Is ICE Melting?

Joyce (00:00)
Welcome back to Hashtag Sisters-in-Law with Barb McQuade, Jill Winebanks, and me, Joyce Vance. Don’t worry, Kim will be back soon to join me on the ledge, but today I’ll have to wing it on my own. We’ve got exciting news for you though. We’re doing a live show.

Barb (00:22)
You

Joyce (00:27)
We’re going to Denver, Colorado at the Cervantes Masterpiece Theater on April 23rd, and tickets are available at politicon.com slash tour. That’s politicon.com slash tour. We cannot wait to see you there.

Barb (00:44)
Denver? We’re going to Denver? We’re going to

Joyce (00:46)
I mean, like, isn’t it amazing? I love Denver too. You know, my youngest went to school in Boulder. And so we’ve been visiting Denver for the last four years on and off, and I’m so excited about being back. What about you,

Jill (00:59)
Well, I have relatives there and a sorority sister, so I’m very excited about going to Denver. And especially because we’re in the Olympic period now, and that makes me think of mountains. And I always think of Colorado when I think of mountains. It’s the first place I ever tried to ski.

Joyce (01:15)
Well, y’all, if you get tickets for the Denver show, why don’t you drop us a line? You can email us at sisters at politicon.com. Tell us how excited you are. We’re pretty excited about being there. And of course, we’ll look forward to answering questions, especially from our Denver listeners in advance of the show. We do hope you’ve also been enjoying our new companion podcast. Do you know about that yet? We’ve got a new companion piece to hashtag Sisters in Law. It’s called Sisters Sidebar. and we answer questions that we don’t have time to get to during the regular show. It airs on Wednesdays, so keep sending in your questions and remember to tune in. Today, we have got quite a show for you. There is so much going on. We’ll be talking about ICE’s retreat from Minneapolis. There’s a lot going on in the Justice Department that we plan on sharing with you. And finally, we’ll talk about something you may not have heard about, lawsuits. challenging the way social media platforms ⁓ approach younger users. So a great show. But look, before we dig into the details, I’ve got to ask y’all, I have been consuming the Olympics every chance I get. Visions of being an Olympic athlete have been dancing in my head. I like all of the sports. If you guys had to pick one, what kind of Olympian would you be? Barb, what would your gold medal be in?

Barb (02:40)
⁓ I love all of those sports so much. I think they’re really cool. ⁓ I love all the sliding ones, you know, like the bobsled and the luge and the skeleton and all those, but I think I might be too scared to do some of those. Same with all the ski jumping and some of the other kinds of things. ⁓ But I guess what I consider like the glamour sport of the Winter Olympics is the downhill skiing. I ski, but not nearly that fast. I’m a bit of a white-knuckled skier. But I find it just thrilling to watch people like

Lindsey Vonn and Breezy Johnson, they hit over 80 miles an hour on those downhills. I can’t imagine what that must feel like. So if I could be really good at it, I think I would do downhill skiing.

Joyce (03:23)
What

about you, Jill?

Jill (03:24)
Well, my skiing experiences have not been so successful. I would definitely not be a skier. I would be an ice figure dancer. The ice dancing and the individual dancing as well, the individual performances are so amazing. I cannot believe the grace. I took ballet for a long time and you can see how they use ballet training to do their dancing.

I’ve also been texting with my old iGen politics partner, Victor Shee, because he was a competitive figure skater in his youth, although he’s still in his youth in my mind. And I just, love watching it, and that’s what I would want to be.

Joyce (04:06)
You know, fun fact, I don’t know if people will remember Phil Rucker, who used to spend a lot of time on air at MSNBC before he moved into a management job. But Phil too was a very successful figure skater, something I absolutely adored asking him about. It’s just such a beautiful sport. You know, I think I would like to be involved in whatever sport I’m watching at the moment. I have enjoyed watching curling. ⁓ I love what

Barb so nicely called all of the sliding events. just think Luge and Skeleton are so cool, but I might be sort of a chicken. I really like biathlon though. I’m waiting for that to start where they ski and shoot. So something for everybody in the Winter Olympics, but you know, maybe most of all, it’s the notion that people still can get together and get along and support each other. I loved seeing ⁓ there was a woman.

who, and now I’m going to forget what event, but who finished in an event where she was the first person ever from Mexico to participate in it. She finished at the very end of the pack and some of the medalists met her at the finish line ⁓ to congratulate her on her accomplishment. It wasn’t about winning. It was about playing the game.

Jill (05:21)
You know, there’s one other sport I have to mention because I had lunch yesterday with a judge whose granddaughter is number one in the U.S. in aerial skiing. I’m not exactly sure. mean, talk about being afraid. I mean, that’s like unbelievable to jump in the air on skis and do all. So I can’t wait to watch that. But I don’t think I want to be that.

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Joyce (08:49)
Well, this has been an interesting week to watch ICE, Minneapolis, DHS in general. know, Donald Trump’s mass deportation policies have quite frankly seemed to be on the ropes this week. And that’s good news for people who care about the Constitution and due process. It’s a good development also because it’s happening because Americans have been paying attention. So we’ll trace some of the major developments and talk about what they mean because it’s clear that

public awareness and outrage is the key to getting our country back on track. First up, Barb. So the week started out Tuesday. DHS had an oversight hearing and ICE, as well as Customs and Border Protection, which is CBP, and US Citizenship and Immigration Services, USCIS, they were all there. But it was Todd Lyons, the acting director of ICE, who had the toughest morning with Democrats on the oversight committee. Can you

talk a little bit about the purpose of oversight hearings and what your takeaways from this one were.

