You Hurt My Feelings

Kim (00:10.616)
Welcome to #SistersInLaw with Jill Wine-Banks, Barb McQuade and me, Kim Atkins Stohr. Joyce Vance can’t join us today because Alabama seceded. No, I’m kidding. she’s she’s not here this week, but she will be back next week, and we can’t wait to have her back. I, if you may hear in my voice, am a bit under the weather. I got hit with a virus, but on top of all the traveling I’ve been doing.

I have not recorded a sisters-in-law episode in about 84 years. So I still wanted to be here with y’all today, despite being a little worse for the wear. So I hope you forgive my voice during this and grant me a little empathy and forgiveness. and we will get through this episode together because we have a lot to talk about. We have to talk about

President Trump’s efforts to suppress the press again, one of his favorite pastimes. We have to talk about what they also want to do, which is continue deporting people to countries with with which they have no ties at all, which seems pretty inhumane. and also the lawsuit under Trump API. Remember that? We talked about that a few weeks back. We’ll give you all the latest on that.

but first I wanted to talk to you, sister. So originally my plan was before I got hit with a virus, that I was going to go back to my home state of Michigan because it is my thirty-fifth high school reunion this weekend. And I was going to go back and join my fellow classmates, members of the nineteen ninety-one class of Shrine High School in Royal Oak, Michigan.

Barb (01:57.134)
Love it. Did you wear did you wear knee socks and a plaid skirt at Shrine?

Kim (02:01.102)
plaid skirts. I never can I tell you I went through all four years of high school never buying the plaid skirt because the colors were ugly. They like I’m sorry. Sorry to no. They were like green and yellow. Like some of our other sister schools, like you know, Mercy and some of the other schools, they had cool plaids like navies and cool like well, I didn’t like our plaids. So we also had the option of wearing navy. So I just wore navy pants and skirts for four years. And can I tell you I couldn’t

couldn’t wear navy for like almost a decade after that. I made myself so sick of it. So sorry, Shrine. I I had a great I had a great high school experience. I just did not want to experience that plaid skirt. But I was a cheerleader so on Fridays when we had a game, I was able to wear my cheerleading uniform to class, which was kind of cool. but anyway, before I got sick, I had been looking at my yearbook and stuff and seeing my high school age self

And I started thinking like what advice would you would I give that girl? You know, that girl is a very different girl than I am today. And I sort of wanna ask you guys, like if you can think about your high school age selves, what’s something that you would tell them now?

Jill (03:11.948)
Okay, so I have something I was planning to answer you with until I heard your description. So I’m gonna answer you in two ways. One is I would tell myself not to wear what was in style when I was in high school. Because if you look I I mean, I’m much older than you are and the era was really awful styles. So I wouldn’t dress that way. I mean, we’re talking about poodle skirts.

Although I do now wear for Halloween a Dalmatian skirt. Hey see my Dalmatian skirt.

Kim (03:41.838)
my gosh. I made those for myself when I was in like middle school. I love poodle school. Wanted to be Laverne.

Jill (03:49.384)
Okay. So they’ll but my serious answer really is that the question comes at a great time because I’m working on a YA young adult book aimed at you know eighth grade to twelfth grade students. And i inevitably in writing this book aimed at them and exploring various careers I’ve had, which are, as you know, many, some of which you still don’t even know about.

I I I love surprising you guys. and so I have so much advice for this group that I can’t possibly give them one. So I’m gonna stick with don’t dress in style if it’s really awful. But the other advice is read my book if it gets published. Okay. So I’m almost ready to s start submitting it to publishers.

Kim (04:39.906)
Well, good luck, Jill. I can’t wait to see that. And you know, I think owning your personal style is a really, really good lesson. I think that I did that. I started, my mom’s a seamstress and I started making my own clothes in around middle school. And so I think I did that. I’m in many of the navy pants and skirts that I wore in high school, I did make them myself. So that’s good advice. Barb, what about you?

Barb (05:04.108)
Yeah, th so much. lots of good things. But I think that I would say, you know, God willing, it’s a long life. And you’re gonna have a chance to do a lot of different things if you seek them out. Because I think there’s a lot of pressure on kids these days to know what they’re going to do with their lives. You know, college has become so expensive that I think when adults ask them, what are you gonna study in college? you know, they’re expected to say,

Computer engineering and you know, AI, this or the you know, very specific kinds of things. And instead, you know, I’m a big fan of going to college to just sort of explore the world’s gonna evolve and change so much throughout the course of our careers. And so I think just recognize it’s a long life. And if you don’t know what what you want to do just yet, that’s fine. You should try lots of things. I mean, all of us have done a lot of things in our careers. And you know, sometimes

Fulfillment comes from doing different things over time. Because I think we always want to be interested in what we’re doing. We always want to feel like we’re being challenged and we always wanna feel like we’re being fulfilled in some way. So it’s a long life. Don’t be in a hurry to get anywhere.

Jill (06:11.96)
That is the overall message of what I’m the working title is instead of Watergate Girl, Ordinary Girl. ‘Cause I was an ordinary girl and went on to all these multiple things. And so you’ve encapsulated my advice. Thank you, Barb.

Barb (06:26.956)
I’m glad. Great minds.

Kim (06:28.908)
Well well done. You know, I think one thing that I would tell myself when I was remembering the person that I was with all these ambitions, I knew by then that I wanted to go to law school. I thought I wanted to be a lawyer, but to your point, Barb, you know, things work out in different ways. Even though I was on my school newspaper in high school, so that tells you something. but I would say

Keep your optimism. I was pretty optimistic back then about what I and others could do in this world just as long as all we had to do was put our minds to it and work toward it. And we could do things that ultimately will bring good into the world. That’s what I wanted. I think in my, you know, adult life at various times that optimism has sort of been, you know, stripped from me and it, you know, at at various times.

