The Old Cyber Ninjas

Joyce Vance (00:04)

Welcome back to Hashtag Sisters-in-Law with Jill Winebanks, Barb McQuade, and me, Joyce Vance. Kim will be back next week. You know we’re already missing her. ⁓ Important news, in case you haven’t heard yet, we’ll be doing a live show in Denver, Colorado at the Cervantes Masterpiece on April 23rd. Tickets are available at politicon.com slash tour. We hope we’ll see you there. We’re gonna have more live shows to announce soon, but for now,

If you’re any place near Denver, please come and see us. We’re looking forward to hanging out. In today’s show, we have a lot to discuss. mean, first up, as you might have already guessed, there’s a new FBI investigation and we’ll bring you all the details and analysis you need. This is about the 2020 election in Maricopa County, Arizona. Nothing like the federal government devoting its resources to things that aren’t crimes. We’ll also talk about ethics and accountability at DOJ.

And also what we’ve learned now that Anthropic has filed a lawsuit against DoD and the rest of the government. But before we get into that, I noticed something yesterday on the interwebs and I wanted to ask Jill and Barb about it. There are photographs of y’all together, like in person, in the flesh, not photoshopped. What was that about?

Jill Wine-Banks (01:35)
it was wonderful. Barb came to my hometown and was on a panel at Northwestern Law School, and we had so much fun to just be together live in person for just a few hours.

Barb McQuade (01:48)
Well, I was on a panel at this symposium at Northwestern Law School about DOJ independence, but the key noter was none other than Jill Wine Banks, who had these students captivated with her tales of Watergate. know, when you ask young people what Watergate was, they know just enough to be dangerous, I find. But, you know, the stories about Rosemary Woods and, ⁓ you know, the missing 18 minutes and all of those things was absolutely captivating. Jill did a great job.

really fun to be there with her and we got a chance to visit and chat and that was a lot of fun.

Jill Wine-Banks (02:23)
Yeah, the sponsors at Northwestern were an extraordinary group of students. And I had some really nice conversations afterwards, particularly with the women students who find that there is still some discrimination against women lawyers and we’re very happy to have someone to talk to about it. It was lovely. But I also have to add that at the very end, I introduced Barb to someone named Dwayne, who then said, bye, Jill, bye, Joyce.

Barb McQuade (02:53)
Yeah.

Joyce Vance (02:55)
You know, I send Barb when I get emails from people who clearly meant to send them to her, not me, which happens all the time. yeah, I People who will be like, I saw you speak at so-and-so. It’ll be a place I’ve never been. And they’ll close the email with go blue. And I have to say, like, I love those. I really cherish those moments because it’s…

Barb McQuade (03:17)
I’m

flattered when they think I’m you.

Joyce Vance (03:19)
Girl,

you and me both. ⁓ you know, there’s always good energy and good vibes when hashtag sisters-in-law gets together. So I’m looking forward to seeing you guys in Denver and our other shows. I’m surprised people haven’t tried to pry and get the details out of us. ⁓ But the rest of this spring’s live shows will be revealed soon. And I hope y’all will pay close attention.

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Joyce Vance (06:45)
Last Monday, Warren Peterson, the Republican president of the Arizona State Senate, posted on social media that he recently complied with a federal subpoena for records from a legislative audit of the state’s 2020 election results. The FBI has the records, Peterson added. The FBI’s efforts to access election records in Maricopa County represents the Trump administration’s latest move to relitigate

past elections and undermine future ones. And that means it’s incredibly important for us to understand what’s happening here. So let’s dig in. ⁓ Jill, can we start on this point? You know, it’s important to note that unlike Fulton County, where the FBI was after ballots and election records themselves, in Maricopa, the FBI seems to be investigating the audit that followed the election.

What led to Peterson’s statement and what have we learned so far from Maricopa County officials?

Jill Wine-Banks (07:45)
Well, at first the announcement came from right-wing influencers who said that it was the county that had been subpoenaed. And then the county said, it wasn’t us. when looking at it carefully, it turns out that it was the Republican president of the Senate who got the subpoena and has complied by turning over hard drives and ⁓ disks of information, which may include some

photographs of ballots, but not ballots because the ballots were destroyed under Arizona law two years after the election. We’re now six years almost, I guess, just over five years after the last election that they’re trying to relitigate. And this does not have anything to do with actual fraud because even the audit that they’ve subpoenaed showed that not only did Donald Trump lose Arizona,

But the audit showed that Biden won by more votes than had previously been reported. Not a lot, but 360 votes makes a difference because it just adds to his win. So that’s what’s going on there is they are trying to undermine the results of future elections and the audit is a ridiculous one.

Joyce Vance (09:04)
Hey, Barb, this echoes back to something I remember you making fun of at the time. Do you remember this? The whole cyber ninja following the 2020 election and you used to say it and crack me up. Remind us, ⁓ what was that about and why is it involved here?

Barb McQuade (09:20)
man, the old Cyber Ninjas. Well, you may recall that back in 2020, the Cyber Ninjas, which was a Florida-based company run by a Trump supporter and somebody who was an election denier, ⁓ showed up in Arizona. They got hired to ⁓ conduct an audit. And that audit was an effort to show that the election in ⁓ Arizona was fraudulent.

