Everything Is Illegal

Joyce (00:12)
Welcome back to Hashtag Sisters in Law with Kimberly Atkins Stohr, Jill Wine-Banks, Barb McQuade and me Joyce Vance. In today’s show, we’ll discuss new developments in DOJ’s prosecution of the Southern Poverty Law Center, Trump’s newest scam to make money off the presidency using Truth Social and selling early access to his posts, and another loss in court for the Trump administration.

This time in a lawsuit alleging Harvard was engaging in antisemitism. But before we get to the serious stuff, summer is almost over. There’s a couple of more weeks. Y’all, have you taken up any new hobbies or done any new outdoor activities this summer while we’re still living with it?

Barb (00:57)
Well, I haven’t taken up any new hobbies, but in the summer, ⁓ I I play I play tennis and occasional round of golf. And you know, I’m always looking for that elusive perfect forehand. So I I practice but I have a really nice group of of friends that I play tennis with and so it’s always enjoyable even when my shots are going into the net or way long out out of bounds.

Joyce (01:21)
Well, as y’all can see on video, my this is our younger German Shepherd. Our older German Shepherd has had a traumatic medical week and is recovering, but recoveries along the way. This one Elsa, who I hope won’t show up too much during the episode, has taught me to throw her ball constantly. So I’ll be sitting at my desk throwing the ball for her all day, which means I now have a great throwing arm. ⁓ what about you, Kim? Any new activities this summer?

Kim (01:48)
Well, the one thing I can think of is I’ve been lucky enough to be on the coast quite a bit, ⁓ over the summer and I love the beach and I love being in the water. And traditionally I sort of splash around in it. But this year, after being inspired by people who I see like legit swimming, you know, parallel to the shore, I’ve been trying that a little bit and I think I’m improving my swimming skills a bit in doing that. It’s actually kind of funny. When I did it, ⁓ I was on Martha’s Vineyard, ⁓

⁓ last week and I was doing it a bit and so I picked a point, I found where my towel was on shore, right? And so I’m like, all right, I’m gonna swim and see how far I can go. So I’m swimming and I’m swimming. And I look to my side and the towel is still right there. And I swim and I swim some more and I look and there’s my towel. I’m like, what the heck is going on? Like it’s hard when you have the current going in a certain way. So then I turned around and I started swimming the other way and boom, I’m at the jetty like way down.

And I’m like, okay, well, how do I get back? Do I get out and walk back to my cellar? Do I do I try to swim? Because I will never get there. ⁓

Barb (02:56)
It’s like a swimming treadmill.

Lately.

Kim (03:05)
Well, they had a they I was a target for a long time that I was basically standing still off the shore of of Oak Bluffs.

Joyce (03:14)
Jill, what about you? What have you been up to?

Jill (03:17)
So like like Kim, I’m not doing anything really new, but pursuing all the things I always do in the summer, which is ⁓ taking long walks and swimming, which I only really learned to swim the year we lived in Florida, which was in nineteen ninety. And my husband

Well, I yes, I lived there for a year. ⁓ my husband moved his business there. And ⁓ I was gonna join a law firm there and was about to study for the bar exam when I realized that Michael really wasn’t gonna enjoy his business in Florida. He needed to come back to Chicago. So I had the best year of networking and just meeting people. And ⁓ I was on the board of one company ⁓ that kept me at least

earning some money while I was there because I couldn’t practice law because I wasn’t a member of the Florida bar. But yeah, I lived in Florida for a year and it was really, really fun. Made some great lifetime friends. ⁓ yeah, it was wonderful. But I did really learn to swim that year because our the house we rented had a pool and my husband is was a college swimmer, high school and college swimmer. And so he really taught me to swim. ⁓ so that was a good thing. But w we’ve been kayaking ⁓

as well. And I know you’ve taken up kayaking, so that’s a lot of fun. But we’re also trying to go to more theater where it’s nice and cool to stay away from the weather. But also ’cause it’s it’s the theater in Chicago is so exciting and wonderful. We have everything from Shakespeare to the most modern things, ⁓ and we have great local theaters. So I’m doing a lot of that this summer.

Kim (05:10)
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Barb (05:37)
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Kim (05:40)
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Barb (07:51)
Well, I’m joining my sisters today from the corner of my daughter’s bedroom in her brand new apartment in the big city. So please forgive the hostage video appearance of my background. But I want to talk about ⁓ something that happened in a case this week, some new developments in the fraud case against the Southern Poverty Law Center. We discussed this case back in April when the charges were first filed. Joyce, can you please remind our listeners

Who the Southern Poverty Law Center is and why some critics have accused the Department of Justice of targeting it for political reasons?

Joyce (08:27)
Yeah, so the Southern Poverty Law Center, a civil rights group in Montgomery, Alabama, they’ve been around since the early 1970s. And they became prominent through litigation that essentially forced the Ku Klux Klan to fold. More recently, they’re well known for the work that they do, tracking hate groups and tracking other extremist groups.

