Subpoena This!

Kim (00:11)
Welcome to hashtag Sisters in Law with Jill Wine-Banks, Barb McQuade and me, Kim Atkins Stohr. Joyce got tired of us and quit. No, no, no. I’m just kidding. I’m just kidding. She’s just away this week, but we miss her already. She will be back, don’t worry. Well, even though it’s the dog days of summer, wouldn’t you know it? There was a lot of legal news this week, and we are going to break it down. We’re gonna break down ⁓ the DOJ getting dealt a pretty significant defeat and its efforts to subpoena journalists in a way that they shouldn’t. We’re also going to talk about members of Congress wanting to see Jack Smith prosecuted. And finally, we’re going to talk about a judge putting the brakes on a major media ⁓ merger that definitely also has connections to the Trump administration. But before we get to all of that, I am still

like on a in a good mood because I spent last week on the beach, which is really my favorite place on earth. I may be a fire sign, but I feel like I should be a water sign because there’s nothing that I like more than being in water, any body of water, but the ocean is my absolute best. I think I still have like, you know, sand in my bag and and, you know, I I just I just love it. ⁓

And I’m you know, missed the smell already of being slathered slathered in sunscreen. But are you guys beach people? Actually I don’t know this. I I don’t know if you two like that or is some other kind of vacation your favorite. What about you, Jill?

Jill (01:47)
You know, as a child, of course, and you too grew up on the Great Lakes. So as a child, I used to love going to the beach. I used to go to Montrose Beach for all you Chicagoans, you know where that is. And it’s a big wide beach with some sand dunes. And playing both in the water and on the sand, I loved. And I would say recently because of needing so much SPF.

And being more careful about exposing to the sun. I go to the beach a lot less. I do still I like to swim in a pool where I can get into the shade right away. But beaches are very special places. And it’s it was also part of college going to the beach and having campfires and sing alongs. You know, this was during the sixties when folk songs were big. So yeah, beaches are very special.

Kim (02:40)
Yeah, I mean I hear you on the, you know, not wanting to be too exposed to the sun. I don’t either. I suffer from chronic eczema, among other things. So I really need to stay out of the sun, but I still go. I just I’m just covered from head to toe. Like I have wide brimmed hat. I have a long like calftan on and sun huge sunglasses. And I only take all that off to get in the water, and the minute I get out of the water, all that comes back on and I’m, you know, l y you only see like

maybe the tip of my nose when you’re when I’m on the beach, but I still can’t stay away. What about you, Barb?

Barb (03:15)
Well, it like Jill and you, Kim, growing up here in Michigan is all about the Great Lakes and yeah I I I I think that there is a a good portion of the United States where people don’t understand the magic of the Great Lakes. We have incredible beaches here in Michigan. I had a chance to visit with some friends who ⁓ have a beach place near Traver City and you know, so skiing and boating and other activities. I will

confess that I sometimes get bored at the beach ’cause I like to do stuff. I don’t like to just lie on the beach. I can read a book for a while on the beach, but you know, after a while it gets hot and sandy. So as long as there’s stuff I can do, I love the beach. I love the water. It’s beautiful. And here in Michigan, man, these Great Lakes are are really terrific. ⁓ you know, when the sun sets over Lake Michigan from our side here in Michigan, Jill, it’s it it looks like the ocean. You can’t see the other side and the sun sets beautifully into the water. So ⁓

The beach I am keen on the beach.

Kim (04:13)
Yeah, I don’t think people realize that. I mean, I think sometimes when people think of a lake, they think of a body of water that’s much smaller than the Great Lakes. When you’re on the Great Lakes, it looks like a freshwater ocean. Like it’s literally you can’t see the other side. It has waves and tight can get choppy. It’s literally very little difference except when you jump in and, you know, you you happen to open your mouth, you’re not like hit with the overwhelming taste of salt. That’s really the only difference.

And also the water tends to be very, very clean. Like you talk about Traver City. I remember going up there with my family and like we we had a boat and we took the boat out quite a bit of a ways. And I was shocked because you look down over the side of the boat and you could see the bottom. It was so clear and clean. It was just gorgeous.

Jill (04:58)
A

Barb (04:58)
popular

t-shirt in northern Michigan is swim the Great Lakes, Unsalted and Shark Free.

Jill (05:06)
I

love that. I love that. It is really amazing for people to see one of the Great Lakes for the first time and realize that Chicago, this major, major city, is beachfront. We have beaches all along the city. You can go from Michigan Avenue and Oak Street, really high-end, you know, properties, and you’re on the beach. And we also have the air and water show coming up. And I’m going to a sorority sister’s house to watch from her.

Condo on Michigan Avenue. It’s just, it’s beautiful. We get the sunset ⁓ on the other side, but we get sunrise, which just glows so softly and beautifully on our side of the lake. So it’s it’s beautiful. Come visit Chicago or visit Michigan.

Summer is made for vacations, and there’s nothing better than relaxing on a tropical beach or on the Cape. When we’re there, it’s time to enjoy the moment instead of worrying about your routine. So the last thing you want is a rash from a rusted old razor or one of the clear flimsy ones at the store. Add in pink tax prices, and it can be hard to find your perfect shave. That’s why we’re so glad we found flamingo.

They understand that your self care routine should be a soothing ritual, not a chore, and their razors reflect that. As soon as we tried one, we were impressed at how smooth the shave was from the first stroke. It’s a dance, not a battle. And the feeling lasts for days. Best of all, your skin stays flawless thanks to stable and precise blades made from high quality materials.

Kim (06:55)
Flamingo’s founders realized most women’s raisers were just shrunken and dyed versions of the men’s. So they took their expertise to deliver the ultimate shaving solution for women. The result is high-performance self-care tools that actually look and feel good in your hands, and a starter set that has everything you could need.

I went with the lilac color, but they come in so many stylish hues. And whether it’s time for a serious shave or you just need a little shape up of your brow line, Flamingo can handle it all. The starter set comes with Flamingo’s original razor, complete with five sharp blades and a 360-degree comfort system to help protect skin from irritation, a flexible hinge to hug any curve, and a weighted ergonomic handle.

made with up to 35% recycled plastic. You also get a facial dermaplane razor that sweeps away peach fuzz and exfoliate skin for easy skincare and makeup application. And a foaming shave gel that adds a pillowy cushion between your skin and the razor for a never felt this smooth shave. And a shower holder too. And it’s all only $7 with free shipping and a risk-free 100% money back guarantee.

Barb (08:14)
First, let me thank my sisters for providing all those details to you so that I didn’t have to. But what I get to tell you is that you can get premium performance, thoughtful design, and a fair price. For a limited time, our listeners can get the Flamingo Starter set for only $7 at shopflamingo.com/slash sisters. This set includes the Flamingo Original Razor, one five blade cartridge, a one ounce foaming shave gel, and a shower holder.

