Oh The Hypocrisy

Joyce (00:10)
Welcome back to Hashtag Sisters in Law with Barb McQuaid, Kimberly Atkins Stohr, and me, Joyce Vance. Jill will be back next week. We are already missing her. We’ve got so much going on this week. We’ll be talking about John Bolton’s guilty plea. We will be talking about Donald Trump’s nominations of both Bill Poulty to be the DNI and Todd Blanche to be the AG. It’s sort of hard to know which one is worse.

And then finally, we’ll talk about the ongoing fallout from the Supreme Court’s decision in Calais and what you need to know about an Alabama case that many people think is the death knell of the Voting Rights Act. So lots of hardcore serious stuff at the intersection of law and politics this week. But before we get there, I have a summer question for y’all. I have become sort of obsessed in the last week with making a hot fudge Sunday.

Every night after dinner. And I’ve been sort of liberal in my interpretation of hot fudge because last night I had a caramel sundae with mascarpone ice cream, a local ice cream that I got at the grocery store here. I mean, it has been really, really fun. So what I need to know, what are your favorite ice cream flavors, y’all? Kim, I I know you’re an ice cream girl, aren’t you?

Kim (01:29)
Well, I have a a very, very specific ice cream taste that I’m sure Barb, my fellow Detroiter, would understand a lot. So I think a lot of people don’t know. Here’s a fun fact. ⁓ everybody knows Stroze, the beers the beer company. Well, Stroes needed something to do during Prohibition. So Stroze started making ice cream, and Stroze still makes ice cream. And I have to tell you, it is the most delicious, creamy ice cream.

That you could ever get. Like I eve I wouldn’t eat Briars or anything else growing up because it none of it like Briars tasted like chalk to me compared to Stro’s. And my favorite, favorite flavor to this day is black cherry. So sometimes when I go home to visit my family, my mom will buy some and have it in the freezer for me. But that when I think of the best ice cream ever, it is Stro’s black cherry that may not make the best hot fudge Sunday for you, but you know, you can experiment. But if you want fudge, again.

Detroit classic Sanders fudge. We have it in our fridge right now here in DC. There is no better fudge. They also do caramel. ⁓ it’s just so delicious. I you know, is this just me being nostalgic? I think my taste is maybe 25% nostalgia, but 75% legit deliciousness. So

Barb (02:47)
yeah, can it?

Joyce (02:48)
Where do I find Stro’s ice cream? Do I have to go to Detroit? ‘Cause I will.

Kim (02:53)
think I have only seen that in Michigan. But you can get ⁓ Sanders fudge outside of Michigan, but I’ve only seen Stro’s ice cream at the Kroger in Michigan. So w we’ll we’ll try to find the way to ship you some, Joyce. No.

Joyce (03:06)
gonna go hang out at the McQuaid’s house for a weekend. Barb, when can I come out?

Barb (03:10)
Look you up. We’ll look you I can’t assess Strows does make a good ice cream. Kim, I thought you might go with the Boston Cooler, which is Werner’s over vanilla ice cream. Also a very yeah, a very ⁓ also a Detroit classic. Yeah, that’s good stuff. And black cherry, you know, in the summertime, sometimes we go up north and if you’re anywhere near Traverse City, you gotta go with the black cherry ice cream. That’s that’s the only way to go. You know, I I spent most of my life as a fruity ice cream girl, but I have to say in my ⁓

Kim (03:20)
Or a classic.

Barb (03:40)
advanced age, I’ve really shifted over to more of the ⁓ cookie dough and salty caramel flavors. I have to say that’s that’s probably a tie. You know, salty caram wasn’t a thing, I don’t think, when I was a kid, but it’s become very popular and for good reason because it’s very delicious. There’s a ice cream parlor in Ann Arbor called Blank Slate, and they they make great ice cream and I am a sucker for their salty caramel. It’s delicious.

Joyce (04:06)
You know, I think this is the problem with ice cream. There just isn’t really a bad choice. And there was one summer when our kids were little, Bob got me an ice cream maker and I got obsessed with making garden ice cream. Like I made this sherbet that was watermelon with basil in it. I did weird stuff like that, whatever was ripe. I never did make squash ice cream, although I threatened and I still think it would be good, right?

Make a custard with squash in it and then freeze it. It’s not that different from pumpkin. Don’t give me that look, Kimberly. I think it would be legit. Right? Brown sugar and summer squash, I think that has potential.

Kim (04:44)
Guess squash is technically a f

Barb (04:46)
So ⁓ you can eat a lot of brown sugar to make it worthwhile.

Joyce (04:51)
But I’m with Barb. I mean I think salty caramel, ooh, tough to beat.

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Barb (07:49)
Well, news reports indicate that John Bolton has reached a plea deal with the Justice Department. The former National Security Advisor was charged with disclosing classified information. And Kim, can you remind our listeners about the charges of John Bolton and what the reported terms of the plea deal are?

Kim (08:09)
Yeah, so recall that John Bolton was originally hit with an eighteen count indictment and it stemmed from him writing his memoir and using what the Justice Department says was classified material in writing his personal notes in preparation for ⁓ this memoir and then ⁓ using a messaging app to share more of more than a thousand

pages of this notes, which included, according to the Justice Department, ⁓ national defense ⁓ information with two family members, his wife and daughter, who do not and have not ever, as far as I know, ⁓ held security clearance. So he entered into a plea deal, as you said, this week. And under the terms, he pled guilty to a pled. I don’t even I pleaded. He pleaded guilty

⁓ to a single count of illegal retention of classified information and he will pay a fine of about two point five million dollars. He could still face some jail time up to five years, but he also could get none. The the the general sentencing guidelines call for zero to five years for this one ⁓ charge. So that was a pretty interesting turn of events this week. But I think as we’ll get into and we’ve discussed before, I think his case

was a little different than other classified documents investigations that we’ve seen. Yeah.