⁓ They created a report, even their own ⁓ organization referred to their work as a little screwy and they ultimately filed bankruptcy. But even they, in the end, confirmed that Joe Biden had won Arizona at the time. So the idea that there’s now we’re relitigating an investigation that even the cyber ninjas found was ⁓ legitimate ⁓ really seems like a bridge to

Joyce Vance (10:20)
Yeah, it’s pretty crazy. mean, Jill, let’s just dig in a little bit deeper because what happened in Maricopa County is different than what happened in Fulton County. And a big part of that is because there was Republican political leadership there and Republicans ran all of the audits. know, in Fulton County, the challenge involves local Democratic officials who ran the initial count. There’s a statewide Republican view, but this is really a big difference in nuance. Arizona,

Everything gets vetted by the Republicans. So why would the Trump administration want to go back and look at that audit again?

Jill Wine-Banks (10:56)
Well, why? Because he’s obsessed with the 2020 election results. That’s why. There’s no legitimate reason. Even the Republicans, if you remember, Bernovich said, yeah, this was a fraud-free election and Joe Biden won it. So everyone in Arizona knows the results. Donald Trump must know the results unless he’s totally certifiable. I guess that is a possibility, isn’t it? ⁓

Joyce Vance (11:02)
No.

Jill Wine-Banks (11:26)
Anyway, I mean, there’s no real reason for this. I can’t think of anything except to try to degrade public trust in the vote going forward. It’s otherwise totally inexplicable, and there’s really no reason for this to be happening. There was no reason for the audit by the ninjas, which I also should point out, aside from the fact they became insolvent and closed up business.

had no experience in doing an election audit before they did this. So they were completely unqualified and did a really bad job, even though it confirmed that Donald Trump lost.

Joyce Vance (12:05)
You know, it was pretty crazy. mean, there are things that you do and don’t do when you’re evaluating an election after the fact. And one of them is that you don’t make markings in blue pen, which of course is exactly what they did early on in this one, forcing everything to come to a halt and really throwing the whole process into question. I think that there was some suggestion that perhaps it had been done that way in order to throw doubt onto the process, which I think underscores the point that you’re making, Jill.

You know, a lot of what we’re seeing right now, it’s not about discounting the results of those elections because they’ve been vetted and litigated repeatedly. It’s about making people have doubt about whether our elections are being held competently and whether they can have confidence in the result. Because, you know, unless Donald Trump has his head under a rock, I suppose that’s a possibility too. He understands that he’s down badly in the polls.

and he’s heading into an election season where his party may not fare well. And we all know Donald Trump is not very good at losing elections. He really acts out when that happens. And so it seems likely that a lot of this is about casting doubt in advance of the midterm elections. Along those lines, Barb, Arizona’s current attorney general, Chris Mays, and the Secretary of State, they’re both Democrats. How would they react?

to this subpoena, to what’s going on, and why are they concerned about it?

Barb McQuade (13:33)
Yeah, they seem like they’re gearing up for litigation is what I think is going on. So we’ve got the Secretary of State, Adrian Fontes, and Attorney General Chris Mays. They’re both Democrats. And they actually warned local officials not to turn over voter rolls to the federal government over the 2020 election in Arizona. They wrote a joint letter and they sent it out to the county recorders that the disclosure of these materials to DOJ would

in their words, quote, violate both federal and state law. And so they urge these recorders, the people who control all of the voter registration data to, quote, fulfill your oath by declining any such illegal demands. Now they have not said that they will file a lawsuit or litigate if anybody gives over this information, but they certainly seem like ⁓ they’re gearing up for it. ⁓ The Secretary of State is currently involved in a lawsuit.

for refusing to provide the state voter rules ⁓ when DOJ asked for them. These are the rules that they’ve been asking for in a lot of different states where they want the full dates of birth, social security numbers, driver’s license information from voters. Most states, I guess I shouldn’t say most, but many states have refused to turn these things over. ⁓ I think that the people of Arizona are being well represented by…

this Secretary of State and this AG who are not going to take this lying down.

Joyce Vance (15:03)
You know, I had the pleasure of meeting the Arizona attorney general, Chris Mays, while I was on my book tour. And she was so straightforward. I mean, she struck me as somebody who could have been a Republican or a Democrat, you know, not really strong one way or the other, big on the rule of law. And she seemed really offended by these sorts of efforts to acquire voter records. You know, Maricopa is a great example.

of why that is dangerous in a democracy because the 2020 election results, they’ve been confirmed repeatedly, both by the county’s post-election hand count and by multiple audits conducted by independent firms commissioned by the county, which means by the county’s Republican leadership. ⁓ Courts tossed out several cases filed by Trump’s lawyers alleging fraud. This election is just not in doubt. So why might they want records including these sorts of

voter records, which include identifiers, right? Your name, your address, how to contact you, in some cases, social security information and others. It’s because they’re looking forward and they’re preparing to file what’s called third party lawsuits to disqualify voters. In a lot of states, private parties can file those and we’ve seen pushes to do that in some states, but because it hasn’t been system-wide yet, it may not.

quite be hitting the front of the radar screen. And what this is going to do is it’s an effort to make it more difficult for people to stay registered to vote by embroiling them in a lawsuit, which they then have to defend and go in and prove, no, I’m a citizen or whatever the eligibility qualification is that’s being contested. But this is where it starts with the voter rules. And this goes all the way back to 2017 when after Trump won the first election,

He stood up an election integrity commission that was supposedly looking for voter fraud. And they were forced to fold four months into their operation because not only had they not found any fraud, it came to light that they were collecting exactly the same kind of voter roll records for this precise purpose. So look, everything old is new again. But if you hear about an effort in your state to collect voter roll information,

Be grateful if your Secretary of State opposes it, and if they aren’t, make sure that you use your voice to demand that they do. Because we all deserve to be able to register to vote if we’re eligible, and we shouldn’t have to put up with any Republican shenanigans.

