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What It Would Take to Rein in ICE · Pod Save America

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Speaker 4: Welcome to Pod Save America. I'm Alex Wagner. As most
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Speaker 4: of the country now knows, last week an ICE officer
1:34
Speaker 4: shot and killed Renee Nicole Good, prize-winning poet, hobby guitarist, wife,
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Speaker 4: and mother of three. Fallout has been massive. People across
1:43
Speaker 4: the country are stunned by what happened in Minneapolis and
1:46
Speaker 4: what continues to unfold in the state. They have been
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Speaker 4: perhaps equally shocked by the reaction from the White House.
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Speaker 4: DHS Secretary Kristi Noem declared that Good was a domestic terrorist.
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Speaker 4: Vice President J.D. Vance said ICE agents should have absolute immunity.
2:03
Speaker 4: And the Justice Department is now pushing to investigate Good's widow,
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Speaker 4: Rebecca Good, instead of the ICE officer who killed Renee
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Speaker 4: Nicole Good. A decision that's resulted in the resignation of
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Speaker 4: six career prosecutors from the U.S. Attorney's Office in the state,
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Speaker 4: including the acting U.S. Attorney for Minnesota himself, Joseph Thompson, who,
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Speaker 4: by the way, was a Trump appointee. The problem with
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Speaker 4: the administration's attempt to offer its own politically convenient reality
2:29
Speaker 4: here is that Rene Good's killing was caught on video.
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Speaker 4: It has now been seen by millions of people, and
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Speaker 4: their verdict seems pretty clear. Most Americans reject the idea
2:40
Speaker 4: that Good was a domestic terrorist. A CNN poll found
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Speaker 4: that registered voters called the incident inappropriate by a two-to-one margin,
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Speaker 4: 56% to just 26%. Meanwhile, people in Minnesota have taken
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Speaker 4: to the streets to protest what is literally a 3,000-agent
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Speaker 4: ICE invasion into their state. That response has only escalated tensions.
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Speaker 4: Federal agents have been filming protesters and pulling them from
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Speaker 4: their cars and slamming them to the ground. In one case,
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Speaker 4: a protester was shot in the leg. It is pretty
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Speaker 4: clear that ICE, with the support of this White House,
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Speaker 4: is using extraordinary and extreme force here, all while allegedly
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Speaker 4: pursuing criminals and the, quote, worst of the worst. But
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Speaker 4: if protesters are getting arrested and shot and killed, what
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Speaker 4: tools are left to stop a masked and seemingly lawless
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Speaker 4: federal force? Are there legal avenues available to anyone to
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Speaker 4: push back against ICE? How do you stop mercenaries investigating
3:44
Speaker 4: if the guy they're working for is the president of
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Speaker 4: the United States? And what happens when that guy threatens
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Speaker 4: to invoke the Insurrection Act? And when and how will
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Speaker 4: Renee Good's family ever get justice? Joining me today to
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Speaker 4: help answer those questions and so many more is Crooked's
4:02
Speaker 4: very own Leah Littman, who is host of Strict Scrutiny,
4:06
Speaker 4: a professor of law at the University of Michigan Law School,
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Speaker 4: and author of the book Lawless. Leah, it is Always
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Speaker 4: so great to talk with you, but especially after this week,
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Speaker 4: I have so many legal questions. First of all, how
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Speaker 4: the fuck is this happening in the United States of America?
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Speaker 4: But that's more than just a legal question. That's an
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Speaker 4: everything question. But let's start first at the place where
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Speaker 4: I think a lot of people found themselves perhaps most alarmed,
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Speaker 4: which is the thing that's, I will grant, always worrisome
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Speaker 4: when Trump says it, but especially right now, And that
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Speaker 4: was his threat this week on Truth Social to invoke
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Speaker 4: the Insurrection Act if, quote, Minnesota officials don't act to
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Speaker 4: stop the professional agitators. Just as a side note, there
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Speaker 4: are no professional agitators. Can you give us a kind
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Speaker 4: of legal breakdown on what it actually means to invoke
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Speaker 4: the Insurrection Act and what powers that actually confers?
