Fire In The Hole!

Welcome to this episode of Sisters Sidebar, our sister podcast to hashtag Sisters in Law. And it’s Kimberly Atkins-Stohr and me, Jill Wine-Banks today. And I want to welcome you to Sisters Sidebar to keep up with us. If you have a question for us, please email us at sistersinlaw at politicon.com or tag us on social media using hashtag Sisters in Law.

But don’t just type your questions. We love hearing your voice asking the question. And you can submit a voice question and then we will play it on air. You’ll hear your own voice asking the question. So do that. Email us a voice memo using any of the notes applications and we might play your question on the next episode. Let’s get started.

Kim (00:55)
So our first question ⁓ is for you Jill and it comes from Kate.

Callers (01:00)
hashtag Sisters in Law and thank you all for all you do. This is Kate, an American in Canada with a question for Jill Wine-Banks. There’s reporting that Secretary of War Crimes Hegseth fired the Secretary of the Navy. And I’m unclear how that could be true. Wouldn’t it have to be that the President would fire the Secretary of the Navy? Or what am I missing? Thank you very much for straightening that out. I appreciate you and all the sisters.

Jill (01:30)
Thank you for that question, Kate. As a former Pentagon employee, I was really interested in this and thought about it, but it’s true that the Secretary of the Navy is appointed by the President and is confirmed by the Senate, but the Secretary serves under the direction of the Secretary of Defense and is still called Secretary of Defense officially. So the Secretary of Defense does have the power to remove that person.

There is a chain of command and there’s a lot of laws that apply, but the simple answer is, unfortunately, yes, Secretary Hegseth can get rid of the Secretary of Defense who stood up and did the right thing probably, and that’s why he got fired. So it’s a delegated authority from the president to the SEC DEF, and that’s why he did what he did and will get away with it. And the next question is for you, Kim. This question comes from Yosef in New York City, New York.

And Joseph asked, if this Supreme Court were present in 1965, do you think they would have found the Voting Rights Act went against the 14th Amendment? If not, did SCOTUS rule the way they did now because things have changed by 2026?

Kim (02:48)
This is a question you say.

Kim (02:49)
really good ⁓ question.

It’s difficult to say, but I think if I were to go to the Robert’s

Kim (02:58)
on a limb, would say if the

were in place back in 1965, rather than the Warren Court, which was in place,

Kim (03:09)
that the Voting Rights Act history might.

Kim (03:12)
be very different. Keep in mind, that the Voting Rights Act was challenged for its constitutionality. The Supreme Court case in 19…early a year…enacted challenging its constitutionality, but that case involved…

Kim (03:18)
right out of the gate, right after it was passed.

Just barely after it was in

a

challenge that it violated the rights of states, that it violated states’ rights by setting these…

Kim (03:35)
up rules

of voting ⁓ and the Warren Court to one, no, the 15th Amendment, right, for everyone to vote regardless of

Kim (03:39)
held eight.

⁓ which protects the right.

race.

They said that that held that Congress was in

Kim (03:51)
was empowered

to pass the 15th Amendment.

Kim (03:54)
So the 15th one of the reconstruction acts that we talk a lot about.

Kim (03:56)
Amendment is instruction era 13

14 and 15th amendments

Kim (04:02)
And those are the acts that the amendments are the basis of the Civil Rights Act laws that we saw passed.

Kim (04:04)
that are

in the 1960s,

including the crucial Voting Rights Act. And it was really important that the Supreme Court held that no.

Kim (04:15)
right away.

This act is protected. This is what the

Kim (04:20)
framers

of the Reconstruction era meant, and they made these amendments in order to ensure that Americans and all Americans

Kim (04:23)
when they pass these doors, black.

could participate in the rights.

Kim (04:31)
and privileges of American citizenry.

Kim (04:34)
just like everybody else. The has what has arrived as this color

Kim (04:36)
Robert’s court seems to take a very different view. The Robert has been described as colorblind

constitutionalism, where they see these amendments of saying,

Kim (04:47)
as

you can’t consider race at all ever. Of course, something like meant to provide, ⁓ you know, a right of action to combat racial.

Kim (04:50)
for any reason. Now, how can you have the Voting Rights Act, which is

to racial

discrimination. If you ignore race, it’s impossible. And that’s a gay opinion, basically rendered a voting rights act a death. Supreme Court majority, very different view than the Warren Court did back when they really expanded civil rights, very, very important ways in the 1960s. I think you’re onto something and I would say that it would be very different.

Kim (05:05)
exactly how we got the Kalei, which is the fact that letter. So this has a very

rights in

So yeah.

Jill (05:29)
It would be different. I just want to say, part of the question was, ⁓ did things change by 2026? And the only thing that changed, the composition of the court, the facts didn’t change. There’s still racial… Literally the only thing. …needs to be cured. And as a product of the 60s, living through the passage of the Civil Rights Acts and the Voting Rights Act, I can say for sure we need it now as much as ever, maybe more so.