Barb (09:38)
I agree with that. And by the way, Kim, you should know that the pled pleaded debate is one that rages in U.S. attorneys’ offices. I was always like you in the pleaded camp, but I noticed.

Joyce (09:47)
It’s lip. It is absolutely fled. I will die on this ⁓ hill.

Barb (09:57)
Die with you ’cause it’s ⁓

Kim (10:00)
This is how Barb enjoys.

Joyce (10:02)
⁓ You know, Barb was with Preet last You were with Preet, right, last Sunday. And Preet, who is our colleague in the Southern District of New York, Preet is team played along with me. So I don’t know

Kim (10:16)
So we’ll do a cage fight. ⁓

Barb (10:17)
No

yeah.

Joyce (10:18)
Hey we can do it at the White House, y’all. And we’ve got that big old arch built. Let’s

Barb (10:23)
Yeah. Can I just completely unrelated to any of this? I you know, I’ve been on this book tour this week signing books and I had two people come up to me and tell me how a book talk, you know, with my book, they’re buying my book, telling me how much they enjoy receiving my newsletter civil discourse with Joyce fans. They think we’re the same person.

Joyce (10:45)
I’ll never understand why people think that we look so much alike, but I am so deeply complimented by that. And so sorry you have to live with

Barb (10:54)
No, no, same. It’s very flattering. Just make sure you always uphold the brand. All right, so let’s let’s get back to the to the conversation about John Bolton. ⁓ you know, as as Kim said, it’s hard to find the right comparable. This case reminds me a little bit of the case against General Petraeus. Remember that? he was allowed to plead guilty to a misdemeanor. Do you think this is comparable to the Petraeus case? Is Bolton being treated more harshly, or do you think his case is different?

Joyce (11:24)
You know, I think that that comparison is a fair one, and it’s an important one because the cases have real similarities, but there are also some meaningful differences that cut both ways. ⁓ both cases involve a senior national security official who’s sharing classified material with unauthorized individuals for private purposes, not for espionage. That’s the first key ⁓ similarity. Yeah. But Bolton shares more than a

thousand pages of diary-like NSA notes, including information that’s classified up to the top secret as CI level. And he does that with two family members who lack security clearances. Of course, Petraeus shared notes with his biographer slash girlfriend Paula Broadwell, ⁓ but it was over a shorter period of time and fewer items.

Importantly, though, neither man was accused of sharing information with a foreign adversary for money or for ideology. But the scale is just so very different. Bolton’s conduct allegedly runs from April of 2018 to August of 2025. Seven years, over a thousand pages of information. Some of the worst instances include intelligence about

future attacks and sensitive information shared with the US by a foreign partner. So very different ⁓ from Petraeus in that sense. And then we get to the Iranian hack of Bolton because he is, you know, sharing this material constantly. And that makes him a target and that really exposes the United States to serious, serious danger. So

Is Bolton being treated more harshly? That’s the question that you pose, Barb. On the surface, yes, but the comparison is very complicated. Bolton’s deal resolves this eighteen count felony indictment Kim was talking about down to a single count of retention of classified information with a whopper of a fine in excess of two million dollars and the possibility of avoiding prison, although that’s not for certain, that’s up to the judge.

Barb (13:37)
Yeah, that’s right. And you know, I I think as you mentioned, to me, one of the key differences too, you know, what what they both did was a a violation of the trust that they ⁓ received i in exchange for the privilege of serving and having access to America’s secrets. But sending ⁓ information over his private email is what John Bolton did. And that is what what was apparently hacked. He got some response back from Arena, like, hey John.

Guess what we have? You know, we we’ve got all this classified information. He fronted that himself to the FBI and said, it looks like I’ve been hacked. ⁓ but that was how it was detected. And that’s why you don’t put this stuff over your, you know, commercial priv private email or or a signal chat for that matter, because there is that risk that it gets intercepted and your target when you have a position of ⁓ you know, sensitivity like the national security advisor.

Joyce (14:33)
Can can I just be petty here for a second and say that Bolton is doing this on the same timeline where he and others are sharply critical of Hillary Clinton over the whole private server thing? And you know, hypocrisy bears its own rewards, right? But John Bolton is nothing if not hypocritical in this whole exercise.

Barb (14:53)
Yeah, well, ⁓ Kim, I also want to ask you about how it compares to some of the other cases we’ve been seeing more recently in the Trump administration. I saw I think it was the Wall Street Journal today tried to group Bolton with Jim Comey and Letitia James saying, Well, this is one more episode of weaponized justice department and going after Trump’s enemies. Do you think that this case is legit or is this this one more episode of Trump’s retribution campaign?

Kim (15:21)
Well, listen, I have no doubt that Trump is enjoying this. ⁓ that he is thrilled because Bolton is such a became such a strong critic of Donald Trump and his actions. ⁓ and I’m sure the fact that he faced charges in the first place may have had to do with the fact that it was under Pam Bonde in the Justice Department. But it’s important for people to remember that A, as we’ve pointed out, what he did was not good. It was very bad.

B, the investigation into this began during the Biden administration, unlike the probes into Letitia James and James Comey. So I don’t think the origins of this were politically motivated. I think, as you said, he got this information from Iran, he took it to the FBI, and an investigation was open. And that’s seems pretty much to me like the normal course of things. He also, again, he he voluntarily went. So if you want to distinguish it from, I don’t know.

President Trump’s. He didn’t try to stonewall or or say that the documents were really his or anything like that. ⁓ so it does not feel particularly politically motivated. I don’t know at the time in the Biden administration, they investigated and they chose at the time not to bring charges. They made that decision and it reversed in the Trump administration. Was that political? Quite possibly.