Just head to shopflamingo.com slash sisters to claim this offer. After you purchase, they’ll ask you where you heard about them. Please support our show and tell them we sent you. The link is in the show notes.

Jill (09:05)
This week there were almost as many fireworks in Judge Subramanian’s courtroom as there were set off by Donald Trump on the fourth of July. The government got a lot of pushback from their argument. This all stems from their trying to subpoena three New York Times journalists for their reporting about the possible deficiencies in the jet that was given to the

to Donald Trump, actually supposedly to the government, but he’s taking it with him when he leaves. So it was given to him. It’s now cost the g the taxpayers millions of dollars and is likely to cost another billion because it needs to be retrofitted to be secure enough to let the president fly in it. So ⁓ the DOJ got reamed by the judge and although I’ve given the end result,

Saying that the judge wasn’t going along with the government’s argument. Kim, first of all, you’re a journalist, but you’re also a lawyer. So could you please help us analyze what the judge said, what happened? ⁓ he said it raised procedural First Amendment and free press issues. Profound procedural, profound issues.

Kim (10:20)
Yeah, so essentially this stems from ⁓ the fact that the government, the DOJ, sent subpoenas to reporters of the New York Times. The New York Times actually reported this as it was happening over their reporting about the fact that this Qatari gifted plane, ⁓ th when Donald Trump tried to fly home on it from Turkey actually made a stop in England.

Donald Trump claimed that it was so that the troops stationed there can tour it. And that’s why he left the plane there to fly back to the United States the rest of the way on the normal Air Force One. Well, it turns out, according to New York Times reporting, no, that is not the reason that they left the plane behind. They left the plane behind because it did not meet the security ⁓ that was necessary to hold a president and transport him internationally. ⁓ again, this

Plane was gifted by Qatar for use by the president, but he’s going to take it afterwards, ostensibly to be a part of his presidential library or something. It’s all still very unclear exactly what this plane is, other than ⁓ something that reeks wreeks of corruption, in my opinion. ⁓ but the New York Times reported on this as they should have, because

As Judge Subramanian pointed out in ⁓ really, really reprimanding the DOJ for launching for filing these subpoenas, ⁓ the the media is the fourth estate and they are there. It’s the only ⁓ profession that has express protection in the Bill of Rights, right there in the First Amendment, because one of the roles of the press is to be ⁓ shine a light on government to weed out things like.

corruption, to read out things like incompetence, to bring light to national security threats and and also potential lawlessness. And in this circumstance, it seems to be a smorgasbord of all of the above. We have the president basically being caught in a lie over this, then the security issues with this p ⁓ plane, something that has been brought up by security experts since this gift was offered by Cutter, ⁓ are still

Clearly there that are worrying, even officials within ⁓ the administration. and and this is why this the the New York Times reported on it. And the fact that they immediately, almost immediately after this report, issued subpoenas for the journalists who wrote about it. Subpoenas, as we’ll point out, went beyond them. It also would sweep up information from their family members, just went so beyond the pale that the judge told.

The administration if they did not withdraw those subpoenas, that he would not only quash them, but he would likely seek sanctions against the attorneys involved.

Jill (13:24)
So, you know, Barb, as Kim is saying, the end result was that they ended up withdrawing the subpoenas rather than getting them quashed. But they are arguing that they were on solid legal ground. Is there anything in the law or in DOJ policy that was violated or that supported subpoenas of this nature to find out where the information came from?

They weren’t disputing, by the way, that the information was correct. They just wanted to know who gave the information to the reporters.

Barb (14:01)
Yeah, this area is very complicated because it is one of those areas where there’s tension between different values that we seek to protect in the law. This is the subject of, of course, I teach at Michigan Law School, by the way, national security and civil liberties, like the intersection between those tensions. And so on the one hand, we certainly have an interest in protecting the national security of the United States, including the safety of the president. But we also have ⁓ this bedrock provision about protecting the right to a free press.

In fact, Thomas Jefferson said something like, where I had to choose between a you know, a f a free government and a free press, I should not hesitate to choose the latter, because without a free press, you really can’t have the kind of self-governance that a democracy requires. And so the First Amendment does say that Congress shall make no law ⁓ restricting the free press. So we have that. But then there’s also a law that says when the case law.

That says that when the government seeks information, ⁓ it is entitled to quote every man’s information. And that includes reporters. There is no ⁓ blanket immunity from reporters from pro producing records when necessary. But because of that tension, there have been regulations that have been passed. And this is, you know, the the Trump DOJ policy has become much.

⁓ more aggressive in the Trump administration than it was during the Biden administration. But nonetheless, there are still regulations on the books that recognize this tension. And so it’s not an absolute ⁓ prohibition on seeking records from the press, but there are a lot of obstacles in the way to make it kind of a last resort. And so I’ve got the regs right here. One of them is there must be reasonable grounds to believe

⁓ that a crime has occurred and that the information sought is essential to investigating or prosecuting that crime. I don’t know that that’s the case. I suppose one might argue that sharing information about Air Force One and its security capabilities may be information pertaining to the national defense. ⁓ but it seems like some of that information was already disclosed, so maybe yes, maybe no. But a nut there’s more than that. ⁓

First, the government has to try to get the information from alternative sources. And that’s to avoid the chilling effect that could be created on both the press and sources for reporters. If you think that, well, the government’s gonna just ask for reporters’ notes or phones every time there’s something in the media that they don’t like, that could cause reporters to self-censor or people who might otherwise be sources to check themselves from sharing information.

That is of public value. So first they have to explore whether there’s some other option that they could look at. For example, here, what they really seem to want is who’s leaking this information. Could they have first figured out who might be leaking the information, perhaps someone inside the Secret Service? ⁓ then they also have to ⁓ negotiate with members of the press before they seek compulsory process. Now, this one can be obviated if there’s a concern that it’s ⁓ urgent or

the press might destroy records if they don’t j just go get it. But this was done by subpoena, and so I think negotiation ⁓ seems like it was not out of the question here. And then finally, the subpoena should be very narrowly drawn to make sure that it’s a short of a time period as possible, that the volume of material requested is as narrow as possible, that there’s timely notice of the demand.

⁓ and that again is to avoid ⁓ an overbroad search. but what we have here is the you know the reporting occurs in on July 7th and 8th, and they sought documents going back to January. That was one of the things the judge objected to. ⁓ as Kim mentioned, not only did they seek the phone records of these reporters, they also sought phone records of some of their family members. One of them one of them has a mother who is involved in the mental health profession, and some of their children.

Now, this could be just a mistake, a situation where ⁓ you know, like I pay for my kids’ cell phones, and for a while we paid for my mom’s cell phone when she first got one. Maybe it’s one of those situations where I’m the subscriber, but again, they should have done some legwork to first narrow that that surge before they grabbed all of these documents. And there does not appear to have been any negotiation. In fact, after the Times filed their first motion to quash, some of these

Subpoenas came after that. And so it’s all of that, that failure to comply with all of these regs, that I think so angered the judge and caused him to say, either you withdraw these or I will quash them. Going to the press should be a last resort, not a first resort. And the prosecutors ⁓ even apologized for moving too quickly ⁓ in this case and not taking all of those intermediate steps they’re required to take.