Barb McQuade (17:45)
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Joyce Vance (22:23)
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Barb McQuade (22:29)
That’s a loaded question. That’s one of those questions to which you already know the answer.

Joyce Vance (22:32)
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Barb McQuade (24:07)
Easy for you to say.

Jill Wine-Banks (24:11)
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This week, Attorney General Pam Bondi announced that DOJ was proposing a new rule in the Federal Register regarding state bar ethics investigations of DOJ lawyers. There’s a federal statute called the McDade Amendment, and that law requires all DOJ lawyers to be licensed by a state or the District of Columbia, can be any state or the District of Columbia, to practice law and to comply with the ethics rules of

the state or jurisdiction that licensed them. We all lived with that when we worked at the Justice Department. I’m licensed in Michigan and I complied with all of the Michigan ethical rules. This new rule comes against the backdrop of bar complaints against Pam Bondi, Lindsay Halligan and Ed Martin and some other federal prosecutors who’ve been involved in immigration cases around the country. And this has my hackles up a little bit. Joyce, can you tell us about the proposed rule?

what it says and why Pam Bondi claims it’s necessary.

Joyce Vance (26:49)
think your hackles are up for good reason. Bondi is accusing state bar authorities of, weaponizing grievances against DOJ lawyers. boy, there’s that word again, right? When this Justice Department uses the word weaponization, it means they’re upset because someone is trying to hold them accountable for misconduct. is a weird one, right? This is DOJ trying to tell state bar associations how they can and can’t discipline the lawyers

that those state bar associations license. In other words, this isn’t really the federal government’s lane. And historically, there’s been an understanding that state bars defer to DOJ when it’s conducting investigations, but apparently that’s not enough for Pam. So she had to find a way to get around state bar associations who have inherent authority to conduct these grievance sorts of processes, and she does it like this.

She forbids DOJ employees from participating in the grievance proceedings. And that’s the weird part because she can’t really keep the state bars from investigating and disciplining, including disbarment. All she’s sort of doing is telling DOJ employees that they can’t tell their side of the story. But we’ll leave that for another moment. Here’s how Bondi describes the new rule in the Federal Register, which is where it’s out for comment. She writes, the Department of Justice

proposes to establish a process for reviewing bar complaints and allegations against its attorneys. Under the proposed rule, before a current or former department lawyer may participate in any investigative steps initiated by the bar disciplinary authority of a state, territory, or the District of Columbia in response to allegations that a current or former department attorney violated an ethics rule while engaging in that attorney’s federal duties, and here’s the key part,

The department will have the right to review the allegations in the first instance and shall request that the bar disciplinary authority suspend any parallel investigations until the completion of the department’s review. So she’s in essence trying to formalize the existing understanding.

Barb McQuade (29:02)
Yeah, so, you know, ⁓ it may sound a little innocuous on its face, but Jill, I have seen that many legal organizations, including the NAACP Legal Defense Fund and the Illinois Bar Association, where I know you are licensed, are opposing the rule. What are their arguments against it?

Jill Wine-Banks (29:20)
So I have a couple of preliminary remarks. One, you both said hackles. And I was like, do I really know what a hackle is? So I just looked it up and hackles are the hairs on the back of an animal’s neck that stand up when it is afraid or angry. So I am taking that as you are angry, so am I. And that’s because this is a ridiculous evasion of our normal way of disciplining.

I am sure that Rudy Giuliani and Sidney Powell and others who have been investigated and either suspended or disbarred or otherwise punished wish this rule had been in effect because it’s a way to delay, if not to completely eliminate the state from having a role in making sure that the people who practice in their courts are really qualified and honest. I’m actually admitted in

several jurisdictions. I’m admitted in New York, my first state, DC, my second, and my third is, of course, Illinois. But I practiced in Washington, DC on my New York license because I was a federal employee and that’s how it is. But if there had been a complaint about my behavior, New York is the place that had the jurisdiction to investigate and punish me if they found me guilty. And what this rule is trying to do is to put DOJ

lawyers above the law, above the state’s control, and to make it something that DOJ controls. And let’s keep in mind that DOJ has basically dismantled its internal ethics rules and staff. so they’re hardly in a credible position to take on this role. And it’s a really strange rule. It’s really dangerous. The Illinois Bar did file some statements and

The Legal Defense Fund did as well, and they’re very well stated as to, at the very least, this will delay a state investigation, but I don’t believe delay is the goal. I believe termination is the goal.

Barb McQuade (31:30)
Yeah, in fact, know, there’s some, had a really interesting take on this. If you read the rule, what it says is ⁓ DOJ can come in and tell ⁓ the state to delay, to stop its investigation while the DOJ takes a look at it. If DOJ finds a violation, then the state is free to then conduct its own investigation and even add its own punishment. ⁓ It also says if DOJ

drops its investigation, then the state may pick up. What it doesn’t say is what happens if DOJ quote unquote clears their own lawyer. And it’s silent as to that. you if you don’t read it carefully, you look at this thing like, well, it might delay things, but what’s the big deal? According to Bloomberg, they said that if DOJ finds no violation, that’s going to block the state from investigating infraction whatsoever. And how do they get there?

I’ve been talking with some people and speculating, so it takes a little bit of a leap of logic here, but it could be, I’m wondering what you guys think about this, that what they’ll do is they’ll make an argument that federal law preempts state law under the supremacy clause, and that if the state reaches a conclusion different from the findings of DOJ, they are precluded from imposing any sanctions against the lawyer. If that’s the case, then what they’re really going to do now

is protect from any accountability whatsoever their own people as long as they’re zealously advocating on behalf of the president, even if they violate ethical rules. Do you think I’m being overreactive here? Are my hackles up too high?

