Kash, Drugs & Guns 

Joyce (00:00)
Welcome back to Sisters in Law. This week it’s just Jill Wine-Banks and me, Joyce Vance. Barb and Kim are out, but they’ll be back with us soon. Today’s show, nonetheless, is full of new legal news. Right at the intersection of politics and law, we’ll be discussing the most recent hijinks by the FBI director, Kash Patel.

We’ll be talking about an FBI raid in Ohio. And I use the term raid advisedly. If you listen to me or read my newsletter, you know that I insist on the use of the term search warrant when a judge signs off on one of those. But in this case, Jill and I will be discussing something that’s little more than a raid. And finally, we’re taping Thursday morning, hot off the presses, a brand new Supreme Court case, Himani, that we wanted to make sure we included in this week’s show.

Because the news is is unusual. It’s I think disturbing to federal prosecutors across the country. And so we’ll give you our hot, fresh takes on that case. But before we start, Jill, what were we gonna talk about this week before we got started? I

Jill (01:05)
Always love having a chit-chat, but ⁓ usually the host gets to pick it, but I have one that I would like to discuss today because you are amazing and you you just do more things than most people can do in a lifetime, you do in a week. And this week I know you were in LA and ⁓ I want to hear more about that. ⁓ why were you in LA? I know you had ⁓ lunch with my pal Victor Shee.

Among many other things. But please tell me what was the real reason you were there? Because it’s really important.

Joyce (01:45)
Well, it’s fascinating and it’s actually a reason that I think will resonate with you and also with our listeners and now our viewers. ⁓ I I was out there to get an award from the feminist majority, the people who published Ms. Magazine. And to say that I was honored is understating the whole experience because these are the women who continue to fight for women in a

A world where frankly we are in danger of slipping into second class citizenship status. I don’t think that’s being alarmist. I’m not even out on the ledge when I say that. That is just the cold, hard reality. ⁓ so these are the folks at the feminist majority, and one of their biggest pushes is to get the equal rights amendment in place. And you know, I know this is a long-term thing of yours, Jill, and and people may be surprised to learn.

I I hear some people who are surprised that the ERA isn’t already in place, but others who didn’t know it was still possible.

Jill (02:41)
You know, I have been fighting for the ERA for it’ll be fifty years this year, nineteen seventy-six at the Democratic National Convention, ⁓ Governor Richardson and I went to different delegations urging them to, in their states, pass the ERA. ⁓ so it’s a long time concern of mine and recent efforts are really so important. And Ms. Magazine, of course, has always been a leader.

The feminist majority is really important and they picked a really deserving winner in you. And I’m so glad that you’re joining the fight for the Equal Rights Amendment. ⁓ and I hope, I hope that someday in my lifetime it will come to pass. you know, we should make a whole topic out of the women sliding into second class citizenship and what the trad wife movement is all about and ⁓ everything that the the

Current administration is doing to hurt women. So maybe that’s a whole separate issue about the legal constraints that are being looked at for women. But in the meantime, congratulations to you and to the smart women at the feminist majority for selecting you. I am so glad and I’m so honored that we can talk about the feminist majority and the equal rights amendment.

Joyce (04:02)
Well, thank you. It really was an honor. ⁓ you know, the last thing I’ll say on this topic, because folks were always looking for what can we do to make good things happen. Well, the reason the ERA didn’t become the law during the Biden administration was because of two defecting Democratic senators, Kristen Cinema ⁓ and John Fetterman were not fully on board for ⁓ democratic policies, but to get the ERA into law will require a joint resolution.

just a simple majority in both houses of Congress. And that resolution is not subject to a presidential veto. So here’s the dream. We return Democratic majorities in both the House and the Senate. And right after the midterm elections, the first bill that Congress takes up is the joint resolution to make the ERA the law. And you know, it will happen on Donald Trump’s watch, and there will be nothing that he can do about it. And in a moment,

Where that president tries to constantly convince us that he can outrun the rule of law, this would be a powerful way of reminding him that our votes matter more than his efforts to accumulate power. ⁓ so what do you think, Jill? Should we get on with it?

Jill (05:18)
my God, we should. I mean, I actually at one point was delusional enough to think when Donald Trump said, I want to help women, no matter whether they want my help or not, that maybe we could persuade him to be the one to get the ERA put into the Constitution by having the archivist sign it into law and publish it in the record. of course that was completely delusional as soon as they took office and I saw Project 2025 and

their immediate actions, I knew it was hopeless. This would be such divine justice. I really hope that it could happen. And that means everyone has to get out and vote. Be involved, be informed, get your friends to vote, not just you, and make sure that we have a supermajority in the House and the Senate. And then women will be protected for the first time. Our only role in the Constitution right now

is the nineteenth amendment that lets us vote. And there’s talk about getting rid of that. So if we don’t have the Equal Rights Amendment, even our right to vote is at risk.

Joyce (06:28)
Yeah, I mean that’s a great point to close on. And and folks, if you’re gonna go out and talk with friends and family and neighbors about this, I actually wrote a piece on what Jill’s talking about. At this recent turning point USA Women’s Summit, there were actually women saying that they were willing to give up their right to vote if it meant we could have a more conservative country. And that might seem like silly talk, something that’s never gonna happen.