But it doesn’t take away from the fact that what he did was wrong, it was illegal, and I’m glad that he’s taking responsibility and striking this plea deal. I think that was the right thing for him to do.

Joyce (16:57)
Yeah. And you know, can I just add to what Kim is saying? Because I think these cases, there’s always a dimension that the public is maybe less aware of, but that’s important because to prosecute a John Bolton in court, the government has a real problem on its hands. And this may be why the Biden administration didn’t go forward. Inevitably, in order to prove your case, there’s some classified information that gets exposed.

And that can be very difficult and very dicey to navigate. And sometimes I I mean that quite frankly is I I think why with Petraeus he was permitted to plead to a misdemeanor charge. Now we’ve got Bolton who will plead to a felony. He really benefits like crazy from this this deal. The idea that he won’t have to do jail time. And probably the judge will will sentence with a light hand if for no other reason than because the judge will know that.

This is not someone that the Bureau of Prisons wants to have to keep safe while they’re in prison. He would go to a facility, probably like Talladega, which is in North Alabama, my district, which has a minimum security camp, which he would be eligible for. Tough to keep somebody who has a bounty on his head from Iran safe in that sort of a setting. So I think he cut a really favorable deal for himself. The government has less exposure for what they have to put forward, but the

point that I’m trying to make with this long dragged out comment is that these cases are difficult and what sometimes looks like just a slap on the wrist as opposed to the gut punch that these guys deserve for doing this is to keep the rest of us safe, to protect national security.

Barb (18:39)
Yeah, it’s difficult to try a case like this without revealing some of the very secrets that you were concerned about protecting in the first place. Well, let me just wrap up by asking you both, what effect, if any, this case has on the way we ought to view President Trump’s own retention of national defense information? Does this just amplify this is a big deal, this is a crime? Or ⁓ does it suggest that it it all depends on who you are and what kind of treatment you get?

Kim (19:06)
Well, I I feel like in this case you c there’s there are clear through lines that show the difference between Trump’s case and literally every other classified documents investigation, including that into former President Joe Biden and former vice president Mike Pence. It has to do with how how much you cop to it, how much you cooperate, how much you take responsibility as opposed to completely

Pretending like you’re a king and everything you touch is yours, even when it deals with national security. I shudder to think about what is going to go on at the end of this term in Trump because he was let off the hook. And this is part of the problem with Aileen Cannon. He was totally let off the hook with this. So we’ve seen how the president operates.

Once he gets away with something, he takes it. Once he’s given an inch, he takes three miles. Look at the immunity decision. And he’s now, ever since then, he’s acted like a king. I think now, I mean, I don’t there’s no telling where classified documents are. He’s probably already stashing them away in anticipation because he doesn’t think that the law applies to him. So I think the lesson he learned ⁓ was exactly the wrong one. But his case is so different from any of these other classified cases, even John Bolton’s, which

Again, he did something wrong. ⁓ it it’s not even it’s not even a comparison.

Joyce (20:33)
Yeah, I think Kim absolutely nails it. I have very little to add except to say, and and this is to the point that you’re making, Trump goes above and beyond the original crime by obstructing justice, right? By lying about it, by trying to withhold documents from the government. Everything about Trump’s situation is very different from these other cases. You know, Donald Trump never came in and and you know, never said, Look, I’d like to plead guilty to a misdemeanor.

And his case might have been very different had he done that, but this is someone who can never acknowledge when he’s wrong.

Barb (21:18)
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Kim (26:52)
Well, this was the week of some pretty bad luck for some of Donald Trump’s cabinet nominees. It seems that the fact that fealty has become the number one qualification that the president seeks in choosing who is in his cabinet is starting to come back to bite him because the higher the fealty, maybe the lower the qualifications. I don’t know. It seems that some of his latest picks are even too much for Senate Republicans.

To swallow. To wit, Joyce, tell us about Bill Poulty, Trump’s choice to replace Tulsi Gabbard as director of national intelligence. He’s he’s deeply steeped in the intelligence ⁓ community, is he not? Why was he

Joyce (27:39)
Yeah, so deeply steeped. Yeah, just like a fine tea. Look, Bill Poulty has zero qualification for this job. He might be able to build you a house, or he might be able to boss around the guys that can build you a house, but he doesn’t know anything about being the director of national intelligence. And something that we’ve all been talking about this week, you know, most cabinet level jobs don’t have a statutory qualification, but the DNI has to be somebody with.

Deep, extensive experience in national security. That’s not Bill Poulty. And that’s why Trump is putting him in place as the acting rather than trying to get him confirmed. Because he is absolutely unconfirmable. He has that one quality that matters to Trump. Kim, you know, I I was gonna say loyalty. I love that you say fealty, because I think we’re not very far away from the moment.

Where King Trump sits on a throne and makes people walk up the carpet towards him and kneel before he knights them. I mean, we’re we’re awfully close to that. Poulty has a track record that a Donald Trump loves because he used his position at Fannie and Freddie to pull mortgage documentation. And that’s what led to the, although it’s now been dismissed, but to the prosecution of Tish James, the New York Attorney General.

There was a case that was never formally brought, but that Trump used in as an excuse to fire Fed governor Lisa Cook. So Polti has really delivered for Trump up until now, and Trump is clearly counting on more of the same.

Kim (29:14)
Yeah, and he has done it all ⁓ while not exactly making friends along the way, even within the cabinet. One of my favorite Bill Pulti stories is the fact that Treasury’s secretary Scott Bessent ⁓ reportedly had words with him at the White House and threatened to punch him in the bleeping face. So It seems like a real nice gift.

