made a decision to go to court and do something that we have not seen done before, at least in the context of these Trump revenge cases. The lawyers went to court with a very legitimate request. They said,

We are concerned that evidence that we will need to establish vindictive prosecution is being destroyed. And the basis for their concern is the fact that the Trump administration has issued policy statements to its folks saying that they don’t have to comply with the presidential ⁓ with the records preservation act. And so, you know, it’s it’s a pretty good argument, right? We are worried that these documents are being dis destroyed because.

Bosses have said it’s okay to do just that. And they then make the argument that those records will be essential for Director Brennan to defend himself if and when he gets charged. This is absolutely a valid lawsuit, and part of your question is about whether he has standing because nothing bad has happened to him yet. I expect that we’ll see the Justice Department raise that issue, and it will be unique in this situation.

You could certainly make the argument that it’s premature for him to argue this because he doesn’t have any evidence that the records are actually being destroyed. But I think his very, very competent lawyer has positioned this so narrowly that it falls within other legal doctrines that talk about what can you do if a problem is capable of repetition, you know, and and that’s sometimes used to get around standing to say, well, this can happen over and over in a posture.

Where the plaintiff’s rights are prejudiced, I think this is akin to those situations. It’s too late if those records are destroyed. And so given the fact that the government has told its employees that they can do that, I think that the director has an outstanding argument. And I think that we’ll see this used by more people. For instance, you know, if you have a family member ⁓ who is harmed by ICE in one of these excessive police cases.

And now that we’re seeing that the agencies are trying to cover them up, why not go ahead and file a lawsuit and ask for a preservation order? It’s really only directing the government agency to do what it’s obligated to do to preserve records. But in an era where we know that that’s not always happening, it feels like fair game. Barb, there’s a question for you from Tina in Eugene, Oregon.

She says Australia just passed a social media ban for minors. Do you think it’s a good idea for the USA as well?

Barb (04:26)
Boy, I think it it’s a terrific idea. I don’t know if Tina, you have read the book The Anxious Generation. ⁓ it’s ⁓ a a really ⁓ disturbing book because it talks about all of the harms that social media ⁓ affects all of us, but especially young people and how it affects their self-esteem, their understanding of healthy sexual relationships, ⁓ and just the interruptions that the effect it has on attention spans.

And so I think it’s a great idea. Now, some might argue that this is a violation of First Amendment rights of ⁓ you know, young people to be able to read and post their messages online. But remember that every right that we have is limited. No right is absolute because what the Supreme Court is interpreting is the whole constitution, not just any one clause or amendment in a vacuum. And so

When there are rules about, you know, protecting the general welfare and providing for the common defense and some of these things that appear in the preamble, it gives courts some leeway to uphold limits on constitutional rights. So this is a an an infringement of First Amendment rights, but is it unconstitutional? And I think the answer would be no. You would have to show that there’s a compelling governmental interest in the limitation. And so what you would say is.

Yes, we’ve done some studies and we see that this is very harmful on children. And maybe you set an age as children under twelve or under fifteen or ten or whatever the age is, based on real data. And then the the rule has to be narrowly tailored to achieve that compelling goal. So if you were to say, you know, twelve year olds and under can’t and figure out a way to do that. ⁓ I don’t know whether it is checking ID. ⁓ you know, there’s certainly some adverse consequence of requiring people to share ⁓

ID and birth dates and other kinds of things with social media. But ⁓ I think you could craft a statute that is narrowly tailored to achieve a compelling governmental interest such that it would be constitutional. And I think in light of all the harms that it inflicts on children, delaying the onset of social media would be a very good thing from a public policy perspective. All right, Joyce, I’ve got one for you. here’s a written question.

that has come to us from Sandy, who asks a really good question, which is how many times can you appeal a case?

Joyce (06:58)
This is a question that I love because you know I’m nerdy about these things that involve appeals. And so here you go. I’m gonna try to do a semester of appellate procedure in about a minute here. ⁓ in the US federal court system, you only have one appeal as of right. That’s how the lawyers phrase it from a final trial court judgment. But that doesn’t mean it just gets heard one time, because a single case can theoretically go up.

Through three distinct stages of appellate review if higher courts agree to hear it. So ⁓ when a federal lawsuit or a criminal case finishes at the trial level, this is the hierarchy that gets followed. The litigant who loses has an automatic right to appeal that final judgment from a U.S. federal district court to a U.S. Court of Appeals, and a panel of three judges reviews the trial court’s decision. You don’t need anyone’s permission to file that appeal.