But I don’t think that we should let that happen. I I think that despite all the odds, keeping that desire to do good things and to work hard and to bring about good in the world is really, really important. and we should not you know we we should not give in to hopelessness. So I was a very optimistic kid at that time. And I it was good to remind myself of that so I can continue to let that part of me

come out. even as I am now thirty five years after I graduated high school. that’s a good lesson that I can learn from my old me. So that’s what I would tell her.

Barb (08:03.362)
That’s great. That’s beautiful.

Kim (08:13.794)
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Kim (11:04.408)
So Donald Trump has been doing what he loves to do most, which is to attack the press. So this past week he barred CNN, MSNow, and Politico from the White House, strip them of White House press access. I will say, in the interest of full disclosure, all of us are or have been MSNow contributors in the past.

But I think even if we weren’t, we would have the same take here in terms of what it means for the law and the constitutions. You know, I’ve been out of town, I’ve been traveling, Jill. So tell us why were these news organizations stripped of their press credentials by the president?

Jill (11:53.25)
Well, let’s start with what he said at the time. It was an accumulation of bad stories, fake news, that was what he said. But then he got called into court and so that wasn’t gonna work, so his lawyer said, national security. They were violating national security. They were okay. But then when called upon to say in what way had they violated national security, there was nothing.

To say it was things like, well, they reported that there was a shortage of ammunition, which happens to be true and was based on, guess what? Information from J.D. Vance, public information. So that’s not a violation. So what is the real reason? The real reason is he doesn’t like what they’re saying. It’s viewpoint discrimination, clear violation of the First Amendment. That’s the reason that he banned them. He doesn’t want to hear

And doesn’t want us, all of us in America, to hear the truth. They report the truth and he doesn’t. What is that line? You can’t handle the truth from a few good men. Jack Nichols

Kim (13:04.736)
Nicholson. Yeah. I was like, did Jack Nicholson say that or Tom Cruise? But it was Jack Nicholson.

Jill (13:09.038)
Jack Jack Nicholson to Tom Cruise.

Kim (13:11.394)
I’ve also seen some reports that seem to suggest that since Carolyn Levitt has left the post, there’s really no one at the wheel when it comes to the White House press office. And so Donald Trump has just been reacting on things that he sees, perhaps the things that his close aide Natalie Harp is feeding him, and that she recently had fed him some stories from those news organizations that he particularly didn’t like.

And so he, according to reports by Forbes and MS Now, he flew off the handle, issued this ban before White House officials knew. Like they were reacting to his post about barring these b like nobody knew it was gonna happen beforehand, which probably wouldn’t happen if there was actually a press secretary in place. So things seemed to be going just

Jill (14:02.432)
The chief of staff had been there. She was out of town.

Kim (14:05.804)
Yeah, so Barb, the news organization sued, because of course they did. tell us what they allege because this isn’t the first time something like this has happened in Trump’s White House, shockingly. it probably won’t be the last either, but what did this lawsuit allege?

Barb (14:24.684)
Yeah, so it’s very similar to some lawsuits we’ve already seen come down the road. You may recall Jim Acosta from CNN was banned because you know, he asked a pointed question that Donald Trump didn’t like. There was a reporter from Playboy who got banned from the White House for shouting a question out to some people in the Rose Garden. And the Associated Press was banned for refusing to change its style books who refer to the Gulf of Mexico as Trump’s new preferred term.

The Gulf of America. So they had some go-bys to go with, but they had three main allegations. One was that this violated their First Amendment rights on the basis of content discrimination. You know, as Jill said, you can’t tell people what they can and cannot write. And Donald Trump had said words initially that it was fake news or it was negative coverage. You know, if you’ve got a squabble with a particular story.

You have a remedy that is defamation. You can file a lawsuit that says that says this was false and harmed my reputation. But just this blanket assertion without specification that what they write is fake news and negative is content discrimination under the First Amendment. They also alleged another First Amendment violation for retaliation. That is, you took away my right to enter the White House, which I previously had, you took away these passes.

in retaliation for the content of what we are reporting. So that was a second First Amendment violation. And then the third was a violation of due process rights. The due process clause of the Constitution says that no one can be deprived of life, liberty, or property without due process of law. What due process typically means is notice and an opportunity to be heard by an impor impartial arbiter. And so courts have previously said that

Access to the White House, if you are a member of the press and you’re credentialed and other people are getting in, other press outlets are getting in, is a liberty right. I would have thought property right, but the courts have said it is a liberty right and it cannot be taken away unless you get due process. And of course, as we’ve already discussed, they got none. they were it it it was effective immediately under President Trump’s truth social post. So those were the allegations in their complaint.

Kim (16:40.588)
All right. and so Jill, a judge shot Trump down. Tell us about this judge and also tell us what he ruled.

Jill (16:50.754)
So the judge is a Trump appointee. So that’s an interesting fact because we’re seeing Trump judges. And and I you know, I remember the days when judges were not Trump judges or Obama judges. They were just people who applied the law and the facts. One other thing I want to point out, Kim, is that you know we’re talking about CNN, MS Now, and Politico. But that sounds like three people. It’s 78 people had their hard passes to the White House removed.

And I think we need to think about that because it’s many reporters. It’s also sound technicians and producers and cameramen and so it’s seventy-eight people who were deprived of the right to do their job and to inform us as citizens of the news. So that’s what was at issue. Judge Kelly issued a TRO saying you gotta return their press passes, which

They promptly ignored because the next day they went in and were denied access to the White House. but I you know, you asked what the judge said, and I I want to read you some of it because I think his language is really good, so I’m gonna read some of it. you know, he sort of poo-pooed this national security argument, which is the one they came up with for court, saying that that first of all was an after the fact because it didn’t happen until after they had been banned by his

Truth Social Post. I hate saying Truth Social. His social post. Okay. and that it it couldn’t work, that it was really based on more mundane disagreements about what were disputed stories that were he thought routine. And he said, the court is skeptical, at least on this record, that defendants’ interest in safeguarding national security is the actual motivation for or even advanced by the revocation of plaintiffs’ hard passes.