Barb (09:54)
Yeah, so Congress, of course, funds all of these different federal agencies, and they have a responsibility to ensure that their funds are being spent appropriately. And so from time to time, they will call in heads of various agencies just for a report out or to ask certain questions about how those funds are being spent. And certainly when it comes to the behavior of ICE in recent times, there are a lot of questions to ask. And so the focus very quickly turned

to some of the activities we’ve been seeing in Minneapolis. Questions about the Renee Good killing, questions about the Alex Pretti killing, questions about the way they are using ⁓ force against people who are merely protesting or observing. And so it got a little bit heated. I think that this one signified that the American public has some deep concerns about the way ICE is conducting its business. You know, certainly,

Federal law enforcement has a right and even a duty to enforce the law consistent with their mission, to arrest people who are not lawfully in the country and put them into deportation proceedings. There is a process for that. But it really is the how they are going about this, the ways in which they are exercising their authority and using the funds that Congress has given them. So Congress is well within their rights to ask about these processes, procedures, safeguards.

and the ways they appear to be violating the rights of ordinary Americans.

Joyce (11:23)
You know, I appreciated the righteous indignation that we heard from lot of different members of Congress. ⁓ Our good friend, Dan Goldman, former federal prosecutor now in Congress, I thought he nailed it when he said, if you don’t want to be called a fascist regime or secret police, then stop acting like one. Because the real problem with ICE has been the overreach. And while we’re taping the podcast, I’m watching news reports flash up.

that the two agents who shot the Venezuelan man who was then charged, that those charges against that individual are being dismissed and that the agents are now under investigation because video came to light that made clear that they were lying about the incident. And even in this administration, there’s a point where public outrage and videotape that shows what really happened can lead to accountability.

I hope that this is real investigation, not just one in name only meant to pacify the public. But ICE has a lot of issues, and I think the hearing was extremely revelatory.

Jill (12:28)
I thought that members of Congress did a pretty good job on this, unlike so many hearings. But I’m glad you’re asking about the oversight role because Congress has really failed, I think, to exercise the power that it has and that we need to see a revision of the rules of oversight hearings so that you get answers. ⁓ The Department of Justice oversight hearing is an example of why we need better rules.

Joyce (12:58)
You know, so Jill, on that vein, on Thursday, Trump’s borders are Tom Homan. I know everybody will remember him. This is the guy who was accused of taking $50,000 from businessmen to steer business from the government to them once this new Trump administration was in office. He took that money, allegedly, in a CAVA bag. And ⁓ once Pam Bondi’s DOJ was in place, that investigation was dismissed.

Barb (13:27)
And can I interject here, Joyce? I just want to make sure our listeners understand. When you say a kava bag, I had to actually look this up. I wonder, oh, is this a term of art, like some sort of special security method for waffling and appropriately transporting? No, this is kava, the fast, fresh, literally. this is a kava bag.

Joyce (13:46)
Would I take my lunch to work in? I mean, it’s just crazy stuff. Anyhow, so Tom Homan, that guy who was sent into Minneapolis to replace Greg Bovino, ⁓ he takes the podium and he abruptly announces that ICE will be leaving Minneapolis. I mean, if true, that’s good news. But Jill, what do you think that that abrupt reversal of policy signifies?

Jill (14:12)
Great question Joyce, but before I answer it, I have to continue with something Barb said because brown paper bags were used to deliver hush money to the burglars in the DNC break-in case. And so it’s not the first time that bribes have been put into brown paper bags.

Joyce (14:30)
Well, didn’t Spiro Agnew actually take money in the White House itself that was brought to him in a brown paper bag, or is my memory faulty?

Jill (14:38)
Well, I know he did it while he was governor. I’m not sure he actually took money while he was in the White House. He got indicted and left office, ⁓ pled no law and left office because of taking bribes. Absolutely. mean, bribery, what can you say about that in our government? to your question, I wish I could say that Tom Homan did this because he and Trump and Miller

had developed a heart and knew how wrong what they were doing was and how unnecessary it was to have ICE in Minneapolis. But I can’t say that. Instead, I’d say there are two reasons why he made this abrupt and unexpected announcement. One is to avoid a bad court decision that was likely to come and to say that they couldn’t use as they couldn’t the National Guard and others against mass deportation.

⁓ issues which have been rampant. There’s been a case now about denial of adequate water, housing, and access to lawyers. There have been 373 judges who have ruled against Trump’s mass deportation policy since July of last year. So even judges that the president himself has appointed, that is the current president, ⁓ have backed ⁓ away from the administration’s stand in these.

So I think that avoiding a bad decision was reason one. The other is, I think, to survive politically. Because public outrage, which you’ve just mentioned, has been shown not just by Minnesota citizens who have stood up for their neighbors. Minnesota nice is a new phrase. But beyond Minnesota, the public is really reacting. His poll numbers are plummeting.

It’s sort of like the same outrage that fueled ⁓ the case against Nixon and made him reverse. He fired the special prosecutor and said, I’m not giving you the tapes. And three days later, public outrage forced him to say, OK, OK, I’ll give you the tapes, which led to his downfall. So I think it was to survive politically and to avoid a bad decision.

Joyce (16:51)
Okay, I looked it up while you were talking and, Spoo, Agnew took money in envelopes while he was in the White House, not paper bags. So my bad. Just want to have clarity on that point. But Jill, I think you’re dead on the money. And we’ll find out if you’re right when this case moves forward. Because, you know, one way that you can moot a lawsuit is by sort of folding your cards and going home. And so I suspect we will see the government in this

this case that involves Operation Metro Surge, the case that was brought by the state of Minnesota. I think that we’ll say the government say next time there’s proceeding in court, look, Judge, it’s moot. We are no longer there. And that will make for some very interesting proceedings in court because, of course, ICE is still there, right? They have an office in Minneapolis. And it’ll be interesting to see precisely how much of the surge leaves town.