Joyce (29:38)
Just a normal, ordinary cabinet level exchange, man. Come on, Kim, don’t be so picky.

Barb (29:45)
A

Kim (29:46)
Okay, so Barb, you know, as we’ve hinted at, not all GOP senators are into him. ⁓ in fact, you know, as Joyce pointed out, it looks like his run at D<unk>I may not last very long. What do you think of that?

Barb (30:02)
Yeah, you know, even today President Trump said it’s just temporary. He won’t last that long. Don’t worry about it.

Joyce (30:08)
Just long enough to mess with the election, yeah.

Barb (30:11)
A couple of things about this. So I know ⁓ John Thune, who’s the Senate majority leader, said we this is an important position. We can’t have a politicized director of national intelligence. And and Mitch McConnell said this is a position that requires extensive experience and we will not stand for anyone who’s not qualified. So ⁓ I I thought that was interesting, but you know, it doesn’t require a ⁓ a Senate confirmation to at be in acting, and he’s going to be there for 210 days. That’s seven months.

And one of the things President Trump has has suggested he’ll do is, you know, you have a lot more flexibility when you’re in acting, and he wants him to fire people in the intelligence community so that the incoming director of national intelligence will have a clean slate. And he w and why? Who do you want to fire? And why do you want to fire him? It’s just too big. ⁓ Which jobs, which which d job descriptions do you think are unnecessary, Mr. President? You may recall when Jo Doge was in there cutting jobs, they just slashed jobs.

kind of willy-nilly, and it turned out they also slashed people who were in charge of the nuclear program and they, oops, we better bring those people back. So I worry about that. And as Joyce said, you know, what could possibly go wrong in these seven months? It’s a really long time. We are at war with Iran, a state sponsor of terrorism. The reason we have a director of national intelligence is because after 9-11, Congress concluded based on the 9-11 Commission,

That there was a lack of one centralized leader over all 18 intelligence agencies to make sure we were connecting the dots. That’s the job of the Dr N director of National Intelligence. Also to lead the president’s daily brief on what are the most urgent threats, what happened overnight. That’s the person. And we’ve got Bill Poulty, who has no experience in this regard. I think it’s incredibly dangerous to have someone like this at the helm.

Joyce (32:08)
Hey, Kim, can I I n I know that this is sort of a little bit off topic, but I think it is on topic and Barb is our national security expert. Barb, the FISA is due, Section seven two is due to be re upped, ⁓ warrantless collection on on foreign subjects. Can you talk a little bit about how Democrats might be able to use that to get some leverage over Poulty?

Kim (32:16)
Yeah.

Barb (32:32)
Yes. So Section seven two is an important part of the national security toolkit, as they like to say, but it is one that is controversial because it allows the ⁓ intelligence community to collect communications of non US persons who are overseas as the targets. But of course, they sometimes talk to American citizens. And so even though they’re collecting on targets who are non US citizens overseas.

in in the collection data are conversations and text messages and emails with US persons. The intelligence community is able to query all of that data without a warrant if it relates to an intelligence purpose, not a criminal investigation. That means all of us, and if you have someone who is not carefully following the rules, one could worry about whether they’re going to use that to collect information on, you know, say Trump’s enemies. But the it presents this

perhaps opportunity. There is a strong desire to renew ⁓ w it sunsets from time to time, ⁓ w which forces Congress to review it before they can reauthorize it. Yeah. And so that timing I think is suggesting could be used as a package, right? As a lever to say, if you want this authority, which you very much want, if you want us to continue it, then we need a director of national intelligence who is someone with the required

Kim (33:42)
Yeah, they’re reviewing it right now.

Barb (34:00)
extensive experience in intelligence. So I think they have an opportunity here to ⁓ withhold their approval of the renewal of section seven two if the president persists in pushing even an acting director of national intelligence without any experience.

Kim (34:17)
Yeah, and I’m gonna spitball here and think that they may get some Republicans to join them too, because I know ⁓ some like Lisa Murkowski have ⁓ really not been thrilled with this Pulti appointment one bit. ⁓ and they’ve even ⁓ tried to bar him from simultaneously serving as acting D and I and also remaining in the fi the how I keep forgetting the name of the administration that he’s on.

Joyce (34:46)
Chef

Bay, yeah.

Kim (34:48)
Yes, the Federal Housing Finance Agency where he is authorized to dig up dirt on the people that Donald Trump doesn’t like. So there’s a lot of stuff going on here. But let’s we would be remiss if we did not spend a little bit of time focusing on one of our favorite subjects, ⁓ acting attorney general Todd Blanche, who really, really wants the permanent job so bad, so much so that he tried to set up a slush fund for Donald Trump and his

buddies, his supporters, including January sixth rioters, fell apart, but not as to Donald Trump. ⁓ Barb, things aren’t looking so great for him in the Senate either, huh?

Barb (35:26)
Yeah, you know, it’s ⁓ I think John Thune said it’s hard to say. ⁓ you know, the majority

Kim (35:32)
Bad n okay, when the when the majority leader is like

Barb (35:37)
Not so sure. Yeah, you know, Charles Grassley, who has often been a ⁓ opponent of DOJ, he has said, like, it’s it of course it’s good to go. We approved him a little over a year ago for the deputy position. It’s the same guy. And so I expect him to sail through. But there are others, and you know, n there’s some people now who have been ⁓ liberated from their allegiance to Donald Trump, like John Cornyn, ⁓ who lost his ⁓ his ⁓ primary election.

Kim (35:39)
Good sign.