He also went on to say that there wasn’t any classified information or anything that damaged national security, that some of the stuff that they now were claiming was bad was months or years old, which means it can’t need some kind of emergency TRO to stop to stop it. and that they appeared to have violated the constitutional due process, which is what Barb said, of journalists by failing to give them advanced notice that.

Jill (19:14.338)
Their concerns, you know, had there were concerns in letting them answer it. So I thought it was a really well done and thorough opinion from Judge Kelly.

Kim (19:25.068)
Yeah, I I appreciated Judge Kelly’s opinion too. Of course, he was also the judge in the Jim Acosta case that we mentioned earlier. but but one thing that I also thought was very well done on the part of journalists was even those who were not banned from the White House, everyone who was a member of the White House press pool. So a pool is basically a a news or a group of news organizations whose job it is

to take turns covering certain things that the White House does because you can’t bring in all of the journalists into everything. So it’s both efficient for the White House and for the journalists that sometimes you designate one person to, you know, write about what’s happening along the way and they report back to everyone else. So I’ve been up in, you know, in in new organizations that were a part of that pool and then you get a little update every, you know, in in it was in emails back then.

It’s been a minute since I covered the White House. they probably do it by text or whatever now. But then you can report on things based on the pool and just say, you know, according to pool report. and it’s very convenient. Well, nobody in the pool reported on the arrival of Xi Jinping this week, which was such a bad look because while on the one hand, what Donald Trump was doing in trying to shut down the press was something that I’m sure Xi Jinping

A leader who keeps tight, tight controls over the press. I say this as a journalist who has traveled as a journalist to China and it was a very uncomfortable experience. But at the same time, the way Xin Ji P Jinping does it is in a way to make himself look better, right? To make China look better and make and this made Donald Trump and the United States look a hot steaming mess, and it made everybody look bad. Of course, everyone, both Trump and Xi, wanted.

good coverage that made them look good of this, right? And the press was like, okay, well good luck finding that, because we’re not gonna give it to you. I thought that that was a really great way to show solidarity. You have to balance the interest of reporting what’s happening and they still showed the video. So you know, people were still informed of what was happening. They just had no sound. True. Which I thought was absolutely brilliant. But Barb, the White House is still White Housing

Kim (21:42.552)
So as Jill mentioned, they didn’t let everyone back in. As of the recording of this podcast, it appears that everyone once again does have access. But you know, who what who knows what happens by the weekend? so what what do you make of it? What do you think is gonna come next?

Barb (21:58.71)
Yeah, so this was either incompetence or contempt for the court order. Right. The judge rules it like, you know, in the middle of the night because the lawyers for the media outlet says, you know, this is irreparable harm. Every minute that goes by is a violation of their rights. And news is happening. So judge, you must act forthwith. And so the judge goes back and he’s working hard, you know, and he cranks out this opinion.

And you know, the White House of course gets it when it gets pr printed at you know one AM or whatever it is. So these reporters show up the next day at you know nine o’clock. Here I am, I’m back and sor sorry, access still denied. And, you know, the poor people who are working there, just you know, Secret Service officers, this is the uniformed guards, they don’t know, you know, they’re just trying to do their job and they say, I’m sorry, I’m looking at the computer and it’s coming up that you’re not credentialed. And so

th they I know they tried for an hour or two without success. And so finally the lawyers for CNN and Politico and MS Now had to go back to the court and say, it appears that they’re violating your order. And the judge ordered the Justice Department on behalf of the White House to respond by twelve thirty PM like, what’s the deal? Why should I not hold you in contempt? And then at about twelve, twelve fifteen, suddenly, it’s all working now.

Jill (23:19.287)
Yeah.

Barb (23:20.118)
So, you know, they it just takes a while for the computers to get up to like come on, really, this is the White House. You can’t have somebody walk down there and say, Hey guys, let all in, here’s the court order. But whatever. I don’t know if they’re dragging their feet or being cute or they really are that incompetent. So, I don’t know because, you know, the the decision, as Jill said, was largely based on due process, which is notice and an opportunity to be heard. And the the White House did attempt to give this sort of like

post hoc notice, like, well, they have until Friday to explain themselves, in which case they can get it restored. And the judge said, no, it’s gotta be in advance. So I suppose one thing the White House could do if it wanted to is now give notice and say your passes will be, you know, revoked within two weeks unless and we’re gonna have a hearing on such and such a date and you can explain yourselves. But I think this opinion was such a smackdown. as as Jill said, this after the fact

justification that somehow it had to do with national security. And then citing these cases that although they do relate to the government and military affairs, had nothing to do with sensitive or classified information. In fact, it reminds me a little bit of the Pentagon Papers case. You know, this is the case where the New York Times and then the Washington Post printed classified reports about the Vietnam War that was very embarrassing to

the administrations of several presidents. And there was an effort to prevent them, you get a court order to stop them from going further. The Justice Department actually said, you must cease and desist or you may be charged with a crime for disclosing classified information. And what the court said there is, you know, maybe you can prosecute them criminally after the fact, but what you can’t do is stop them from preventing it in the first place. And they said there may be certain secrets that are so

dangerous to national security, like the dates of troop movements or the location of, you know, ships at sea, you know, maybe that kind of stuff. But, you know, this is the kind of information the public needs so that we can be informed voters. And so I think the way the judge dismissed these examples of being such nonsense that I don’t see him going through this exercise ’cause I think they’re likely to lose again. So I’m hopeful that maybe they’ve learned their lesson. Although, you Trump’s always got a new trip trick up its sleeve, too,

Kim (25:42.894)
Remember what Susan Collins said about Trump learning his lesson? Jill, what do you think is gonna happen next?