But we have lived through an era where too many silly, crazy things, you know, the unitary executive theory or the notion that we could lose Roe versus Wade. Those sorts of ideas that seemed impossible have now been accomplished by by MAGA America. ⁓ so we had better be vigilant in protecting our right to vote and making sure that the ERA gets passed.

Jill (07:15)
You know, you noted in your sub stack, there were women at this convention saying, Well, my husband is more important than I am and he’s the leader of our family and he’s the one who should vote. I trust him to vote for me as well. ⁓ my God. ⁓ what happens when he ⁓ divorces you ⁓ for a younger woman? ⁓ do you get your vote back? I don’t know, but I don’t think you should give it up to begin with, and our voices do matter.

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Joyce (10:50)
Well, Jill, I’m afraid we have to talk about FBI director Kash Patel. We really do. Y you know, Patel is not cut from the same model that his predecessors were. People like Bob Mueller, who made the white shirt and the dark jacket ubiquitous. ⁓ there’s none of that sense of of seriousness.

Jill (10:55)
Really? ⁓

Joyce (11:15)
Patel brings something entirely different to the office. And I suppose you could just say that that’s stylistic, but there are some things that just aren’t negotiable. And one of those things is protecting the integrity of investigations and cases. And in that regard, there’s news this week that Patel prematurely revealed an indictment. So why don’t you start by talking about this case and what’s going on? Yeah.

Jill (11:42)
This is not the first time that Patel has put in danger an investigation or made an untimely announcement. ⁓ this time it involved what is alleged to be, and I say alleged, ⁓ to be a plot against the ultimate fighting championship disgusting event that was held at the White House, desecrating to me the lawn and the Oval Office and every step in the White House.

⁓ and allegedly there was a group of people who were plotting to fly drones with explosives over the ⁓ White House lawn, and then as the guests fled, they planned to shoot them. And this was something where they had arrested some of the alleged conspirators, but not all of them. So when you announce in advance that you know about this alleged plot.

All the people who haven’t been arrested can flee, go into hiding, and that really endangers the investigation. But Kash thought it was a great thing to announce, and so he went ahead and announced it.

Joyce (12:57)
Yeah, you know, I am not a fan of law enforcement being all over social media. ⁓ and maybe that’s because I’m old school and we didn’t do that during the Obama administration. But look, the reality is this compromises a case. And and and at the worst end of the spectrum is the possibility that put on notice that FBI agents are are spanning out or spreading out to arrest people, you could have a situation.

where defendants prepared to attack. And and that’s not something that doesn’t happen. Every once in a while law enforcement goes out with a warrant and somebody opens fire on them. And when you’ve got a case like this where there are allegations of violent political conduct, which I think you have to take seriously, the last thing that you want to do is put the defendants on notice that there are FBI agents coming out to arrest them.

So I think it’s difficult to overstate the seriousness of this misconduct by Patel and the Secret Service, who they were also in on the investigation, they didn’t seem all that thrilled about it, did they?

Jill (14:07)
they definitely didn’t seem thrilled about it. They have been very, ⁓ I would say, cautious in their response. They haven’t really gone after Kash Patel saying that monster endangered people who a as you said, might get shot at by defendants put on notice. ⁓ but they certainly said we were careful not to leak this so that it wouldn’t affect the outcome of the investigation and put it in danger.

And that is a very big attack on Patel without mentioning Patel. So they w they were cautious and they were right. And as we know, he did the same thing. He announced that they had captured the person who had shot Kirk when that person was then released almost immediately thereafter because it it wasn’t a real thing.

Joyce (14:59)
Yeah. I mean that’s this just doesn’t do any good to anyone when you’ve got an FBI director who’s constantly playing for the audience of one instead of playing for the American people, which I think is what we see. You know, as for the underlying case, I think it’s really premature for us to weigh in. It sounds like a serious allegation. It’s fabulous that law enforcement prevented anything from actually happening. There are some red flag cautions. ⁓

For for one thing, the event went on as planned, which I find to be really surprising. If you’re investigating a credible threat like that, I think he might have taken steps including not having, for instance, the first lady present. ⁓ I think we would have seen a really stepped up presence. So I’m not sure what to make of it. And of course, this would be charged as an attempt because there would be no completed crime. And to charge an it an attempt

You have to show that the defendants took a substantial step towards completing. It’s one thing just to talk online. There’s a lot of case law that talks about fantasizing, about committing attacks. You can do that. What you can’t do is take a significant step towards their creation. You also can’t enter into a conspiracy where a group of people agrees upon an objective and at least one of them

commits one overt act, takes one step towards accomplishing it. So this may well be a prosecution that has some teeth to it. You know, we just don’t know for certain yet, but that’s not the only thing that Patel did this week because there’s also news I I guess not to be outdone by Donald Trump and his slush fund. Kash Patel wanted to have one of his own.

Jill (16:47)
Yes. But before I get to the Patel slush fund, I just want to say two things. One, Donald Trump, when asked about this possible attack on his very special birthday thing, said, I didn’t know anything about it. The only fight I was interested in was the fighters fighting on stage. and and I’m but I’m curious as to why you said you would have at least eliminated the first lady from attendance. Wouldn’t you have eliminated the president from attending?