Joyce Vance (33:10)
Of course they’re going to try and do that. mean, but I would just say good luck with that, right? ⁓ We have a supremacy clause for a reason and we also have a reservation of certain rights to the states for other reasons. And it’s clear that licensure, which is what this is about, right? Barbers are licensed, overhaul, long road haul drivers are licensed, lawyers are licensed. And that happens by the states and not at the federal level.

And just become, because some lawyers happen to be employees of the federal government doesn’t change that. And you know, even this Supreme Court, maybe especially this Supreme Court, which is a whole bunch of hardline states rights conservatives, that’s what got us dogs in the abortion decision. These are folks who, unless they really can tort themselves into some squirrely pretzel logic that I don’t think even this group can manage, they’re going to have a hard time saying that states

aren’t the licensure authorities here and rejecting the federal effort.

Jill Wine-Banks (34:11)
And I would add that the Supremacy Clause, let me just read it to you, ⁓ says that federal laws and the Constitution and treaties constitute the supreme law of the land, taking precedent over conflicting state laws. These aren’t laws, these are rules and regulations governing the admission to practice in a state. So I think that the Supremacy Clause argument is completely flawed and will not fly.

that there will be litigation if this rule goes into effect and the DOJ tries to stop the state of Illinois from investigating misconduct by one of its lawyers. And we’re seeing many judges ⁓ start to complain about the behavior of lawyers and think about all the things that were done in filing fraudulent lawsuits and the consequences of that. That was zealous advocacy, but not

legal and not ethical and deserved punishment under state power association.

Barb McQuade (35:13)
which

is why DOJ wants to try to swoop in and take away this real check that we have. ⁓ I thought this is an opportunity to talk a little bit about rulemaking and the Federal Register. ⁓ Joyce, I wanted to ask you if you can explain how federal rulemaking works. This is a rule promulgated by the Attorney General. ⁓ What is the Federal Register and the notice and comment process?

Joyce Vance (35:36)
Can I have a full semester to teach this class, Professor McQuade?

Barb McQuade (35:40)
No, I want you to answer it in just a couple of sentences,

Joyce Vance (35:43)
Okay, I’ll give a high level summary on this one. I mean, we really should do a whole segment on it at some point. But federal authority to regulate rests with the US Congress and it’s delegated to federal agencies like DOJ through laws. So Congress and various presidents have developed this really voluminous set of procedures. It’s complicated, there are requirements that guide the federal rulemaking process and collectively.

They require rulemaking agencies like DOJ, but also places like Treasury, EPA, know, DOD, take your pick. They all do it. The rules require them to take a wide range of procedural, consultative, and analytical actions before a rule can become final. And in some cases, that can take years. The delay can be prolonged. But Bondi is acting, I think, like she’s on a fast track here. So it’s the Administrative Procedure Act

the APA of 1946 that sets forth the most broadly applicable federal rulemaking requirements. And what happens is that rules are typically promulgated through the informal rulemaking process, which is what we’re seeing here. The agency publishes its proposed rule in the federal register. It provides the public with a meaningful opportunity to comment on it. And once that comment period closes, the agencies are required to consider relevant matter that’s presented

and they do a final version of their rule, which they then submit to OMB for that office’s review of the rule. And once it clears that final review, they’re free to publish the rule. That’s a very high-level explanation of how this process works. But the comment process is really important because everything is public. And so we’ll see all of the objections to Bondi’s rule as they come in. It should be pretty interesting.

Barb McQuade (37:37)
But of course, at the end of the day, what they can say is like, thank you for all of these comments where you’re outraged and yeah, we’re just gonna go forward with the rule anyway.

Joyce Vance (37:44)
Yeah,

I mean, absolutely, right? And a normal DOJ wouldn’t do that. It might be angry about some of the comments, but it would read them. It would probably respond. You might see that ⁓ on the website. There might even be some cases where they would take things into account if there was sustained pressure. And that’s part of the openness of the rulemaking process is that if groups are outraged and they go to their senators or members of Congress and those elected officials put

pressure on the rulemaking agency that can really alter the outcome. this is, my God, I can’t believe I’m going to say these words. This is part of the checks and balances process that is inherent in our three branches of government system. Here’s an area where it might actually still work.

Barb McQuade (38:31)
We’ll see, suppose. Hey, and Jill, let me just ask you, you used to work for the ABA, right? They promulgate these model ethics rules, model rules of professional responsibility. Can you just explain ⁓ some of these rules? What are they and what are the consequences for violating them? What are we talking about here?

Jill Wine-Banks (38:47)
I’m so glad you asked that because this is something that we all take for granted but that other people may not really be aware of. And the model rules promulgated by the ABA are often adopted exactly as they were proposed but sometimes changed in states. But they basically do represent what happens in the states. And they cover things like, for example, conflict of interest and defining what a lawyer can represent.

For example, for all of us who were federal employees, it says that if you were a federal attorney, then you cannot be on the other side of a matter that you handled while you were in the federal service. So for example, if I prosecuted ⁓ Dorfman, who was affiliated with organized crime, I couldn’t then represent him without having permission from the Department of Justice. It talks about things like… ⁓

the obligations you have to your client about confidentiality, what you can ⁓ reveal and when you can reveal it. It also talks about things like your continuing obligation to a client. So, hey, Todd Blanch, if you’re listening, Pam Bondi, if you’re listening, you’re never free of your obligation to your client, which means you have a conflict in your current job unless you recuse yourself from certain things involving that former client, i.e. the president.