Jill (25:48.376)
Yeah.

Jill (25:52.472)
I think they’ll lose again because they’ve totally blown it. They didn’t follow procedure, and there is no grounds on which if they had followed procedure, if they had sent out notice saying, We observe that you reported X on such and such a date and that it endangered national security. They don’t have anything to do. They they I mean, that would have given due process, but it would have been knocked down because there was no national security.

Breach. So I just don’t see how they can possibly prevail, and that it’s not just viewpoint discrimination, which is black letter law. I mean, there’s very few things that I feel confident saying you can’t do. And one of them, and and Barbara’s right, you can’t prejudge, you can’t stop someone from printing. You can punish them if they do something after the fact. But

Kim (26:44.61)
You can’t do prior restraint. That’s one of the prohibitions in the Constitution.

Jill (26:46.766)
And you can’t say I didn’t like what you said. You hurt my feelings. It has to be something that’s a genuine reason to protect national security.

Barb (26:59.938)
like the Jill Weinbank’s fake emotion. You hurt my feel. I was dripping with sarcasm, Jill. I can just hear that in a courtroom.

Kim (27:09.527)
Well done, well done. Okay. Well as a journalist in the group, I suspect that they will try this or some other way to suppress the press again before the week’s up. So, you know, buckle your seatbelts.

Kim (27:31.458)
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Barb (30:06.542)
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Barb (31:20.664)
Too much information, Jill. Please don’t.

Jill (31:25.154)
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Jill (33:51.298)
We have another hot topic to talk about. This one is third country removals. And last June, the Supreme Court allowed DHS to go ahead with deportations to third countries. And by that I mean countries where the person being deported has no prior relationship.

It’s not their home country, and they’re not going back to their home country because they have a legitimate fear of torture or punishment if they are returned. So they’re being sent to third countries, where, by the way, I would have to venture a guess, in most of those countries, there’s a lot of human rights violations. And although they may have gotten a promise that they aren’t going to torture the people that we send there, they’re getting paid to have us send people there.

And so they might have a motive to lie because they want our money. anyway, the the Supreme Court did allow it to happen. And then there was another lawsuit filed. It’s actually been to the Supreme Court three times and we’ll get to that. But this new lawsuit was filed on September eighteenth. the US Court of Appeals for the First Circuit unanimously ruled

That the Department of Homeland Security policy that allowed this rapid deportation without a hearing, without anybody having it, you know, going back to what we were just talking about, due process rights before you get acted on, to unspecified third countries was unlawful. and then, of course, not surprisingly, back to the Supreme Court again. By this point, DHS has already deported at least 25,000 people to third countries.

So it’s really already had a huge impact. and now we’re back at the Supreme Court. I think it’s a really important issue. and so Kim, why is third country removal a problem?

Kim (35:51.566)
yeah. So i it is, and this isn’t just my word for it. This is according to the litigants, the advocacy advocacy groups and human rights organizations who are challenging this practice by the Trump administration. picture this. Okay. I am an American citizen. I was born here as were at least eight or nine generations of my family before this.

But let’s just hypothetically say that I came from France, all right, and I’ve been here, I’ve been living here, and the administration tried to deport me. but they didn’t deport me wanna deport me to France. They instead wanted to deport me to

I don’t know, El Salvador, which I’ve never been, and my family has never been. No member of my family has ever been, ever. I do not speak the language there. I do not have any connections, any means to support myself. And they want to send me to a place that is something akin to like a terrorist encampment place, you know, some place that’s very bad where you don’t get rights and where you may not make it alive. I don’t know, what’s wrong with that? You know, who could possibly think

Barb (37:03.65)
Diva.

Kim (37:04.856)
What’s wrong with that? You know, I need some sort of comforts in the world. No, it makes absolutely no sense in any justification for immigration policy that’s meant to protect the American people and to ensure that people are not going any place they ought not be to send them to a place where they ought not be. It’s inhumane, it’s cruel, and the point is it’s being done not just because the government doesn’t know what else to do. Keep in mind.

Under US law, it is legal in certain limited circumstances to send someone to port them to a country that they are not a national of. That is only in very specific cases where their home countries refuse to take them. but it’s just a bad idea for so many reasons, including the fact that a lot of times people

can’t be sent to their home countries because they have protections because of the dangers they face in their home countries. And if you send them to a third country, those places may not have protections for them and they just may end up being sent to their home countries where they face danger. They may s face danger in the third countries. It is just not something that should be uniformly or routinely done, as the Trump administration has tried so hard to do.

Jill (38:24.396)
Yeah, and another reason is ’cause they ignore due process. And and the possibility of I I just learned this word so I have to use it, defoulment, which is that there’s no guarantee that the third country that they’re being deported to won’t deport that person back to their home country where they do face

Kim (38:44.108)
I said that but I didn’t know that the world was the word was defoulment. Defoulment. Defoul Based on what’s being done to like the Constitution, that sounds like a good word. Defoulment is is apropos of a lot of different things that are happening that’s happening right now.

Jill (38:55.016)
I think we should reuse

Jill (39:01.898)
So okay, so Barb, let’s go back to the f first circuit opinion, the facts and what they ruled.