Kim (19:05)
I love how they were literally like admitting how badly they must this. Like aside from just the nefariousness of, you know, basically trying to pressure reporters or or, you know, retaliate against reporters for doing this. The fact that they did it in such a ham-handed way that it was also rife with mistakes was just, you know, chef’s kiss.

Jill (19:27)
One was one of the subpoenas was served while the the reporter was with his family watching the sheep detectives. Can you imagine being interrupted in that? Just as the sheep were about to say who committed the crime.

Barb (19:40)
Yeah. Yeah, I think it’s like some kids ⁓ kids movie or something, right? Yeah.

Jill (19:43)
Yeah,

but so Kim, you know, as Barb said, this is supposed to be a last resort, which means you’re supposed to try other methods first. They issued the subpoena the day after the second reporting. Obviously they didn’t do a lot of background work and they the admission of mistake was only as to going after family members. That was the only mistake they have admitted to. So what was the purpose of this? It wasn’t really to get information.

Was it just to chill the press? Was it to stop sources from talking to the press? For reporters to be afraid that if they report information like this that they too you know, and the New York Times has a lot of money. They can afford to hire media lawyers rather. Other media sources may not have that. So what do you think the real reason was for this?

Kim (20:35)
Yeah, Jill, I think you answered the question. It’s exactly that. It’s certainly in order to pressure journalists ⁓ and to really you it’s it’s ⁓ yet another bit of weaponization of the Justice Department against the press that the president loves to rail against. You know, he calls the press the enemy of the people. he he loves to to ⁓ make them the villain ⁓ against the administration, which we are not. ⁓ and he loves to he’s happy to use

the the to to push the Justice Department to go after them. That’s absolutely right. And you’re right. The New York Times has the wherewithal to fight these sort of things. But a lot of independent journalists, which there are more of every day, do not. ⁓ and it’s a lot harder for them. So even if the New York Times wins on this, it could still serve as a chilling effect ⁓ on others. But the whole the

Ostensibly, according to the DOJ, this was a part of a leak investigation to find out who within ⁓ the administration was leaking this information to journalists. So in that case, it would be clear that the journalists would be way downstream. The first people you should be looking at are in your own house if they are doing the leaking to the journalists. And clearly they didn’t go to them. And as Barb pointed out, there is a long process that you go to, even if you are seeking information from journalists.

That before you get to the point of subpoenas. As Judge Subramanian said, he said subpoenas are the last step, not the first step, but the last step. He said that. And I just want to make one really, really important ⁓ point in this. We are talking about the the Southern District of New York here with these subpoenas. And

That means that these subpoenas had to be signed off on by not one, but two current nominees for cabinet level position. One is the US attorney ⁓ Jay Clayton, who is seeking to be Director of National Intelligence, and the other is Todd Blanche, who in a couple days, his nomination to be Attorney General of the United States goes before the Senate. Now, I don’t know about y’all, but if I were applying for a job.

Right, especially one that was a step up in my career. And at the same time, just a totally fouled up, messed up, and nefarious action that I did in my current job was on blast. I gotta believe that that would mean that my chances of getting that promotion, that next job, would be in quite a bit of jeopardy. But here I submit, in my opinion, that they are doing this because they think that it will please the president. And

increase the chances that they will get this job. They are breaking regulations, they are breaking rules, they are doing something that just smacks of corruption and and taking unconstitutional action in spirit, if not in letter, against members of the press in order to please Donald Trump. I cannot it I know a lot of time when we talk about democracy and these lofty ideals, people just think that it’s, you know, not really tangible.

Can’t I have to say, this is the kind of stuff that happens from governments in North Korea and Cuba and China. This is what’s happening in the United States right now. You have at best, at best, a one-party rule that allows the people within that party to get away with anything, particularly when it’s done in service to the leader. That’s not democracy. That couldn’t be farther away.

From democracy. And that is why this is so important. It’s not just Trump being petty at reporters. It’s really undermining everything that the Justice Department is supposed to stand for. And every single American should be absolutely outraged by it. And any member of Congress who votes to confirm either one of these individuals really should not hold office at all, in my opinion.

Barb (24:52)
Do you remember, sisters, what it was like to wake up with no stiffness, no aches after an active day? Well, me either. Unfortunately, as we get older, we get less flexible, less agile, and more prone to injury. But that doesn’t mean we have to like it or accept it. That’s why we’re obsessed with the LifePro Waiver Vibration Plate. At first, you might think they’re a little goofy, and you might not be sure it is effective for recovery.

But the idea of lying on it for a massage after exercising may be too hard to resist. Pretty soon you’ll be hooked. These days, bad posture and muscle tightness are almost universal. We need to move. And with the LifePro waiver, your whole body is vibrating, so your muscles are constantly forced to activate and contract without needing to think about it. That movement supports blood flow and helps with recovery, muscle activation.

Lymphatic drainage, soreness, and stiffness. It’ll feel amazing. After a session, you’ll feel much looser and relaxed, and getting up the next day will be so much easier. There’s nothing better to get your system moving in the mornings and feel so much more mobile, energized, and recovered when you use it after exercise.

Jill (26:09)
You know, Barb, those are really true facts. And that’s why pro athletes and sports teams have been relying on vibrations therapy for years to get them ready to go day after day. Studies have shown that vibration therapy consistently helps reduce soreness up to 72 hours after workouts. And the best part is how you can make the LifePro waiver as intense as you want. Go all out with squats.

Calf raises, stretches, and the resistance bands, or if you feel lazy, you can stand on it, sit on it, or use it at your desk and see it enjoy its effects.

Kim (26:51)
Jill, I’m enjoying its effects right now as I sit here recording this podcast. I have it right in front of me and it is fantastic. I feel I feel relaxed already.

Jill (26:59)
See you vibrating.

Barb (27:06)
Do not adjust your set.

Kim (27:07)
So a lot of cheaper vibration plates online look flimsy and gimmicky, but the waiver is stable, powerful, and premium. Some of the higher settings are seriously crazy, so it’s no surprise that LifePro is America’s number one vibration plate brand and has over 2.5 million users. They even offer a lifetime warranty and a risk-free 30-day return policy. So you know they stand behind their products. And

For a limited time, our listeners can get $20 off the waiver vibration plate plus free shipping with code Sisters at lifeprofitness.com. That’s lifeprofitness.com and use code Sisters for 20 bucks off. After you purchase, they’ll ask where you heard about them. Please support our show and let them know we sent you and that I was using the vibration plate when I did. And of course, the link is in our show notes.

I know you guys have heard us talk about OneSkin’s best-selling skincare, and I used their SPF just last week when I spent a lot of time on the beach. But now they’re bringing that same breakthrough longevity science to their scalp serum, OS1 hair. We can all appreciate the Vin Diesel look, but for those of us who can’t quite pull it off, thinning hair, scalf patches, and receding hairlines are no fun.