Joyce (17:16)
Well

yeah, absolutely. I mean look, if you’re the Secret Service and if you’re running this operation and if there’s any doubt about safety and security, right, you’re out. But ⁓ the the reason I mentioned Melania is that she in the past has shown I think sort of a level of savvy about risk and has not been present ⁓ in in situations where there’s been a risk.

And the way the Secret Service operates in these settings, they would have advised the president of what was going on. So the comment that you point out also feels a little bit unusual. I mean, I guess it’s possible that they didn’t learn about this plan until after the fact. We just there are just a lot of details that are still missing and that we still don’t know about. And I think that’s why it’s premature to weigh in on the case itself, but we’ll definitely be covering that as it moves forward.

Jill (18:10)
Yeah, so the slush fund, very interesting. Kash Patel seems to have had something like a million dollars that he has been paying at a rate of sometimes like $8,000 a month to special, and I’m using air quotes there, to special FBI agents, those who are willing to do his bidding, which is basically the president’s bidding, who have worked to support conspiracy theories and to oust.

the people who worked on January 6th cases, et cetera. now this is obviously unusual and probably completely illegal. When you are a federal employee, you get a salary and you don’t get bonuses. ⁓ So if you’re fully maxed out on your salary, taking extra money seems to me completely wrong. And his using this as a way to pay off his special friends is really

a terrible, terrible thing and should hurt the morale of all the other agents who aren’t getting these special bonuses. So we need to know more about what’s going on. and we need to stop it because if this is really happening, it is criminal.

Joyce (19:25)
Yeah, I mean it really is unusual. You know, sometimes at least on the Justice Department side of the operation, ⁓ high performing prosecutors will receive very modest performance bonuses. We’re talking a couple thousand dollars at the end of the year. Right. Exactly. FBI agents ⁓ you know, make salary. They also make overtime.

⁓ but what’s going on here is exceptional. And and we know about this, by the way. I think this is pretty interesting ⁓ because Jamie Raskin, the House Minority Leader, ⁓ who’s a a very principled constitutional law scholar, now elected to Congress, and he wrote a letter where he suggests that Patel directed more than a million dollars in payments to this very small circle of agents.

That, by the way, is not Kash patel’s money. That’s your money and my money, right? That’s taxpayer dollars. And the letter indicates that some of them were getting $8,000 every two weeks, to your point, Jill, on top of salaries that are maxed out. And you just can’t pay federal employees more than that max out. ⁓ Raskin says that a number of them collected close to $40,000 over consecutive pay periods.

And that the payments were coming so fast and furious that the FBI’s bonus reserve accounts ran dry and some of the checks even bounced. ⁓ so Raskin is calling for an investigation. I think it’s not clear. Is this reward money? Was this money intended to keep people on the director’s detail quiet? You’ll remember all of those expose stories about Patel’s excessive drinking.

But it is really an extraordinary development, isn’t it?

Jill (21:15)
It is. I’m just you know, I’m familiar with hush money from the Watergate era. it’s interesting that y you know, this could be hush money. i i although the the cat’s already out of the bag ⁓ in the sense that people have already testified and made clear that he was a drunk and was incapable of performing his duties on many occasions. So it’s a little late to be paying people off to to keep quiet, unless

Joyce (21:19)
Yeah, I bet.

Jill (21:43)
There’s a lot more that we don’t know about his wrongdoing. ⁓ and we know a lot in terms of his using ⁓ the FBI plane for his trips to see his girlfriend and flying her, and so many other things that he has done. It’s it’s terrible.

Joyce (22:00)
You know, the Democrats on the House Judiciary Committee, obviously the minority, have said that they’re opening an investigation, but it’s hard to get very far without subpoena power. what do you think could happen after the midterm elections in this regard if Democrats win?

Jill (22:16)
Well, I think different Yeah, it it would. If there is a ⁓ speaker of the House who’s a Democrat, ⁓ then you’re gonna see subpoenas being issued to people and public testimony about this and about probably a lot of other things that Kash Patel and others in the administration have done that really deserve and demand oversight. So I think that that is another reason that we need to get out the vote.

and make sure that there’s a democratic house and senate.

Joyce (22:49)
You know, ⁓ oversight is Congress’s job, right? I mean, that’s what they do. They are the ones who fund the Justice Department. FBI is part of the Justice Department. And so oversight often provides them with a meaningful way of enforcing appropriate boundaries for executive branch agencies. Is there something else at work here? Obviously, this Justice Department will not be investigating this president’s FBI director.

And I think that that would be sort of an unprecedented position to be in. But do you think any of this conduct is worth more than a congressional oversight investigation? Or is it just premature to try to make that kind of a judgment?

Jill (23:29)
Well, I I I’m less cautious than you are generally speaking, in terms of making predictions, but I think yes, we we don’t know ⁓ exactly enough facts to conclude that there are criminal violations that deserve criminal investigation at the state or federal level, ⁓ particularly obviously the federal level. I I think that we have not seen much oversight because the oversights that

demanded would require subpoenas and public hearings. And with this Congress and this divided ⁓ loyalty to the American people versus just to the president, we’re not seeing real oversight. We’re also not seeing the power of the purse being utilized. They could do so much in Congress, not just in terms of oversight of justice and saying, you know, unless you do the following things, we’re not going to fund you. But it it goes obviously way beyond

the Department of Justice that goes to the war in Iran and using the power of the purse to stop that, ⁓ to say nothing of the fact that they have the war powers that could stop it. ⁓ so yeah, I I think in a future life, ⁓ but it would require a democratic president as well as democratic majorities in the House and Senate, there could be actions that would be at the criminal level and at the oversight level

new laws that would make clear that what’s going on is completely improper and shouldn’t happen. We need to go back to the rules that when we were at the Department of Justice were enforced and obeyed and honored. And now we don’t have any of those things.