Barb (39:10.902)
Yeah, so in this case there were four individuals. We don’t know their names, we just know their initials, but they were part of a class action that were challenging this idea that they were being sent to third countries. Anyway, and keep in mind these are places that these people have no connection to whatsoever. I know for a while there was a an effort to take Kilmar Obrego Garcia and send him to I think it’s like Uganda or something. I don’t know anybody there. I’ve never been on the continent. I don’t speak the language. What are you what are you thinking?

and so you know, all all of these places where they have no contact. And the court ruled again, you know, this is this same concept of due process that we just talked about with regard to the press case. When you are depriving somebody of a right of life, liberty, or property, you must first give them due process. And this applies to anybody who’s got substantial ties to the United States, not just citizens. This is an argument we’ve heard from the Trump administration.

from time to time like why do they get rights? They’re not US citizens. It doesn’t matter. If you find yourself in the United States, you get all of the constitutional rights. That’s what courts have ruled again and again. And so it includes this Fifth Amendment right to due process. And so the process that is due here is an opportunity for them to point out and argue about that th they might be subject to torture if they go to this third country. And so they can’t just, you know, throw on a plane and take to some

secret black site somewhere, they’ve got to give them an opportunity to litigate it. and in addition now, this idea of defaulement. Is this a country that is going to keep them there? And some countries have agreed to do this, right? El Salvador took a multi-million dollar payout that was negotiated by Marco Rubio to take prisoners at that Seacat terrorist prison. But so they they get an opportunity

to be heard bef that that’s all that the court has done so far. They haven’t said it can’t be done. They just said that the immigrant gets an opportunity to argue that they may be subject to torture if they end up in this place.

Jill (41:18.25)
And Kim, so that opinion, of course, did not please Donald Trump. And just like he doesn’t like reporters who don’t tell stories he likes, he immediately ran to the Supreme Court, this for the third time on this issue. But let’s talk about what happened, you know, what did he say in the Supreme Court? What what’s what’s going on there?

Kim (41:41.518)
Yeah, so the he is going back to the Supreme Court again, asking them to reverse the decision, and citing among other things the fact that the Supreme Court back in June, which feels like an eternity ago, but it was in fact only June, ruled in a different case in the administration’s favor, kind of. And

that ruling doesn’t mean what I think the president thinks it means. So back then the Supreme Court reversed an injunction that a Massachusetts district judge issued against this third party deportation regime. They lifted it under this the doctrine by the Supreme Court basically that says, look, single justices cannot issue basically a nationwide injunction on a practice by the administration. That is not

something that’s within the power to do. it was not on the merits of this policy, but basically more procedurally based on what the judge’s ability is, despite the fact that immediately after a DHS spokesperson said in a statement, fire up the deportation planes, what the judge actually, what the Supreme Court actually held that

Is that nothing in their order precluded judges in individual conflicts, in individual as respect to individual litigants from stopping third party deportation for the same reason that this judge said, which is to allow them all of the due process of they the Supreme Court has said time and time again before deportations, detainees have the right to be heard.

And to make their case before they are deported. They have not specified what that process looks like, but they said at least they have to have proper notice and the opportunity b to be heard before deportations and said that nothing about that order made any difference, change that in any way. These detainees had a chance to get proper notice and a chance to be heard before being deported to these third countries. So it’s really the same. I expect the Supreme Court to say doing this, but

Kim (43:59.252)
again, any time that the Supreme Court gives this administration an inch, they claim often falsely that they’ve been given a mile.

Jill (44:07.692)
And and Barb, what did the Solicitor General Sauer argue in the briefs to the court as to why this was something that needed to be overturned?

Barb (44:19.404)
Yeah, well they call it an es an essential tool to remove certain c aliens, including the worst criminal aliens. And the Homeland Security Department called the First Circuit’s ruling as reckless as it is lawless, that it’s essential for public safety, it’s important for national security. I I think that part of this i is th the idea that it is of an executive branch function to decide.

Who gets to come in the country and stay out. And the court has at times been very deferential to the executive branch. You may remember the travel ban, the Muslim ban in Trump’s first term, which, after a couple of modifications, which were clearly lawless, ultimately upheld the president’s ability to do that. And so I I think that there, you know, could be some arguments. You know, in an ordinary world, in an ordinary court, I would say that, you know, it’s it’s obvious that this is illegal.

but of course these are not such ordinary times. I think that at the very least we will see an upholding of this due process, right? But if the immigrant is unable to make that showing that they will endure torture or something like that, I think they’ll be very ready to fire up the planes and take those people to third countries. So this is a delay. This may help some individual detainees.

But in the end I think there will be some who are sent to third countries.

Jill (45:47.586)
Yeah, and something you said reminds me that the cruelty is part of the reason for this. And it is cruel. You’re taking people, deporting them to places they have no connection, they can’t make a living, they don’t know anyone, they’re being sent do they get time to pack up all their belongings that they have with them, or are they just the clothes on their ba I mean it’s it’s just so cruel, it’s unbelievable. But I I agree with you. In an any ordinary world, this is cruel.

Clearly illegal. It’s a bad policy, which of course, hopefully in November we’ll have a Congress that will stop these kinds of policies from having funding because we can’t stop them, even with a Democratic House and Senate. Kim, w what do you think the outcome is gonna be at the Supreme Court? You’re our Supreme Court expert. What do you think?

Kim (46:40.096)
gosh, who knows these days about what they do. It’s really tough for tough for me to say. The Supreme Court has been very, very abiding to the executive branch when it comes to immigration decisions. nothing about that I expect to change. I would think that they could read the the statute. that, yes, as I said, does not prohibit this in all situations, but also

this shouldn’t be used as a sword a a instead of a absolute last resort, for specific national security reasons, not, you know, broadly, like in that initial case, you know, back in June where they were trying to send foreign nationals who had no connection to these countries to Libya and South Sudan. I mean, come on, this is just meant to be cruel. There’s no other justification for it. but I I’m not if

The last word on this is the conservative supermajority at the Supreme Court. I don’t hold out a lot of hope.

Jill (47:50.135)
Yeah.

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Barb (50:10.446)
Well, last week, the city attorney in San Francisco filed a civil lawsuit against Trump API, which is this subscription service that allows customers who pay $100,000 per month to get early access to Donald Trump’s truth social posts. I should get paid $100,000 to read But nonetheless, this is for early access.