It comes for everyone, which is why OneSkin built OS one hair. It’s a daily serum powered by their proprietary OS one peptides that works where hair health begins by nourishing the scalp from the root so your hair looks and feels better over time.

Barb (29:02)
They’ve done clinical studies on this serum to validate the science, and the results are pretty incredible. After just three months, 75% of customers saw new hair growth, and by six months, people saw a 43% increase in hair thickness and a 40% increase in hair density, and less visible hair shedding. You can already hear our producer asking for someone to give him the discount code backstage.

It’s worth it. Other treatments need a prescription, they come with side effects, or they can leave your scalp irritated or greasy. But OS1 hair is different. It’s water-based and drug-free, so you can use it every day without disrupting your normal routine. And it goes great alone or alongside any other hair treatment without irritation.

Jill (29:48)
It’s such a confidence booster and it feels really relaxing to apply, like you’ve been massaged at a salon, and the results are wild. You need to try it. OS1 hair is born from over ten years of longevity research, and one skin’s OS1 peptide is engineered to support your hair to look visibly fuller and thicker at any age. For a limited time, try one skin with

15% off using code sisters at oneskin.co slash sisters. That’s 15% off oneskin.co with code sisters. After you purchase, they’ll ask you where you heard about them. Please support our show and tell them we sent you. The link is also in our show notes.

Barb (30:48)
Well, on Thursday, Jim Jordan, the Republican Congressman from Ohio and the chair of the House Judiciary Committee, sent a referral to the Justice Department for the prosecution of wait for it, Jack Smith. I guess Hillary Clinton was busy. Smith, of course, was the special counsel who indicted Donald Trump twice and has now become the favorite boogeyman of Trump and his MAGA faithful. Trump has called Jack Smith a deranged animal.

And suggested that the Attorney General investigate him. For what crime? We have not known before until now. ⁓ first, in this referral, ⁓ Jill, what does Jim Jordan allege is the crime that Smith committed? And what do you make of his claim that strong evidence supports that allegation?

Jill (31:40)
So I can answer the first question without laughing. But the second, I don’t know. Okay, the first question, what crime? ⁓ and I’m going to read you what the law says. He alleges that there is a violation of 18 USC 1001, which says that a witness commits a crime if the witness knowingly and willfully makes any material false, fictitious, or fraudulent statement or representation with respect to any investigation.

being conducted by the Congress. Okay. So first of all, you have to have a knowing and willful false statement. And that’s undermined, which gets to your second point of how strong is the evidence, which is it ain’t existent at all, let alone being strong. And it’s undermined by other statements in the same letter. Yeah in this letter, Jordan goes on to say that Mr. Smith gave the impression

that neither Mr. Smith nor his team had access to the content. Giving the wrong impression is not the test. It has to be false. And here he answered the exact question that he was asked. He wasn’t asked about a general, did you ever see any? It was did you subpoena the text messages of members of Congress?

Barb (32:59)
Did

you use a search warrant? Did you use a search warrant to obtain

Jill (33:03)
And the answer is no, we did not. It had nothing to do with that. So his and he Jordan also says, Well, we warned him that he had to divulge any information that would be No, you don’t. You are supposed to answer the question that’s asked. It also ignores the Supreme Court in Bronson. In nineteen seventy-three, the court said, Misleading answers are not perjury.

If you s answer the question honestly, but it’s misleading because they asked the wrong question, too bad for the questioner, they didn’t ask the right question. So this is just nonsense and it should be dismissed out of hand.

Barb (33:43)
Yeah. Let me just provide our listeners with a little bit of factual background, just to illustrate the point that Jill is making. So in fact they did not receive any text messages of members of Congress through a search warrant. So the answer to the question was accurate. What actually happened is they sent a subpoena to the National Archives to retrieve some presidential records that were the text messages of some White House officials, including Donald Trump, Mark Meadows.

and some other people who worked in the White House. They got those. And when they did, turns out that those people were texting with members of Congress. So they did get indirectly, incidentally. They didn’t seek them out. They didn’t try to get them. But because those members of Congress were communicating with White House officials, they got what’s called incidental collection. But no one, as you said, Jill, ever asked about that. And so Smith’s answers

Jill (34:37)
No, Barb, it might be helpful. Let me just quickly read the exact questioning because our listeners will be able to see for themselves. Did you seek a search warrant for the content of any text messages from members? From members? Jack Smith asked. Yes, Jordan answered. No, is the answer that Jack Smith gave. Next question did the records that you requested, that you requested

The toll records from members of Congress include the content of text messages? No, I don’t recall that. Okay, it was just toll records? Correct. Did the toll records that you requested from the senators, did they include the content of the phone calls? No, because they were metadata from toll records. They had nothing to do with the content.

Kim (35:26)
was I believe Senator I believe the questioner was Senator Josh Hawley, is whose words you were reading there. Yes.

Barb (35:32)
Ask better questions, Josh Hawley. Too bad for you.

Well, Kim, y this allegation is so weak legally, as as Jill has said. And if so, why do you think Jordan is is making this allegation? It kinda reminds me of ⁓ his re the request that Donald Trump made in December of twenty twenty when he asked officials to just say the election was corrupt and leave the rest to me. ⁓ do you think that’s what’s going on here? Is just let’s just dirty up Jack Smith?

Kim (36:02)
Yeah, he’s asking ’cause he can and he knows that it will make Trump happy. And he also knows that Todd Blanche is about to get control, ⁓ be confirmed with control over the DOJ, so he probably will start a criminal case against Jack Smith. And I mean, th you know, that’s why he’s asking. I mean, as I I think it also smacks of a bit of desperation. I mean, we are heading toward a midterm election where

with each passing day, and I’m not listen I’m wary I’m as wary of polling, political polling as anybody on earth, but with each passing day, what we hear from the American public is that they are in a throw the mums out kind of mood and that the control of Congress ⁓ that the GOP holds right now, the reason they are able to do the one party kind of rule that I talked about before.

is in real jeopardy. So I feel like now they’re just going all out and doing everything they can while they can, ⁓ in an effort to do what they can to please this president before they may lose power. So Jim Jordan come January may not have the power he has right now. And and so yeah, it feels like it feels like desperation on top of all the other, you know, just outrageousness of it.

Barb (37:22)
Yeah, you know, Jill, the other part of this letter that seems like an effort to just sort of smear Jack Smith without any basis is the claim that he violated DOJ’s own protocols by failing to use a filter team to look at these text messages. I want to unpack that and explain ⁓ what that is. And we’ll get into the speech or debate privilege in a minute. But first I want to discuss this concept of a filter team. When and why

Do investigators use a filter team?