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Speaker 5: Yes. So the significant upshot of the Insurrection Act is
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Speaker 5: it provides an exception to what's known as the Posse
5:11
Speaker 5: Comitatus Act. That is the law that generally forbids the
5:14
Speaker 5: federal military from engaging in ordinary law enforcement. Basically, it
5:19
Speaker 5: prevents the federal government from deploying troops to arrest people
5:23
Speaker 5: for violating federal law or an immigration offense or you
5:28
Speaker 5: name it. So right now, we have already seen the
5:32
Speaker 5: disastrous effects of these surges of deployments of ICE officers,
5:37
Speaker 5: CBP officers, HSI officers. And the concern is, what if
5:42
Speaker 5: you then add on or replace them with the federal military,
5:48
Speaker 5: which isn't trained to do ordinary law enforcement? They're not
5:53
Speaker 5: necessarily trained in how to de-escalate situations. And So that is,
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Speaker 5: I think, the practical on-the-ground effect of invoking the Insurrection Act.
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Speaker 5: It allows the president to use the military in ways
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Speaker 5: that he has thus far not and basically been prohibited
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Speaker 5: from doing. I have to ask, because when he says
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Speaker 5: he's going to invoke it, what does that mean?
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Speaker 4: Is Congress anywhere involved in any of this?
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Speaker 5: So the Insurrection Act is an act. It's a law.
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Speaker 5: And as a law, it lays out the circumstances and
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Speaker 5: conditions under which the president can invoke the Insurrection Act.
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Speaker 5: There's really an open question about whether courts can review
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Speaker 5: the the president's determination that the prerequisites for invoking the
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Speaker 5: Insurrection Act are indeed satisfied. There's also the related question
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Speaker 5: of if they can review that determination, will they give
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Speaker 5: the president deference that is the benefit of the doubt
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Speaker 5: and all of those kind of related questions. And historically,
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Speaker 5: you know, the Insurrection Act is so rarely used. The
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Speaker 5: most significant precedent we have on it actually comes from
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Speaker 5: an opinion of the executive branch, the Department of Justice,
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Speaker 5: back from the civil rights era. And what that memo
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Speaker 5: concluded is the Insurrection Act is really designed to allow
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Speaker 5: the president to deploy the military when state and local
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Speaker 5: officers are affirmatively engaged in or facilitating the private violence
7:34
Speaker 5: that the president is concerned with. So think about, for example,
7:38
Speaker 5: the segregationists of the Jim Crow era who attempted to block,
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Speaker 5: together with private mobs, students from going to integrated schools.
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Speaker 5: Those are the circumstances in which presidents are historically invoking
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Speaker 5: the Insurrection Act and as a legal matter, are thought
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Speaker 5: to have the authority to invoke the Insurrection Act. And
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Speaker 5: there are precisely zero circumstances on the ground that suggest
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Speaker 5: Minnesota is anywhere near approaching that situation. Instead, all of
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Speaker 5: the evidence is state and local law enforcement are trying
8:15
Speaker 5: to de-escalate the situation, right? Allow federal law enforcement to
8:20
Speaker 5: do their job, but also enforce state law in the process.
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Speaker 5: And there's just no indication that they aren't capable of
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Speaker 5: doing so either.
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Speaker 4: I guess one of the things you mentioned that, you know,
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Speaker 4: it's a law and therefore may be subject to judicial oversight.
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Speaker 4: Who would have standing to sort of sue to stop
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Speaker 4: the president from invoking the Insurrection Act?
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Speaker 5: The state of Minnesota? So I think a bunch of
8:47
Speaker 5: different entities. One would be the state of Minnesota, because
8:50
Speaker 5: we have already seen the injuries to the state from
8:53
Speaker 5: the mass deployment and surge of ICE officers. Businesses in
8:57
Speaker 5: Minnesota have shut down. Hospitals are limited. State public services
9:03
Speaker 5: are feeling the strain. It is more difficult for the
9:05
Speaker 5: state to enforce state law given the violations that the
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Speaker 5: federal officers themselves are engaged in. So it's clear that
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Speaker 5: this surge and deployment injures the state. So the state
9:18
Speaker 5: is one possible entity. It is also possible, you know,
9:21
Speaker 5: that individual citizens or religious organizations or other groups that
9:27
Speaker 5: are being harmed by, you know, the targeting of different
9:30
Speaker 5: communities and the obstruction of public services in the state
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Speaker 5: could also sue. So those are two different categories.
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Speaker 4: We sit here, we're recording on Friday, the 16th of January,
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Speaker 4: and Minneapolis and St. Paul public schools are offering virtual
9:45
Speaker 4: learning services. I think until mid-February because there's so many
9:48
Speaker 4: children and parents who are terrified of going to school.
