Shattered Norms

Kim (00:03)
Welcome to Sister Sidebar, the new companion podcast to hashtag Sisters in Law. I’m Kimberly Atkins-Stor, and I’m joined by my sister, McQuade. Hello. Hey, Barb. How you doing? Good, We get so many fantastic questions from our listeners each week, and we don’t have time to cover more than three in the main Sisters in Law show. So on Sister Sidebar, we can dive deeper into the topics.

Barb (00:19)
you

Kim (00:32)
you care about most and answer more of your questions. Every Wednesday we’ll have a new episode with two or more of The Sisters so you’ll still be hearing from all of us. And if you have a question, you know what to do. ⁓ Email us at sistersinlawatpoliticon.com or use hashtag SistersInLaw on social media. But even better, you don’t just have to type out your questions. Your voices are so important. which is why we want to hear them too. You can email us a voice memo using one of your favorite notes app, and we just might play it live on the show. Remember, we love seeing you rockin’ our hashtag, scissors in law merch, so go to politicon.com slash merch and get your hoodies, get your T-shirts, get everything you need to get you through the summer and the upcoming spring. So let’s get started.

So our first question is an audio question, and it comes from Chris in Maine. Let’s have a listen.

Barb (01:35)
Hello Sisters-in-Law, my name is Chris and I’m calling from Maine. A lot of people have talked about how the executive branch needs guardrails on its power that are far more rigorous and permanent than the sort gentleman’s agreements we’ve had for 250 years. How can that be accomplished? Do we have to go through Congress or is a constitutional convention the better place to get that done? And if that’s the case,

How do you get a constitutional convention and how likely do you think it is to be successful? Thank you.

Kim (02:10)
Chris, that is a fantastic question. And before I answer it, I have to say that you too should have a podcast. This is a podcast that I would listen to preferably in the evening while curled up by a fire because your voice is so very soothing even when asking the most important constitutional questions that we have. But to answer your question,

Yes, many of the guardrails that we have learned are needed that as you so rightly point out have been done as a matter of norms, not necessarily as a matter of law or constitutional prescription have been brought to life and eroded and just misused by the current administration in a way that has never been done before since our nation’s founding. And so for many of them, I would say not all of them. think for some things, laws could be passed, but for many of them, yeah, I think it will take a change in the Constitution to make a difference. Things like, for example, that the president should not be immune if he commits crimes while in office.

given the Supreme Court’s ruling, which created this new ⁓ immunity for the president that was never conceived before, yeah, Congress could try to pass a law. Then you have the problem that you would need the president to sign it. So I really think that it would take constitutional intervention in something like that to make it clear. On the other hand, think other things like voting rules, I think Congress can do a lot to reinforce and restrict and rep…

place the kind of voting and election rules that have been flouted ⁓ by the administration, including things like, I mean, we have an example with the amendment to the electoral college process that Congress passed after January 26th that made it so that a single member of Congress can’t.

⁓ file an objection to the counting of electoral votes from a particular state. That went a long way to really protect the electoral process and make sure that something like January 6th doesn’t happen again because it couldn’t have happened if you didn’t have a lot of members of Congress who were willing to exploit that system in an effort to try to cast doubt on the electoral votes. So yeah, I think some of them can be done in Congress, but some things would need

constitutional change. you also ask how difficult it is to do a constitutional amendment. Very, but it’s not impossible. It’s happened. How many? We have 27 amendments too. Thank you, Barb, because I should have looked that up before. We have 27 times that our constitution has been amended, even at the most difficult times in our nation, like after the Civil War.

Barb (05:08)
27

Kim (05:23)
that’s happened. So it is possible. I think with the people being as active as they are in what is happening in their government and wanting change, I think that it could happen in our generation. So let’s hope that it does. So Barbara, we have a question for you from Donna in Greensboro, North Carolina, who asks, Top Blanchett said that the DOJ will not turn over any more of the Epstein files. The law says all files must be turned over to Congress.

Why can’t Congress this week demand that the law be followed and that Blanche turn over all the files as the law directs? Or is this obstruction? What do think?

Barb (06:03)
Donna, we are in the same headspace here. know, the Epstein Files Transparency Act says that they should turn over everything. It has a couple of exceptions, right? It says that they can redact or withhold documents that might reveal private information about survivors. It also said that the attorney general may withhold any information pertaining to pending investigations, but that it may not.

withhold information that just might be embarrassing to a particular individual or that covers deliberative processes of the Department of Justice. What Todd Blanchett said is a couple of things that really raises, highlights your question, Donna, which is he has said he does not expect anybody else is going to be charged. So is there a pending investigation anymore or not? Remember, President Trump demanded that Democrats be investigated and Pam Bondi said, yeah, we’re going to do that.