And that’s maybe what’s brought them into the Justice Department’s eye, because they have certainly targeted hate groups, whether it was the Unite the Right group that led the rally in Charlottesville, Virginia during Trump’s first term. But more recently the focus has been on the white supremacist groups that SPLC tracks and designates as extremist groups. So all of that I think makes it self-explanatory why this administration might be interested in going after them.

Barb (09:20)
Yeah, and Jill, can you ⁓ please explain the charges as they existed before this week? What was the government’s theory of the case?

Jill (09:27)
Well, there are actually two indictments before this week, which is the third, ⁓ the second superseding. But let’s go back to the original one from last April, and it focused on accusing the Southern Poverty Law Center of misleading banks and donors and using the money that donors gave them for purposes that weren’t disclosed. And they have a

an informant program where they hire people to be informants on these hate groups. And of course you have to hire somebody who’s a member of that group to get information about that group. And so that’s what they were accused of was using money to pay informants and that that money was then used to actually support the hate groups itself. That was the basic, I would say, outline of the original indictment.

Barb (10:24)
And Kim, this week we saw new charges, adding a codefendant. What are the new charges about?

Kim (10:30)
Yes, so a new co-defendant, a person, was added to in this new super seeding indictment. So Heidi Beerich, who was ⁓ the person at the Southern Poverty Law Center who was in charge of ⁓ paying these informants who went inside of these white supremacist groups, was arrested in California.

as I said, in a supersedent indictment and her s and she herself is also facing fraud charges. Basically the theory of the case against her is that ⁓ A, she was the one who facilitated these payments. So she was doing an action that led to this fraud. And also one of the informants who was paid was also someone who she was living with at the time. And the indictment claims that the money that this person owned.

went into a bank account that was jointly owned by her and this person. I think the implication is that she herself was making money off of this practice of the Southern Poverty Law Center paying informants. And I know we’re gonna get into this a little bit more, but I just can’t underscore enough that there is nothing wrong with an organization seeking to ⁓ bring light and try to ⁓ understand

⁓ these groups doing things like using informants to get information from the inside. In fact, this is something that the FBI itself used to do. I have friends who used to work at the FBI office who actually did infiltrate white supremac groups ⁓ in the 90s and early 2000s. That was literally their job that they were paid to do by the government. So it it’s really interesting that the government is making a case that this is somehow fraud.

Barb (12:23)
Yeah, you know, I I agree with everything you said, Kim, especially about the prior indictment. I do wonder about these new charges against Heidi Burich with the allegation that she was ⁓ making payments to an informant and sharing a bank account with him. And that, you know, I I I’m always a little cautious about, you know, we don’t know what we don’t know. And and that that suggests at least a conflict of interest. Yes. And and and so Joyce, what

Kim (12:49)
The

conflict of interest at the least and self dealing at the most, I think what that indictment is getting at.

Barb (12:54)
Yeah.

This this does look a little different to me. Joyce, what do you think? Do you think these charges are more meaningful than the prior charges, or do you think this is just more the same?

Joyce (13:04)
You know, I’m withholding judgment until we learn whether the government has the evidence to back up the allegations, because this is a Justice Department that’s been far too quick to leap before it actually looks. Heidi is a well-known quantity in the civil rights community. She was an outstanding leader at SPLC. Her tenure was unblemished. So, you know, like you say, if they can prove it, let’s see what’s behind it.

But we know that Southern Poverty Law Center had a lot of concerns about ensuring that these transactions were blind, so that none of their informants’ personal safety was ever compromised. And you know what I would attribute this amendment to is the fact that DOJ took so much grief for indicting only the SPLC but no individuals, when the indictment itself was full of allegations about individual misconduct. So

I think that this indictment is actually an effort to make the case more palatable to a jury. You know, the trial date was I think set in October. I don’t know if this will move that trial date back at all. I would suspect that it certainly will. ⁓ and so lots of unanswered questions here.

Barb (14:19)
Yeah, it’s very interesting in that if these allegations are true that that Heidi Birch was sort of paying herself out of funds that belong to the Southern Poverty Law Center, then it’s actually the Southern Poverty Law Center that’s the victim here, right? That she’s taking funds that donors sent to them for the purpose of using this informant program and then she put in her own bank account. Now, it may be that she put in the bank she she paid this informant, they share a bank account, but as I said, that conflict of interest makes me a little bit uncomfortable.

Jill, this is the second superseding indictment in the case. Can you just explain what a superseding indictment is and why we might get new charges against a new defendant months after the first indictment is filed? How does that work?

Jill (15:05)
A superseding indictment is exactly self-explanatory. It is a indictment that succeeds the original one. So there’s an indictment, and then as is not unusual, prosecutors continue to investigate. ⁓ in Watergate, we indicted in March, continued to subpoena records and ⁓ interview witnesses, and we got

significant information that changed how we proceeded in the case. ⁓ So it is not unusual to continue an investigation and to s supersede an indictment with a new one. ⁓ I I do want to say that in this case we have to remember that the FBI was actually a beneficiary of some of the information. The ⁓ Southern Poverty Law Center was communicating with the FBI and indictments resulted of various people

Who were informed on because the informants from the Southern Poverty Law Center gave information to the FBI. So it it really does change how you perceive what was going on. And yes, ⁓ she ⁓ the new defendant shared a bank account, but the money that was paid was for his work as an informant. And so I’m a little less skeptical.

of the conflict of interest and whether she did anything particularly wrong. Part of it will depend on whether the organization knew she was living with the informant. ⁓ so I think there are, as as Joyce said, we will withhold judgment until we know all the facts. But I just want to say there is a possible exculpatory ⁓ explanation for it.