Jill, what is Trump API? What what is this thing in in the first place?

Jill (50:45.134)
It’s basically allows computers to talk to each other. And this is a pay-to-play scheme that will allow people who I mean, we’re talking $100,000 a month, $1.2 million a year is going to flow into a company that Donald Trump is the majority owner of. He’s going to be making money by selling early access to government information, not private information of his.

But to government information that we are all entitled to, it will allow milliseconds difference in the trading companies being able to act on it. And that is the difference between huge profits and not getting the profits. So that’s what this is all about, basically, is just letting other people who are willing to pay him make a lot of money. And let him make a lot of money. This is a greed.

money making scheme.

Barb (51:45.826)
Yeah, in fact, in the lawsuit they pointed out some instances where Trump’s public comments on Truth Social actually have moved markets. You know, they always say a president’s words has the power to move markets. Yes. And they cite a couple of specific examples. One where he said, W you know, one one of those many, we’ve got to deal with Iran to end the war, and the straight of Vermoze is is now open. It actually lowered the cost of a barrel of crude oil.

And then remember we made this time about Yeah, yeah, the first time. Now now people are like, well, maybe the f I’ve heard this before. My gas prices aren’t changing. when he announced that he’s negotiated a deal to get ground beef for every American family at an affordable price. Like the price of cattle futures went down. So his words do have the ability to move markets. And so, Kim, in this complaint, what does the city attorney allege?

Kim (52:19.886)
Fifty seventh time.

Barb (52:42.154)
makes this corrupt scheme illegal.

Kim (52:45.122)
Yeah, it’s really interesting. And before I get to the specific allegation, I mean, it’s not just that he’s making that his company would be making that $100,000 a month. It’s layered on, right? It’s like super mercenary. So say he makes an announcement about regulation of crypto, right? That might move markets.

it just so happens that Trump is heavily invested in crypto. So not only is he making money from the subscription services, he also is in a position to stand to make money privately because he did not do what other presidents did and divest themselves of this kind of financial involvement and things that they will be in char you know, that they can affect in their public jobs.

He he can make money on both ends, the front end and the back end, right? So the lawsuit alleges that this scheme violates both multiple state laws and federal law, because it allows it also federal ethics laws as well as securities laws, because it allows him to trade on or enable trading on material non public.

information and that is against the law. Now, of course, some of these laws are the federal laws are implemented and enforced through federal agencies, which he is now in charge of. So it’s very unlikely now we have to check those statutes of limitation. But right now it’s unlikely that those agencies will act, which I think is why

you see folks like city attorneys and and attorneys general stepping up and trying to act and use their authorities because they do have concurrent jurisdiction in a lot of these matters to try to enforce both state and federal law in this effort and that is just what the San Francisco city attorney is trying to do.

Barb (54:45.762)
Yeah, it’s a creative argument and it might just fly. You know, they’ve got a statute, an unlawful business practices statute in California, that says a business practice shall be deemed unlawful if it violates other state or federal laws. And they then go on to say why this violates certain state laws about, you know, things that are misleading. But it also, they say, violates the Federal Stock Act and the Securities Exchange Act, which is essentially the insider trading act that are federal. And so

Even if those federal agencies won’t enforce them, because this conduct violates those statutes, our s our our civil law applies. And we can see you for damages. And what they’re really asking for is for the judge to shut this thing down. Jill, what do you think about that argument? I mean, the Stock Act and the Securities Exchange Act were passed well before the idea for Trump API was conceived. Do you think these laws, which were

you know, intended to apply to something else, will nonetheless apply to this conduct?

Jill (55:46.464)
It you know, it’s such an interesting question, Barb, and it’s so complex. And I actually tried checking with some people with stock trading expertise, equities, and stock SEC lawyers, and it’s really not a hundred percent clear. I wanna before I finish answering that question, I wanna divert to another thing that it violates, which is a law school classmate of mine who’s a federal judge, Judge Naomi Reese Buckwald.

had already ruled that he cannot block people from his social media feed. So this is, you know, he’s not blocking you, but he is delaying your access. So I would say that her ruling, which was upheld by the Second Circuit, would also cover this, is that, you know, if you can’t block someone, you also can’t prevent them from getting the same access as someone else. So that it violates that as well. In terms of, you know, the Stock Act says that

Federal employees, the cabinet, the president, and members of Congress are not exempt from insider trading and all those other laws. Now, most of those really apply to trading shares of stock, which the users of the you know, the people who are paying the hundred thousand a month are doing as a result of the information. but whether Donald Trump is doing that, but he is enabling it. So I would say

It does violate.

Barb (57:16.162)
the law. Yeah, and it includes a conspiracy charges.

Jill (57:18.898)
Exactly. So I would say that on that ground so you could stretch it. But you know, this is something that hasn’t been tested, so we can’t say for sure that it is, but it’s certainly a valid argument, I would say. Well

Barb (57:32.332)
Regardless of the technical legal requirements h here, just stepping back big picture, Kim, w like what’s the harm that flows from a president who’s profiting from early access to his posts? Like why is

Kim (57:44.13)
These may seem like yeah. So these may seem like quaint notions now, but the job of an elected official is to work on behalf of the American people. The president’s goal in his policies is to benefit the American people, not to benefit himself. that is why in the past, despite there is not you know, a criminal law in requiring them to do this.

Presidents in the past have either divested their interests in areas that they may have governing power over, or at the very least put their interests in a blind trust operated by someone else, not a family member, but operated independently so that they could make decisions based on what is in the interest of the American people and not be thinking about their own pocketbooks. Was that system perfect? No.