Joyce (25:17)
If it’s true that checks that the FBI was writing to agents, you know, couldn’t be cashed, that would be just next level outrageous. But I agree. This this needs to be looked at thoroughly. The whole notion of using taxpayer dollars to exceed the ceilings that Congress sets on FBI agents’ salaries. You know, I had an administrative officer in my office as the US attorney. This is sort of how it works.

And every once in a while I would get a crazy idea like, hey, let’s write an anti-bullying curriculum for fifth graders and see if we can reduce crime by, you know, reducing bullying, which we know will will help in a lot of ways. And my AO, a wonderful woman, would look at me like I had lost my mind. And then she would say, Okay, let me call Washington and figure out how we can access funding that permits us to do this. ⁓ and you know, sometimes we

couldn’t do some of the crime prevention work we wanted to do, and other times we could find lawful ways to do it. But the point was we always did it legitimately. We always made sure, because we were public servants, that we were spending taxpayer dollars in ways that Congress had approved. And that I think is above and beyond all what’s so offensive here. The idea that we’re now normalizing slush funds, the president, the FBI director, you know what’s next is

Is HHS will Robert F. Kennedy have a slush fund, you know, to help people with brain worms or something? I don’t mean to make light of it by being silly. The point I’m making is this is a foundational part of our constitution that Congress has the spending power. And this executive branch has no respect for that.

Jill (26:59)
Well, I hope you don’t think I’m being Polly Anna, but you know, the slush fund that was proposed ⁓ for Donald Trump to pay off January sixth defendants who hurt police ⁓ was so strong that it has maybe gone away. I’m not sure it has, but at least there’s some indication that it’s not going forward. And maybe this will be another turning point where

Even Republicans are gonna say, Kash Patel, you can’t do this. You gotta stop. This is wrong. And you know, maybe there will be more Republicans joining in fighting back and asking for real oversight.

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Joyce (33:17)
Ha ha

Jill (33:27)
So, Joyce, there’s another FBI story this week. More than a hundred FBI agents searched the OOC’s office in Cleveland. That’s the Ohio ⁓ Organizing Collaborative, which is a nonprofit that registers voters from racial minorities, the formerly incarcerated, and college students, precisely the type of American citizens who should be voting that Republicans want to disenfranchise.

What are the standards for starting an investigation like this? And do you think and I know we don’t know all the facts right now and we don’t know what the FBI knew and putting in an application to get into this ⁓ offices, but is there any evidence to meet the standard that you need to get a search warrant?

Joyce (34:18)
Yeah, I mean it’s a really interesting question, right? We know that at a minimum they were able to get a search warrant. That means that a federal judge looked at the FBI agent’s affidavit and decided that there was reason to believe that they would find evidence or proceeds of a crime at the location to be searched. We don’t know a lot more than that. We do know

That the allegations seemed to involve voter fraud, and that this was an organization that did a lot of voter registration work. And so I have to say it puts me on edge a little bit following the Southern Poverty Law Center indictment, which is, you know, the indictment in that case is very sketchy. ⁓ we know that the Justice Department made false claims about.

What SPLC did, and the reason that we know that’s true, is that SPLC filed a motion asking the judge to force the Justice Department to walk them back. And instead of waiting to lose the motion, the Justice Department in fact put Todd Blanch back on national television where he walked it back, and then they told the judge, Hey Judge, we walked it back, so you don’t have to grant the motion. I mean, that’s really extraordinary.

And I think it’s just something else that forces us to question what this Justice Department is doing. And you know, I I think we’ll have to wait to see whether charges are brought, because no charges have have been formally brought yet, before we’re able to test the evidence. But to the point of your question, what does it take for the FBI to open? Well, in a normal Justice Department, which this one just isn’t, investigations are opened if there’s evidence a crime may have occurred.

And agents take a look at confirming that, seeing if they can determine who’s responsible and getting to the point where they can work with prosecutors to assess if charges are warranted. And the FBI agents have this Bible. It’s called the Diog, and it governs how the agency proceeds. So it sets out the parameters. Nobody is guessing, right, about when the FBI can open a case, when it can investigate, what tools it can use. That’s all laid out. Agents are well trained on it.

And the bottom line is they can’t engage in a fishing expedition. You actually have to have specific crimes that you’re investigating. So we don’t know precisely what’s at stake here, but you know, ⁓ one of the details that caught my attention, Jill, was that the reports about what the FBI did here, they both executed a search warrant.

at the collaborative and then they they fanned out and looked at individuals who worked even in support rules for the organization. And the news reports say that more than 125 agents were involved. And y’all, that’s not normal. I can recall doing some very large-scale operations that involved a lot of agents where you would bring federal, state, and local agents together. We did it a couple of times.

When we were doing surges to prevent violent gun crime. But look, in this district in Ohio, there were not 125 FBI agents. And that means they brought in agents maybe from other places, maybe from other agencies. And this is not a violent crime. It’s not an emergency situation where somebody’s at risk. So it’s utterly unprecedented to have this kind of an agency presence in this sort of a situation.