But after that, you do need permission. Let’s say you don’t like what the Court of Appeal says. You can file a petition for rehearing en banc to have the entire court hear your case, not just the three-judge panel. That’s discretionary and it’s very rarely granted. And if you lose in the en banc court or if the on banque court declines to hear your case, then you can also try to take an appeal to the United States Supreme Court.

Again, discretionary, if you lose at the Court of Appeals level, this is your next bite at the apple, but it’s far from guaranteed. That’s the basic outline, those three steps in an appeal, but there are a couple of wrinkles, because while you only get the linear path in each appeal going through the Court of Appeals en banque and the Supreme Court, sometimes a case can end up being appealed multiple times under specific legal circumstances.

The first one, and I once had a case like this, it gets to the Supreme Court and they remand it for the district court to do something else. You know, instead of just issuing a ruling, they say, Okay, district court, here’s the law, now you should apply it. Then you get a new final order at some point down the road, and that final order can go through the appellate process again.

Sometimes there are interlocutory appeals. These are rare exceptions to the idea that an appeal doesn’t happen until the case is over. But in some circumstances, we’ve seen Donald Trump do it with immunity. A party can appeal a critical non final ruling before the actual trial is finished. So then you have that appeal and you can have an appeal again at the end of the case. And then finally, in criminal cases only, there is habeas appeal. We call that

collateral appeal where a defendant has exhausted their direct appeals, but they have a limited period of time they can file this separate suit called a writ of habeas corpus, and it challenges the constitutionality of their imprisonment, frequently arguing that they received inadequate assistance of counsel, which in many circuits you can’t even argue on direct appeal, or arguing that they’re actually innocent or that there’s newly discovered evidence. So if the district

Court denies this writ of habeas, that can also be appealed on up the chain. Very rarely you might see the Supreme Court hear a habeas case. Typically, once the Supreme Court says no, it’s over. Let’s hope that Donald Trump understands that that’s now the case in his lawsuit with Eugene Carroll.

Barb (10:45)
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Joyce (11:32)
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Barb (12:46)
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Joyce (13:39)
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All right, Joyce, here’s another one for you. This is also a a ⁓ voice message that comes from Nancy. Hi, this is Nancy from Ezra, Maryland. I love your podcast. I am a regular listener on my Saturday morning runs. I just listened to your July episode, and while I agree with your analysis and especially your dismay, I have to bring up one point that I think you are missing.

Joyce (16:59)
Fourth episode.

Doesn’t the Supreme Court.

Barb (17:14)
democracy

to a unitary executive model. That unitary executive is not going to be Donald Trump forever. It’s not going to be someone who believes in Project 2025. But in a little over two and a half years, it’s going to be a Democrat. I strongly believe and at that point people without recourse and take hold of correcting all wrongs brought upon us.

By this administration and by this Supreme. I am an optimist by nature, and I can’t be out on that ledge with you unless I see the pendulum swinging back towards sanity and the rule of la By the way. So I won’t have to listen to any speeches before the fireworks dazzle everyone, not the mega crowd.

Joyce (18:10)
Just

Barb (18:12)
Thanks for all.

Joyce (18:13)
you do. Well, Nancy, you raise a fair point. The Supreme Court is deciding cases not just for the length of Donald Trump’s presidency. They’re deciding them, as they love to frequently remind us, for all time. And that means in just a few years, God willing, there will be a Democrat in the White House, there will be a restoration of the rule of law, and that Democratic president will be faced with the issue of how she or he

Handles these new rules that the Supreme Court has left us with. ⁓ someone who has been a really great mentor to me for the last couple decades of my career says something that I think is very wise. He says that Democrats are afraid to use power. And there are good reasons to exercise restraint in the use of power. You don’t want to overuse it. I mean, Donald Trump is certainly an abject lesson.

But at the same time, Democrats, I think, will have to be willing to seize and use power, particularly the power that the court has given them in this area in order to right-size government and restore democracy. I think that we have to be very careful about how this happens and about the conversations that we have. And to me, it seems that the central tenant will be.

That we value democracy above all other things, and that we are willing to take the steps that need to be taken in order to restore balance among the three branches of government. You know, the problem with the unitary executive theory is that it allows, and we’re seeing it happen right now, for the president, for the executive branch to exercise an outsized share of that power. And so it will be important to have an executive branch that respects that.

That’s a job for Congress. And and while, you know, in in this theoretical democratic administration to come, the president is playing a role in restoring that that balance. It will be up to Congress to pass new laws that will pass constitutional scrutiny so that the balance among the three branches can be reset. Well, Barb, there’s a question for you from Teresa.