Barb (16:53)
Yeah, Kim, what about you? Do you put this case in the same basket with some of the other politically charged cases we’ve seen, like, you know, Jim Comey’s Seashells or Letitia James’s baseless charges for mortgage fraud? Or do you think the the new charges suggest that there’s a legitimate basis for these charges? You know, for example, one of the allegations is that these funds that ⁓ she paid to this informant with whom she was living were used for their mutual household living expenses. Mm-hmm.

Kim (17:20)
So I think both things can be true in a way. I do think that it was a politically motivated investigation, ⁓ because Southern Poverty Law Center has gone after groups which unfortunately are part of the base of the Republican Party, ⁓ including some that have been classified as hate groups or individuals who have been ⁓ classified as those who foment hate or who could potentially

Do things that threaten the safety of Americans, but in so doing may have come across something that may or may not be nefarious. I think I think of a similar situation with the investigation into Act Blue, for example, which is the Democratic fundraising group, that I think they were probably targeted for ideological reasons, but at the same time, it was uncovered that they did ⁓ maybe didn’t do as good a job as they should have done vetting.

their donors to ensure that no foreign donations were going into campaigns. Both things can be true. So again, that the the jury is out as to the actual what actual evidence is presented in these crimes that could ⁓ result ⁓ in in some sort of there there, but I don’t think that the two things are mutually exclusive.

Barb (18:39)
Yeah, that’s such a good point. You know, I I can think of so many cases that we began to investigate and then we found some weird cover up along the way that we thought meant that somebody was obstructing the investigation, that they were involved in fraud. And so often it was because they were involved in some inappropriate romantic relationship. ⁓ it’s amazing how often that comes out. So kids, you know, just follow the rules, one relationship at a time.

Kim (19:07)
Conflict. Avoid conflict even if you think that it doesn’t Yes.

Barb (19:10)
Always ends badly.

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Well, because he’s never one to give up an opportunity for the grift, President Trump announced that he is now allowing people to sign up for subscriptions to get early access to his truth social posts. ⁓ in a new service called Truth API. I think the I in that stands for insider trading, maybe ⁓ for the cool cost of one hundred thousand dollars.

thousand dollars people let’s say maybe ⁓ you know financial firms or what do you call those things you can bet on everything prediction prediction markets can get an early jump in order to profit off of things that the president may announce that could move markets. Now again where I came from

Jill (23:13)
Prediction markets.

Kim (23:28)
the law school I went to that sort of made it sound like insider trading. But who knows? But there may be even other legal problems with this based on a new lawsuit that was filed this week. So Barb, let’s start there. Some media companies ⁓ have gone to court claiming that truth API is unconstitutional. They’re making a novel claim here. Tell us about it and what you think of it.

Barb (23:53)
Yeah, so you know, in the absence of what we would normally expect, which would be an SEC investigation, but of course the SEC is controlled by the Trump administration, we’ve instead seen some private litigants file a lawsuit in a pretty interesting case. So one is the Freedom of Press Foundation, which tracks some of Trump’s posts on social media, and the Intercept, which is ⁓ kind of a muck raking journalist outlet. But together they sued the Trump administration for violations of the First Amendment and the Fifth Amendment.

Which is kind of interesting. So, ⁓ you know, first it’s as you said, it’s called Trump API, which stands for Application Programming Interface. My daughter explained this to me. She works in the AI field. And she said it’s a software ⁓ that allows two different applications to talk to each other. And so these subscribers would get these advanced notices. If they had a hundred thousand dollar per month subscription, they could get advanced notice of Trump Trump’s ⁓ truth social posts.

⁓ which ⁓ the the marketing materials say they are market moving posts. But the First Amendment theory is that Americans have equal access to a president’s public announcements. And by charging a fee for those announcements, it is burdening other plaintiffs like these press outlets if they want to have access to this same information that other people have access to.

They have to pay $100,000. They say they’re not willing or able to do that. And it’s a violation of their First Amendment rights. So that’s one theory. The other is that this is a violation of their Fifth Amendment rights. And it’s based on the takings clause of the Fifth Amendment. This is taking me way back to law school. Now the Fifth Amendment is full of lots of clauses, right? Like when you plead the fifth, where you don’t have to answer questions that might incriminate yourself. This one is the takings clause, which says that

Nor shall private property be taken for public use without just compensation. And so this is the one that’s kind of a novel theory. What they say is the Fifth Amendment prohibits the government from imposing extortionate or unreasonable conditions on the availability of government information that’s unrelated to the cost of providing that information. So in other words, we all have a right to this information for free.