Jill (37:59)
And it wasn’t just the OC offices, it was the homes of employees who were interrogated and searched and electronic devices taken. So i it was really a big deal that doesn’t seem to be related to reality, but as you say, we don’t know for sure. ⁓ we do know that OOC has been successful in registering what would be considered likely Democratic voters, something that Donald Trump doesn’t like.

So this you know, we’ve already lost the presumption of regularity, which goes to your point about, yeah, they got a search warrant, but they have lied in the past to get search warrants. So we can’t pr there’s no

Joyce (38:40)
Maybe

not lied, but certainly they’ve left things out.

Jill (38:44)
That

makes me wonder, like you, is this just another weaponization of the Department of Justice to go after and suppress voting in general?

Joyce (38:53)
Yeah, I mean it feels like another effort to intimidate people who are opposing the administration, particularly when it comes to registering voters. And I saw some great statistics over the weekend. ⁓ my good friend Laura Brill, who runs a group called the Civic Center in California, where she focuses on registering young people as soon as they become eligible to to vote. Her organization has done some work with statistics, and she shared with me that if

People are registered to vote, they are 70% likely to go out and vote, as opposed to only 20% for people who aren’t registered. So this work that OOC is doing, registering voters, that is critically important work. And I think we can’t divorce this from what’s going on in Ohio, you know, where there is a highly competitive Senate race where Sherid Brown

Has been ahead in two polls done in early June to retake a Senate seat in that state. I think it’s hard to see these things as being unconnected.

Jill (39:57)
Yeah, and it it’s also odd because Ohio is a state that Donald Trump won and so did all the Republicans on the ballot. So it’s it’s odd that they would be going after unless they’re trying to prevent voting in the midterms. And it seems to fit, as you said, the pattern of weaponization, what I would call weaponization of DOJ, where they go after people like Comey, Leticia James, Federal Reserve Chair, ⁓ Jerome Former.

Federal Reserve Chair Jerome Powell, and now even Cassidy Hutchison may be under investigation, according to, you know, reporting, ⁓ director, former CI director Brennan. ⁓ but is this more dangerous because it’s not aimed at, you know, famous people who will have plenty of support and who can fight back and get legal representation, but at the sort of everyday citizens who do the unglamorous day-to-day work under the radar to get

democracy functioning by registering voters.

Joyce (41:00)
Yeah, I th I think that that’s absolutely right. This is different. It’s sort of next level, ⁓ because when you think about it, when DOJ indicted the Southern Poverty Law Center, and I see these two situations as being very related, Southern Poverty Law Center, well resourced, has nationwide reach, you know, got immediate support from the rest of the civil rights community. DOJ took a lot of

blowback and and took a couple of black eyes, quite frankly. ⁓ it was a unified civil rights community that came out in support of SPLC. I think DOJ may have taken a lesson from that, and now they’re going after OOC, a much smaller, localized entity. And I think that they underestimated the commitment and the level of organization amongst the civil rights community and civil society groups.

Who are intent on protecting the right to vote from this ⁓ administration’s attacks on it. And so I don’t think that they were prepared for OOC to immediately draw strong national support. And I think the administration has tipped its hand so that now, if you’re a small group that’s organizing people to vote, you know, there are all of these different localized issues. For instance, on the reservations in North Dakota.

Where voters may not, who are Native Americans, may not have access to dropping off ballots or to voting in person as as easily as as other folks do. There are tricky registration issues because of the way addresses are designated out there. My understanding’s not perfect, but I’ve got friends who work on this who talk about their special challenges. So I use that as an example to say that there are local groups working to address their local registration needs.

And we may well see DOJ try to signal out some of these groups, thinking that they’re easier targets than say the ACLU or the NAACP. And so something that we can all do if you have the opportunity, if you’re able to financially, or if you can volunteer time, if you’ve got a local group that’s supporting the right to vote, that’s helping to register people, by all means take advantage of the opportunity to go out and be a part of this work.

Don’t bend the knee in advance.

Jill (43:21)
Yeah, and a lot of civil rights groups have come to the aid and defense of ⁓ OOC and have said well OOC’s board said this is a straight up intimidation tactics, an attempt to suppress voter registration ahead of the midterm elections. ⁓ and it is a transparent attempt at silencing Ohio, and there’s no question. ⁓ and what do you think their best defense is?

Joyce (43:49)
So I don’t know the folks at the OC, but I hear that they do good and solid work. A and my sense is this. It is legal to help our fellow citizens register to vote. This administration is trying to turn it into a crime. And they’re very good, by the way, with writing bumper stickers. Here’s another example. You know, conservatives have talked for a couple of decades now about ballot harvesting.

Which sounds really nefarious, right? That’s just gotta be illegal. But ballot harvesting really just means neighbors helping neighbors vote. If you’ve got a neighbor who’s got a disability and can’t get to the post office to drop their ballot in, so you take their ballot to the post office for them. Well, conservatives want to characterize that as ballot harvesting. There are some neighborhoods that just aren’t close or that don’t have good transportation, and so you may have folks that go out.