Barb (17:47)
Joyce,

you raise a really interesting point, this idea of of like hopping and keeping just ahead of the lawsuits. Oh, now we’re out of Minnesota. We’re not there anymore, Judge. You know, now we’re in Maine and, you know, terrorize Maine for a month or two. And then when all those lawsuits heat up, jump somewhere else. You know, if they really want to mess with people, they can probably strategically figure out how to do this.

Joyce (18:08)
And there’s a legal doctrine that usually works in those situations. This is sort of a weird case to refer back to, but ⁓ Roe versus Wade, rest in peace. ⁓ That was the argument that was made there. By the time that case got up into the courts, it was moot because she was no longer pregnant. Cases moved slowly. And so the argument was made that it was a situation that was capable of being repeated. And so there needed to be a legal remedy to address it.

And I had wondered, it’s interesting you raised that Barb, as I was thinking about this, I thought that’s what we might hear from the Minnesota plaintiffs. And perhaps other states will seek to intervene in this case to get it to the Supreme Court and to have them decide whether the federal government has this authority. know, Jill makes this great point, right? We’ve seen the government do this in the National Guard cases. They get sort of a bad Supreme Court decision off of the shadow docket.

and they immediately pull back. And so I think that this is ⁓ a moment of wisdom from hashtag sisters in law, and we’ll see how it plays out. But, Democrats are finally trying to do what the Constitution entitles them to do, to curtail abusive exercises by the White House. mean, you know, we take a lot of potshots at members of Congress, and rightfully so, because at least the Republican-led Congress has been a very supine

But Congress has the ability to cut the purse springs. And after compromise on DHS’s budget failed yesterday, DHS remains in shutdown status, unfunded, although of course there’s this reminder, the president and the secretary can designate certain operations as essential and they can continue. But what does this shutdown mean? And most importantly, what concessions did Democrats try to win and will they continue to try to win to limit

future ICE operations. I mean, do you think this whole deal is defensible from a law enforcement perspective or a Democrat’s grandstanding?

Barb (20:12)
Yeah, no, I think what they want is very meaningful. And you know, it is good to see Congress actually taking a stand. You know, we’re supposed to have three separate and co-equal branches of government. And what we’ve seen so much in our deeply polarized times is that rather than acting with energy in their own institution, what we see is Republicans and sometimes Democrats just working to advance the interests of their party as opposed to safeguarding the separation of powers.

and preventing the executive from taking on too much power. And one of those powers they have is the power of the purse. And so if they don’t like the way DHS is spending their money, as evidenced by this hearing we saw this week where they’re exposing some of the really heinous wrongdoing by DHS, this is a power that they have. But they have some specific demands. This isn’t just about punishing a branch of government. This is about trying to make it better on behalf of the American people. So some of their demands are

Number one, stop wearing masks. If you want to do your job, we want you to do your job. We want you to enforce the law, ⁓ immigration laws, but don’t do it with masks. So that’s another one. ⁓ They want them to revert to the Biden era policy of avoiding enforcement in sensitive locations like schools, hospitals, and churches on the theory that, these are places ⁓ where people are getting essential services. We don’t want people to be fearful of going to these places.

And so, you know, we’ll just respect those as places of worship, places of education, places of health, and we won’t go trolling around there looking for people. ⁓ Requirements use body cameras. Remember, Kristi Noem made this announcement like, ⁓ we’re going to start using body cameras. Like, what? No, everybody needs a body camera. ⁓ And finally, the use of judicial warrants before agents will enter someone’s home to arrest them. Recall, we discussed this before, that they have administrative warrants which allow them

arrest and deport somebody, but before you may enter someone’s home where there is a reasonable expectation of privacy, you need a judicial warrant that is one issued by a judge, a detached and neutral magistrate, and they are allowing not only immigration judges, but also ICE supervisors to issue these administrative subpoenas. so requiring judicial warrants is instead one of the demands. So I think these are reasonable demands. I think they will make law enforcement better, more effective,

Joyce (22:39)
Doof.

Barb (22:40)
more fair and safer for the public. And I think that they are going to try to withhold funding until ICE agrees to comply with these demands. Makes sense to me.

Joyce (22:51)
Do you think it’ll work, Jill?

Jill (22:53)
I do. think Barb is completely correct that these are reasonable demands that will make our system work better and we need to have them put into place.

Joyce (23:04)
Well, can we talk just, I think, last issue, right? A judge rebuked, and I mean really rebuked, the Trump administration for denying detainees in Minneapolis access to lawyers. I mean, the decision isn’t the last word. There will be an appeal. But Jill, I know you’ve read the decision. How do you assess it?

Jill (23:23)
I think it was brilliant. It is ⁓ written by Judge Brazel, I hope I’m saying the name correctly, ⁓ and basically says, appears that in planning for Operation Metro Surge, the government failed to plan for the constitutional rights of its civil detainees. She also wrote that Trump’s administration, ⁓ immigration crackdown in Minnesota was officially declared over on Thursday, which is an interesting part of why I’m saying that

they’re trying to avoid bad decisions. But she basically said they have to provide a minimal amount of due process to the people they’re detaining, phone service, access to their lawyers, notice before they’re sent out of the country. And she pointed out that the Constitution doesn’t permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be challenging for them to honor those rights. So it’s a very well-written, very persuasive case that I think

should be upheld even by this Supreme Court.

Joyce (24:27)
Well, we’ll have to wait and see if ICE is really serious about leaving the city that it has occupied for so many weeks. You know, I was listening last night to Chris Hay’s show on MSNOW All In, and he had on a guest who told this great story about how Minnesotans are used to dealing with ICE. And the guest said that back, you know, before local government got onto them, people would take old junkie cars and park them on a frozen, like a lake, and then they would bet on

Ice melt day, because on ice melt day, the old junk car would break through the ice and fall into the water. And the guest said, you know, in Minnesota, we know how to handle ice. Looks like they did.