But was it better than what President Trump is doing now? Yes. It really is. Because right now, in this and in the second, his second term, he’s even less arm’s length away from his company than he was during the first term. He’s just basically saying, No, I can get to keep my business and just let my boys run it. No. That is not the way that it works. Of course, he’s still involved in this business. He knows exactly where all his interests are. He’s brought in so far, and we’re this is as of the end of last year.

year, I believe, or earlier this year, two billion dollars Donald Trump has made from his second presidency. So think about what everything that he’s doing. And the American people need to ask themselves, is that in your interest or is it in his? What what’s happened since he’s come back into office? This war has run up gas prices and food prices and now housing prices, inflation is out of control.

mortgage rates are up, but Donald Trump has made an additional at least two billion dollars from this presidency. And it’s because of things like this. This is exactly what an American president is not supposed to be. It’s not a mercenary position. It’s a public service position. and this is the main reason why it’s bad, aside from all the reasons we’ve talked about insider trading is wrong. it defrauds people, it defrauds normal Americans like you and me

Kim (01:00:01.742)
who are just trying to make a living, put some money in their retirement funds, and live a decent life. that’s wrong. Ethical violations about this should be concerning to everyone. there are a lot of reasons why this is wrong, you know, is the corpor corporations and oligarchs are getting more powerful while the American people are getting less powerful. there are a million reasons why this is bad. And that’s why I hope that some of these lawsuits can make can get some sort of

traction, because something needs to be done about this. And of course, you voters, even given all the shenanigans that this administration is trying to do to make it harder to vote, it’s super important, more important than ever that you have your say and say, I don’t want this. I want lawmakers who are going to enforce the law and if the laws aren’t good enough, they’re gonna pass better ones. So that our of the people that we elect are working for us and not for, you know,

big corporate interests or their own bottom lines.

Barb (01:01:03.474)
Yeah, amen. I mean think about how quaint this was. Jimmy Carter sold his peanut farm because he didn’t want there to be any perception of a conflict of interest and yet we’ve got Donald Trump, you know, issuing his own cryptocurrency. there’s a phrase in the law that is referred to as ambiguous corruption, that is, it’s not really illegal per se, but it’s still bad for the system. And so in the end, it may be that these lawsuits succeed, it may be that new law or fail, it may be that new laws need to be passed.

But as Kim said, the ultimate power that we have as the people is to vote the bums out of office when they abuse their power for self gain.

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Kim (01:04:33.336)
Well, we have now reached the point in the show where we all love the most, and that is when we get to answer some questions from our listeners. If you have a question, you can email it to us at sistersinlaw at politicon.com. But you don’t just have to type those questions out. No, no, what we like much better, and we really, really do, I encourage people to do this is to record a voice note, let us know your name and ask your question and let us know your name and where you’re from.

Ask your question and then email that to us at sisters in law at politicon dot com and you may hear your voice on a future episode of hashtag sister sidebar, which drops every Wednesday. we really love doing that. we love hearing your voice. It’s been a big hit. and so keep those questions coming because you guys ask awesome questions. So the first question for this week, you know, I’m gonna take this one myself, host choice.

it’s from Chris who asks on Morning Joe they discussed the Supreme Court decision stopping the implement implementation of Trump’s executive order concerning voting by mail. I thought I heard from Norm. I thought I heard Norm Eisen say that the court had also determined that red states that want to cooperate with the executive order cannot do so. Is this true? This is a great question, Chris, because what the Supreme Court has been doing is confusing and confounding.

So at the time that you wrote this, the Supreme Court had issued an order blocking a part of President Trump’s mail-in balloting executive order. That part would have directed the US Postal Service, post mail carriers essentially, to refuse to deliver ballots for voters whose eligibility had not been cross-checked. Essentially

Turning mail carriers into election officials. And the Supreme Court is like, yeah, no, you can’t do that. So it doesn’t matter what state you’re in. If you are a governor of a red state or a governor of a blue state, you cannot tell your mayor mail carriers, federal mail carriers in your state to refuse to deliver ballots to people based on their voter eligibility. You cannot do that. That’s the part that had happened by the time, Chris, you’d written this question. Since then, the Supreme Court has spoken again.

Kim (01:06:57.078)
And allowed to move forward a different part of that order, which required which allowed the Department of Homeland Security to use data from federal sources, including social the social well, I can’t speak. This virus has affected my brain. The Social Security Administration to cross check citizenship as an eligibility requirement to vote as part of the save.

program that the government has revamped in a way that election officials, advocates, and even some Republican election officials in red states have warned is error prone, right? That there’s a problem with this and by forcing them to use this pro this cross check program is a problem. And as it may seem strange

But allowing this social security information to be used as proof of citizenship will only inject more error. Let me give you an example. Say when I got married, for example, I changed my name. I had to apply to the Social Security Administration for a name change. So let’s say I submitted my paperwork, my proof, and all of that. So while that was pending, imagine that the election official in my jurisdiction.

Did a check of my citizenship and my name did not match what was on the Social Security Administration record. They could flag me as being ineligible because I am not a citizen. I think a lot of the conversation right now is about newly naturalized citizenship, which is very, very important. But I want to be very clear that it can happen to other people too. If that happened, they could boot me off the voting rolls, but also under this executive order, it

Tells the Justice Department to prioritize prosecuting local election local and state election officials criminally for not keeping accurate voting rules. That’s outrageous. And that is what this order will allow to do on both individual levels, but I’m more worried about a more broad sweeping effort to use this to try to disenfranchise large swaths of voters. I don’t want that to scare you and make you not vote.

Kim (01:09:21.79)
but that, Chris, is something that red states can absolutely use this save program in order to facilitate either intentional or unintentional purges of their voting rolls and potentially the federal government can use in blue states to try to bring charges against election officials. So it’s a mixed bag of what’s happening. It’s very confusing, but my message to everyone is check your voter edu eligibility.

Between now and election day, is make sure that you are registered and all your stuff is good and vote. Vote like your life and your rights depend on it because they do.