Did they withhold any documents as a basis of that? And if not, let’s turn those over. And then he has also said they have withheld documents relating to their deliberative processes, their work product, their decisions about whether to charge and not charge. The statute says they cannot withhold on that basis, and they have. So I think that Congress would be within its rights to do a couple of things. One is Pam Bondi is going to be testifying before Congress next week.

I think at that hearing, you asked her these questions. Why have you not turned over these documents? Why are there so many redactions? What are the categories? They are also due to produce a log within 15 days of the deadline. That was back on December 19th. So it remains to be seen whether we will get this log now that they say they have completed their production that explains the categories of documents that were withheld and why they were withheld. And I think ultimately,

If Congress is not satisfied with this, they have the right to sue the Justice Department to get a court involved to order them to disclose the remaining documents. Most often, the ⁓ legislature and the executive branch are able to work out their differences when it comes to disagreements over the production of documents. They call that the negotiation and accommodation process. But if this Justice Department won’t do that, this is an option that they have now.

whether this Republican-led Congress will do that. But we’ve got Republicans like Thomas Massey and others who are pretty offended that all of these documents have not been turned over. So maybe that is a remedy that’s available.

Here’s a question for you, Kim, from Janice in Tampa, Florida. She asks, is following ICE in a car or on foot not obstructing and just recording them? Is that illegal? If not, how is it possible that ICE shatters car windows and assaults observers without any repercussions? Is ICE able to define following officers and recording as obstruction?

Kim (09:21)
This is a great question, Janice. All the things that you point out, not obstructing but recording them or following them on foot, none of these things amount to obstruction. And all of those things, in fact, are constitutionally protected. And in fact, shattering a car window without probable cause that a crime is being committed or that there is evidence of a crime in your car or that you are

a suspect in a crime is also violative of the Fourth Amendment. So yeah, all those things are constitutionally protected that people can do. But the problem is what you’re getting at at the ⁓ other part of your question, which is how is it that ICE, ⁓ some ICE agents, not all of them, but some ICE agents are doing things like shattering the car windows of US citizens. We’ve seen it on tape.

taking them into custody, being done without repercussions. So technically, if you have suffered some sort of tangible harm at the hands of a member of government, you can seek civil redress under a statute called the Federal Tort Claims Act. The problem is that there is qualified immunity for federal agents and courts have read that qualified immunity pretty broadly.

including the Supreme Court, in a way that makes civil actions all but impossible. So, essentially, if you get property damage, if you are detained, if your constitutional rights are violated, the likelihood is very low that there will actually be some accountability unless the law is changed or the courts interpret them differently. So that’s why I always say, when we’re talking about the rights that you have as an observer, as a protester, as anything,

They are there. The constitutional rights are valid, but they don’t protect you in real time. It’s really important that you act carefully and you protect yourself because certainly not in real time and maybe not even later in a civil action will you be able to get the kind of redress that you seek. So the next question comes from Linda in San Francisco. All of these places are places that I’ve been in love from our listeners. So I’m so glad.

Barb (11:41)
So nice

Kim (11:43)
Questions from all over the country. So this one comes from Linda in San Francisco How does the career path of a DA differ from that of a judge? Great question

Barb (11:53)
Yeah, thank you, Linda. This is a good question. ⁓ It could be that their career paths are actually quite similar. For a long time, many judges had prior careers as prosecutors, whether it was district attorney or assistant US attorney. That is actually a fairly common path. Many of our former assistant US attorneys are now on the federal bench in the Eastern District of Michigan in the Sixth Circuit. You see that pretty commonly.

I know one of the goals of the Biden administration was to improve the diversity of the judiciary by finding people with different backgrounds. For example, Katanji Brown Jackson, I think is the first Supreme Court justice to have served as a public defender. And so I think the defense bar tends to be a little bit underrepresented on the bench. It used to be that if you wanted to be a judge, being a prosecutor was a great career path. But I think that judges can come from all backgrounds, especially elected judges. And so I think that

Being a prosecutor is always a great for developing experience. think until recently, it was one that was generally respected by voters. so that’s why it was considered a pretty solid career path. I know when I was hiring assistant U.S. attorneys, most came either from DA’s offices or from what’s called big law, large law firms. But I think, you know, in the future, I would like to see more diversity on the bench.

some prosecutors to be sure, but also people from private practice, people who have practiced in the civil rights arena, people who have been defense attorneys, and also with regard to the Supreme Court, more geographic diversity too. get so much from the East Coast corridor. It would be great to see people from the heartland. Different people bring different perspectives.

Kim (13:39)
Sonya Sotomayor is the only former prosecutor on the bench, yes?

Barb (13:42)
I think that’s right at the moment. Justice ⁓ Kavanaugh and Chief Justice Roberts have worked at DOJ, but not as prosecutors per se. They’re more like, I don’t know, OLC and some of the positions.