Barb (25:15)
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Once again, the Department of Justice and the FBI are in the news for disturbing reasons. First, there was a Jekyll and Hyde appearance by the attorney general at an oversight hearing, an FBI seizure of Fulton County election records based on a warrant that recited long debunked conspiracy theories, and a failed attempt to indict six Democratic members of Congress for a video that correctly stated the law about unlawful orders to the military.

So I want to dig into two of those stories. First, the FBI search in Fulton County, once again challenging the outcome of the 2020 election. And this week, we finally got to see the affidavit that supported the issuance by a judge of the search warrant. And Barb, what did the affidavit allege?

Barb (31:52)
Boy, I’m so glad we’re talking about this because this affidavit to me comes so far short of demonstrating probable cause that a crime has been committed. So it said we’re investigating ⁓ two statutes. One is about a failure to retain certain ⁓ records after an election for two years. And the other is knowingly engaging in fraud in an election. But instead, what this

affidavit shows is that they’re investigating whether there was any impropriety in the election. Like, let’s take a flyer. What do you think? And what they cite is a list of examples of allegations, unfounded, ⁓ uncorroborated, witnessed so-and-so ⁓ observed somebody putting what appeared to be

two ballots through a tabulator. You don’t know what you were seeing or ⁓ somebody appears to have ⁓ mishandled some records when they were counting at the counting center. mean, keep in mind that there have already been three counts of the Georgia ballots, audits, lawsuits that found no levels of error that amounted to fraud. What’s missing from this is number one, any target of the investigation, anyone that they claim

may have engaged in criminal behavior and any intent to engage in criminal behavior. What it appears is ⁓ we’ve heard from the Secretary of State of ⁓ Georgia, Raffensperger, says, there may have been some human errors in this election as there are in every election, but there’s nothing that would have changed the outcome of the election or zero evidence to indicate that anybody deliberately engaged in fraud.

And I don’t see any probable cause in this affidavit to demonstrate that anyone engaged in fraud either. It’s a bunch of rehashed conspiracy theories, and it seems to be all directed by a member of the Trump administration, a guy named Kurt Olson, who was a ⁓ Trump campaign lawyer who is sort of leading the charge on this. It said, even in the affidavit, this investigation is from a referral sent by

Kurt Olson, the director of election security and integrity for ⁓ the president. It’s almost like, don’t blame us. Talk to Kurt.

Joyce (34:26)
got that feeling too. I’m glad you said it out loud because I had the same reaction.

Jill (34:31)
You couldn’t help but get that reaction. But Joyce, a judge has to approve the search warrant, a judge or a magistrate judge. In this case, it was a magistrate judge who signed the warrant. And that meant that the judge has to find that there’s probable cause. And as you and Barb have said, and as I would agree, I don’t see this warrant as establishing any kind of specific criminal conduct that occurred. There was no relevant evidence. I just

I don’t see probable cause. So what do you think the magistrate judge was using to allow this? And couldn’t the judge have taken judicial notice of the fact that there have been like 60 cases dismissed on these same election denial allegations and conspiracy theories and should have just dismissed it out of hand?

Joyce (35:21)
Yeah, so I’m not going to pretend to know what went on in this judge’s head. I think that’s something we’ll have to wait to hear. But you know, I’ll tell you what I was thinking about because the warrant remains sealed, or the affidavit in support of the search warrant. We should say if you’re playing along at home, if you want to get a search warrant, you have to write the application for the search warrant.

and then get an affidavit from the agent that sets forth probable cause. And you take those documents to the judge and ask the judge to sign off on the warrant. So I’m like thinking the whole time we’re waiting for the affidavit to get unsealed. Well, we all know about 2020 and the big lie and all the courts, you know, said, nope, there’s nothing to look at here. So I’m interested to see what they’re going to come up with that’s new. How are they going to try to guild the lily so they can move forward?

And so, you know, I’m reading the affidavit and there’s never anything new. It’s just the same old slop. And ultimately, you’ve got to believe that this warrant was deficient for a number of reasons. First off, the statute of limitations in the federal system for these crimes, there’s a specific statute for Title 52. It’s five years. I’m really bad at math, but even I can add five to 2020 and get 2025.

But beyond that statute, that sort of technical legal problem that might have given me pause if I was a judge, because the government does have to show that a crime was committed that they can investigate. ⁓ It’s just the same old rejected arguments about election fraud without any acknowledgement of the fact that those old arguments had been rejected and no effort to explain why they’re anymore right now. And something that the government has to do is it

can’t ignore facts that exist that negate its probable cause. It actually has to bring those to the judge’s attention and distinguish them and explain why they don’t matter. That doesn’t happen in this affidavit. And even if everything in this affidavit was true, there’s no explanation of how it amounts to a violation of either of the statutes that they refer to. One is a records retention violation.

The other is denying people the right to an accurate count. Even if the whole affidavit is true, no explanation of why that conduct amounts to a crime. So, you know, the best evidence is that there were human errors that were made. No intentional conduct. In the affidavit, the agent refers to a report that was done by the Republican majority in Georgia, and it says just that, human error. Well, these statutes require at a minimum

at a minimum willfulness, ⁓ mostly intent. And that means there’s just not probable cause that’s stated in this warrant. you know, even the affidavit seems to acknowledge that because at a couple of key junctures in paragraphs 10 and 58, if anyone wants to take a look at home, ⁓ the aphia says, if, if things happened, it would be a crime.

Barb (38:29)
I mean, do it!

Joyce (38:30)
This doesn’t say that they happened, right? This is a warrant that should have been rejected out of hand. And you can sort of tell I’m sort of itching at my clothes and sort of crawling in my own skin trying to figure out why.

Barb (38:42)
Not a sight, dear listener. ⁓

Joyce (38:44)
No,

mean, this is like, you know, for a prosecutor, this is a fuss, right? I mean, we know probable cause when we see it. This isn’t even close.