And we’ll get ballots from 20 or 30 people and drop them off. That becomes ballot harvesting. So evil. But in reality, what this is all about is in an environment that’s increasingly unfriendly to letting people who this administration thinks are gonna vote democratic exercise their right to vote. We all have to take special steps to make it possible. Look, that might mean babysitting for your neighbor who’s a single working mom.

So she can vote after she gets off of work. I mean, I I think that we all have to bend over backwards. And I’m gonna really resist any characterization of what these folks were doing as illegal until we see charges that we can assess the evidence that’s backing them up. This was not execution of a search warrant followed by charges. This is just guilt by ⁓ association with the search.

And I think that we’re a long way from seeing that there is any sort of illegal conduct here. You know, if there was, then absolutely go ahead and go after it. But again, this is an administration that has taken so many steps to make it more difficult to vote. And look, still still ahead, ready to come down from the Supreme Court any day, is a Supreme Court case that will say that states who are supposed to be able to run their own elections can’t.

Count ballots that are postmarked by election day but received thereafter. That’s still on the table. Donald Trump has got an executive order that would severely restrict mail-in voting. Federal government’s not to play or not supposed to play under the Constitution a role in conducting elections, but he’s trying to step in. So I think we have to look at this search warrant execution in the context of everything else that this administration is doing. And it’s not a good look.

Jill (46:50)
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Jill (48:53)
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Well, as I mentioned at the start of the show, this morning, Thursday morning, we’re taping at an unusual time this week. The Supreme Court announced three new decisions just ahead of the start of the show. And one of them struck us as being so important. We wanted to make sure we talked with you about it today. You know, there are major cases still pending in front of the court. Those are the ones that are gonna get coverage in the national media.

But this case, United States versus Hamani, is a major case evaluating one of the crimes that’s most charged by federal prosecutors. There’s a statute eighteen US Code 922, and it makes it illegal for people in certain categories to possess a firearm. That’s obviously intention with this Supreme Court’s incredible push to expand gun rights.

You know, Second Amendment meets enforcing the law against criminals. What’s the Supreme Court supposed to do? This morning we found out in Hamani, part of this law makes it illegal, makes it a felony for quote, unlawful users or people quote, addicted to controlled substances, that would include marijuana, to possess firearms. And so there’s this is here’s how this case crops up.

FBI agents execute a search warrant at Ali Daniel Hamani’s Texas home. They find a firearm and they find marijuana. And they’re out there by the way because they believe that the family is involved in terrorism. But they don’t bring terrorism charges. Instead, they indict Hamani for violating the federal gun drug ban. They don’t allege that he was intoxicated at the time that they found the gun. Instead, he gets charged.

based on the fact that he admitted to law enforcement at the time that he was a regular drug user. They execute the search warrant, he’s very cooperative by all accounts. Here’s my gun, he says, and also there’s marijuana in a couple of places. Well both the district court and the Fifth Circuit dismissed the indictment. They ruled that the statute was unconstitutional as it applied to Hamani under the Second Amendment. And the Justice Department

appealed the case to the Supreme Court. I mean, this is sort of crazy, right? Jill, you know, what is the court supposed to do? It’s supposed to be tough on crime, but it’s also supposed to support the Second Amendment. And so here we have a situation where they decide Second Amendment rights rule, and Hamani cannot be indicted on this basis. What do you make of that?

Jill (54:25)
Well, it is part of the trend of the Second Amendment over all else. But it i and it’s also part of the ⁓ how the Supreme Court decides cases involving the Second Amendment, or basically anything else, going back to how conservatives think if it wasn’t a crime at the time that we were founded, it’s not a crime now. And so they

look back and they say, well, there’s really nothing in our history and they the government argues, well, there were drunk laws that you could arrest and incarcerate ⁓ a person for being a habitual drunk. And then the Supreme Court looks at it and says, Well no, that’s different. Now of course none of those cases involve the Second Amendment, which seems to be to me what leads here is, okay, you could be a danger to yourself as a drunk. ⁓

But it didn’t involve the Second Amendment. So yeah, you could be arrested and incarcerated or fined. You had a post assurety to assure that you wouldn’t do harm. ⁓ you could have a guardian appointed against your will. ⁓ and those were the things that the government was arguing, well, that makes it okay and shows that there was the kind of crime at the time that would justify our making this a crime. One of the interesting things about this is, of course, ⁓ you know.

President Biden’s son Hunter was convicted under this very same statute. ⁓ and so if he hadn’t been pardoned by his father, he would have been home free on this one. ⁓ because if it’s good for Homani, it’s good for Hunter Biden. And so that makes it interesting. I just think this is all part of the constitutional construction methods of the conservatives to get the results that they want.

And it also is a a proof of how the Second Amendment prevails ⁓ over everything else.

Joyce (56:28)
Yeah, it’s a really interesting decision. You know, it leaves untouched the crime federal prosecutors charge the most. They charge the crime of being a convicted felon in possession of a firearm. And the the opinion is very careful to say that this is a narrow decision that does not impact the felon in possession crime. It also doesn’t ⁓ prevent efforts to keep drug addicts from actually being in possession of guns. So those efforts can proceed

These charges just can’t be brought. But something I’m I’m noticing, I mean, it’s we just got the opinion, we’re still processing it. It has this very unusual Alito Kagan concurrence. I don’t think that we’ve seen a lot of those recently. And the argument that they make is sort of intriguing. It’s that this sort of drug use, especially involving marijuana, is a lot like alcohol use at the founding.