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Speaker 4: And one would assume that they would have standing to say, hey, this,
9:53
Speaker 4: you know, whatever, ramping this up if you do invoke
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Speaker 4: the Insurrection Act is causing great harm to our children's education.
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Speaker 5: Exactly.
10:01
Speaker 4: And nobody hates a school closure more than the right wing.
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Speaker 4: So that would be an interesting moral conundrum for them.
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Speaker 4: I mean, the last time I believe an American president
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Speaker 4: invoked the Insurrection Act was George H.W. Bush during the L.A. riots, right?
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Speaker 3: Yes.
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Speaker 4: How did that happen?
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Speaker 5: It was actually at the request of state officials. So
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Speaker 5: he had their consent. So this is an instance where
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Speaker 5: the state is basically saying, we don't have this. Can
10:24
Speaker 5: you help us out? And that is consistent with the
10:27
Speaker 5: tradition that the Insurrection Act reflects, which is not using
10:30
Speaker 5: the federal military to overpower state law enforcement when they
10:33
Speaker 5: can handle it.
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Speaker 4: Oh, imagine that. The invitation of the state back when
10:37
Speaker 4: invites were.
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Speaker 5: When consent mattered.
10:39
Speaker 4: Yeah, exactly.
10:40
Speaker 5: Exactly.
10:41
Speaker 4: But prior to that, it was kind of, I was
10:42
Speaker 4: looking at a timeline, thank you USA Today, of when
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Speaker 4: it was most invoked. And it looked like the 1870s
10:48
Speaker 4: was kind of the high watermark for the invocation of
10:50
Speaker 4: the Insurrection Act. Exactly.
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Speaker 5: What's going on in the 1870s? What's going on? It's
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Speaker 5: literally the aftermath of the Civil War.
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Speaker 2: Exactly.
10:57
Speaker 5: And, you know, the continued rebellion of the former Confederate states. So, yes,
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Speaker 5: the Insurrection Act is used at that time. Right.
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Speaker 4: Unbelievable. I mean, as I said, we're recording this. It's
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Speaker 4: important to timestamp the recording because the situation is so
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Speaker 4: kinetic and new videos emerge, it feels like, every day.
11:15
Speaker 4: I mean, just a few days ago, there's a video
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Speaker 4: of federal agents seen on video dragging a woman from
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Speaker 4: her car during a protest and throwing her to the
11:23
Speaker 4: ground as they try and clear the streets. And I'm reminded,
11:27
Speaker 4: as these videos come across the transom, of the words
11:30
Speaker 4: of the governor of Minnesota earlier this week, who said...
11:33
Speaker 4: if you see ICE agents hit record, which is something
11:37
Speaker 4: people are doing and props to them because that's not
11:39
Speaker 4: without some potential peril. But I wonder, you know, if
11:43
Speaker 4: you're a lay person and you're living in one of
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Speaker 4: these neighborhoods, or even if you're not, what levers exist
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Speaker 4: for people outside of government to hold ICE accountable beyond
11:53
Speaker 4: their camera phones?
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Speaker 5: I mean, I guess I just want to emphasize the
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Speaker 5: power of the camera phone because in the short term,
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Speaker 5: You know, it is possible that those cameras could provide
12:03
Speaker 5: evidence in state criminal cases, you know, against officers or
12:07
Speaker 5: in civil litigation against them. But even if that doesn't
12:11
Speaker 5: happen in the short term, I hold out hope that
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Speaker 5: they would be useful in some sort of accounting for
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Speaker 5: what is going on once we make it through this.
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Speaker 5: And whether that is, you know, some equivalent of a
12:25
Speaker 5: Truth and Reconciliation Commission or You know, where we acknowledge,
12:29
Speaker 5: you know, what the Trump administration was doing and the harms,
12:32
Speaker 5: you know, that caused different communities and people.
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Speaker 4: In the future times when he's no longer in power
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Speaker 4: and we kind of wake up from the fever dream. Ooh, Leah,
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Speaker 4: keep talking about that.
12:39
Speaker 5: I'm manifesting. It's one of my New Year's resolutions.
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Speaker 4: Right on, sister.