Jill (37:56)
So you know, I I’ll read later from the justice manual, which describes when a filter team is actually used. But the purpose if we can remember back to when Michael Cohn’s records were taken, a filter team was used because as a lawyer he has attorney client privilege. And to avoid ⁓ interfering with that privilege, a filter team looks at

The records that are taken to make sure that nothing that is attorney client privileged gets released to the prosecutors that would taint the potential criminal investigation. So, first of all, it presumes a criminal investigation. And secondly, that it presumes that there’s an attorney client privilege. It doesn’t address anything about, and as you said, we’ll we’ll talk about the speech and debate clause, which is a a different kind of privilege.

The Justice Manual does have a specific thing. It also, by the way, has a specific about subpoenaing the press, which I believe if you read that was also violated in our conversation before about the New York Times subpoena. But in the Justice Manual, section nine-13-410 and 20, it only covers attorney-client privilege for having a filter team. And ⁓ so I I think it’s quite clear.

that no filter team was required in the circumstances of this particular investigation.

Barb (39:30)
Yeah, so the privilege that’s ⁓ at issue here is what’s called the speech or debate clause. This is an Article I of the Constitution, and it protects members of Congress when they’re debating on the floor of their respective chamber. Kim, if a member of Congress communicates voluntarily with members of the executive branch, is that something that is in any way shielded by the speech or debate clause?

Kim (39:59)
It could be, actually. So just to explain a little bit, the speech and debate clause is basically designed to allow lawmakers to do their job and not be hauled into court for what they say or do while on the job. So ⁓ for example, lawmakers cannot be sued or subject to criminal prosecution based on carrying out their legislative duties. They also cannot be forced to testify about their legislative work.

⁓ and they also join ⁓ enjoy an evidentiary privilege, which means what they do in the course of their legislative work cannot be used as evidence in a court. And all of that is to prevent people from trying to sue them or threaten to haul them in ⁓ or arrest them based on what they are doing. It’s meant to be a check and balance that protects Congress. Now, is there is it possible that

Say if a president puts forward a budget request and lawmakers are talking with the president about that, could that kind of come communication be protected by speech and debate? Sure. But w what throwing it around here, I have not seen any evidence that Jack Smith even intended, let alone moved to, use any information about what lawmakers said at all, let alone what lawmakers said in carrying out their legislative duty.

as part of his investigation into Donald Trump at all. So there is no evidence that I’ve seen that the speech and debate clause is implemented at all. What I think this ⁓ is is somebody in a either a some lawyer or aide in a member of Congress’s office or in a committee was tasked with find something Jack Smith said, anything he said that we can bring him up

on a charge of lying to Congress on and they comb through and they comb through and this is the best that they got and s they passed it on to Jim Jordan and he’s making this clay that’s what it feels like to me because there really is no there.

Barb (42:02)
Yeah, even this bit about, you know, failing to use the protocols of a filter team. Like that’s not a crap. That doesn’t pr for for one, he did i he didn’t have to do it. But that doesn’t have anything to do with whether his statement was false when he gave this testimonial statement. It reminds me a lot of the perjury charge that was filed against Jim Comey. Remember that? It was like this bootstrap of a bootstrap of a statement that he had made that ⁓ you know, again very in artful questioning that made it

v very difficult to show in any way that he was answering anything whatsoever that was false. This kind of feel has that same vibe to it. So yeah, I I it I I I do think that this is simply political gamesmanship and something that shouldn’t go any further. However, if ⁓ we do have the confirmation of Todd Blanche, don’t hold your breath.

A lot of us have had the perfect couch in college, maybe we got a great TV after our first big job, and we have some of our favorite art on our walls. But it used to seem like finding a great rug was impossible. They can transform your entire space, so you want style and beautiful designs. Unfortunately, a lot of the overpriced stuff out there can’t handle the wear and tear of daily use. And the cheap options might be washable, but they’re basically temporary.

Our homes are made to be lived in, and you need a rug that looks great and can handle whatever life throws at it. With tumble rugs, you can finally have both.

Jill (43:39)
Tumble rugs look like beautiful designer rugs, but they’re actually built for real life, not museums. We’ve all had rugs that are too delicate and a nightmare to clean, but spills, muddy paws, and accidents are a part of life. That’s why Tumble makes everything spillproof and machine washable. So hunched over scrubbing is a thing of the past. Instead of relying on elbow grease and a flexible back, you can let the washer take care of it all.

Even the largest ones are machine ready, plus their proprietary spillproof surface causes liquids to beat up on top of the rug so that you can just wipe it up. I’ve seen it, it really, really does do that. ⁓ I’m still surprised every time that that happens.

Kim (44:28)
Yeah, we’re up to ⁓ three of them in our house now because I like them so much. And, you know, i they’re also really great if you have a pet. ⁓ Snickers fortunately does not does not leave a lot of liquid surprises anymore. She’s old enough that she doesn’t do that. But you know, when she was a puppy, it was a different story. Finding a fashionable rug with a design that suits your personality and the space to put it in can be tough. But Tumble puts the perfect finishing touches in any room.

I love how fantastic tumble rugs look. And right now I’m in love with the Amara Light Blue and Ivory. We actually have that in a runner in our kitchen and it works so nicely. The hand illustrated patterns are mesmerizing and it’s such a classic modern fit for the space. You’ll love exploring the styles, and they’re perfect for living rooms, kitchens, entryways, hallways, and even kids’ rooms. Basically anywhere life gets messy.

And thanks to Tumble’s cushion non-slip rug pad that tucks into the hidden corner pockets underneath it, everything stays securely in place and doesn’t slide around. Not only that, all tumble rugs are OEKO tech certified with non-toxic materials, so they’re safe for your animals and little ones.

Jill (45:47)
And you don’t have to just take our word for it. Hundreds of thousands of homes have already switched to tumble rugs, and they have over 30,000 five-star reviews, including ours. Machine washable rugs made better for a limited time only. Our listeners get 10% off plus free shipping at tumbleiving.com/slash sisters. That’s T U ⁓ V L E Living.com.

dot com slash sisters. After you purchase, they will ask you where you heard about them. Please support our show and tell them our show sent you. The links are in our show notes.

Kim (46:36)
So this week there was another court battle, didn’t directly involve Donald Trump, but as is often the case, he’s in the periphery here. This one is about the proposed merger between Paramount Skydance and Warner Brothers, which would create, according to a judge, a media mega corporation. Well, after a group.

Of attorneys general sued, state attorneys general sued, despite the fact that the DOJ gave the okay to this merger. A judge has put the brakes on it, and it has a lot of implications, not only for Paramount and Warner Brothers, but also, as I said, the Trump administration. So, Barb, ⁓ talk a little bit about how this action came up. I mean, these are states stepping up to enforce antitrust law.

Which is usually the purview of the DOJ, right? Talk about how that works.

Barb (47:35)
Yeah, so you know, if there are federal antitrust laws, these are are federal statutes that are typically reviewed by the Department of Justice. And if there is a merger that ⁓ the Justice Department believes will have an anti competitive e ⁓ effect, they can ⁓ block one of those mergers. They can try to negotiate something with them, but if they think it’s going to be damaging.