Kim (05:58)
Thank you for that point, because that’s really important. Just the swiftness they’re seeing states now try to gerrymander their maps. Tells you how much this is still needed. Really nothing has changed other than.

Kim (05:58)
for that.

frequency that we are

head of this November’s election.

did, right? That really up

the makeup of this court, as you said, and the fact that states so far had been following the law, that the Voting Rights Act had actually

Kim (06:19)
⁓

been working all this time and the minute on to undermine it. So, next question comes from Janet in New Jersey. My question is prompted by Todd Blanch’s attempt to swap rates as a defendant in the E. Jean Carroll Slander case. Yeah. Is an opportunity Supreme Court

Kim (06:29)
that it’s gone, you see a flurry of activity just. ⁓ I hear you. So.

who asked

the United States.

Is there a chance that this for the

to reconsider?

Kim (06:55)
its immunity decision gel.

Jill (06:57)
I wish, but I don’t actually think so because the issue here really, what he’s trying to do is to kill the case because if the Department of Justice is the defendant, if Donald Trump as a person is not the defendant, you can’t sue the government in that way. And so the case would be dismissed. It’s not just that he’d get free lawyering. He would get the case dismissed, which is of course what he really wants.

So this isn’t challenging immunity. This is a civil defamation case. It is not a criminal case. It doesn’t go to the immunity that the court granted. And again, I want to point out that it’s not absolute immunity for everything. It’s only if it’s a core function specified in the Constitution, like the right to send troops and things like that. So I’m sorry, but it doesn’t work.

Kim (08:03)
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Kim (11:08)
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Our next question is for you, Kim. The question for you, Kim, comes from Stacy in Minneapolis, Minnesota.

Callers (14:44)
Hi, sisters-in-law. My name is Stacey. I live in Minneapolis. My city suffered many abuses during Operation Metro Surge. My question relates to the Posse Comitatus Act and the deployment of JAG officers to the Minnesota U.S. Attorney’s Office to prosecute civilian cases with no military connection. How is this not a violation of the Posse Comitatus Act?

And more importantly, is this just a tactic by the Trump administration to blur the line between civilian and military?

Kim (15:16)
wow. Thank you, Stacey. Question from what has been happening right there in your hometown. I have been wondering how the Posse Comitandis would come into play when it comes to the military attorneys being used to prosecute some of these cases. And it sounds like these down there are figuring in real time.

Kim (15:18)
And yes, this is a great.

to all the act would these ⁓ jaggery

that the judges are figuring it out in a

Kim (15:45)
In particular, U.S. Magistrate Shannon Elkins had…

Kim (15:48)
has

been very busy. I think the answer to your question, it depends

Kim (15:50)
And the question is, depends,

according to Judge Elkins.

Kim (15:55)
So about a week ago, she ruled in a case.

Kim (15:57)
that

challenged a prosecution, someone who was charged with assaulting systems and border patrol agent.

Kim (16:00)
of salt a cus

lodged a Posse Comitatus. And in case she said that the Posse Comitatus was not through the use of a jag.

Kim (16:10)
objection and that

This act did not violate it.

in prosecuting.

Kim (16:22)
that case. But just ⁓ as we record, ⁓ she is

Kim (16:25)
this on Friday, issued

another ruling holding that the Posse Comitatus act was violated when a JAG military attorney

Kim (16:31)
Act was filed.

prosecuted a case ⁓ that did not.

Kim (16:38)
not

involve a federal officer.

Kim (16:40)
⁓ She said in that the department of regulations… Lawyers prosecute civilians in cases that lack a… Would be ill advised. It says, these regulations… Court to strike… That the DOJ has appointed. she didn’t rule that the attorney was improperly appointed, but that there are limits.

Kim (16:43)
Department of Defense is recognized that having military

military

do not authorize this court the appearance of an attorney.

Two.

Kim (17:10)
to what these attorneys can actually prosecute says to me is that this is such a terrible thing as we’ve this done before.

Kim (17:12)
And what is an unusual thing seen with many things from this current administration. We’ve never had… And

so literally judges are on the ground figuring trying to… As they can. Now keep in mind that Judge Elkins…

Kim (17:26)
Figure this out as best.

is a US magistrate. So these opinions

Kim (17:33)
can and will likely be challenged. ⁓

Kim (17:35)
field.

And then we will have to figure out through that appellate process, when the dust clears, what the… of Posse Comitatus are. But this is just the early days of it. But yeah, it’s a really great question that the judicial system is still figure out.

Kim (17:43)
the ultimate rules on the ground are.

And it’s literally something that the is trying to

Jill (17:56)
So I have to add to that, Kim, because I recently wrote an op-ed about this issue with a group of ⁓ former JAG officers and Pentagon officials. And ill-advised, as you said, is an understatement. It’s such a bad idea. And of course, what it means is that JAG officers are not performing the duties that they are actually assigned, essential duties. They are being diverted.