Barb (38:53)
You know, one thing, I can interject here, you know, this judge sounds like she’s not a Trumper, right? She’s magistrate, which means she’s appointed by other members of the bench, which means, you know, they’re often very apolitical because they’re just good lawyers who get put into these positions. And I think her background is in public defense. But I wonder if, you know, I can’t imagine what’s going on here, what caused her to, so she’s not like a mega operative. It wasn’t a political thing, but she was.

Jill (39:11)
Yes it is.

Barb (39:22)
willing and able to find probable cause where, boy, as a prosecutor, I wouldn’t have found it.

Jill (39:27)
I mean, I think anyone listening who reads this, you don’t have to be a lawyer. Just read the affidavit. And it does include, to Joyce’s point, some information that is contrary to what they’re saying, that there was a crime committed. They have evidence here. They aren’t complete in what they say. They don’t say. And all of these allegations that we say show that there was something going on have been rejected by 60 different courts. They don’t say that. But they do say that there were findings that there was no fraud.

It’s ridiculous. You read it and you can’t possibly think that there was anything going on. And Barb, I do want to ask a question that a lot of people are asking, which is what protection is there for the seized ballots? They took away all the actual ballots. And what’s going to keep them safe while they’re in FBI custody?

Barb (40:16)
Yeah, no guarantees. Certainly when law enforcement seizes evidence, they’re supposed to keep a chain of custody, document what they have, where they have it. ⁓ But with this administration, I don’t trust them as far as I can throw them. And so what happens if the documents come back and they’re missing or they got lost or they got destroyed or whoops, there was a fire? I don’t ⁓ know. So there’s been a motion for return of property.

They should have all that property carefully stored and safeguarded so that they can return it all. But, you know, I don’t know. There’s no guarantee.

Joyce (40:54)
Did you ever imagine that you would say those words about documents in custody of the Justice Department?

Barb (41:00)
No, because there’s always been this presumption of regularity because ⁓ most often ⁓ members of the federal government know the law, follow the law, scrupulously adhere to it. And so ⁓ it’s an odd situation when evidence is lost or destroyed. ⁓ many courts have said the Trump DOJ has lost the presumption of regularity because of its ⁓ refusal to comply with orders.

Jill (41:29)
Right? And so, course, Fulton County is worried about what’s going to happen to those ballots and what’s going to happen for upcoming elections. And they have filed suit to get the ballots back. Now, as we’ve said, it may be too late. Maybe the FBI has destroyed or supplemented with more votes, know, 11,780 more votes for Donald Trump as he requested Brad Rausenberger to fine for him. ⁓ But what’s

What do you think is going to happen, Joyce, with that lawsuit?

Joyce (42:02)
Yeah, I mean, it’s really interesting. This is a motion under Rule 41 to return seized evidence because typically if you object to a search warrant, you have to wait until you’re indicted and then you move to quash. But I don’t think that that’s what’s happening here, right? So the Fulton County officials, they actually have an amended motion that’s due next week. They had filed their original lawsuit.

Then they told the judge that they wanted the ability to amend it based on newly discovered information. So they will do that at some point next week. And you know, I sort of suspect that they will succeed, Jill. I’m not usually optimistic in these cases. Here, I think they’ll get their stuff back. But usually under a Rule 41 motion, the government still gets to keep copies.

And you know, this is unclear. This is not a typical criminal case where you’re talking about evidence. This is sort of unique because we are talking about ballots and tabulations. And I don’t know if you noticed, but this is a very broad search warrant. They also asked to seize voter rules. And that’s been a very problematic request that’s been made by the administration to a number of secretaries of state. ⁓

I was tickled to see that the Secretary of State in Maine said Donald Trump can go jump in the Gulf of Maine. I’m not giving him our voter files, but there’s actually been some litigation where at least one court has found that the federal government’s not entitled to state voter files. So here, I think, and I hope that Alton County will argue that because the warrant was baseless and because records including voter rolls were included in this extremely expansive warrant,

that they should be returned and that the government has to certify under oath that it’s turned everything back over, that it’s destroyed anything that was in its possession, that to the extent that it disseminated anything, it has clawed it back. I would like to see the judge put the Trump administration in a position where it’s accountable for all of its wrongdoing here.

Jill (44:12)
Wouldn’t that be lovely? And do you think there will be any indictment as a result of this search? And if not, why do you think the government did this?

Barb (44:25)
go, I think no, there will not be an indictment because there’s no evidence of any crime here. There’s not even a whiff of criminal intent. So why did the government do this? I think that they are trying to keep alive this myth of election fraud. The other unanswered question, Jill, is why on earth was Tulsi Gabbard there? She’s the director of national intelligence and she shows up like, you know, in the baseball cap, the whole, the whole stealth thing. Like just like we see Kristi Noem show up at the baseball cap or Alina Habba did. Like here I am, I’m working.

I think it is to create the impression that there is some foreign government nexus here. But if you read that affidavit, not one word about any foreign ⁓ government. So why on earth is she there? I think it is all part of this narrative. People will say, yeah, I remember there was a judge issued a search warrant ⁓ for Fulton County, Georgia. I think it’s just an effort to sow doubt in the minds of the public about the integrity of elections.

prospectively for 2026 and maybe 2028.

Joyce (45:28)
Can I just add to that? I really do think Barb is right here. There’s not going to ever be an indictment in this case. But you know, I also think that what’s going on here is it’s an effort to harass and intimidate people who run local elections in blue states and blue counties. And we’re already hearing whispers that there may be something afoot in Arizona.

I think it’s likely that we’re going to see a real full blown effort to intimidate and maybe even retaliate in states and localities where the fake slates of electors prosecutions were brought. Fulton County, Arizona, this looks like more of Donald Trump’s revenge agenda to me.