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Speaker 5: So, you know, I don't want people to feel like, oh,
12:46
Speaker 5: I just have my camera or my camera phone. Like,
12:48
Speaker 5: is it even worth it? You know, I do think
12:50
Speaker 5: that that is important. Like, you should do that. You know,
12:53
Speaker 5: beyond that, I think it's tough. you know, public shaming
12:59
Speaker 5: sometimes works. We've also seen the videos, right, of the
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Speaker 5: Minnesota Nice approach, which is calling ICE officers now fucking
13:09
Speaker 5: Nazis and telling them to get the fuck out of here.
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Speaker 4: Yeah.
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Speaker 5: You know, I'd have to think that if you go
13:15
Speaker 5: to work every day and people are screaming at you.
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Speaker 2: Yeah.
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Speaker 5: You stink. Get out of here. Maybe that's a deterrent, right,
13:24
Speaker 5: to continuing with that job. Now, of course, they are
13:26
Speaker 5: being way overcompensated and, you know, they're allowing anyone in.
13:30
Speaker 5: So it's unclear, you know, what effect that will have. But,
13:32
Speaker 5: you know, public shaming, you know, that sometimes works. I
13:35
Speaker 5: think another thing is, you know, calling state, local and
13:39
Speaker 5: federal representatives because they are in a position to potentially
13:43
Speaker 5: bring litigation into You know, in the event that Democrats
13:46
Speaker 5: retake Congress to hold hearings, right, to pass laws that
13:49
Speaker 5: actually would limit the ICE practices, you know, that we
13:52
Speaker 5: are seeing. So I think continuing to express to political
13:57
Speaker 5: representatives that this is an issue that matters and that
13:59
Speaker 5: there are things you can do about it. That's important.
14:01
Speaker 5: And then beyond that, this isn't really holding people accountable,
14:06
Speaker 5: but I do think there are ways that we as
14:08
Speaker 5: a community can support one another and protect the people
14:12
Speaker 5: who are most vulnerable, whether that is neighborhood patrols, whether
14:15
Speaker 5: that is churches delivering food, whether that is agreeing to
14:18
Speaker 5: help someone take their kid to school or run errands
14:21
Speaker 5: for them. There are many different ways that we can
14:24
Speaker 5: all step in and provide some sort of safety net.
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Speaker 2: Right.
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Speaker 4: It's not just... It's not just trying to minimize the
14:31
Speaker 4: power and terror of ICE. It's also trying to strengthen
14:33
Speaker 4: the resolve and resilience of the community itself.
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Speaker 5: Yeah.
14:37
Speaker 4: You mentioned they're not trained. And that, I think, is
14:39
Speaker 4: like something that is quite clearly, it's obvious when you
14:43
Speaker 4: look at these videos. ProPublica has some essential, really urgent
14:47
Speaker 4: reporting this week about ICE agents using banned chokeholds on
14:52
Speaker 4: American citizens. Yep. And I would assume that, you know,
14:58
Speaker 4: because that is explicitly banned in the DHS policy guidebook
15:01
Speaker 4: or whatever it's officially called, does that then make it
15:05
Speaker 4: easier for those families and those victims to take their
15:09
Speaker 4: case against ICE to court? I know we're going to
15:12
Speaker 4: get into the difficulty of civil suits with federal agents
15:15
Speaker 4: in a second, but just using explicitly banned maneuvers seems
15:21
Speaker 4: like it opens up a portal that maybe doesn't always exist.
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Speaker 5: Yes, that's certainly going to be helpful persuasive evidence in
15:28
Speaker 5: the event you can actually get a court to hear
15:32
Speaker 5: the merits of your claim. That is also potentially helpful
15:36
Speaker 5: in defeating a defense of qualified immunity, which are oftentimes
15:41
Speaker 5: very strong and whittle out a bunch of meritorious suits,
15:48
Speaker 5: but showing that the officers are in violation of a
15:50
Speaker 5: policy that they are supposed to follow is can be
15:53
Speaker 5: helpful in overcoming that defense. So yes, it's helpful. It's
15:57
Speaker 5: just not the full solution to all of the obstacles
16:01
Speaker 5: to that kind of litigation. Yeah.
16:04
Speaker 4: I mean, we're going to get to J.D. Vance's assertion
16:06
Speaker 4: that ICE has absolute immunity. But I do wonder when
16:11
Speaker 4: you see these people being abducted and detained and arrested
16:15
Speaker 4: and violently thrown to the ground in establishments, like the
16:19
Speaker 4: one I'm talking about, the chokehold video that is part
16:22
Speaker 4: of the ProPublica reporting happens in a restaurant supply store.