Kim (13:55)
Yeah

So interesting.

Barb (13:58)
Our next question comes to us from Caroline in Providence, Rhode Island. She asks a question, Kim, maybe you could answer. She says, would you report on the status of the Benny Thompson, Eric Swalwell at all versus Trump civil suits related to the January 6th attack on the U.S. Capitol? And can you explain why the appeal from the district court ruling in 2022 is taking so long?

Kim (14:21)
Yeah, so this is a great ⁓ blast from the past in litigation that we’ve certainly talked about on Sisters in Law, but it’s been a minute ⁓ since we have talked about it. This is a civil suit that was filed on behalf of the members of the House of Representatives at the time of January 6th.

which accuses Trump and others of conspiring to incite the January 6th attack. It’s a civil suit. ⁓ It was challenged by Trump who wanted to claim immunity from this civil suit and both a trial court, ⁓ first a trial court held no, no such immunity exists against civil suits. ⁓ And the appellate decision that you’re talking about

actually came down. was a US appellate court from the DC circuit held that no, Trump does not have immunity from this civil suit for many reasons, including the fact that the rally that he held where he is alleged to have incited the attack on the Capitol was not a part of his official duties. It was a part of him being a candidate for office. It was technically a campaign rally.

a political rally and so he does not enjoy that immunity. So it’s not that the appellate court is holding it up. It’s the fact that it’s a civil suit and it’s moving forward. It’s still in place, it’s moving forward. I can tell you that civil suits are rarely decided in a year or two. They usually take many, many years. In fact, there are cases that I worked on when I was a civil attorney that I worked on for the entirety of my civil appellate career that who

according to people in my office who I remained, my law office who I remained friends with, a decade later some of these cases were still going on. So I think that’s really the normal course of things, but that lawsuit is still active. And our final question is from Jill. Is this Jill Weimbanks? You could have just come and asked us the question. ⁓

All right. So this question is, have a question about Supreme Court accountability. Can a justice actually be removed? And if so, what mechanisms exist for that? This comes up because of the rumor that Trump may nominate Ted Cruz to the court, which I believe would be disastrous. If that were to happen, could a president remove a sitting justice or would it require a formal impeachment process through Congress? Barb, what do you think?

Barb (16:57)
Yeah, this one is pretty clear that the president cannot remove a justice of the Supreme Court, even though it’s the president who nominates justices to the Supreme Court. This is really very much about the checks and balances. And I think it is a very good design so that the president can’t remove a justice who just rules against him. mean, think about some of the calls we’ve had from President Trump when a judge has ruled against him calling for their impeachment. And that is the method for removing a justice.

And it’s supposed to be not because they’ve made a decision that somebody doesn’t like or that ⁓ Ted Cruz might be ⁓ more amenable to the kinds of decisions that Donald Trump wants. It is supposed to be for high crimes or misdemeanors, the same standard that we use to impeach a president. And we’ve had impeachments over the years of judges and justices. I think one justice of the Supreme Court and maybe like 13 judges, all the same standard.

of impeachment. Sometimes it’s been for like ⁓ chronic drunkenness, drunkenness on the bench. Sometimes it’s been for corruption, taking bribes and things like that. So it would really require misconduct to be able to remove a justice from the Supreme Court. I think we won’t be seeing Justice Ted Cruz anytime soon unless somebody chooses to retire. And that could happen. Oftentimes someone retires while their party is in office so that that president gets to appoint their successor and just

essentially replacing them with a younger model. So I suppose we could see that Ted Cruz replacing Clarence Thomas or somebody like that with a younger model. But the president doesn’t get to ⁓ off people from the Supreme Court.

Kim (18:38)
I would just add that, yeah, could you imagine if Trump could just, ⁓ could Ta-Nehisi Brown Jackson would be gone, so would New York Heat. Like they would, my God, there would not be, like there would be, that would be crazy if they can make their own ⁓ vacancies. Also, I am gonna say it here and you can hold me to it. I am more likely to be appointed to the US Supreme Court, the Texas. I can say that with strong confidence.

that Ted Cruz is. If there were ever to be an elected official who might be in line, maybe Mike Lee, although I think it’s less likely than it was some years ago. But Ted Cruz never. It’s not going to happen. So rest assured.

Barb (19:25)
All right, we heard it here first. Thank you for listening to Sister’s Sidebar with Kimberly Atkins-Dorr and me, Barb McQuade. Keep sending in more great questions for next week’s show. And if you send in a voice memo, we will try to play your question live during our next episode. Follow Sister’s Sidebar and hashtag SistersInLaw wherever you listen. And please give us a five star review. It really helps others find the show. Don’t forget to pick up your.

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