It talks about things like candor to the court, which is a thing that has definitely gotten a lot of federal employees at Department of Justice in trouble because they haven’t been candid with the court. And then it’s gotten some others in trouble, not from an ethics standpoint, but they have been candid and they got fired because they were candid with the court telling the truth. So it says that a lawyer admitted in any state is subject to the

jurisdiction of that state to the ethics rules and investigations there. It also says that anyone who practices in a state is subject to that state’s jurisdiction as well. So I’m under the jurisdiction of Illinois, but I’m also under the jurisdiction of New York. If I go into a New York court, then I’m subject to their rules as well. ⁓ I also want to just note one last thing, which is the ethics rules were really clarified and changed after Watergate.

because so many lawyers were defendants in Watergate, that it was believed that ethics had to be amended and things were put into ⁓ contrast. it’s the rules at that time weren’t clear about, for example, who did the White House Consul represent? They now make it clear that the White House Consul represents the office of the president, not the incumbent. I don’t think that current

White House counsel recognize that difference. ⁓ anyway, there are now courses being taught by former White House counsel, John Dean, and his friend and mine, Jim Robenol, on the current ethics rules, because it is really important for lawyers to know what they are so they don’t violate.

Barb McQuade (42:04)
Yeah, that’s great. Well, any predictions on how this comes out in the end? You think DOJ gets its way and gets to bring all attorney discipline in-house, or do you think that state bar ⁓ disciplinary authorities will prevail?

Joyce Vance (42:19)
You know, I think DOJ is likely to try to go ahead with this if they can, but it may rebound on them. I mean, it may really anger state bars, which move notoriously slowly on these sorts of grievances. We all saw that with Rudy Giuliani and others. This may just light a fire under them to move more quickly. So unintended consequences, but I would be okay with that.

Jill Wine-Banks (42:44)
I also think that there will be litigation and that in a just world, the litigation would prevail saying that this is not the way the system works and that states retain the jurisdiction for discipline of anyone they have admitted to practice.

Joyce Vance (43:01)
mean, it’s like, what’s going to happen next? Is the federal government going to start disciplining barbers or deciding who gets to be a truck driver? You know, it’s just silly nonsense, more of what we’ve come to expect from this administration.

Barb McQuade (43:23)
Maybe there’s something about spring, but there are so many birthdays and anniversaries come up. There are even a couple of house warmings going on. With all the crazy things in the news, it feels great to celebrate. Getting together and remembering all the fun times you’ve shared in the past and looking ahead to future plans is a great way to connect with people you care about. I’m sure you all have a lot coming up too, so we wanted to let you in on our favorite gift giving secret, and that is giving someone an aura.

frame.

Joyce Vance (43:54)
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just download the Aura app and connect to Wi-Fi. From there, you can effortlessly share your photos or videos by upload or text and change what it displays at any time. So I’m just gonna say that you can also sort of take everything off, because it’s so easy to set up. And if there are, just certain photographs you want your husband to see, like you’re dying to go back to Scotland and go hiking there,

You can upload your pictures from your last trip and you can also upload other pictures of Scotland until he gets the point. Love my orafran.

Barb McQuade (45:00)
Looking at our treasured photos and videos while going about my day, is such a feel-good pick me up. I have mine posted on this ledge that’s kind of between my kitchen and my living room. So I get to see it every time I walk in and out of the room. And my husband loves it too. We always say, man, look at this one, come over here, quick, quick. And we’ll check it out. The aura frame makes it so easy to load these pictures. There’s nothing like escaping into memories of an amazing vacation or holidays or other things.

to make mundane chores go so much faster. If you have kids, it makes a great gift to keep them connected. But I’ll tell you the people who love it the most, my mother and my father-in-law, they love this thing. They always have to ask me, what is that thing again called? You mean digital picture frame? Yes, I love that thing. It’s the greatest with all the different pictures. So it really makes a great gift for everybody.

Joyce Vance (45:49)
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Jill Wine-Banks (46:36)
So we’ve already talked about Claude once, but Claude has since buffed up. He joined the MMA and he got a UFC training so he could fight back the bully at DOD.

Joyce Vance (46:51)
Wait, is this like what Cash Patel is ordering for FBI agents, MMA training?

Jill Wine-Banks (46:57)
Yes, absolutely. Cash Patel is bringing in the UFC to train agents who wear suits and do audits and do investigations. They don’t fight street crime. okay, so it’s a thing that Cash Patel is doing. ⁓ And we did talk about Anthropic and we talked about Hexs and his serious threats against them and Claude, who is their bot. ⁓ And by the way, that motivated me to download

Claude, but as soon as I did, I was notified by someone that ⁓ Claude reported that I had won an Emmy. ⁓ About the things I’ve done, but I did win with you guys. I won a Webby, but I haven’t won an Emmy at least. Not yet, girl. Not yet. My book is ⁓ under negotiation for another.

Barb McQuade (47:46)
not yet, just not yet, Joe.

Jill Wine-Banks (47:54)
movie options, so maybe it’ll be on television and I will get an Emmy. In the meantime, I haven’t. So now I’m a little skeptical of Claude, I’m sorry to say. But, Barb, let’s go back to some of the facts and just remind our listeners, what were the threats from DOD ⁓ to Anthropic and Claude?