And when they make us pay for it, they’re essentially ⁓ doing a taking of our private property for public use without just compensation. So that’s a pretty creative one. It might be crazy enough to work, but I think at the very least this First Amendment theory is is very sound. ⁓ just as we saw ⁓ i when Trump was using Twitter for public announcements, that was considered a public forum

And that people had equal access to that information. I think that theory will be strong and you know, ⁓ this Fifth Amendment theory will be very interesting to watch.

Kim (26:50)
Yeah, I think that it will too. It’s amazing how much this administration has caused courts and litigants to think of whole areas of law in different ways than we ever thought we needed to think about it. But this is really interesting. So Jill, as Barb pointed out, there are laws in place that ⁓ you know, generally prohibit things that may be insider trading. One law that I can think of off the top of my head is the Stock Act, which I’m

was passed in order to prevent lawmakers, members of the Congress, from being able to trade on information that they get from their that they information that they know from their lawmaking activities that the general public may not know, to keep them honest. I remember when I first started covering Congress here in Washington, that bill was being heavily ⁓ debated and got some bipartisan

support. But I think most people don’t realize that it also applies to the president and vice president too, that they’re not allowed to use information that they get from their positions in order to you know, line their pockets. So do you think though that Trump will face any repercussions under that law if what he’s doing is in fact illegal?

Jill (28:06)
Well, has he faced any ⁓ consequences to any of his illegal contact? No, he hasn’t. So it’s a question of right now, because the Department of Justice, of course, would not prosecute him, there’s no way that anything’s gonna happen, and because Congress is not bipartisan, Congress isn’t going to do anything either. But, you know, the statute of limitations doesn’t run if he’s not in office in two more years.

This certainly could be a lawsuit that a new administration would bring. So there could be consequences. The Stock Act was passed in, I think, 2012. It was under Obama. And it should apply here because this is, you know, first of all, you have to say grift is grift, but $100,000 a month? Yeah. I mean, this is like in a whole different category of grift.

⁓ i you know, if he was charging a hundred thousand dollars forever and for always, maybe that’s one thing. But he’s advertising that it is for early access to market moving information

Kim (29:16)
He’s giving it away. Like he’s not just saying just early access to you know the food I’m cooking. No. He’s saying out loud what it is.

Jill (29:24)
Exactly.

So it’s it’s it’s like he’s confessed to the crime. I don’t know how else you could say this would be definitely admissible against him, ⁓ because he publicly said it. So I I think it’s clearly a crime. I think the First Amendment is very strong. ⁓ my law school classmate, Judge Buckwald, issued a first amendment decision in two thousand and eighteen.

the in the Twitter case saying it’s a public forum. The president is using this to announce government business and so everyone has to have access to it. You cannot block people from having it. Not just you can’t charge people and then keep other people away. So ⁓ I I think this is a clear violation of everything.

Kim (30:10)
Yeah, I I do too. And on the media front, you know, as a journalist, I really don’t like the idea of this. If it’s upheld, I I worry that some media organizations will choose to pay to do this to get the scoop on things, especially those that are very scoop driven. The same way that a lot of media organizations in a way that I don’t I don’t support.

are joining in partnerships with these prediction market companies in order to get their data from that. That feels really, that feels sketched to me. ⁓ I would not want to be beholden to these the data in these prediction markets, given that a lot of people are involved in that that have financial incentive to create certain amounts of data. I can’t trust that it’s even accurate.

And not to mention all of the money that’s being made off of it. And I think if you start pushing media companies into that game, that would be really, really bad. ⁓ so Joyce, Congress is also probing the matter. What are some lawmakers doing and what more could they do theoretically, keeping in mind that they’re controlled by Republicans right now?

Joyce (31:16)
Well, you know, I guess you’re talking about what would the world look like if Congress had a spawn, which is just an endless party game in my house right now. Hey, ⁓ Kim, I don’t to the point you were just making, I don’t know if you saw this reporting that said that there were already ten entities that had signed up for Trump’s hundred thousand dollar a month pop. I don’t know who they are, but I mean that’s a million dollars a month.

Kim (31:41)
Well, it might be a little less. The reporting that I saw was that it was unclear if all ten of them paid the full hundred thousand, which kinda tells you how valuable they may think this is. They may be giving it out on a discount to some people.

Joyce (31:54)
Well, I mean isn’t there the possibility that this is just more pay to play, right? You’ve got to pay the hundred thousand dollars. I mean, there’s just so much grift here. Jill, what was it you said? Like you said something really great just now and the words have flown out of my mind, but it was like everything is illegal or something which is just the most true thing ever here. And and so yes, no surprise that

All of the action that we’re seeing in Congress is led by Democrats. I mean, Mark Warner, the Virginia senator, ⁓ introduces the most direct action, right? He introduces a new law called the No Profit Act. And it just says this is illegal. You can’t do what Trump is doing here. He owns truth social, he benefits financially from all of this stuff. So that I think is a direct action.

And as you point out, Kim, we will see no movement on that until after the midterms, when hopefully the Senate will be in a position to kick that one off. ⁓ Elizabeth Warren and Adam Schiff have reached out to the SEC to call for an investigation. And of course, that’s unlikely to happen while Donald Trump is in office. But as a prosecutor, I think that that’s important. I think that puts down a marker.