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Speaker 4: A lot of this stuff happens right around or actually
16:28
Speaker 4: inside businesses. And I wonder from a legal standpoint, whether
16:32
Speaker 4: business owners have more agency in preventing ICE from acting
16:36
Speaker 4: so aggressively or maybe stopping the raid entirely. I mean,
16:39
Speaker 4: how would that, how does, what can happen in that space?
16:43
Speaker 5: Sure. So, you know, a Business owner can restrict entry
16:47
Speaker 5: onto their premises. So some businesses post signs, you know,
16:50
Speaker 5: ICE officers aren't allowed in with an administrative warrant rather
16:53
Speaker 5: than a judicial warrant. You know, we have also seen
16:56
Speaker 5: ICE just frankly overpower, you know, individuals and barge in,
16:59
Speaker 5: you know, without warrants and whatnot. But that's not to say,
17:02
Speaker 5: you know, business owners can't at least, you know, say
17:04
Speaker 5: this is the policy, you know, we're not allowing you
17:06
Speaker 5: in without some sort of judicial warrant. You know, another
17:10
Speaker 5: thing that they can do... And just.
17:12
Speaker 4: To stop you for one second, often ICE doesn't have warrants, right?
17:15
Speaker 3: No, yeah.
17:16
Speaker 5: They're just.
17:17
Speaker 4: randomly picking out places where it feels like there might
17:20
Speaker 4: be undocumented residents hanging out looking for work or actually working, right?
17:24
Speaker 4: So that's not nothing that business owners can say you
17:27
Speaker 4: can't come in here without a warrant because that slows
17:29
Speaker 4: the process down at the very least, right? Exactly.
17:31
Speaker 5: And slowing it down is hugely helpful. And then they
17:34
Speaker 5: can also refuse service to ICE officers, right? No cookies
17:37
Speaker 5: for you. You know, that also, you know, is going
17:40
Speaker 5: to minimize traffic. in the store. And so that is
17:44
Speaker 5: something else that they can do.
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Speaker 4: Well, that's meaningful also because last night there was a
17:47
Speaker 4: report that ICE officers arrested workers at a Mexican restaurant
17:51
Speaker 4: after the ICE officers had just eaten at the Mexican restaurant.
17:54
Speaker 4: As if kind of like they wanted, I don't know,
17:57
Speaker 4: tacos and went in, had the tacos and were like,
18:00
Speaker 4: you know what, why don't we grab some migrants here
18:03
Speaker 4: as long as we're done with our barbacoa.
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Speaker 5: Yes. So that too, right, isn't you know, meaningless, you know,
18:11
Speaker 5: just saying like.
18:12
Speaker 4: To make their lives more unpleasant.
18:14
Speaker 5: Exactly. Exactly.
18:15
Speaker 4: No cookies for you.
18:16
Speaker 5: Slowing it down.
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Speaker 4: You know, as we talk about sort of what's happening
21:26
Speaker 4: on the streets, there's also the reality of what's unfolding
21:29
Speaker 4: in behind closed doors. And I think if you have
21:32
Speaker 4: been disturbed by the treatment of both American citizens and
21:36
Speaker 4: non-citizens alike on the streets of Minneapolis or another major
21:40
Speaker 4: American city, there is reporting out this week about what's
21:44
Speaker 4: going on in ICE detention centers that is very alarming.
21:50
Speaker 4: 2025 was the deadliest year for ICE in two decades.
21:54
Speaker 4: There were 32 deaths in ICE custody. There have been
21:57
Speaker 4: several just this year alone, and we're on the 16th
22:00
Speaker 4: day of January. What checks are supposed to be in
22:03
Speaker 4: place as far as detention? And I would assume this
22:06
Speaker 4: is all subject to congressional oversight?
22:08
Speaker 5: Yes. So congressional oversight is supposed to be one check.
22:11
Speaker 5: That's why we've seen representatives show up to ICE detention facilities, right,
22:15
Speaker 5: and demand to inspect them. That's also why this administration
22:19
Speaker 5: is pushing back on that, because they don't actually want
22:22
Speaker 5: any oversight. They don't want it to come out, you know,
22:24
Speaker 5: what is happening in these detention facilities and detention centers.