Jill (46:10)
In addition to this search for nonexistent proof that Trump won in 2020, lawfare is afoot at the U.S. Attorney’s Office in D.C., where the U.S. Attorney and Trump loyalist, Jeanine Pirro, is trying to indict six Democratic members of Congress for their words in a video that correctly stated the law. And so I want to ask you both, is there even an alleged crime that’s possible?

Did the video possibly satisfy any of the elements of those possible crimes and what’s going on here?

Barb (46:49)
tell you, I think there’s no crime at all. And I think this is an effort to silence critics. I was stunned to read the news that they had sought an indictment here. I thought the investigation, I’m using air quotes, ⁓ was really just an effort to say, know, if you criticize the Trump administration, you might get investigated, which alone is very cumbersome and is disturbing for most people. But then they actually went to a grand jury and tried to indict these six members of Congress. So

Remember what they did. They just made a video accurately stating the law that members of the armed forces have the duty, not just the right, but the duty to refuse to carry out an unlawful order. That’s it. That’s all they did. And I believe the reporting is that the crime that was alleged was 18 United States Code section 2387, which forbids people from interfering with the US military’s loyalty, morale, or discipline.

But if you look at the language of that statute, it requires that a person ⁓ advise, counsel, urge, or in any manner cause or attempt to cause insubordination, disloyalty, mutiny, or refusal by any member ⁓ of the naval forces of the United States. that presumes that the order is lawful ⁓ because it says, with intent to interfere with.

the lawful order of the military is to conduct orders that comply with the law. And so this statute is about ⁓ disrupting the lawful work of the military. And so I don’t see how they ever would have gotten an indictment. They didn’t, which is understandable to me. I can’t imagine how they expected to get one and shame on them for trying.

Jill (48:36)
Yeah, I think they were trying because the penalties for this are quite severe. It’s imprisonment up to 10 years, a fine, and you are barred from being employed by the federal government after this. So, you know, are they trying to get all these members of Congress and potential presidential candidates who are in that list from being out of government because you can’t work for the government? I mean, it’s really…

an outrage, ⁓ especially when you think about this as First Amendment speech. It’s also, they all have speech and debate protection. And I’m just worried that they’re going to try again because they’ve done that in the past when they couldn’t get an indictment. In the past, they sometimes go back a second time, try a different jurisdiction, try the same jurisdiction. And that would be an outrage. And just really the wrong thing to do. I hope that they will.

give up on this one now that the jury has done it. just one final question. I mean, it’s upsetting to me that we’re having to rely on ⁓ ordinary citizens sitting as grand jurors to say, you can’t do that. There’s no crime here. This is not right. What can we do to make sure that the burden doesn’t fall on ordinary citizens? Thank heavens for them. But is there something we can do?

Joyce (49:55)
mean, look, this administration is in charge of the Justice Department. They can seek indictments when they choose to. We’ve repeatedly seen them do that in cases that grand juries have refused to indict or cases that have been unable to move forward in court because of their deficiencies. So I think what they’re doing is they’re showing us who they are. Like Barb says, know, shame on them. And y’all get ready to go out and vote like your life and your country depends on it.

Jill (50:23)
Yeah,

and I want to just end with there was one other attempt to punish ⁓ Senator Kelly, and that was through the Department of Defense. Hegseth wanted to take away his pension and demote him. And a judge has just ruled, and again, we’re relying on judges to stop the executive branch from doing horrible things. A judge just said, no, you can’t do that. And so I’m happy that we have

judges and grand juries that will stand up to the government in ways that Republican members of Congress aren’t. And so now we have this at least temporary decision that he can’t be punished through the Department of Defense, and we’re going to have to just wait and see what the final outcome of this is going to be.

Joyce (51:23)
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Jill (52:04)
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Joyce (53:09)
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Barb (53:39)
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Thousands of lawsuits are pending across the country alleging that social media companies are deliberately harming children. This week, the first two trials got underway in cases with different claims. They’re considered important bellwethers of how other cases might fare. First, Joyce, can you please tell us about the claims that the plaintiffs have alleged in each of these two cases that are now in trial underway?

Joyce (55:08)
You know, it’s crazy because there are, as you say, literally thousands of cases pending all different sorts of claims. But I think the configuration in these two cases can help us understand what’s going on because the primary focus of the case against Meta and Instagram in Los Angeles involves addictive design, a claim that platforms use mechanisms similar to gambling or cigarettes to maximize engagement and screen time for younger users. And then in New Mexico,

That case centers on child exploitation and it involves Meta and Facebook and Instagram in that state. the lawsuits have, you know, they encompass these sorts of allegations. Some of the other cases and these cases too involve claims of mental health harms, that the platforms are directly linked to anxiety, depression, body dysmorphia and eating disorders, particularly in minors. Also there are claims

about dangerous content with arguments that the algorithms are specifically promoting harmful, explicit, dangerous content going to children with insufficient safety measures involved. Lots of really interesting sorts of allegations being made as these cases head into trial.

Barb (56:24)
Yeah, and Joe, what do these tech companies ⁓ argue in their defense?

Jill (56:29)
They have some interesting arguments. saying that the law, Section 230 of the Communications Act and the SHIELD laws, ⁓ say they can’t be responsible for anything that’s posted on their websites. And they also say, anyway, there are other causes for the addiction, for example, that mental illness was present in the particular plaintiff that ⁓ is bringing this lawsuit in California, ⁓ having nothing to do with

any addiction to social media that followed it. And I would say there is a big difference between the case in New Mexico for sexual exploitation and the addiction ⁓ arguments in the California case. And they claim that they have the proper protections in place on their websites. They also say, hey, parents, get involved here. It’s up to you to protect your children. So they have some interesting arguments, know, First Amendment, shield laws, and

We aren’t the cause and we have proper protections in place.