To Jill’s point about the statute of limitations being five years and continuing to run after Trump is out of office, you know, I I bet you Trump is sitting on a hip pocket opinion from the Office of Legal Counsel that says that what he’s doing is an official act and that that would bring it within the scope of immunity. And so somebody is gonna have to take this to the Supreme Court if there’s ever a prosecution and try to get the court to update what they said in in that case.

So that it’s not like any time the president says it’s an official act it is. When Donald Trump is making a personal profit using public information, that does not somehow become the official act of a public official. And maybe this is where that damn breaks. ⁓ I I think for my money, the most interesting thing that’s happening in Congress right now is that Jamie Rank Jamie, sorry, Jamie Raskin, the ranking member of the House Judiciary Committee.

is using his position to open a house investigation. And although he’s constrained, he can’t, for instance, issue subpoenas without the permission of the majority, he’s setting it up, he’s getting the ball rolling. This takes some time. Come January, I would say that Congressman Raskin will be ready to rock and roll on this and we will update y’all when that happens.

Jill (34:29)
Of course, Joyce, if it is in fact a ⁓ official act, isn’t that more proof that the First Amendment is violated?

Joyce (34:37)
You know, these things cut all different ways, Jill, right? And I think you make this great argument that as Trump tries to use these novel paths for grift, he exposes himself in in other areas. I think you’re dead on the money.

Kim (34:51)
Yeah. And you know, I just think that it’s really interesting because clearly this is a grift. He’s pro he’s proven himself to be very greedy already, ⁓ profiting two billion dollars since returning to office. I think it’s also one thing I think it’s funny, I think it’s also evidence of how poorly Truth Social is doing. It’s lost a ton of money since going public.

People don’t care anymore. The things that he tweet like he’s again tweeting as of this recording that the Strait of Hormuz is open. Nobody believes him, nobody cares, nobody’s paying attention. I think not even his supporters care about it so much. So I think he’s trying to do anything he can as ad revenue drops to make money. But again, it’s a tell from the grift itself is a tell at to what a terrible product it is. So maybe that’s why maybe reportedly, allegedly, he had to give some people discounts. Just saying.

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Joyce (36:46)
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Jill (38:57)
Well, here’s another case that’s been dismissed. ⁓ this time it’s a case that the Department of Justice brought against Harvard or Harvard, I can’t say it the way you bustonian saying for me also, please. anyway, it’s been dismissed because ⁓ there was really no evidence of a continuing action of anti Semitism by Harvard. So Joyce

Kim (39:10)
Park your car and have it yet.

Jill (39:25)
Let’s start with that and let’s look at what anti Semitic acts did DOJ allege against Harvard or Hobbit?

Joyce (39:34)
Yeah, I mean this was ⁓ pr principally it was a deliberate indifferent selective enforcement case. And so the allegations were that students and others allegedly created a hostile environment for Jewish students and Israeli students, people of of that national origin, and that Harvard knew about it, but they failed to enforce neutral campus rules that they would have enforced if it had been anybody else. So tons of allegations of specific situations.

Some of them include, for instance, a protest that was taking place at a library where only Jewish and Israeli students were blocked from accessing the facility that was open to other Harvard students. Or another incident where an Israeli student who was filming a protest was allegedly assaulted. And the school really didn’t take it very seriously. In fact, ended up giving a graduate stipend to one of the men who was alleged to have been involved.

So there’s a whole laundry list of factual allegations like that in the government’s case.

Jill (40:39)
Yeah, there was even things like one student was forced to wear a baseball cap over his Yamelke so that he wouldn’t be identified as Jewish. ⁓ but bar okay, so these were allegations. What law was supposedly violated by Harvard’s action or inaction, failure to act?

Barb (40:57)
Well the lawsuit had essentially two ⁓ claims. One was a violation of the Civil Rights Act of nineteen sixty four. You know, this was the massive Civil Rights Act signed by Lyndon Johnson that’s got lots of different components to it. And one of those is Title VI, which says that no person in the United States shall be discriminated against on the ground of race, color, or national origin under any program receiving federal funds. And the lawsuit, as Joyce described,

Argued that Harvard was d either deliberately indifferent or intentionally allowing harassment against Jewish students in violation of Title VI. That was one claim. The other was a fairly simple breach of contract claim. It said that as a condition of accepting federal funds, Harvard had agreed not to discriminate against students based on race, color, or national origin, and that by allowing the harassing of Jewish students.

They had violated that contractual promise.

Jill (41:58)
And Kim, the judge has already ruled on this now. ⁓ explain and analyze his ruling that this case should be dismissed.