They can file ⁓ a lawsuit and in an effort to block these mergers. In this case, the Justice Department signed, like, yeah, we’re good. Go ahead, go for it. ⁓ but states or private parties also have the ability to file lawsuits under the Clayton Act, which is one of the big antitrust laws. And so states here, ⁓ several attorneys general got together and filed this lawsuit, alleging that this is a violation of the Clayton Act.

And what they look at is that it’s going to undermine competition. It’s a $110 billion merger, and that it would give Paramount ⁓ fewer incentives to invest in television and film production, leading to fewer new releases and a less diverse range of entertainment and news perspectives. Now, I suppose that may sound ⁓ I don’t know, it’s entertainment, maybe superfluous and unimportant, but

They also dig into the business of it, which means that Paramount would be able to dictate to theater owners, ⁓ television providers, streaming services, and consumers that would drive up the prices for movie tickets, streaming services, and cable television packets. In addition, one of the big groups that opposes this are some of the workers in the entertainment industry who would be at risk. They worry that they’re going to lose some of their jobs.

Or that their wages could be depressed as a result of it. They even said that this would mean that two companies would own 59% of the cable market and four studios would control 85% of theatrical film releases. And so all of this consolidation, whether it’s in banks or healthcare or other kinds of things, you know, brings with it some economies of scale and some efficiencies, but it also creates threats to

all of the downstream businesses and the consumers that are in these industries. And so that’s what they’re complaining about that this is a violation of the Clayton Act because it gives them too much of a share of this particular industry.

Kim (50:14)
Yeah. And as such, it will make it really easy to raise those streaming prices, which are already going through the roof. And that’s one of the jobs of the ⁓ state attorneys general is to look out ⁓ after their ⁓ residence as consumers. So, Jill, a federal judge in California gave the state attorneys general this early win. They just filed this lawsuit a f a few weeks back and already ⁓ they have scored a big win. So tell us exactly what happened. What did the judge do?

Jill (50:43)
The judge delayed the merger. He said, I’m giving you fourteen days. We’ll have more hearings. We’ll find out more. ⁓ August third, he set for the new hearing. And in the meantime, the merger is on hold. The defendants want to go ahead. They have a September thirtieth date in mind because they have to start paying damages or fines to their shareholders if they don’t close by September thirtieth.

So they’re really pushing. Whereas the attorneys general are saying, we have to prepare for trial. And the judge s sort of said and has the power to extend the delay another twenty-eight days. ⁓ but they don’t want to the the plaintiffs don’t want to go to trial until April in twenty twenty seven. So that would be past the September deadline. So it’s a really big issue, but you know, and then this is a danger.

To us as consumers, because as you said, Kim, it’s going to raise our prices, which are already sky high, ⁓ and it will limit the ⁓ availability of product. The Screenwriters Guild has now also filed a lawsuit that was done after this one, but it’s ⁓ has been filed a while ago. So there’s a lot of interest in making sure that this merger doesn’t go through to protect what is available to consumers to see.

Kim (52:08)
Yeah. So ⁓ I mentioned that there is a Trump connection here that hasn’t come in. Well, that is because ⁓ Paramount is owned by David Ellison. He is the son of Larry Ellison, and they are deep pocket Trump donors. Larry and Trump are also ⁓ longtime friends. Larry has given millions upon millions of dollars to Trump and Trump affiliated political groups.

It sounds a little bit like some self-dealing here, Barb. ⁓ maybe that’s why the DOJ said no problem with this. And and recall that Netflix originally was set to ⁓ made a bid to buy Warner Brothers, and then here comes Paramount Bigfooting offering a much bigger ⁓ offer that basically pushed Netflix out of it. How much weight do you think a judge may ultimately give?

Give all those facts.

Barb (53:09)
Yeah, I hope none. ⁓ you know, just because one group has reached a conclusion, that conclusion is not binding on the judge. Because there may be other factors that the Justice Department looked at, and as you say, maybe even some improper factors. The Wall Street Journal has actually done some good reporting around this. That, you know, I don’t know that the outcomes themselves have been corrupt, but what the Wall Street Journal has reported is

There certainly is a lot of influence and politicking going on behind the scenes. This lawyer, Mike Davis, who is a lawyer and lobbyist, has been representing clients. He is a close ally of President Trump. He’s been representing clients with antitrust matters, cases that are ready to go to trial and suddenly there’ll be a settlement. And so there has been some speculation that these are being decided more on the basis of political grounds than on the basis of legal grounds.

I think the other thing that makes all of this a little bit squishy is the standard, the legal standard, is one that is ⁓ not as clear cut maybe as as some might be. It’s there the plaintiff, here the attorneys general, must establish a reasonable probability that the merger may substantially lessen competition or tend to create a monopoly. Well, so what you know, how do you find what’s a reasonable probability? How does it le

less substantially lessen competition or tend to create a monopoly. So, you know, they do things like ⁓ define what the market is. Is the market just all entertainment? Is it films in the theaters and on television? Is it just streaming? You know, what is the market? I actually spent a summer at the Antitrust Division when I was a law student and ⁓ I remember one of the things we were looking at was there was a proposed merger between Archer Daniels Midland and some other company, I forget which now.

⁓ but we had to define what was the sweetener market. Did it include just sugar? Did it include sugar and high fructose corn syrup? Did it include all of those things plus artificial sweeteners? And my favorite part of all that was we did an a dep deposition of an expert who was a chemist for Haganda’s ice cream. isn’t that the Jill, did you ever have that job? Chemist for Isn’t that a cool job? She talked about how they used only real sugar.

Jill (55:24)
I didn’t have it.

Barb (55:30)
Because the properties in the chemical process required real sugar to, you know, release the ⁓ atoms and molecules in such a way that you got the smooth, creamy texture and all that sort of stuff.

Kim (55:41)
Wait, w w okay, did you was there evidence? Like did you get to taste the exhibit?

Barb (55:45)
I was

gonna need to have a sam a tasting, yeah, to to be able to the market. I think that’s important. Yeah, maybe there needs to be some viewing of some paramount ⁓ films here. But anyway, ⁓ a long way of saying the defining the relevant market is part of all of this, and then figuring out what is the anti competitive effect. What are the results to the downstream companies in the supply chain? What is they call that vertical?

Jill (55:48)
Decline

Barb (56:13)
you know, looking at vertically, also looking at it horizontally. What does it do to competitors in the field? And then of course, what does it do to consumers? And so all of that is, you know, it requires experts, it requires a lot of financial analytical work. And so the mere fact the Justice Department said, now you’re good, ⁓ I don’t think is going to be dispositive with this judge. I think they’re going to require the kind of showing that the law demands.