And that alcohol use wasn’t criminalized. I think that’s why we have, as you point out, the government coming back and saying, well, there were these vagrancy laws, but that doesn’t really implicate Second Amendment rights. A and you know, it’s an interesting case. It follows a case called United States versus Rahimi that we discussed a couple of terms back. And I think Rahimi is a really good comparison.

For understanding where the court is on its Second Amendment jurisdiction. Because Rahimi, which gets decided in 2024, involves a defendant who was under a domestic violence restraining order. And so in that case, the court said because that required an individualized case-specific judicial finding, that that person posed a credible threat to someone else’s physical safety.

It was okay to prohibit gun possession. You’ll recall that at the time there was a lot of concern that the court was going to say Mr. Rahimi couldn’t be charged, but instead they came in on the side of domestic violence victims. Now Hamani looks to be different, right? It says, no, no, you can’t charge this guy with being a marijuana user in possession of a firearm. And I guess the core difference, right, is that this is a ban that would apply to a blanket category without requirements.

Requiring any individualized proof that this specific drug user is dangerous or prone to violence. So if I had to offer a rational, rigorous basis for the difference between the two cases, I think that would be it. But like you say, it’s deeply concerning that this court’s jurisprudence seems to center around making the NRA happy. And something that this case doesn’t do is it doesn’t advance our understanding.

Of how the court is doing that. Right, every couple of terms we get a big major gun rights case, all too often, poorly reasoned, and the lower courts don’t know how to apply those cases. I’m thinking of, you know, the New York case that talked about when people could have firearms in public. And in large part, I think that we’re just left with this assumption that guns are okay. And that’s not a good look for this Supreme Court.

Jill (59:39)
I agree with everything you’ve said. one of the similarities where they have said it’s okay to ban guns to prevent people from is where there’s been a conviction. It’s not just I’m a drug user and you can’t say that I’ve ever done anything wrong while using drugs. ⁓ but it’s been I was convicted of domestic violence. I was convicted of something that was a crime, a felony. So if you’re a felon in possession,

Yeah, you can be banned. If you’ve been convicted of drunkenness, if you’ve been convicted of maybe selling ⁓ you know, drugs. We also have to put this in the context of marijuana has even by this administration been downgraded ⁓ in terms of its classification as a controlled substance. ⁓ Hamani had a regular job. He showed up all the time, he’s never been convicted of anything. You know, he’s he’s the perfect

person to have brought this case because there’s no evidence that marijuana impacted his behavior in any way. ⁓ the people who ⁓ were under the drunk laws of old times had done something that brought them to the attention of police. They were vagrants. ⁓ they they did something that led to their involvement with the legal system. So I think you’re right. There there’s actually some rational basis for distinguishing between ⁓

people who are convicted of a felony and people who just simply are marijuana users. And that it is, though still part of, despite all that, saying it’s rational in some ways, it is still part of the Second Amendment is sancrosanct and gets priority over other rights and other protections.

Joyce (1:01:29)
Well, there are a lot more cases to go this term. I mean it’s June eighteenth. The court ⁓ the the whispers are that they intend to finish up in June this year. But Barbara, the case about birthright citizenship, is still pending. There are other cases ⁓ about temporary protected status and asylum seekers at the border being turned away. Those cases haven’t been decided yet. Big voting and campaign finance cases left to go.

I and national media will cover all of those as they should. But Hamani, which is a criminal case that impacts the work that federal prosecutors are still trying to do during this administration, I think is something that you’re less likely to hear about in the national news. So I’m glad we took time to talk about it today. Thanks for indulging me on that one, Jill.

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Joyce (1:05:53)
Well, now it’s time for our favorite part of the show. We like this part of the show so much, by the way, that if you haven’t seen it already, on Wednesdays we’re actually doing a listener questions only show called Sisters Sidebar so that we can answer more of your questions ⁓ every week. We love your questions. They make us think, they make us do some research a lot of the time. ⁓ and I think we all learn a lot from them. So if you have a question for us, please email SistersIn-Law at politicon.com.

or tag us on social media using hashtag SistersInLaw. And if we don’t get to your questions during the show, we’ll try to include them in Sisters sidebar or get them on social media during the week. ⁓ Jill, there’s only two of this week, which makes it a little bit strange to be doing questions, but I’m going to start off with two related questions about pardons that are both for you. The first one comes from Mike and he says, are pardons immutable?

Is there a way to rescind a pardon? And then Mary in Wilmington, Massachusetts asks, When fraudsters are pardoned by the president, what happens to the restitution owed to their victims? Those are great questions. What do you have to say?