Kim (42:09)
Yeah, so the ruling, it’s really great. ⁓ it’s only a cut, what’s it? One, two, three, four pages long. It’s a quick read if you want to take a look at it yourself. And what it does is it dismisses the case on what we civil attorneys call a 12 B six motion. And what that is, is that’s at a very early case. That’s after the complaint was made. Basically, if a party moves to have the whole matter dismissed because the government failed to state.

claim, which means that they have not the the facts as they stand in the complaint, if there is evidence to pr to ⁓ prove all of those things were true, then if that case went to court, it couldn’t win. So it’s like a early and like definitive dismissal that this case is really, really bad. It’s very rare to get a twelve B six dismissal. You usually lose on some judgment. It’s extremely rare and the fact that they he that judge ⁓

Stearns did it and did it so ⁓ quickly, ⁓ it is really remarkable. He basically said that the three instances that were cited in the government’s complaint, and and I will quote from him in a minute, that even if all those things happen, it was not enough to rise to the level of violation of ⁓ Title VI or breach of contract, he he writes, without diminishing any concern arising from these.

Occurrences. The court finds them singly and collectively to be too isolated and episodic to support a plausible inference that any institutionalized noncompliance with Title VI persists at Harvard to this day. And the government, he puts a finer point on it, kind of noting that the government went from claiming that these three instances alone constituted a violation to alleged that they believe that the violation is ongoing.

he went on to say, as noted above, the amended complaint is devoid of any factual allegations plausibly establishing that any events might be construed as evidence of ⁓ noncompliance. So it’s like well, however you read this complaint, there is no there is no liability that can be ⁓ inferred from it. It’s a big, big loss.

Jill (44:27)
Right. And there was just nothing that related to current events as opposed to past ⁓ semesters. So let’s look, Joyce. ⁓ it was a narrow holding, as I read it. And you’re our appellate expert. It seemed to me that a narrow holding is more likely to be upheld on appeal than if he had gone broader. What do you think?

Joyce (44:51)
So look, if DOJ is smart, I’m not saying that they are, right? Because on rock earth one where DOJ operates the way that we’re used to it operating. If DOJ was smart, they would look at this decision and they would say, Yeah, we sort of screwed the pooch here in round one. And they would amend their complaint and come back for round two, because the issue here is that

You know, serious evidence of anti-Semitism at Harvard, and there is evidence here of, as the judge said, episodic incidents that doesn’t necessarily make a legally sufficient case under Title VI. And so really what Judge Stearns is saying to the government is you have not adequately pleaded what you need to in order to make out a case. Smart lawyers for the government would go back and fix that because one of the flaws that he identifies here.

Is that the amended complaint lacked factual allegations of any continued violations after Harvard was notified of its noncompliance in 2025? And that makes this complaint really a non-starter here. That is the kind of narrow ruling that could readily be affirmed on appeal. So we’ll see. Does DOJ still have it? Or, you know, is there just nobody, nobody there who understands what’s going on in these cases?

Jill (46:13)
Well, hopefully they’re not listening, because if they are, they just got good advice from you. ⁓ and Barb, i I was skeptical about this ⁓ case to begin with, and there’s some evidence that the DOJ, that is, Donald Trump and his DOJ, were hostile to Harvard for reasons unrelated to this. ⁓ do you have any reason to suspect that hostility to Harvard was really what was behind this case?

Rather than any actual fact.

Barb (46:45)
I don’t know, you mean like Trump’s accusations that Harvard was harboring anti-American radicals, or that he withheld grants, that he revoked visas for international students, that he threatened to remove its tax exempt status, that he pressured Harvard to change its curriculum and end its DEI programs. I think all of those things suggest a a a hostility from Donald Trump to Harvard.

The question is why, right? This is one of America’s most prominent and prestigious educational institutions. And I think it’s for exactly that reason, right? He wants to silence his critics. going after universities has always been an authoritarian move because those are centers of power. And it’s also a show of force against elites, right? If he can make them bow in the same way he went after the biggest, most powerful law firms and the biggest media outlets.

If he can make them bow, it makes everybody else say, Wow, if Harvard had to cave, then what are we gonna do? And so I think that’s a big part of it. you know, in a prior case, ⁓ similar to this one, another case against Harvard, a judge said, you know, anti Semitism is a terrible thing, and w nobody wants to ⁓ continue it. We certainly think that it should be ⁓ stopped and enforcement of ⁓ anti Semitic harassment is important. But ⁓ that judge said

That it was a smokescreen. ⁓ that certainly there is some going on, but Trump was it conveniently using it because it’s very difficult to defend anti-Semitism. And so that smokescreen was an effort to take down this powerful institution of higher learning by making this accusation that’s very difficult to defend.

Jill (48:33)
Kim, is this case just another case where the judge is justified in denying the Department of Justice presumption of regularity? I mean, we’ve seen another one, Katie Fang’s lawsuit. Yeah. No presumption of regularity. What do you think?

Kim (48:50)
So just as a ⁓ primer, the presumption of regularity is basically a doctrine that gives the government the benefit of the doubt. So the court assumes that the government followed its rules, acted in good faith, followed its own policy in pursuing some action against someone. And therefore, when they read the facts in a complaint, they do it in light of that benefit of the doubt being granted to the government. Now that it’s not ⁓ irrebuttable.

If there is evidence that counts against that presumption, then the court will not give the government that good faith. And I think, ⁓ given that these judges have not been living in a silo, that they’ve seen all of this litigation that shows time after time after time bad faith on the part of the government where they’re or or even just shoddiness, shoddy work, shoddy complaints being written, ⁓ that, you know, a first-year law student could do a better job at.