Barb (36:07)
in face of opposition by ⁓ Donald Trump and Senator Cassidy. So there’s some people there who may be able to vote Tom Tillis, another, they may be able to vote their conscience here because of ⁓ they they are no longer seeking a seat to ⁓ run for reelection. ⁓ but I think one thing that’s very different from the ⁓ Senate confirmation vote that occurred when Todd Blanche was nominated for deputy attorney general, which is early 2025.

Is now we have seen what he is like at the helm. He led the ⁓ review and release of the Epstein files. And by accounts of members of Congress, there are still many documents that have yet to be disclosed because he is holding on to ⁓ deliberative process privilege, despite the fact that the statute itself said that that would should not be honored. We’ve seen the way he has overseen indictments against the Southern Poverty Law Center and the Seashells case, and that he even tried to put together this.

Slush fund for Trump. And even though here’s the cynic in me, they were pretty quick to walk back the compensation fund for weapon weaponization victims. Like, okay, forget about it. We won’t do that. They have not walked back what may have been the real ⁓ important crux of the deal, which was to give Trump immunity from audits and civil claims from the IRS for anything he might have done in the past. Some experts estimate that his past tax bill is over $100 million.

⁓ you know, tr Trump doesn’t care about his supporters, right? Like, okay, yeah, forget, we’ll watch that back. What he really wants is this hundred million dollar gift. And so it may be that this set of experiences that we have seen Todd Blanche participate in might make it a different vote that we see than than we saw a year and a half ago.

Joyce (37:56)
You know, can I add one other element in too? Because the thing about Todd Blanche is there’s something for everybody to hate here, right? I mean, Barb has covered ⁓ the key ones, but there’s so much more with Blanche. And if you’re in a close race in a state or in a district where people care about the Epstein survivors, the the victims of Epstein, Todd Blanche is the guy who went to a federal prison.

Interviewed Jolene Maxwell and gave her the sweetheart deal of a lifetime. She’s now sitting in a minimum security facility where she is not eligible to be vi by virtue of her conviction. She’s got like a puppy that she’s raising. She gets good food. She does. She has like program BOP does where they let inmates raise service dogs or something like that for the first year. She’s in on that. I mean

Barb (38:42)
You know that.

Joyce (38:53)
Here’s the deal, right? If you are take your pick of Republicans in tight races, and this could be a difficult year for them in any event, and you’re thinking about how this is gonna play in late October, when your opponent, when the Democrat that you’re running against, you know, starts coming out and talking about what happened with Jolene Maxwell, I think you may be very hesitant to vote to confirm Todd Blanche.

To be honest with y’all, I’m not really sure he’ll even come up for a vote.

Barb (39:28)
Wow. Wow. Okay.

Kim (39:29)
We’ll keep an eye on the maybe sycophancy doesn’t pay off in the end after all.

Barb (39:36)
Loyalty is a one way street in the Trump administration. Just remember that.

Kim (39:49)
I love seafood. I love seafood. I really do. I can eat it every day.

Joyce (39:55)
I

can tell. Wow.

Barb (39:57)
That’s an enthusiastic, ⁓

Kim (39:59)
But I also don’t love going to the grocery store. I may have mentioned that too. But one reason is when you get to the the the fish section, you never know where it came from or what might be in it or how fresh it is or whether it’s sustainable. And even worse, you never know how long it’s been sitting out on display. I d I don’t always believe the dates that are stamped on it. I I’m sorry. I’m I’m distrustful, y’all. I don’t believe it. So when it comes to my home and all of our homes.

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Joyce (42:25)
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We’ve spent a lot of time lately discussing the Supreme Court’s decision in Calais. That’s the gerrymandering case. I know you guys know all about it. Voting rights are critically important, and voting is the right that unlocks all of the other rights. We’ve also, after Calais, we’ve touched on this Alabama case called Milligan. It’s a case that the Supreme Court decided three years ago, and Justice Roberts and Justice Kavanaugh joined the three progressive justices.

In a very fragile majority that forced the state to redraw its maps. You know, we found out just how fragile that majority was when Alabama went back to the court for permission to revert essentially to its old maps after Calais was on. And shocker, the Supreme Court gave them permission to do that. And that happened even after a panel of judges, two Trump appointees on that panel.

found that those maps had been drawn with an intent to discriminate against black voters. America in twenty twenty six. So ⁓ Kim, you wrote a fantastic column about this on Thursday. Can you share the points you made with us and talk about why everybody across the country, not just people in Alabama, need to be worried about Milligan?

Kim (45:02)
Absolutely. I mean, this case is absolutely infuriating. I will push back on one little thing you said, Joyce, when you were saying that Roberts and Kavanaugh join the progressive justices. The more I read what the three Democratic appointed justices write about voting rights and a host of other things, I actually don’t think they’re progressive. I actually think what they are trying to do is hold on to the jurisprudence over, in this case, the Voting Rights Act.

That has ex had existed for six decades, including the f nearly the first half of the Roberts court and how it was applied. They’re holding steady to the way. I I don’t I I think sometimes because we think of politics as being very polarized right now, we talk about the conservatives on the court and the liberals as if they’re at the same point in the poll. I think the conservatives are way over, what’s my right, way over here.

And the three in descent are generally speaking kind of somewhere center left.

Joyce (46:02)
You know, that’s such a good point though. I’m gl I’m glad you raised that, right? Because progressives want to restore the Voting Rights Act. They want this new measure in Congress to pass. I think you’re dead right. They’re just trying to hold on to something that they can pick up two votes from the conservatives for to try to hold on. So that’s

Kim (46:19)
They

are just trying to apply the Voting Rights Act and the constitution to it the way that it has been for sixty years. I won’t.

Barb (46:26)
should be changed, right? Are are are are you know Kagan and Sodomayor and Jackson now the conservatives try to hold on to the past and the others are sort of the the original right?