Barb (57:31)
Yeah, in fact, did you see this article in New York Times did this big study of what they call mom accounts? Apparently there are mothers out there who create Instagram accounts for their children, young children, girls who are 11 or 12 years old, in like glam photos trying to help them launch modeling careers. And that in response to these Instagram sites with all these glamour photos of children, child predators respond. And so they say, hey, it’s not our fault that they’re

mothers are trying to cash in on their kids and putting them at risk. So I think that’s a really interesting dynamic that could be a defense for some of these companies. know, one of the things we’ve discussed is that these cases have been compared by some to the big tobacco cases that were brought and resulted in massive settlements for states that sued them for knowingly harming their customers. Do you think that’s a fair comparison?

Or do the free speech aspects that are kind of wrapped up in these social media cases make them different?

Joyce (58:35)
You know, I started life as a First Amendment lawyer after law school. went to a big firm in private practice in Washington, D.C., and I had the great good fortune to get to work on some First Amendment matters, and that gave me the opportunity to read a lot of law. I tend to be a little bit of an absolutist when it comes to the First Amendment and think that even though there can be consequences, right? The classic example that we see these days is we permit Nazis.

to have free speech rights. Some countries like Germany don’t have a First Amendment and that sort of rhetoric is prohibited. But here we believe in tolerating speech and letting the marketplace of ideas sort it all out. And Erwin Chemerinsky at Berkeley Law School has made that argument, I think to my mind perfectly. He says that the analogy fails for a very simple reason, the analogy to the tobacco cases.

Irwin writes that internet and social media companies are engaged in speech, which is protected by the First Amendment, and no constitutional right is involved in regulating cigarettes and other tobacco products. And I suspect he’s right. Regardless of the outcome at trial, I think on appeal these cases fail because of the First Amendment.

Barb (59:53)
What do you think about that, Jill?

Jill (59:55)
I think Erwin Tremorinsky is brilliant. But I do think there’s a difference between, again, the sexual exploitation and the addiction case because not all speech is protected. And the sexual exploitation may not be protected. So at least in that case, I’m not sure that his argument will succeed. In the addiction, which is closer to the DePaco ⁓ case, it might be. And then we’ll have to depend on what the ⁓

⁓ people can prove at these companies as to what methods they had in place to prevent or to protect the children.

Barb (1:00:35)
Yeah, you know, I also have great respect for Erwin Chemerinsky. I’m sure some of you have been to these conferences where he talks ⁓ without any notes and gives this beautiful summary of the big cases of the Supreme Court term and also places them in historical context. mean, the guy is really a brilliant constitutional scholar. But I think I might disagree with him even on the addiction cases.

Because one of his underlying premises is that the algorithms that are created by these social media companies are themselves protected by the First Amendment. You the algorithm is just the computer code that kind of tells the user what content is going to rise to the top of your account and what gets lowered. And we know, for example, studies that have looked at X, for example, since Elon Musk took it over, that they have adjusted the algorithm to promote more

like right-wing extremist content than that used to be there. And so why is that necessarily protected speech? I think algorithms are conduct. I don’t know that they are speech. And if it is being used to manipulate us, I think that’s a really interesting question. Now, maybe it turns out that it is, but I’m not sure I’m convinced that it is. And then also, of course, ⁓ the First Amendment, as Jill mentioned, is not absolute. We do allow time, place, and manner restrictions.

It is subject to what is called strict scrutiny, meaning that to regulate speech, Congress must find first a compelling governmental interest and second, narrowly tailor their limitations to that interest. ⁓ we can’t ban social media writ large because it harms children, but I think there may be ways that they have to do a better job of keeping children off the platforms, for example. ⁓

making sure that there is ⁓ some third party oversight over their algorithms so that they are not ⁓ doing this addiction by design issue. What do think about that?

Joyce (1:02:37)
Good luck when you get to the Supreme Court.

Barb (1:02:40)
You ⁓

Joyce (1:02:41)
But no, I I think it’s a good argument, Barb. I don’t mean to be dismissive of it. I think you make a really compelling case. And this is a new sort of an era for balancing those equities. And I think this will be a case where the appellate courts will be called upon to make these fine line distinctions about protecting minors. That’s going to be a particularly live issue in the era of ⁓ Epstein. And so I think it’ll be a good one to watch. And I’m glad we’ve had the chance to talk about it this early on.

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Joyce (1:06:08)
you

Well, now it’s time for our favorite part of the show, where we get to answer listener questions. If you’ve got questions for us, please email SistersInLaw at politicon.com, or you can tag us on social media using our hashtag, SistersInLaw. And if we don’t get to your question during the show, we’ll try to take a look at it during the week or during our new show, Sisters Sidebar, which comes out on Wednesdays. Today we’ve got some really great questions. Barb.

First one goes to you. This is a great question from another Barbara. And she asks, what’s the justification for ice to be at the Olympics?

Barb (1:06:50)
I love it. This is a great question. You know, there’s been some backlash about this because I think when most of us think of ICE, we think of the streets of Minneapolis and what is ⁓ known as the enforcement and removal operations side of ICE. There is a completely separate ⁓ part of ICE that is called Homeland Security Investigations. And it is those people who are going to the Olympics. They are not there to determine whether people are

⁓ you know, American citizens or not American citizens. What they do instead is they work on a lot of ⁓ large ⁓ sensitive security operations. Like in the United States, there will be Homeland Security investigations agents at ⁓ the Super Bowl, at the World Series, ⁓ at political conventions. And around the world, they routinely go to the Olympics and, you know, the soccer World Cup and other events.