22:28
Speaker 5: But congressional oversight, congressional hearings, you know, if Congress sees
22:31
Speaker 5: something going on, they can yank back ISIS funding and say, look, okay,
22:37
Speaker 5: we are not going to give you this money unless
22:40
Speaker 5: you offer, you know, the following protections, you know, for
22:43
Speaker 5: people who you are arresting, detaining, and stopping. So congressional
22:47
Speaker 5: oversight and Congress actually exercising oversight powers, whether that is
22:53
Speaker 5: limiting funding, conducting hearings and whatnot, those are all possibilities.
22:57
Speaker 4: If you're in Congress, can you not go to an
22:59
Speaker 4: ICE detention center and demand to get let in?
23:02
Speaker 5: So that is what the law says. That is part
23:06
Speaker 5: of an appropriations rider. And yet, yet, the administration has
23:12
Speaker 5: refused entry and indeed is prosecuting, you know, one of
23:15
Speaker 5: the Democratic representatives, LaMonica McIver, who showed up to an
23:19
Speaker 5: ICE facility and attempted to engage in some oversight. You know,
23:22
Speaker 5: she was initially refused entry. There was a skirmish involving,
23:26
Speaker 5: you know, Newark Mayor Roz Baraka. She was subsequently let in.
23:30
Speaker 5: And then afterwards, you know, they are charging her with
23:32
Speaker 5: assaulting an ICE agent.
23:35
Speaker 4: Which is like insane. Up is down, down is up.
23:38
Speaker 4: We are officially through the looking glass. When you talk
23:42
Speaker 4: about the tactics, I mean, we were talking about Congress's
23:44
Speaker 4: role in all of this and the fact that they're
23:46
Speaker 4: not trained. And I just feel like that's another subject
23:49
Speaker 4: for Congress, right? Like if we want ICE agents to
23:51
Speaker 4: receive proper training and I don't know, not use banned
23:54
Speaker 4: chokeholds and like use the most extraordinary and extreme measures
23:59
Speaker 4: to detain people who are largely peaceful. Like what what
24:03
Speaker 4: does that look like? It does just have to be,
24:05
Speaker 4: you know, House Republicans and Senate Republicans agreeing that this
24:09
Speaker 4: is un-American and this shouldn't happen and doing something legislatively
24:11
Speaker 4: about it or what?
24:13
Speaker 5: Well, hopefully, you know, after January 2027, you know, it
24:17
Speaker 5: doesn't look like that. And, you know, a Democratic controlled
24:20
Speaker 5: House and Democratic controlled Senate, you know, could pass funding
24:23
Speaker 5: restrictions on ICE. you know, so long as ICE doesn't
24:26
Speaker 5: institute training and certain protections. Now, the president is likely
24:29
Speaker 5: to veto it. But, right, I still think it is
24:32
Speaker 5: important to, like, press the case for, look, we are
24:35
Speaker 5: just trying to ensure that basic principles of due process
24:39
Speaker 5: are are being followed and that we are not housing people, right,
24:43
Speaker 5: in these grotesque conditions. You know, there was a report,
24:46
Speaker 5: a medical examiner concluded that one of the people in
24:48
Speaker 5: ICE detention, he ruled his death a homicide. So, you know,
24:52
Speaker 5: that has to be the sort of thing that politicians,
24:55
Speaker 5: you know, find worth fighting for. And they are willing
24:57
Speaker 5: to continue to appear at these facilities. And, you know,
25:00
Speaker 5: if and when they get a majority, you know, they
25:02
Speaker 5: attempt to provide some oversight, and then also some accountability,
25:05
Speaker 5: you know, in actually allowing potential litigation against ICE officers
25:08
Speaker 5: to go forward. And yeah, we still, I mean, the
25:11
Speaker 5: person who was reportedly killed was, I believe, strangled to death,
25:16
Speaker 5: but also had a sort of violent criminal record, which
25:20
Speaker 5: makes it not okay to kill him in jail under
25:23
Speaker 5: federal custody, but it does make it politically more complicated
25:27
Speaker 5: for Democrats to rush to his defense, I think, or
25:30
Speaker 5: anyone to rush to his defense. Not that that is
25:32
Speaker 5: warranted necessarily, but it makes the calculus a little bit
25:34
Speaker 5: more complicated. I mean, big picture here, like as we
25:38
Speaker 5: look at the state of Minnesota, right? I mean, what