That they are giving this a much harder read and not necessarily granting that presumption in these cases. I think in this case, even if you granted the presumption of regularity, this was still a loser. Because even if you take everything that the government asserted as totally true, made all inferences in their favor, this is still a loser. So I’m not even sure that was necessary. But this is a bad if I worked at DOJ.

I would be just beside myself because it makes it that much harder to go before a court and ask for anything if this is the reputation that you’re getting ⁓ as as the government’s law firm. And if the you were representing a government that’s shown this kind of disregard for laws and rules and and norms, that would make the job seem really hard. I would not like that job.

Joyce (50:52)
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Joyce (53:04)
Well now it’s time for our favorite part of the show where we get to answer our listeners’ questions. If you’ve got questions for us, please email them to us at sistersinlaw at politicon.com. You can also tag us on social media. We always try to keep our eyes open. We may answer your questions on social media. We may put them into the script. And as many of y’all have discovered, we now have a second show, Sisters Sidebar, on Wednesdays, which is exclusively us answering your questions.

You can send audio files. We love hearing your voices and answering your questions that way. We’re adding in additional questions from those that you’ve sent us. Today we’ve got some really interesting questions. ⁓ I’ll dig right in. Jill, first up for you, here’s one from Stacy in Central Florida. We sometimes call that lower Alabama where I live. ⁓ Stacy writes, I just finished listening to your book, The Watergate Girl, and it got me wondering.

Did you ever have the opportunity to speak with or interact with Margaret Mitchell during that era? You might need to remind us who Margaret Mitchell is first, Jill.

Jill (54:13)
Well, Margaret Mitchell probably is the author of ⁓ what is it? ⁓ Gone with the Wind? Is that who wrote Gone with the Wind? But anyway, sh I think she means Martha Mitchell, who was the wife of Attorney General John Mitchell. ⁓ and Martha Mitchell was among the most colorful characters of the Watergate era. She was a Southern bell, but she also was known for making midnight phone calls to

press and other people who she shouldn’t have been calling. She was also ⁓ known for having been rustled down by Secret Service agents ⁓ because she wanted to do some things and they wanted to stop her. And she is also the subject of a, I think it was Netflix feature film about Martha Mitchell, ⁓ that is so totally inaccurate that I have to say, please don’t watch it. ⁓ and

I did get to meet her not as a witness in the Watergate case because of course she would have had spousal privilege as the wife of one of our defendants. ⁓ so we never talked to her. But after Watergate, I did get to meet her at the counter gridiron dinner, which was held to protest the gridiron club’s refusal to allow female journalists to belong to the club. And it was a carnival kind of thing that we

not we, but press organizations put together where Dan Rather and I sold kisses and Martha Mitchell sold phone calls. You could pay her to call anyone anywhere in the United States because she was famous for these phone calls. And so you could pay her to make these phone calls. the attorney general, former Attorney General, Elliot Richardson was selling ⁓ doodles because he was famous for his doodles. So it was a

Really wonderful event. And it was in that context that I actually got to meet and talk to Martha Mitchell.

Barb (56:17)
Some other day I want to hear who bought your kisses.

Jill (56:20)
yes. Well but I also maybe I sh I’ll add a picture of the doodle that I got from Elliot Richardson because

Joyce (56:28)
As long as it’s not from Donald Trump in your birthday book.

Jill (56:31)
Yeah. Right, it’s not. It’s it’s it was for female equality, so it has a lot of the female equality signs and a a wise owl. ⁓ but for an extra amount of money, y not only did you get the ⁓ the doodle, but you would get him to sign it specifically to you and you would put on a post-it your name and he would just sort of sign it. And he looked at mine and looked up and said, ⁓ I know you. I lost my job because of you.

So I will always cherish that. And it is hanging over my desk. Not this desk, but the desk that’s my real, real desk. So I will put that picture on our in our show notes.

Joyce (57:14)
Well, Kim, there’s a question for you from Robert in Canada. Robert asks, in your discussions there was a reference to a convicted felon not being able to vote. If I’ve understood this correctly, would this make convicted felon Donald Trump ineligible to vote?

Kim (57:31)
Robert, that is a great question. ⁓ so the question of whether somebody who has been convicted of a felony, whether they can vote, varies from state to state. It’s determined by the law, both of the state where the conviction happens and of the state in which the convicted person lives and votes. So in this case, ⁓ the only way that a New York state conviction could prevent Donald Trump from voting is if he were incarcerated.

in New York at the time. He is not incarcerated. He’s never was incarcerated. So he would have been able to vote if he were still in New York. And as such, ⁓ in Florida, which recognizes the reciprocal rules of New York, he can vote in Florida. That would vary based on as I said, different people based on where they live and where they were convicted. But in his case, he is able to vote under the laws of both New York State and Florida.