And the things they’re looking at are they provide intelligence. There will be a whole ⁓ operations room where everybody gets together and shares information. They will be looking at cybercrime, threats, counterterrorism, protecting the athletes, protecting the venues. Also human trafficking, which is interesting. Whenever people gather for large events like the Super Bowl or the Olympics, there’s a huge side industry of human trafficking where

mostly young people are trafficked for commercial sex acts because they know wealthy people are there congregating, they’re away from home, and they’re in a playful mood. we used to do these for sporting events, Super Bowl, other kinds of things. And it’s really shocking how many people during those events and the surrounding dates are interested in engaging in commercial sex acts, often with young victims. so, ICE Homeland Security is involved in

those operations, not in immigration enforcement.

Joyce (1:08:47)
Our next question comes from Sandra in Nashville, Tennessee, and she asks, is there any legal recourse for the Epstein survivors for their names and photos not being redacted by the DOJ in some places of the report? Sandra, this is another really great question and something that I just can’t begin to tell you how disturbing it is to see that the Justice Department having quote unquote inadvertently

released some of the survivors’ information in their first disclosure of information pursuant to the Epstein Transparency Act, that they continued to do it a second time. And they did it a third time. And that time, they also included nude pictures of some of the survivors. We learned that some of these women included the Jane Doe’s, who had not publicly been named previously, one woman who, ⁓

folks representing the survivors indicated was forced to tell her family that she was an Epstein survivor because information about her was released. And so do they have a civil lawsuit is I think the question that you’re asking. Of course, those questions can be complicated by the fact that the government frequently has some form of qualified immunity when it’s engaging in official conduct. But here, you know, the repeated failures.

are particularly disturbing and may turn out to give rise to legal action. It occurs to me that at a minimum, there should be an inspector general investigation. The inspectors general across government and the one at DOJ can investigate criminal violations of law, but they also investigate failure to comply with departmental rules. And here Congress passes the Epstein-Files Transparency Act. requires

the redaction of names. There are other procedures and policies internally in DOJ that require protection of victim and witness identity. And you know, how easy would it have been here? Because the survivor sent the Justice Department a list of names that needed to be redacted. And in some of these documents, some of those names were redacted, one or two, and others remained in public view. So it’s not like they forgot

to do this. They just did it wrong. ⁓ And everything about it is offensive, including both Pam Bondi and Todd Blanch, the number one and number two at the Justice Department, saying to the victims as though they were showing good faith, well, if any victim will just let us know, we’ll go ahead and get that fixed. Well, you know what? They shouldn’t have let it happen in the first place. That was their job, their responsibility, and whatever

vehicle is used to get there, I hope that there will be accountability for it. Jill, last question comes from David in Miami, Florida. He writes, the administration keeps bringing indictments and lawsuits for political reasons. Is there anything in the legal system that allows for punishment or fines or anything that would act as a disincentive to them continuing to bring these frivolous cases?

Jill (1:12:01)
Yeah, this is a great question, David, and it is ⁓ sort of related to will there be justice and accountability for the Epstein survivors? ⁓ And the answer is ⁓ multiple. Disbarment or suspension of your right to practice law is certainly one of the things that has been used. mean, Rudy Giuliani, Chesbrough, Eastman, Sidney Powell, Michael Cohn, Jenna Ellis have all ⁓ lost.

the right to be lawyers because of filing false information with the courts. And so that is one possibility. ⁓ And that would apply to those who brought lawsuits, civil lawsuits. ⁓ There are fines as well if you file a frivolous lawsuit. ⁓ Monetary sanctions can include payment of the opposing party’s attorney’s fees for defending against a frivolous case. ⁓ Of course, it can include dismissal.

and potential contempt orders under the federal rules of civil procedure, Rule 11 and under 28 USC 1927 for vexatious litigation. I love saying vexatious litigation. And of course, there’s the inherent power of the court to take action against people who act poorly. You can order lawyers to go for CLE, continuing legal education. The judge can refer.

the case to the state bar for them to take some action. So filing frivolous lawsuits does have some serious consequences, ⁓ financial and life career-wise. ⁓ And I hope that there will be more of that. The problem is when you get to filing false criminal cases, it’s a little harder to find ⁓ equivalent ways of punishing the prosecutor who brought a frivolous case.

⁓ other than you dismiss the case and say it’s with prejudice, it can never be filed again. And that has happened. The assault charges in Minnesota against, that we’ve talked about in the other episode today, were dismissed with prejudice. They can never be filed again. That ⁓ claim that the victim of the shooting had actually assaulted the ⁓ ICE agent. So we need to look at what

can be done besides rule 11 of the civil procedure rules and find some equivalence under criminal. And there are criminal penalties for filing a false statement. So if you can look at an indictment and say, that is so clearly false, that it violates 18 U.S.C. 1001 or something like that, maybe you could take action against the prosecutor who files a ridiculous indictment.

Joyce (1:14:50)
That’s all we’ve got for today. It’s been quite a week. I’m sure next week will be more of the same. Thank you for listening to Hashtag Sisters-in-Law with Barb McQuade, Jill Winebanks, and me, Joyce Vance. We hope we’ll see you at our live show in Denver, Colorado at the Cervantes Masterpiece on April 23rd. Tickets are available now at politicon.com slash tour. So make sure you get them before they sell out because they usually do.

Don’t forget to pick up Hashtag Sisters-in-Law merchandise and other goodies at politicon.com slash merch and make sure you check out our new companion podcast, Sisters Sidebar, on Wednesdays. Show some love to this week’s sponsors, Honey Love, Delete Me, Wild Grain, Gusto, and Helix. The links are in our show notes and your support for them makes this podcast possible. See you next week with another episode, Hashtag Sisters-in-Law.

you guys, I’m going to screw up his name. Sorry. Not Dan Bongino.

Barb (1:15:53)
Greg Bovino. Greg Bovino. can’t believe I get that right. no, I get it. I conflate these all the time. It’s so funny.