25:41
Speaker 5: legal recourse does the state actually have here? And let
25:44
Speaker 5: me just drill down on that a little bit more
25:46
Speaker 5: and say, could in theory, because this is something that's
25:50
Speaker 5: been floated in multiple interviews I've heard with the mayor,
25:53
Speaker 5: Jacob Fry, if not the police chief, can the local
25:56
Speaker 5: police in Minneapolis go after ICE agents? Yes. Yes. Federal
26:02
Speaker 5: officers are not allowed to violate state and local criminal law. Now,
26:06
Speaker 5: prosecuting those officers is difficult because what happens is they
26:11
Speaker 5: argue as a defense that they were merely carrying out
26:15
Speaker 5: their federal duties. And when state law, a state criminal statute,
26:20
Speaker 5: conflicts with a federal statute authorizing an ICE officer to
26:24
Speaker 5: do A, B, or C, The federal law is going
26:26
Speaker 5: to win out. But that just means those cases come
26:29
Speaker 5: down to, was the ICE officer acting within the scope
26:33
Speaker 5: of their powers? Were they doing things that were reasonably
26:36
Speaker 5: necessary to carry out their responsibilities? I think from videos,
26:42
Speaker 5: it is clear they are going way beyond that. But
26:47
Speaker 5: that's just part of what makes those cases difficult is
26:51
Speaker 5: they are often litigated in terms of, was the officer
26:55
Speaker 5: doing something that is reasonably necessary to carry out their duties?
26:59
Speaker 5: And it's not often that you have, frankly, this brazen
27:04
Speaker 5: or this widespread of federal officers so systematically going beyond
27:10
Speaker 5: the scope of their duties. And so the fact that
27:13
Speaker 5: we haven't seen that many state prosecutions of federal officers
27:17
Speaker 5: That's just because historically, you know, the federal government doesn't
27:20
Speaker 5: behave like this.
27:21
Speaker 4: Those were the before times.
27:23
Speaker 5: Right.
27:23
Speaker 4: When you didn't have basically Trump's masked thugs out there
27:27
Speaker 4: just ripping people from their cars and places of work
27:30
Speaker 4: and places of worship and hospitals. Okay, let's talk about
27:34
Speaker 4: the aftermath of the shooting, right? Because an interesting thing
27:37
Speaker 4: happened at the U.S. Attorney's Office. Six federal prosecutors resigned
27:41
Speaker 4: this week over the Justice Department's handling of Renee Good
27:45
Speaker 4: and her case, and specifically the Justice Department's push to
27:48
Speaker 4: investigate Becca Good, who is Renee Good's wife, at the
27:53
Speaker 4: same time refusing to open an investigation into the ICE
27:56
Speaker 4: agent who shot Renee Nicole Good. First of all, your
28:00
Speaker 4: just reaction to that, and what legal grounds do they
28:03
Speaker 4: have to just have such an asymmetrical and unusual pursuit
28:09
Speaker 4: in terms of their investigations?
28:12
Speaker 5: That was so galling to read. I mean, I cannot
28:18
Speaker 5: imagine being a person who was willing to move forward
28:23
Speaker 5: with an investigation into the widow of the shooting victim
28:29
Speaker 5: rather than the person that shot her. This is very
28:33
Speaker 5: much part of their campaign to dehumanize their victims. It
28:39
Speaker 5: doesn't really matter who the victim is. if you get
28:42
Speaker 5: in their way, their view is you've lost all of
28:46
Speaker 5: your rights, you've lost your humanity, and they can just
28:50
Speaker 5: tar and feather you with whatever label strikes them as
28:53
Speaker 5: convenient and they will lie their way through it and
28:56
Speaker 5: use the full force of the federal government to try
28:58
Speaker 5: to do so. That was one of the more horrifying,
29:02
Speaker 5: I think, things that has come out about this administration
29:07
Speaker 5: and an administration that finds new horrors every hour of
29:12
Speaker 5: every day. And, you know, for me, during the first
29:16
Speaker 5: Trump administration, the child separation policy was one of the
29:19
Speaker 5: more just horrific, grotesque policies. And I remember thinking at
29:24
Speaker 5: the time, anyone who was involved in that should never
29:29
Speaker 5: again be welcome in polite society. That hasn't panned out. No,
29:33