Barb (20:33)
Hello, sisters. This is Teresa from Tucson, Arizona. I am no legal or congressional expert at all, but I was thinking about the slaughter had this question. If Congress created the independent commissions through an enabling act, could they then dissolve them so they no longer exist? Which would mean that Trump could not appoint his loyalists to commissions that don’t exist, couldn’t create new independent commissions.

Joyce (20:42)
If you’re

Barb (21:03)
With different names, slightly different objectives, but still achieving the original goal of having smart, knowledgeable people appointed to the commissions? Would love to hear your thoughts on my burn it down to build new concept. Thanks. So thanks for that question, Teresa. It’s an excellent question. And I think the answer is yes. Anything Congress creates, Congress can uncreate. It could pass new legislation that dissolves a prior organization.

And I think one thing that they could do if they were to recreate, say ⁓ you know, the Environmental Protection Agency, just hypothetically, ⁓ the executive branch gets to e execute the laws. But all of these executive agencies have developed over time not just an executive function, but a rulemaking function. You know, they decide what’s the right emissions ⁓ standards. I think what they could do is sort of cut these agencies in half.

And you know, the enforcement arm of the EPA would would have to stay in the executive branch, but they could have an EPA rulemaking arm that’s in the legislative branch. I mean, one of the things that has evolved over time makes common sense, which is Congress passes laws broadly. They create an EPA, but then they delegate to the EPA the job of figuring out the minutiae, right? Like how many particles ⁓ per million should we allow of air pollution under the Clean Air Act, you know, these kinds of things.

And under what the court has developed, the major questions doctrine, what they have said is Congress does not delegate major questions to these agencies. You have to have legislation, otherwise, you have to have a law on it. I think it’s gonna bog down Congress to actually have to have a law on everything. And so I think what we might see is the creation of independent agencies that have a rulemaking function that are housed within the legislative branch. And I think that could be a very good way.

of perhaps reining in some of the executive power that has been given to the president in light of the slaughter case. So great suggestion, Teresa.

Joyce (23:08)
Barb, the last question today is for you. It’s from Tracy in Beverly Hills, and they ask, Do you need to be extroverted to be a good lawyer? How would you recommend developing it as a skill?

Barb (23:22)
This is a great question, Tracy, because my answer is no. You do not need to be ext extroverted to be a good lawyer. In fact, I know many introverts who are outstanding lawyers. You know, I think we watch television and the movies where it’s all very bombastic or they start reciting lines from the Declaration of Independence, you know, and get all melodramatic. In fact, I think a very understated tone is very persuasive in court.

I would imagine that in at the appellate level, being an introvert could even be ⁓ a benefit because some of the theatrics are designed for the jury, ⁓ and judges just don’t want any of it. They just want the facts and the law. And so I think that introverts can actually be quite effective as lawyers. You know, certainly extroverts, perhaps it comes naturally to them to stand up in court and spout their views on things. But I I have seen very effective lawyers.

Who are quite understated, I think it brings them ⁓ a great deal of credibility to simply focus on the facts and the law. ⁓ to, you know, using your voice ⁓ in a moderating way is actually very effective. If you’re always loud, then being loud doesn’t really do much. But if you’re mostly quiet and every once in a while you’re a little bit louder, that can be ⁓ incredibly powerful. And so I wouldn’t worry about developing.

Extrovert tendencies as a s necessary skill for being a lawyer. I think the best advice I ever heard about being a lawyer is you have to be true to yourself. Jurors can see a phony a mile away. What they want to see is authenticity. So extroverts should be extroverts and introverts should be introverts. What you must be is prepared and to focus on facts and law because that’s what wins cases, not a larger than life personality.

Joyce (25:14)
Thank you for listening to Sisters Sidebar with Barb McQuade and me, Joyce fans. Keep sending in more of your great questions for next week’s show. And if you send in a voice memo, we’ll try to play your question during our next episode. That’s been a lot of fun for us to hear you ask the question and then get to answer it. Please follow Sisters Sidebar and hashtag SistersInLaw wherever you listen and give us a five-star review.

It really helps others find the show. Show some love to this week’s sponsors, Honey Love, and Wild Grain. The link is in the show notes. Your support for them helps to make this podcast possible. And don’t forget, you can pick up hashtag Sisters in LawMerch. We do love our merch. We have other goodies at politicon.com/slash merch. We’ll see you every week on Wednesdays and Saturdays.

For new episodes of hashtag SistersInLaw and SisterSidebar. Thank you for listening to Sister Sidebar with Barb Barbel.

Barb (26:20)
Yeah.