Joyce (58:30)
Barb, our last question today is for you, and it’s a banger. I love this question. Who would you nominate for a Supreme Court Hall of Fame? You know, if there is a Mount Rushmore for the Supreme Court, who would you put on it? ⁓

Barb (58:45)
Yeah. This is a question from Eden and I love it. It is such a great question. I think if I were to go for a Mount Rushmore, the top four, I’d I’d love to hear your your take of who else who I might be missing. But I think you gotta put John Marshall on. He was ⁓ the Chief Justice who wrote the Marbury versus Madison case that created or at least recognized the concept that courts ⁓ conduct judicial review. It’s it’s the job of the courts to say what the law is.

I think that’s really fundamental. ⁓ kinda go with a little Oliver Wendell Holmes in there. You know, he was on the court for a long time. He was famous for a lot of things, including this idea that the marketplace of ideas means we need free speech so that the best ideas can rise to the top. I’ve always been fond of Frank Murphy, who’s from Michigan. ⁓ he was the attorney general, he was the governor of Michigan, he had a lot of different posts, but ⁓ mostly because he wrote the dissent in the Koramatsu case. You know, that’s the one where ⁓

Japanese Americans were detained during World War II and most of the Supreme Court kind of went along with it as a matter of national security. And Frank Murphy wrote like, what are you talking about? This is horrific. and then I I really liked Robert Jackson. He was the justice who get this, takes a leave of absence after World War II to be the prosecutor at Nuremberg. He was also the attorney general who gave the great speech in the Great Hall, the Justice Department called the Federal Prosecutor.

where he talked about the important ⁓ ethical obligations of a prosecutor. But one of his quotes from a case that I think is so beautiful, I I’ve quoted it in my own book. It it’s it’s if there’s any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.

So I think he continues to be relevant. But how about how about you folks? Do you have ⁓ other people you’d put on your mount rushmore of Supreme Court justices?

Joyce (1:00:47)
You know, Barb, if I could get you just to carve a little bit smaller and make one room for more, I would add in Thurgood Marshall. And I would include Justice Marshall for his work before he got on the court when he was a fierce advocate for civil rights. As well as, you know, he spent twenty-four years on the bench forcing the court to think about people at the margins of society. So forcing the court to think about voting rights, forcing the court to think about criminal defendants.

Forcing the court to think about who got access to justice. ⁓ there are so many great Supreme Court justices. I think we could do this forever, but I I would definitely add Thurgood Marshall. Jill, what about you?

Jill (1:01:29)
So I agree with all of the above and ⁓ I would add ⁓ Justice Douglas and I would add Justice Sandra Day O’Connor, who of course was the first woman on the court. and I would add, of course, Justice Ruth Vader Ginsburg. I would also add Justice Sonia Sotomayor and Kagan and ⁓ and Justice Jackson. ⁓

Douglas is is maybe less well known. and Justice Brandeis. I’m sorry, I forgot to mention Justice Brandeis.

Well good i because we need that. We really do. And these are all worthy of of being there, I would say. ⁓ Douglas is maybe less well known, but was a great environmentalist among other things and deserves our accolades just for that part of his life. ⁓ so ⁓ there are a lot of really good ones to be included.

Barb (1:02:33)
Yeah, and for what it’s worth, Kim had to leave us, but she wanted to chime in that she would also add Justice John Marshall Harlan, who wrote the sole dissent in the case of Plessy versus Ferguson. Yes. Remember that’s the case that says separate but equal and lasts for like a hundred years until Brown versus the Board of Education reverses it. So he was ahead of his time.

Joyce (1:02:53)
Isn’t it amazing that in both that case and in Koromatsu, even though the court just, you know, had lost its mind from my point of view, there was one justice who was willing to stand up for what’s right. And so in many ways, like Ruth Bader Ginsburg used to say, dissents are written with an eye to the future. In both of those cases, justice was a long time coming, but we ultimately got there because one justice was able to see the path forward. That’s maybe

The most encouraging thing that we can say today about the moment we live in, where we often have three, sometimes even four justices who recognize that this rule of law stuff really matters. Thank you for listening to Hashtag SistersIn-Law with Barb McQuade, Kimberly Atkins Stohr, Jill Wine Banks, and me, Joyce Fance. If you enjoyed the podcast, please rate the show, send it to a friend, and be sure to follow hashtag sisters-in-law.

Jill (1:03:33)
Yeah.

Joyce (1:03:52)
On Apple Podcasts, Spotify, or wherever else you listen. That way you’ll never miss an episode. Join us every Saturday as we break down the biggest legal developments of the week, and then tune in again on Wednesdays for our new hashtag Sisters in Law Sidebar Podcast, where we take your questions. You can shop for Sisters-in-Law merch. We’ve got some great tote bags and t-shirts right now in our shop.

You’ll find that at ⁓ sistersinlaw at politicon.com. And make sure you follow us on Instagram where we’re trying to post our videos so you can see them at sistersinlaw.podcast. Check out the special offers in this episode from our sponsors. We have great ones this week. Home serve, wild grain, honey love, and delete me. We’ll see you next week. Hashtag sistersin-law.

Kim (1:04:44)
Yeah.

Joyce (1:04:46)
Hardwired.

Barb (1:04:48)
The Kimberly at Kinstore story.

Joyce (1:04:51)
No, that’s that’s him’s autobiography and we all get to contribute.