Kim (56:41)
Well, I never worked in antitrust, and it is a very confusing topic to me, but I do hope one of the things that is considered is one thing that’s on my mind is the ⁓ effect on the media companies involved. So Paramount is the ⁓ parent company of CBS, and we have seen ⁓ CBS its newsroom cave under pressure to Donald Trump, who really attacked it.

over 60 minutes piece that they did with Kamala Harris that Donald Trump sued over baselessly. But Warner Brothers is a parent company of CNN. So is there a question that ⁓ under Ellison, CNN will also be withered down? Lots of people from CBS have been fired who stood up to Trump. the newsroom has been taken over by our by Barry Weiss, who is somebody who

has according to many of the media critics that I trust, has really turned that newsroom upside down in an effort to try to be more, I guess, Fox News-esque ⁓ and cause a lot of people to quit or be fired and really, you know, it for bad news for CBS cause ratings to to slump. are they gonna take those same heavy-handed tactics?

To CNN. I mean, one of the people who left CBS was Anderson Cooper. He stopped doing 60 minutes over that. Well, now he’s at CNN now. So what’s gonna happen to that? So I hope that that is a part of the ⁓ consideration in all of this. But Jill Trump has claimed he was hands-off based when it came to the DOJ’s decision on this. Was he?

Jill (58:24)
Well, I would say there’s a lot of evidence to the contrary. And we’ve talked about some of those factors. His relationship with the Ellisons is certainly one that we cannot ignore. Remember that you mentioned the ⁓ lawsuit that Donald Trump filed because of sixty minutes. and CBS paid him a lot of money to settle that frivolous lawsuit. There was absolutely no question.

That had they gone to court, they would have prevailed. But they were closing up to him because they were pending a merger and they wanted approval for the merger, so they paid him off. So that’s certainly one issue. The dinners, the donations that come from Ellison to Trump are certainly evidence. The fact that Donald Trump said, That Colbert, get rid of Colbert. Bad, bad. And he gets fired. I mean one of my favorites.

I I and I miss him terribly, got fired because Donald Trump intervened in their control. So yeah, you’re gonna have to worry about what’s gonna happen to CNN, what’s gonna happen just in general. It does seem like this is a bad for the public merger from every aspect, and that I’m glad the attorneys general and the screenwriters have brought these lawsuits to bring our attention to it and hopefully.

to prevent it from going forward. But with the government supporting it, I wouldn’t take bets on what the outcome’s gonna be. Yeah.

Barb (1:00:00)
It’s although a very good opportunity just to say repeatedly attorneys general in the plural, which I would

Jill (1:00:06)
Yes.

Kim (1:00:07)
Yes. Well done.

You know, last week I went on ⁓ a little vacation with my husband, and it was a reminder of ⁓ how much Knickers loves us because whenever we pull out suitcases, she gets really upset. Like she will just get in her feelings and sad. She’ll get very clingy because she knows that a suitcase means that we’re leaving. And it’s funny, I’ve talked to other pet owners about this too, and they have stories about

you know, their dogs, like pulling clothes out of suitcases as they’re trying to be packed or trying to get in a suitcase. And it just, you know, it reminds me of not only do we love her to pieces, but you know what? I think she loves us too.

Jill (1:01:02)
I used to have to hide my suitcase and sneak it downstairs. We do that. We do that. You have to do it. I mean, really, Brisbane used to get really upset. He knew for sure that that’s what it meant. And so that’s why we’re so happy that today’s episode is sponsored by the ASPCA Pet Health Insurance Program. If you’ve ever found yourself awake at 2 a.m., phone in hand, Googling things like, is this normal for dogs? Or do I need to call the vet right now?

You’re not alone. These unexpected moments are part of having a pet, which is exactly why ASPCA Pet Health Insurance exists. It helps take some of the financial stress off vet care so that you can focus more on your pet and less on the cost.

Kim (1:01:49)
The ASPCA Pet Health Insurance Program offers customizable accident and illness plans that can fit your budget, your lifestyle, and even your pet’s particular quirks. Because let’s be honest, vet bills can add up fast. You need someone you can trust. And ASPCA Pet Health Insurance has been around for almost 30 years and has covered over one million pets. And when it’s time to submit a claim, it’s easy.

Just use their app and receive reimbursement for the eligible vet bills directly into your bank account so you can get back to focusing on what really matters your pet.

Barb (1:02:27)
To explore coverage, visit ASPCA petinsurance.com slash sisters. That’s ASPCA petinsurance.com slash sisters. One more time. That’s ASPCA petinsurance.com slash sisters. The link is in the show notes. All right, here we go.

This is a paid advertisement. Insurance is underwritten by either Independent American Insurance Company or United States Fire Insurance Company and produced by PTZ Insurance Agency Limited. The ASPCA is not an insurer and is not engaged in the business of insurance.

Kim (1:03:15)
Well, we are at the point of the show that is really, really our favorite. And that is answering questions from you, members of our audience. If you want to submit a question, you know what to do. You can either hit us up in our mentions on social media using hashtag SistersInLaw. You can email us at sistersinlaw at politicon.com. But why just type your question when you can say it with your own voice and maybe hear it on our podcast? Send us a voice note.

with your question and email it to sistersinlaw at politicon.com and you may hear your voice on our other podcast, Sister Sidebar, which drops every Wednesday. So however you send it, we look forward to those questions. Keep them coming in. And this week our first question comes from Jerry in Fairbanks, Alaska.

I just wrote in my newsletter this week something about Fairbanks Alaska Supreme Court case that was taken up. So it’s a good one. So subscribe to my newsletter so you can read it. But Jerry The gavel, yes. Jerry asks, what happens if Todd Blanche is confirmed as attorney general, but he loses his license to practice law? Joe will answer that.

Barb (1:04:20)
The gavel.

Jill (1:04:33)
Well, one, let’s hope it doesn’t happen that this is just a rhetorical question, but the truth is that there is nothing in the Constitution or federal statute that requires that the attorney general be a lawyer. Same is true actually for the Supreme Court. You don’t have to actually be a lawyer, which seems ridiculous and certainly would be contrary to practice. Every attorney general has in fact been a lawyer.

And I would draw this in contrast to, for example, we’ve already mentioned in the show ⁓ Clayton possibly being confirmed for DNI. That statute does say that you must have significant intelligence experience, which of course he does not. So he is not qualified. But I’m sorry to answer you in Fairbanks, Alaska, that you don’t have to be a lawyer. So he could get disbarred and still serve as Attorney General.

it’s a sad state of affairs that we are even asking whether the attorney general might be disbarred.

Kim (1:05:36)
Yeah. Yeah. And it’s not the first one. We asked that about the last one too. Our next question comes from Jennifer, who asks, Multiple reputable sources are still reporting on Trump’s one point eight billion dollar settlement as if it still stands. Some are saying it’s voided. What is the truth? Barb, I think she’s talking about the slush fund there. What is the truth?