Jill (1:07:07)
So first of all, I’m glad we could combine two questions because that means that the two of us can now answer three questions. You’ll answer one and I’ll answer two altogether. the answers to the first question is pretty much pardons are immutable. Umce granted, that’s it. You’re done. And they can’t be undone. So there shouldn’t be a pardon until the time.

has been served, at least some of it, the penalties paid, and a person shows remorse. Those were the standards that we’ve always lived under, but which are being ignored now. ⁓ now the president grants pardons to his friends, to those who make big contributions to his PAC or in other ways, ⁓ appeal to him. And so it’s the wrong thing to do in the beginning. But yes, when you get pardoned,

You’re forgiven everything, including restitution owed to victims. So I’m sorry to say that fraudsters who are pardoned don’t necessarily have to pay, but I do want to add that there are some solutions to that. First of all, oftentimes a person who commits a federal fraud crime also commits a state fraud crime. And so the state can pursue it. The other thing is that a victim can bring a civil case. ⁓

and can apply for restitution from crime victim funds. So those are ways that they could actually get restitution despite the the actual perpetrator of the fraud not having to pay it because of the pardon. It does put a burden on the victim that shouldn’t have to be there. It should be part of the criminal process where they get restitution, but at least there’s some hope.

for them. And I think that’s an important thing to keep in mind that there are solutions. There’s also there was a very interesting ⁓ opinion piece in the New York Times that I’ll put in our show notes that talks about ⁓ some of the things that states can do and some of the ways to get around these ridiculous pardons. New York actually recently changed its double jeopardy law, which did not allow the state to pursue a a a failed federal crime. And they said, yeah, except when there’s a a ⁓ a fraudulent

pardon by the president. So ⁓ there’s some reason to encourage other states, if they have anything similar to New York, to take the action that New York took and pass a law that says, yeah, you still can be prosecuted in the state of New York.

Joyce (1:09:47)
Well, we have another question. This one comes from at Leslie’s Now Flake at Blue Sky. And Leslie ⁓ has this, I think, sort of comment and then a question. The New York Times reported Miller and Trump weighed removing habeas corpus and invoking the insurrection act. Would they have been successful? Who could have stopped them? You know, this is some absolutely shocking reporting that comes from Maggie Haberman and Jonathan Swan’s new book.

I guess they’re starting to release excerpts. And there’s one that says that in 2025, Stephen Miller was really behind this effort to ⁓ take away habeas corpus and then also separately to invoke the Insurrection Act. And one of the lawyers, not in the White House counsel’s office, but a pretty conservative lawyer who’s working as the staff secretary, wrote memos to the chief of staff.

laying it out and expressing opposition. And nothing ever happened. But you know, you’re asking what would have happened if that guardrail hadn’t been in place and they’d gone ahead. So habeas corpus first. Habeas corpus is this fundamental protection that that really at bottom, I don’t think this is too extreme of an example now, this is why the federal government can’t seize people, arrest people, and disappear them. Habeas corpus gives you the right

To file a motion and demand to be brought into court so a court can make sure that your confinement and the terms of your confinement are lawful. Suspending habeas corpus under the Constitution can only be done by Congress, and it’s very rarely done, mostly at wartime. ⁓ it was done in Guantanamo for some of the ⁓ enemy combatants.

And of course that was controversial. It spawned ongoing litigation. So this is not something that a president can do on his own without expecting to have the courts smack it down. And even if Congress were to do it, there would likely still be litigation. But there’s an asterisk here, like there always is, because during the Civil War, Abraham Lincoln actually did suspend habeas for a time.

⁓ and although a ⁓ judge who was at the time was not on the Supreme Court, but who subsequently became a Supreme Court justice really called into question whether the president could do it, that did continue. So I think we could expect to see Trump try to craft some argument that anyone who says that he can’t suspend habeas on his own is interfering with the unitary executive, blah, blah, blah, blah, blah. And we would expect to see him make that argument. ⁓

And who knows with this Supreme Court, right? And then there’s the Insurrection Act. And of course, there are serious limits on a president’s ability to invoke the Insurrection Act, which would allow the militarization of the United States. And the reality is that those conditions just don’t exist. There is not an insurrection going on in this country.

The lawful exercise of First Amendment rights is not tantamount to an insurrection, even though this administration frequently tries to pretend that it is. ⁓ And so if you’re asking, would they be successful in invoking the Insurrection Act, I would say not now, not based on current circumstances. ⁓ The person or the entity that could stop this sort of action if the administration were to take it, say around the midterm elections would be lawyers going to court and asking the courts to put a stop to it immediately. Thank you for listening to Hashtag SistersInLaw with Joe Weinbanks and me, Joyce Vance. Kim and Barb will be back next week. If you enjoyed the podcast, please rate the show and send it to a friend. And be sure to follow hashtag SistersInLaw on Apple Podcasts, Spotify, or wherever you listen to your podcasts so you never miss an episode.

Join us on Saturdays when we break down the biggest legal developments of the week, and then catch our companion podcast, hashtag sisters sidebar, every Wednesday, where we answer your legal questions. You can shop for your hashtag Sisters in Law Totes and other goodies at Politicon and follow us on Instagram at sistersinlaw.podcast. Check out the special offers in this episode’s show notes from our sponsors, Factor, Hexclad, DeleteMe Fast Growing Trees.

And Bowlin Branch. See you next week. Hashtag SistersIn-Law. Y’all, knowing full well that we’re taping this podcast, my husband, who is not upstairs watching the dogs, which he should be doing, is apparently on Instagram. And he has just sent me a reel from Instagram. And the headline says, the perfect Father’s Day gift does not exist. Dot dot dot.

And then it’s a guy pulling two huge flamethrowers that sort of look like they’re semi-automatic weapons, sort of pulling them out of a box and shooting flames out of them. So that apparently is the level of discourse in in my house while Jill and I are taping this podcast. Unbelievable. Let me just text him back no before we start again. No. Okay. We can move on.