Kim (46:37)
Yeah,

the textualist original.

Joyce (46:38)
We’re you know, Justice Jackson is in fact a textualist in

Kim (46:42)
She is? She

very much is. I’ve written about that too. But anyway, the the Milligan case. So let’s start right. So recall that Calais essentially held, although the majority claims it wasn’t the holding, but essentially held the only way you can bring a section two case alleging racial gerrymandering is to show intent. I mean, that’s the that’s if you read Kagan’s very, very good dissent in that case.

There’s no other way to read the case because they make it nearly impossible to bring a disparate impact claim alleging voter dilution of black votes, even when the record is as clear as it was in Louisiana, right? So there’s only intentional discrimination. Well, in Alabama, there was a three-judge panel, two of the judges appointed by Trump that have found since 2021 repeatedly that.

Alabama intentionally, racially gerrymandered their map to pack all the black, the majority of black voters, into one district when they had enough numbers to have a second opportunity district. It doesn’t mean it has to be majority black. All it means is that you have enough black people there to be able to have the voting power to elect the candidate of their choice. That’s the language of the Voting Rights Act. And that they found

In a ruling that was in excess of 500 pages, replete with evidence that the legislature in Alabama did it on purpose, intentionally packed them into that district in order to help Republicans win. Well, the Supreme Court remanded that case for some reason after Collet to that three judge panel to say, hey, take another look at this in light of Calais. Now I’m like, well, what do you mean, Calais? This is intentional, the gerrymandering case.

Do with Calais, right? Then in a shadow docket unsigned order dropped on Tuesday night at 9 14 PM Eastern time, the court held that the three judge panel aired because one, they failed to give Alabama lawmakers the quote presumption of legislative good faith.

Barb (49:04)
Yeah.

Joyce (49:06)
Can I just say I’m an Alabama voter, right? I read the newspapers, I talk to these guys, not only was there discriminatory intent, they were proud of it. They wanted to tell you all about it. Yeah.

Kim (49:19)
You had the House Speaker after the first time when the Supreme Court ruled against them in this same case and said that it was intentional discrimination. He basically said, you know what, it was five four, so all we have to do is wait it out.

Joyce (49:33)
And then Alabama went in they refused to draw new maps. They drew up a discriminatory map. The three judge panel actually had to hire an expert to draw maps for the state. So like it won a close call here.

Kim (49:48)
It really wasn’t. And they and they also had the nerve in this percurium decision, which means no what nobody had the guts to sign it. But ⁓ I don’t know, in my personal opinion, it feels like an Alito joint to me. we talked about the Purcell principle, which means that courts are not supposed to change election rules on the eve of an election. Now, I don’t know about y’all, but to me, June in a midterm year feels like the eve of an election. And the Supreme Court held that the three judge panel

Can’t act now because it’s too close to the election. But, but Alabama lawmakers are perfectly free. It doesn’t apply to them. They can change all the rules right up until they think they it’s fit to change it. So that gives that gives states in the South and elsewhere with history of racial gerrymandering a blueprint. All they have to do is wait out the clock until courts can do nothing about it and then put their gerrymander in.

And know that there’s no other court that can do that. Not to men but in in doing this though, the Supreme Court itself violated the Purcell principle because they are the cause of all of this c it’s the most outrageous shadow docket in the literal dark of night ruling that the Supreme Court has ever made on voting voting rights and they should be ashamed of themselves.

Joyce (51:07)
You know, it’s so hard to explain this because it’s so far inside baseball, but appellate courts are supposed to give sort of a presumption to trial court’s decisions about what the facts are. And in the absence of clear air, they’re not supposed to change them. And here where the evidence is strong, solid, in your face, I mean

Barb (51:29)
Yeah.

Joyce (51:31)
Might

think that the Supreme Court would have been a little bit upset that the Alabama legislature took the point of view that it didn’t have to follow the dinky little Supreme Court’s direction to them. But no, they’re like, Alabama have at it, girl. And and you know the problem is this case is about gerrymandering. I can see all sorts of bad outcomes down the road where if you’re a clever, coercive state legislature,

Maybe you decide to adopt new rules in the state legislature three days before the election. This is a frickin’ disaster. And and I started out by saying voting is the right that unlocks all the other rights. I mean, Barb, what are your concerns? We’ve got this one two punch from Calais and Milligan. Where do you think this ends up?

Barb (52:17)
I now think that ⁓ you know, it’s just open season for gerrymandering, including race-based gerrymandering. You know, I had taken the view that I think was wrong-headed, that Chief Justice Roberts in particular, but much of this court has this sort of colorblind view of the world, which is lovely, but that’s not the world we live in. And Congress has found that ⁓ it is a compelling interest to promote voting rights.

The court has even recognized that. As recently as Calais, the Supreme Court, even in Alito’s opinion, said we’re not overturning ⁓ the Voting Rights Act because there is this compelling interest in protecting voting rights, and that means providing these opportunity districts. ⁓ but you know, we just we don’t see it here because there was no intent to discriminate. Now, I have I have gone on a tirade before about why that’s the wrong t standard. Yeah, i Congress even

legislated this in 1982 and said, we don’t care about what your intent was. It isn’t nice try. It is you get equal rights to vote. And so discriminatory effect has always been enough. But what they said in Calais is discriminatory effect is not enough. There has to be intent to discriminate, which at the even when Calais came out, I said that’s gonna be really hard to prove because it will be really easy to show discrimin discriminatory effect without being able to show discriminatory intent unless people say it out loud. Well now