Barb (1:05:58)
Yeah. So Jennifer, this is a great question because ⁓ it’s it’s it’s it’s gotten a little bit muddied. So you may recall that President Trump had filed this lawsuit demanding ten billion dollars for the disclosure of his tax returns. That happened and the person who did it was convicted of a crime and sent to prison. Other people who had this happen to them got an apology, but Trump thought he should get ten billion dollars. And so Todd Blanche negotiated this settlement.

And part of the settlement was to send $1.776 billion to a compensation fund for people who would make claims that they were victims of the weaponization of the Justice Department under Joe Biden. In addition, and the part that I think was always the real motivating factor, it also gave Trump and his sons and his business immunity from tax audits for any f ⁓ tax return they had filed up to that point forever.

And some ⁓ experts estimate the value of those unpaid tax bills to be about a hundred million dollars. And so those were on the books until some judges, retired judges, filed a lawsuit with the judge in the Southern District of Florida where this had all been occurring. ⁓ they actually file out an amicus brief in the same case and said, This is a fraud on the court. This can’t be done. This is self-dealing. Trump is the plaintiff and the defendant in this case. He can’t just make a big allegation and then pay himself.

And it was Blanche who negotiated this whole thing. And so ⁓ what the judge said was that this is null and void, that this is nonsensical, and that if any of the parties ever try to assert this settlement for any legal purpose, it shall have no effect. And so that means it’s it it really is dead in that way. ⁓ Todd Blanche, however, has been asked repeatedly when he has appeared before Congress ⁓ if i i if it’s off. He has said that they’re not moving forward.

With the $1.8 billion settlement. He’s never withdrawn the deal for Trump. And when asked by some courts to put his position in writing that they’re not going forward with this settlement, he refuses to do so. And so I think that’s where some of the discomfort comes in in the way that Todd Blanche has conducted himself with this. But I do think that if anybody ever tried to ⁓

you know, go after Donald Trump for his unpaid tax bills and he tried to assert this settlement, somebody could wave around the judge’s opinion on this and say, No, that’s that’s null and void. So I think that’s the better interpretation of its current status.

Kim (1:08:33)
All right. And our last question this week comes from Scott in Portland, Oregon, a city we had a great time in when we did our live show there. Scott, I don’t know if you were there, but it was a blast. Scott asks, after recent SCOTUS rulings, could states successfully challenge federal preemption on issues like abortion medication or gun background checks? Hmm. This is a good question. It raises a lot of ⁓

rather complex issues. So I’m gonna try to parse it apart a little bit. First, I’ll talk about guns, right? So the idea of preemption is basically that states cannot override federal law. ⁓ there’s also an aspect that if there is an area where federal law it it’s in the purview of federal law, something like immigration, that really limits the ability of states to pass laws in that area. When it comes to guns, I’ll get to abortion in a second, gun regulation is really

concurrent when it comes to the authority to regulate. Of course, states cannot, and localities even, municipalities, can they can pass their own laws. They can’t pass laws that contradict federal law, for example. So if the federal government were to pass an assault rifle ban, for example, ⁓ states cannot pass a law saying, yes, it’s okay to have an assault rifle in a state because it would conflict with federal law. Federal law would win. ⁓ so they could not challenge it in that way. But preemption really does not

happen ⁓ in r in actuality when it comes to gun regulation, the big issue there is the Second Amendment. And whether a law is passed by local government, state level government, or federal government, they all have to contend with the U.S. Supreme Court and their view of whether or not those laws pass a Second Amendment muster under their Bruin decision, which is this test, which as we’ve talked about many times on this podcast, is seems to be an ever-changing thing. the test really seems to be what the Supreme Court

thinks ⁓ should be the law and what it should not, but ostensibly the regulation has to have some historical parallel in American history, not just necessarily in the history where that regulation is, like in Hawaii, where it just hasn’t been a thing with guns. They’ve banned guns since it was a kingdom, but that’s not the history that counts. It’s the history from, I don’t know, the gunslinging Old West or something. B back when people carried muskets in revolutionary times.

So their gun restriction ⁓ this past term got struck down. That’s really where the limits are ⁓ in gun regulation. It’s not really happening in a preemptive kind of way. Abortion is a little different. Generally, the Dobbs decision, what that did was eliminate the constitutional right to an abortion and ostensibly sent the issue back to the state. So states can choose for themselves whether abortion is legal or not. But

You point out one area where there is a preemption issue, which is that regulating drugs is a purview of the federal government. States really can’t do that. And so, if, for example, the FDA outlaws MIFA Pristone, it’s gonna be really hard for states to do anything about that. And that would be a problem. And I’ve said before when we would get a lot of questions about, will Congress pass a nationwide abortion ban? I was less worried about that because of how.

politically unlikely that is, and more worried about what the FDA might do in this administration. So that definitely is a problem. And I don’t think legally there’s a ton that states will be able to do in that case if that happens. ⁓ There are also federal laws like Imtala, which we’ve talked about, the Emergency Medical Treatment ⁓ and Labor Act, which requires un the federal government, that’s a federal law that requires that hospitals

that receive federal funding must ensure that in emergency situations, life-saving and health-saving care is given to ⁓ people, even if that care requires an abortion. ⁓ there were some states that challenged that. It went all the way up to the Supreme Court a couple years ago, but the Supreme Court actually punted on that issue. I was ac honestly thankful that they did, because that could have turned out a lot worse. ⁓

But there are things like that ⁓ that can bring up some preemption issue, but it’s a lot more complicated. It really depends on how each of these challenges are brought. But that was a really smart question. Thank you for asking it. Well, thank you for listening to hashtag Sisters in Law with Barb McQuade Jill Wine-Banks and me, Kimberly Atkins Stohr Joyce will be back soon. I know ⁓ you missed her as much as we do.

If you’ve enjoyed this podcast, don’t forget to rate the show. Give us a high rating wherever you’re watching, whether it’s you’re listening where you get your pods, whether you’re watching on YouTube, give us a high rating because that helps other people find it and it lets us keep doing what we do. ⁓ Also, don’t forget to join us on Wednesdays, in addition to Saturdays, for our sister’s sidebar where we answer even more questions from our audience members. If you have a question, you know where to send them.

Either ⁓ use hashtag sisters in law on your socials, questions to sistersin-law at politicon.com, or you can send us a voice note too because we love hearing your voice. And don’t forget to support our sponsors this week because this is why we bring you this show, because they are here and they allow us to do so. Our sponsors are Flamingo, Life Pro Vibration Plates, OneSkin, Tumble, and ASPCA. You can find the links to all of them in our show notes.

See you on Wednesday and next week for more hashtag Sisters in Law. Hold up, hold up. I need to bring our attention to Jill Weinbanks and who brought two tickets to the gun show. I mean, let’s see those biceps, Jill. My goodness. You have biceps of steel

Barb (1:14:32)
⁓ Michelle

Jill (1:14:37)
It’s all from the vibration. It’s the vibration. It’s the vibration.

Barb (1:14:43)
Just one use and look at the results.