Barb McQuade (48:16)
Yeah, so you may recall a couple of weeks ago we were talking about this where ⁓ what Anthropics said was, ⁓ we entered into this contract with the federal government, but we do not think our product can be safely used or ethically used for mass surveillance of the American people or for targeting of military targets. And so said, you can’t use our product for that purpose. Pete Hegseth says,

hell with you, we’ll use it for whatever we want. We want to be able to use it any lawful purpose. And of course lawful with areas that have yet to be outlined and framed are unknown. And so they said, you’re going to let us use it for anything we want or else we will cancel our contract with you. And not only that, we will ⁓ do one of two things, which are internally inconsistent. Either one, we will use the Defense Production Act to make you do it. But you may remember during COVID,

The Defense Production Act was used to require companies like General Motors and Ford to make respirators because it was necessary for the national security. Now those companies got paid for it, but they had to put the federal government to the front of the line and start making things that they don’t ordinarily make. ⁓ So that was one thing. We’re either going to do that or we’re going to say that you are a threat to national security and therefore you are blacklisted and banned from any federal contracts.

⁓ Perhaps they didn’t realize initially that those two things are kind of inconsistent. Either you’re so essential that we’re making you make these things or you’re so dangerous that you can’t make, you can’t work with the federal government. They landed on the second one and ultimately at 5.01 on a Friday said, ⁓ you may not ⁓ engage with the federal government. No federal agency may hire Anthropic. ⁓ Anthropic can no longer play any more reindeer games, rest of the federal government.

Jill Wine-Banks (50:14)
And they added, even beyond that, that no company that uses Anthropic can have a contract with the government. it could, and probably is intended to, put Anthropic, ⁓ really ⁓ company with great integrity, who believes morally that it has to do the right thing, it could put them out of business. ⁓ But despite all that threat and the fact that it has been actually implemented,

Anthropics stood up to the bully, refused to cave. And what has it done? It filed two lawsuits ⁓ against DOD once they carried out their threats. And one is in California and one is in DC. So Joyce, because you’re a Californian, I’m going to ask you about the case that was filed by Anthropics in San Francisco on First Amendment grounds.

Joyce Vance (51:07)
Yeah, so this is a civil case and Anthropic wants the court to give it a permanent injunction to prohibit DOJ from enforcing its designation of the company as a supply chain risk, which is what all of the bad results you’ve been talking about come from. ⁓ Obviously, Anthropic alleges that that has pretty catastrophic consequences for their business. And they bring a variety of claims under both the Administrative Procedure Act, which we talked a little bit about earlier,

and the First Amendment. You know, it’s a very interesting, complicated lawsuit with lots of moving parts. One thing that’s for certain is that if it moves forward, discovery is going to be lit in this case, because Anthropoc will be getting a lot of stuff from the federal government.

Jill Wine-Banks (51:55)
That’s so fascinating. And, Barb, there is a second case that Anthropoc filed in the District of Columbia that accused DOD of unfairly discriminating and retaliating against them. Talk about that and the likely outcome of that case.

Barb McQuade (52:12)
Yeah, Jill, this lawsuit in DC is a little bit unusual because it goes directly to the Court of Appeals, the DC Circuit. What it is asking the court to do is to review DOJ’s designation of it as a supply chain risk. It’s under a separate law ⁓ from the California lawsuit. The designation is under this Federal Acquisition Supply Chain Security Act of 2018.

Ordinarily, what this is for is for ⁓ companies that are in a foreign country that is considered an adversary. Often it’s Chinese companies where we’re concerned that some software they’re going to provide is some kind of security risk because this hostile foreign adversary has access to it. ⁓ But what they’re arguing here is like, hey, wait a minute, you got rid of us.

And then like the next day, you entered into a contract with OpenAI and they have the same exact provisions that we had. You are discriminating against because we just wouldn’t play ball with you. You’re ⁓ arbitrarily designating us. There is no lawful basis for that designation. And so we’re going to sue you and get a court to declare that you acted contrary to law when you designated us as this risk to the supply chain.

Jill Wine-Banks (53:35)
As Joyce said, the company is seeking restraining orders so that it can continue to work with military partners while the legal battles play out. And Microsoft filed a friend of the court brief in support of Anthropix’s ⁓ desires. And there is a big danger in what DOD is doing that could definitely affect other AI companies and other companies as well ⁓ and eliminate some of the guardrails and safety precautions that

Anthropic wants and that it appears that chat GBT is getting. And if that’s true, Joyce, are they trying to just destroy Anthropic because they had moral values? Is that the point that makes the Pentagon’s actions against Anthropic more illegal?

Joyce Vance (54:25)
I I think that’s a really interesting question. You and Barb have already pointed out that there’s not a whole lot of daylight in between Anthropic and Chats ultimate positions on what the red lines are, right? ⁓ Anthropic was really willing to play pool with the Department of Defense. In fact, did y’all notice this? In the California complaint, they even refer to it as the Department of War.

And I assume that that was a very deliberate choice to say, guys, you know, we’re trying to be on your side here. And they offered, for instance, to help if DOD, you know, wanted to use a different supplier, they offered to help unwind their own participation and bring the new folks on board. They literally did everything they could ⁓ designed to avoid a lawsuit. So it’s just this really predatory action.

⁓ that DOD took by naming them a supply chain risk that has resulted in this whole situation. And I think you’re onto something when you ask if this makes the lawsuit stronger because it really casts this in the vein of lawsuits that courts have been very eager to see the last of. In fact, while we’ve been taping, there’s even been a new development where Judge Boasberg in the District of Columbia

⁓ went ahead and told the government no on its criminal inquiry into Jerome Powell, said that there was no evidence and it looked retaliatory. This one has much that same feel, right? It’s like DOD is just a four-year-old throwing a temper tantrum saying if you won’t give us what you want, we’ll retaliate against you. No matter how reasonable you are, there’s nothing that you can do that will make us happy.