All they did something of misguided colorblind, you know, intent. I I I thought, well, they’re misguided. ⁓ but now that’s all off the table, right? This is this is a map that the court found was violated, the Voting Rights Act, that they found had a discriminatory intent. And now they say, Well, you ought to give the benefit of the doubt to the legislature. Wait, what? We’ve got evidence. Courts have found evidence of intent to discriminate. So where does that leave us? I don’t know, because you know, we

they’d they had surrendered on political gerrymandering in the Rucho case and said it’s a political question we can’t touch. Now it seems that even racial discrimination is beyond the purview of courts. And so feels like it’s open season. ⁓ and as we saw in Tennessee, right, they’ve they busted up, cracked in in the term of gerrymandering, cracked up Memphis. So there’s no longer a cohesive ⁓ district that encompasses Memphis. It’s been divided up into three separate districts. So you’ve got

A little bit of Memphis in some suburbs and another little bit of Memphis and some suburbs and then a third bit of Memphis and some suburbs, which now means there’s no ⁓ Memphis block, predominantly black, that can elect out the

Kim (54:54)
Black people. And if you look at Dakin’s descent in Calais, she starts off with a hypothetical. Yeah.

Barb (55:01)
That’s exactly the Memphis scenario.

Kim (55:03)
Exactly

how that’s exactly what it is.

Barb (55:05)
So I would say the the only path back that I can see is one that is existent in some states, including ⁓ Michigan, where we have a independent redistricting commission. It is not partisan. It it’s got members who are Republicans, members who are Democrats, members who are independent, and they are the ones who who do the redistricting. And they’ve created, guess what, fair districts. They respect county and city bare borders, so they’re not splitting up communities.

They respect communities of interest. They have to be of relatively equal size and shape. So they’re not doing these crazy snakes to try to, you know, pack or crack groups. And it largely works. In fact, in the election right after the redistricting last time, the first election, the Michigan House and Senate went Democratic for the first time in forty years. So, you know, it it allows people to actually have ⁓ the choice that they want to have. It we the the initiative was called voters, not politicians.

Joyce (56:03)
So Kim, Barb raised a a really interesting point. I I take the point about Michigan and independent commissions, which I think is such a great approach. ⁓ I’d like to see the Alabama legislature try to pass that law, though. I fear it it won’t happen with their ⁓ viewpoint, which we’ve discussed. But Barb raised another really interesting point when she ⁓ said that this is a court, the majority of which did not say.

That the Voting Rights Act is unconstitutional. They didn’t say it in Calais about Section Two. They didn’t say it in Shelby County versus Holder about Section Five. They just said the way it’s being used, or in Calais, they changed the standard and make it undoable. Do you think, Kim, that there might be another path back? Could Congress possibly fix this if there are ⁓ pro democracy majorities after the midterm?

Kim (56:57)
Well the problem so first of all, as to the the court saying, no, we didn’t do that. That’s called throwing rocks and hide in your hands. You absolutely did it. You just don’t wanna say that you did it. That’s called gaslighting. And I really hate that in this unsigned shadow docket order that came out at nine fourteen at night, that ⁓ Chief Justice John Roberts or Justice Brett Kavanaugh had the cojones to ex explain why their ruling, what happened in the three years since they said that Alabama

intentionally gerrymandered with this map to then to turn around and change their mind completely and not even have to explain themselves. I’m sorry. But the problem with congressional action when it comes to Calais is that this was a constitutional ruling. They ruled that these provisions of the Voting Rights Act violated the Equal Protection Clause because it stamp it trampled on the rights of white voters. So when it’s a constitutional ruling, that limits Congress’s ability to go in and legislate that away.

So they’ve really broken something fundamentally. So I know, you know, in talking to people who are doing the hard work, like Kristen Clark, who was formerly ⁓ head of the civil rights division at justice under the Biden administration, who’s been working on voting rights her whole career. ⁓ they think, you know, getting out to vote and getting people who believe in justice is still important to pass things like the John Lewis Act.

that will restore a lot of what is being broken ⁓ in this case. There’s still a lot for Congress to do. I don’t want to be pessimistic about it, yes. But when it comes to this constitutional ruling in Calais, we will have to wait for a Supreme Court to see the damage that it has done, how this is as bad as Dred Scott, and actually overturn that.

Joyce (58:47)
Yeah, I think this is such an important line that you’re drawing. Section five Shelby County. The court invalidates the criteria that’s being used, not the law. So Congress could come back and act. That’s the John Lewis Act as part of that. But there’s not been any traction in Congress in low these many years, right? I mean, we’re at ten plus years now on on that one. And what happened in Calais is devastating because of the constitutional ruling. Could Congress

find a way back, you know, maybe they could, but as Kim says, it will take a different configuration or a different attitude on the Supreme Court. I guess this court has been so changeable three years ago this was unconstitutional. Who knows? You know, maybe when Barb McQuaid ⁓ wins the presidency in twenty twenty eight, maybe the Supreme Court will sing a different tune after that.

Barb (59:40)
In your dreams. Or nightmares as the case may be. ⁓

Joyce (59:47)
‘Cause

if you got elected man, then everybody would be like accosting me, going, President McQuaid, President

Kim (59:55)
Yeah, my vote bar if I still have a vote.

Joyce (59:59)
⁓

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Barb (1:01:07)
You know, if cats could text, they would not text you back. I I saw that on social media, that’s not an original joke, but I thought it was really funny.

Joyce (1:01:18)
know though Barb, like my cats would be texting like, Hey woman, need more food or whatever. Come scratch my bath. I can’t even imagine what the cat texts would look like.

Barb (1:01:28)
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Kim (1:02:03)
You know, I’m not surprised. Cats use protein as their main energy source, and more protein means more fuel and sustained energy. Small’s fresh, gently cooked, preservative free cat food gives them high protein and improved hydration for strong bones and toned muscles. Does Small make food for people? Because I can use some strong bones in

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I was just thinking that, right? And it would really help with getting all the protein social media keeps telling me I need to get.