⁓ to things that they should not be doing. So it is a really bad idea. I’m glad that she has at least expanded her ruling to say in certain cases, it’s a violation of Posse Comitatus. And I’ll post the op-ed as part of ⁓ the show notes here.

Kim (18:40)
So the next question is from Susan who asks, could Jim Comey’s legal counsel simply quote the Merriam-Sir dictionary definition?

Kim (18:47)
website.

of 86 to the judge. This ridiculous.

Kim (18:52)
to put an end to this indictment.

Jill (18:55)
I so love this question because it’s something that as a lawyer I never even thought of. And so I went to the dictionary and I looked it up and I’m gonna just read the definition. It says that 86 is a verb and that there are variants of 86, 86ing, 86s and synonyms of 86 are, let’s see, to refuse to serve a customer.

So you could say, beer here, barkeep. And the barkeep can then answer, you’re 86’d, you’re cutting you off. ⁓ You can use it to say, to eject or ban a customer. You can use it to say informally, to remove an item from a menu, which is probably its origination was you 86 an item when you run out in a restaurant. And that’s how small restaurants call it. So it is to reject or discontinue.

You go through the whole list and yes, you really could discard, ditch, dump, unload, lose or set aside. Those are synonyms. It isn’t to kill or destroy. So I think you’re onto something and I hope that Jim Comey or his lawyers are listening to us now and that they include this reference.

Kim (20:19)
You know, that is a really good ques-

Kim (20:21)
question,

because in litigation, there are times that I absolutely…for the plain meaning. And it’s…

Kim (20:23)
absolutely cited the dictionary of something important

because the whole idea is that he was advocate

Kim (20:31)
for some action. Well, if that’s not the common understanding that people have, that phrase means that’s pertinent to the case. So I think citing the dictionary is exactly how to do it.

Kim (20:35)
of what?

Jill (20:42)
And I think we have time maybe for one more question. And it’s for you, Piam, from Erica, who wants to know, with Brittany in the news again, who initiates the process for conservatorship and how does that work?

Kim (20:56)
⁓ yeah. So first of all, I have to say as

Kim (20:58)
The

huge Britney Spears fan. wish her nothing but the best and I hope she and the people around her ⁓ ensure her wellness overall. So I want to start with conservatorship is a really interesting legal process.

Kim (21:02)
the, that she

that but

So there are a lot of people who can institute the process of seeing

Kim (21:20)
seeking

a conservatorship for someone who cannot.

Kim (21:24)
⁓ make ⁓ decisions.

Kim (21:26)
decisions

concerning their own affairs, whether it’s medical affairs, financial affairs.

Kim (21:31)
others,

things of that sort due to

Kim (21:33)
some

sort of incapacitation and parent or a spouse, also caregiver. It could also be done by court.

Kim (21:36)
It could be family members like a parent, a house. It can be a caregiver.

by order of the…

And so a lot of people by somebody who is a doctor who is…

Kim (21:49)
different or even by

or a mental health person treating

that person who says, listen, I don’t think that they are in a position to take good care of themselves.

Kim (22:03)
What would happen is they would ⁓ petition a court, it’s usually a probate court, to a ⁓

Kim (22:09)
Institute.

of conservatorship that period

of time and that is what happened with Britney Spears. Now in my opinion that sometimes necessary. Have questions when it

Kim (22:20)
That is something that is sometimes obviously not. But I have to say

that has lasted as long as Britney Spears.

Kim (22:28)
It lasted for years and years and years that she was under conservatorship under her father. Another thing that concerns me is that she was also performing and she was performing in Las Vegas for a long residency and things that she well enough to make money.

Kim (22:38)
and she had a…

doing all these other things. That raises questions for me. It’s like, okay, if you are and

you know, possibly supporting not just yourself,

Kim (22:53)
family,

including the person who holds the conservator. Is some questions for me again, not involved in this case and not knowing this case. Who motives were and I would hope that the in that case would be keeping a close.

Kim (22:55)
That would raise…

about what the the probate judge,

try of it. But it is something that ⁓ is not

Kim (23:11)
necessary

from time to time and the rules since it is done by the rules can vary from It’s an important maybe maybe sisters and we all get together at some point soon over the summer We can sort of do a primer on what that takes again because it’s a really fascinating area of law Thank you for listening to Kimberly I can store keep running in a question love answering them you can see this memo

Kim (23:15)
probate judges state to state. it is, maybe the same.

Sister Sidebar with Jill Banks and me. Send those really great words because we do. Send a voice ⁓

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Kim (23:46)
Hashtag Sisters-in-Law.

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Kim (23:59)
are

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Kim (24:16)
Sister ⁓

and Helix is an easy

Jill (24:38)
Sorry guys, my airplane mode no longer works. The phone rings despite it.

Kim (24:45)
It’s not air you don’t put airplay mode turn your side your silence

Jill (24:49)
I just turned the silencer on, but airplane mode used to stop it. don’t know why. Really? ⁓ yeah. Okay. end of nonsense.

Kim (24:53)
But not if you’re on Wi-Fi, it won’t.