And so aside from the fact that this is the first time that this process has ever been used against a US-based company, right? There are plenty of laws that you can use to prosecute and otherwise deal with a US company that strays from the fold. This is a provision that’s usually reserved for foreign companies. Everything about this just makes the situation and DOD’s actions look like the kind of thing.

that anthropic can be successful in challenging in court.

Jill Wine-Banks (56:47)
Yeah, you know, when you mentioned that it’s usually used against foreign companies, when I was general counsel of the army, it was something that we talked about in terms of if at time of war, we were totally dependent for a part or a product on a foreign country, could we rely on them? That was what was a supply chain risk, not a company that had moral values. know, Barb, it seems to me that this company is standing up to the bully and is getting sued.

sort of like the law firms that stood up to the government. ⁓ so what do you think the outcome is going to be of either of these lawsuits?

Barb McQuade (57:25)
I think it’s very likely that we see Anthropic prevail legally, but of course the question is they’ve got to navigate this whole political world. These are incredibly lucrative contracts and so getting blackballed comes at a cost. I know it’s easy to criticize the people who go along with the bully and I agree that collective action and fighting back is the way to go. But I think back to cases that we handled when I was prosecuting cases, extortion cases.

It’s such a difficult decision for the victim of extortion. ⁓ Sometimes we charge people with crimes when they ⁓ off the public official and paid a bribe. But so often they find themselves in this really awful situation where you can either stand up and do the right thing or you can face financial ruin. And so ⁓ they could win the battle but lose the war.

Jill Wine-Banks (58:16)
That’s sad. ⁓ But Joyce, there’s one other DOD action that raises in my mind a First Amendment issue. ⁓ We previously talked about Hegseth banning journalists from the Pentagon who wouldn’t sort of agree to his ridiculous rules that said you can’t ask hard questions or publish anything that we didn’t tell you. Now he’s barring photographs. Photographers can’t take pictures that he doesn’t like. So he didn’t like a picture of himself, so he’s barred photographers.

⁓ What do you think? Is that something that is a First Amendment violation and a problem for Americans not to be able to see what’s going on?

Joyce Vance (58:56)
You know, it’s nuts. mean, there has not been an actual legal challenge filed yet. And I think that that’s because while this clearly violates the spirit of the First Amendment, lawyers will have to make a careful assessment just about precisely how to position the legal arguments to figure out the right way to bring a case like this.

But what’s really needed right now is a public outcry to keep this from being one of the many horribles that just slips off the radar screen because there’s so much bad stuff going on. I mean, take a step back for a second and think about what this really means. The Secretary of Defense is such a child.

that he says, well, you I don’t like this picture that you took of me. I had a couple of hairs out of place. We all know that this is a secretary who likes to spend taxpayer money on his makeup studio. This is a guy who wants flattering lighting. And so I think in this moment where you have an administration that’s really not committed to transparency, this speaks volumes and the public should sustain outrage while the lawyers are getting ready to do it in court.

Jill Wine-Banks (1:00:06)
So we’re basically out of time, but I just want to mention a few other things about DOD that are very concerning. Hexeth is totally restructuring JAG and the civilian lawyers in what is a very suspicious way. We don’t have time to talk about it, so I’m going to put a link in our show notes for our listeners to read. And I want to also point out that former JAG officers and DOD officials, including me, have signed

some opinion pieces. I was part of one of those. And that was about the line between civilian and military law enforcement in terms of using military lawyers for immigration, for which they are not trained, but they have been assigned to. And it may violate posse comitatus. And we call upon Congress to take action. So I will put that in ⁓ the show notes as well.

Another group has filed an amicus brief arguing something similar. So I’ll put a link to that brief as well, because I think these are really fascinating things trying to stop the DOD from exceeding beyond what is ever intended. there’s also another one which says that Hexeth is guilty of murder. And that was written also by former JAG officers. And I will put the link to that in. And that’s in connection with the shooting of…

the destruction of boats in international waters.

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Joyce Vance (1:03:52)
We’ve hit our favorite part of the show, the part where we get to answer your questions. If you have a question for us, please email SistersInLaw at politicon.com, or you can tag us on social media using hashtag SistersInLaw. If we don’t get to your questions during the show, we’ll try to answer them during our new show, Sister Sidebar, every Wednesday, where we take more of your questions.

Today’s questions, look, I mean, there’s a lot going on and they were all over the board. We’ve tried to pick some representative ones. Barb, I think the first one is for you. This is from Sherry in Gettysburg, Pennsylvania. And she asks, what was going on legally during the Biden administration regarding Epstein? All I can find out is that after Trump put him and Maxwell in prison, there were a lot of appeals.

Barb McQuade (1:04:41)
Yeah, although I think I will dispute this idea that Trump put Maxwell in prison. So Jeffrey Epstein gets arrested in 2019, Trump was certainly in office then, and commits suicide. Ghislaine Maxwell went to trial in 2021 and was sentenced in 2022. So that was during the Biden administration. So I think what they were working on during that time

was the Maxwell case. What’s interesting is what happens between 2022 and say 2024. We don’t know, but you know who knows and you know who I think this House committee investigating Epstein ought to call as a witness. That is one Maureen Comey. Maureen Comey was the prosecutor on the Maxwell case. She obtained that conviction. And then she was fired by one of these nasty grams from Pam Bondi that just said, pursue it to article two. You are hereby terminated.