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Right. Right. Plus a balanced diet leads to less shedding, fewer hairballs, and more silky shine. I think I need those things too. Even better. Lots of nutrients in small’s food are digestible. So less junk comes out the other end. And that means less cat related odors. And that’s something we can all appreciate. Right.

Barb (1:02:55)
That was

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Joyce (1:02:59)
Even Barb survived that one.

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Joyce (1:04:07)
If you have a question for us, please email sistersinlaw at politicon.com or tag us on social media using the hashtag SistersInLaw. If we don’t get to your question during the show, we’ll try to answer it during our newest show, Sisters Sidebar, where we take your questions every Wednesday. You know, it’s so exciting because this really is our favorite part of the show, and now we get to get together twice a week to answer your questions.

So we’ll get started for today. Barb, I have a question for you. It’s from Megan. And she asks if House and Senate sign off on adding more Supreme Court justices, could the Supreme Court itself stop that?

Barb (1:04:51)
What an interesting case, very existential. ⁓ I don’t think so. You know, Article Three of the Constitution establishes a judicial branch and it vests the do the judicial power in one Supreme Court and in such inferior courts as Congress may establish. And the number of justices has always been set by Congress. We’ve had five, seven, now nine. And so if the court were to expand ⁓ to say 13 or some other number.

⁓ I think Congress can do that. Now, if they try to do things like term limits, I think ⁓ justices are appointed for life in the constitution. I think they couldn’t do that. But in terms of expanding the number, I think Congress can do it and I don’t think the courts could do anything about it.

Joyce (1:05:37)
So our next question, I think I’ll take this one. It comes from N B D Y I P T, Nobody Important, maybe, at bluesky.social. And it’s a great question. They ask, what are law schools going to do about the demise of legal ethics? So I have some thoughts, but y’all feel free to jump in because when the three of us went to law school, ⁓ I’m gonna hazard a guess that ethics was not the most important topic in any of our minds.

You know, ethics, you had to take a bar exam on it, just like a mini exam. But everybody understood what ethics were. There weren’t big questions in our mind. It was sort of routine. And I think now it is no longer routine. It’s fresh, it’s important, it’s interesting. In the Democratic Institution seminar that I taught in the spring, my students really dug in on the reading and we had some very engaged conversations. And so

I think frankly that what law schools do will be driven by student interest. I think it’s at an all time high and this is a new reinvigorated topic that people care about. But what are y’all seeing?

Kim (1:06:48)
No, I think that that’s right. I mean, law school applications have gone up. I’m on the advisory board of ⁓ of a center that ⁓ encourages law students to pursue public ⁓ jobs in the public sector. and you’re seeing a lot of people really wanting ⁓ to do that. And and it’s just right now young people, including my mentees, are really, really motivated to go to law school to do good.

to do good work and to fix what’s broken. So I think that it will come in a way. It’s maybe swinging back in a way that it’s come it’s it’s taken for granted. It it’s n comes naturally that ethics is important for these students. So I think the pendulum is swinging back in that area. I hope I’m right.

Joyce (1:07:35)
I think so.

Barb (1:07:36)
I as a law professor, I think I am seeing a renewed interest in ⁓ ethics both from the institutional perspective and making sure that it is emphasized and looking for more opportunities to talk about it. And also for students who are very hungry to do th do the right thing and also to hold accountable those who don’t. So ⁓ you know, right now I’m seeing a lot of students interested in state government as opposed to federal government. same they’re attracted to the law firms who did not cave to Trump when he was extorting them. They’re going to the ones that fought back. So

I think they’re very tuned in and they care very much about ⁓ integrity in the legal profession.

Joyce (1:08:12)
Yeah, I mean our students really give me a lot of hope at this point. And the fact that we’re all engaged with students, right? So many people are mentoring like you are, Kim, to try to give these students an idea of how it’s supposed to be, not how it is now. So I it’s all very hopeful. ⁓ last question is for you. This one comes from Vivian. I like this one. It digs in on an important legal topic. Vivian asks, are universal injunctions still viable?

Автореcent супремкот сина.

Kim (1:08:44)
Yeah. So that is a really, really good question. The answer, as far as I can interpret, is sometimes maybe. So one thing that I thought was really interesting about the Mifepristone case was it it in the end, the Supreme Court kept the drug available as it currently was. ⁓ but the way that it got there was that a federal court made a ruling that would have halted.

its availability remotely to be ⁓ you know prescribed by telehealth and sent through the mail for everyone but it wasn’t technically a universal injunction it was an injunction that only applied to the parties in the case Louisiana but the way that it was done there was no way that ⁓ pharmaceutical companies could comply with that order just excluding Louisiana it would have stopped

the drugs availability nationwide. So I feel like that was a little loophole that had the Supreme Court ⁓ okayed and said, no, this does not violate our rule against universal injunctions, would have been catastrophic. And now I worry that there will be other cases where people will try to seek injunctions in that clever way to make it not technically universal, but universally de facto. So that

put a new thing in my head that I’m going to be watching out for. So I think your question that you’re asking is really an important one. We should not take for granted that universal injunctions will not be imposed.

Joyce (1:10:20)
Yeah, I it’s an important point and not necessarily a good one, but I think we have to be just clear-eyed when we face these legal challenges. ⁓ so thank you all for your questions. We really do love getting the opportunity to know what’s going on in your minds and and to answer some of your questions. Thank you for listening to hashtag Sisters in Law with Barb McQuaid, Kimberly Atkins Store, and me Joyce Vance. If you enjoyed the podcast, please rate the show, send it to a friend.

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