Okay, our next question on that very, very cheerful note comes from Patricia in Arizona who asks, Do we really need a Supreme Court? The lower court seem to be doing a better job. SCOTUS has given us Citizens United, George W. Bush, and his war immunity to a convicted criminal and have taken away Owen’s right to choose instead of expanding them. Why not just disband them? Barb, I’m gonna let you take this one.

Barb (01:10:32.554)
Well, Patricia, I like the way you think. Very outside the box. and we should think about bold ideas from time to time. I don’t think this particular idea though would fly, at least not without a constitutional amendment, because the Supreme Court does say there shall be a a Supreme Court that is the judiciary and that the justices should serve for life, or it’s I guess it says during times of good behavior. And then it says, and

any other such courts that Congress shall create. So it’s really only the Supreme Court that exists under the Constitution. The other ones are all creatures of statute that if Congress wanted to, could be abolished. So we could do it the other way, but probably not this way. But I’ll play your game. Let’s say we wanted to have a constitutional amendment to abolish the Supreme Court. I think it would be tough to make that work as well because we need somebody to be sort of the final arbiter of disagreements among the courts.

So the way works now is, you know, you take your your lawsuit to your local federal district court, and if you don’t like the result there, you can appeal it to a circuit court of appeals, one of the thirteen circuit circuits around the country, and then they make decisions. And if you don’t like their result, you can go up to the Supreme Court. And the Supreme Court doesn’t have the bandwidth to take every case that comes up, but they do take cases of significant legal questions or importantly, where there are circuit splits, because that happens sometimes.

So the courts you know, in the First Circuit might disagree with the Second Circuit, might disagree with the third circuit, because there’s nobody who’s the boss of them over them who says here’s the way it has to be. So ultimately, I think we need one Supreme Court that can say, you know, First Circuit got it right, second and third were wrong, and we’re gonna hold it to be this way. But I do agree with you that in recent years we have seen a very aggressive court willing to take on precedent busting cases in an

Effort to sort of shape the culture of American society and to really change the mix of power among the three branches of government, escalating the executive branch in some ways, but also taking away some power from the executive in terms of the administrative state and giving that back to the legislature. And so we’ve seen a lot of radical change in a short period of time, not always, and I I agree with you, Patricia, not always what seems to be the best interest of the people.

Kim (01:12:59.862)
Yeah. Wait till wait till this term when the right to bear AR fifteens is gonna be protected by the Second Amendment, I predict. We’ll get into that next week. We’ll get into that next week. all right. So the last question is for you, Jill, and it comes from Barb in Davis, California. Are you in Davis, California, Barb? Why didn’t you just ask Jill your question? No, you’re not, Barb. You’re not that Barbara Okay.

Barb (01:13:23.298)
This part.

Kim (01:13:25.112)
Well, here’s a question for you, Jill. What do you mean by the equities and the balance of equities in many discussions of SCOTIS decisions? Excellent question, Jill.

Jill (01:13:36.116)
It is all of our listeners are so smart and they really do ask probative questions that are so worth delving into. this one arises in the context generally of whether or not to grant an injunction or temporary restraining order to do something of that nature. And in those cases, the judges look at several factors, one of which is to balance the equities. And by that they mean.

Where does the hardship come if the TRO is granted? We’ll just use TRO as as the general term. if the TRO is granted or if it’s denied. And what’s fair to both the plaintiff and the defendant? They try to balance it so that it comes out fair to everybody. And so then they decide, based on that, whether they’ll grant the temporary injunction. They also, of course, consider.

Who’s likely to prevail on the merits once it gets to the merits beyond the temporary restraining order? And in weighing the hardships, they look at, you know, for example, if I bring a complaint against my neighbor saying they’re making too much noise in their construction. And my neighbor says, Well, if you stop me while this is pending litigation, it’s going to cost me millions of dollars in late fees and it’s going to put hundreds of people out of work.

In that case, you might not get the injunction because the equities would favor the defendant. and the courts always try to minimize the harm. So they look at choosing what path is going to cause the least amount of harm. And we’ve already talked about today in terms of the president says I will suffer irreparable injury if I can’t immediately enact this policy. And as Barb said, it it doesn’t always mean that there’s irreparable harm.

And that there has to really be irreparable harm. And a lot of times, I mean, I think there’s more irreparable harm to the person being deported than in the president not being able to immediately use this horrible policy. so those are the kinds of things that the courts will consider and alongside these other requirements. And so it’s a really good question, but you know, everybody sees their own issue being this is the most important, and courts have to weigh

Jill (01:16:01.836)
Where where does that balance arise?

Kim (01:16:05.954)
Barb, I would also suggest you read the dissent in this latest order from the Supreme Court about the social security data from Justice Katanji Brown Jackson, which is joined also by Justices Soda Mayor and Kagan, because she brings up this very point. She gives a big side eye to the notion that the irreparable harm to the president by not being able to implement this policy pales.

To the irreparable harm to the voters who are gonna be disenfranchised by it. Well, thank you for listening to hashtag SistersIn-Law with me, Jill Weinbanks, and Barb McQuaid. Joyce will be back with us soon. If you enjoyed this podcast, give us five stars wherever you listen to it. Or if you’re watching on YouTube, don’t forget to subscribe and like and tell your friends, ring the notification bell, do all of the things so that this podcast continues to grow.

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Barb (01:18:06.638)
Let’s talk about Kim’s high school reunion. Kim, what are you wearing to your high school reunion? Are you gonna wear the skirt with the knee socks that you never had in high school? No.

Kim (01:18:15.64)
Thank you.

Barb (01:18:16.238)
I dare you to show up in that outfit, that’d be awesome.

Kim (01:18:19.63)
I can’t go.

Jill (01:18:21.678)
I’m still recording. Can I call you back?