Now, the speculation is that she got terminated because she’s the daughter of James Comey, the former FBI director and a political enemy of President Trump. But I’ve also always wondered whether, ⁓ you know, she knows probably more about this case than anybody, because when you prosecute a case, you have to, you know, get yourself deeply acquainted with all of the documents. ⁓ Now, it may be that the Justice Department would preclude her from testifying, but

We’re in such an unusual space now because of the Epstein Files Transparency Act, where the government has complied with this disclosure to turn over the whole file, that it’s hard to imagine that they would have any legitimate basis to block her from testifying about facts about which she knows. So ⁓ I don’t know what else the Biden administration was doing during that time. Now keep in mind, ordinarily the Justice Department does not disclose documents about things that ⁓ don’t

result in criminal charges against individuals. So the fact that they didn’t publicly disclose documents doesn’t surprise me. to the extent they were investigating anybody else or there may be a basis to investigate anybody else, seems like Maureen Comey would be the person to ask.

Joyce Vance (1:06:52)
Our next question comes from at PNWGeorge at bluesky.social. That sounds to me like at Pacific Northwest George, where if you’re in Seattle, George, one of Barb’s and my friends texted us a photograph we’re taping on Friday, texted us a photo of snow in Seattle for spring break, which seems sort of crazy and outrageous. So I’ll answer your question. You’ve asked…

Why hasn’t Trump sued those who accuse him of sex crimes? If he’s innocent, isn’t there a clear defamation case or could people place responsibility on the files? You know, this is such an interesting question because Donald Trump, he sues a lot of people for defamation. And as you point out, a plaintiff in a defamation case has to establish that the statements were false. And in essence, they have to prove that a

false defamatory statement has been made against them. And in Trump’s case, that would be with reckless disregard because he’s a public feature. You know, that for instance is what E. Jean Carroll had to do in her successful defamation case against Trump where he claimed she had lied about sexually assaulting him. And so she came forward and said, no, everything that I said was true. ⁓ So I think to the point of your question,

Draw your own conclusions, draw whatever conclusions you will from the fact that Donald Trump has not sued, at least not so far, over what are highly significant allegations about his, I’m just going to say assault of treatment, sexually assault of treatment towards underage girls. And very unusually, we’ve heard not a whole lot out of him. I think that there’s been a general denial, but no defamation case. Our last question today comes from Melissa.

This one’s for you, Melissa says, who created and administers the 988 crisis line? Is it federal or state?

Jill Wine-Banks (1:08:52)
was so intrigued when I saw this question because I didn’t know what 9-8-8 was. And I love it when we get a question that makes me go and do some research and look it up. So I feel like it’s a public service for us to talk about 9-8-8, which is a suicide and crisis lifeline, which provides free and confidential emotional support to people in crisis or distress 24 hours a day, seven days a week.

all across the United States and its territories. It is a national network of over 200 local crisis centers and combines local care and resources with national standards and best practices. So specifically in answer to your question, there is federal funding for this, which so far they’ve kept going. You never know with the federal government, but yes, it is part of Health and Human Services funding.

It’s administered through a grant from them to a particular group, but there are 200 organizations around the country that you can call. And as I was researching it, I thought, you know, maybe I should call and just talk to someone and find out more so I could share that. But I didn’t want to take the time of any volunteer who would answer the phone who might be doing something much more important in their time.

I think it’s important for everyone to know if you or a friend or a neighbor or a relative needs help, this is a good place to call. You just dial 988.

Joyce Vance (1:10:30)
You know, that is utterly fascinating and thank you for doing the research that we all needed there, Jill. Thank you all for listening to Hashtag Sisters-in-Law with Jill Winebanks, Barb McQuade, and me, Joyce Vance. We hope we’ll see you at our live show in Denver, Colorado at the Cervantes Masterpiece Theater on April 23rd. Tickets are still available at politicon.com slash tour, so make sure you get yours before they sell out.

Also, don’t forget to pick up your Sisters-in-Law merchandise and other goodies at politicon.com slash merch.

And make sure you check out our new companion podcast, Sisters Sidebar, every Wednesday. Please show some love to this week’s sponsors, Thrive Cosmetics, Wild Grain, Honey Love, Aura Frames, and Delete Me. The links are in the show notes. Please support them because they make this podcast possible. See you next week with another episode. Hashtag Sisters in Law.

Jill Wine-Banks (1:11:35)
Ooh, I just made a lemon dump cake. Have you ever heard of that? It’s really a weird recipe that I saw. I came across my phone and I happened to be in the grocery store and so I bought the ingredients. It starts with a can of lemon pie filling that is the base. You just put that all over a nine by 11 pan and then you sprinkle some cake mix, a half a box on top of it. cover it with ⁓ little teeny pieces of

Joyce Vance (1:11:39)
No.

Jill Wine-Banks (1:12:04)
You put the rest of the cake mix on and then you cover that with butter and you bake it. And it is divine.

Joyce Vance (1:12:12)
Is this the one, I do something like that from scratch. Does it separate so that you’ve got like a layer of lemon pudding with cake on top of it?

Jill Wine-Banks (1:12:19)
No,

it’s different. it’s sort of, I guess it sort of separates, but it’s just a yummy breakfast or dessert. And I thought, well, if it worked with lemon pie filling, I bet it would be great with apples. So I invented an apple dump cake and it’s even better with apple pie filling as the base.

Joyce Vance (1:12:38)
love how you say it works for dessert or for breakfast. Yes, of all of a sudden I have fresh new ideas.

Jill Wine-Banks (1:12:45)
It’s a very easy recipe I can send you.