Speaker 5: Stephen Miller, still there. Certainly hope that this time around,
29:38
Speaker 5: like anyone involved who thinks it is remotely appropriate to
29:43
Speaker 5: use law enforcement powers against the widow rather than the
29:47
Speaker 5: ICE officer, like they just cannot be eligible for any
29:52
Speaker 5: future position of authority. You know, as far as you know,
29:57
Speaker 5: the like legal questions of how can they do this,
30:02
Speaker 5: not to take it all back to the Supreme Court,
30:04
Speaker 5: but to take it all back to the Supreme Court,
30:06
Speaker 5: you know, in the court's absolutely horrifying immunity decision in
30:09
Speaker 5: Trump versus the United States, they went out of their
30:11
Speaker 5: way to affirm that investigative and prosecutorial functions were the
30:16
Speaker 5: core exclusive power of the executive branch and president. And
30:20
Speaker 5: so exclusive to the president, Congress can't pass laws that
30:26
Speaker 5: limit the president's exercise of those functions. And in that
30:31
Speaker 5: very case, there were allegations that the investigations were shams,
30:36
Speaker 5: that the threatened prosecutions were for improper purposes. What did
30:40
Speaker 5: the Supreme Court say? That doesn't matter. That doesn't make
30:44
Speaker 5: them beyond the scope of the president's power. So I
30:47
Speaker 5: guess it's not that surprising after you have the Supreme
30:51
Speaker 5: Court tell Donald Trump You can use your federal law
30:55
Speaker 5: enforcement power to target anyone you want for any reason
30:59
Speaker 5: that he would go ahead and do that.
31:02
Speaker 4: I mean, just the Roberts court coming back to just
31:05
Speaker 4: make things just a little bit worse every single fucking time.
31:11
Speaker 4: But six federal prosecutors resigning from the case. These were
31:13
Speaker 4: career prosecutors. One of them was the acting U.S. attorney
31:17
Speaker 4: who was appointed by Trump and is involved in another
31:20
Speaker 4: case that Trump is really obsessed with. But first, just
31:22
Speaker 4: what are the implications of the case moving forward if
31:24
Speaker 4: you lose like the six top people in the office
31:27
Speaker 4: who are supposed to be pushing the investigation forward?
31:30
Speaker 5: I mean, hopefully that slows it down. So that's one
31:32
Speaker 5: potential benefit. You know, a second potential benefit is something
31:35
Speaker 5: we've seen play out in his effort to install his
31:39
Speaker 5: former personal lawyer slash insurance lawyer, Lindsay Halligan, you know,
31:43
Speaker 5: into a position of authority, which is if it's only
31:47
Speaker 5: dumb hacks that you can find to do the job,
31:49
Speaker 5: they're not going to do it well. And so it's
31:51
Speaker 5: quite possible that any attempt they might make at actually
31:57
Speaker 5: doing a prosecution or securing an indictment wouldn't fly because
32:02
Speaker 5: it stumbles on their inability to dot their I's, cross
32:06
Speaker 5: their T's, and read. And then, you know, the final
32:10
Speaker 5: kind of thing it might do is it just colors
32:11
Speaker 5: the public atmosphere and potential assessment of a claim of
32:14
Speaker 5: like vindictive prosecution.
32:16
Speaker 4: Right.
32:16
Speaker 5: If like all the career prosecutors resign because they're uncomfortable
32:20
Speaker 5: handling this case, that's pretty good evidence to the judge
32:23
Speaker 5: that this case stinks.
32:27
Speaker 4: Oh, that's really interesting. I mean, also, if the whole
32:30
Speaker 4: point of the investigation is to have sort of the
32:32
Speaker 4: final word on what really went down. This is a
32:34
Speaker 4: great way to engender public confidence in the report. Psych! No,
32:38
Speaker 4: it's not. It's like the very opposite of that. Nobody
32:41
Speaker 4: is going to take this and say this is a
32:44
Speaker 4: genuinely nonpartisan, independent report that seeks to find the truth.
32:48
Speaker 4: This is a tool for Trump to act politically in
32:52
Speaker 4: his own favor. Joseph Thompson, who's the acting U.S. attorney
32:56
Speaker 4: for the state of Minnesota— who just resigned because of
32:59
Speaker 4: the way the DOJ was prosecuting this case, was also
33:03
Speaker 4: the lead prosecutor in the, I think it's the Feeding
33:05
Speaker 4: Our Future case, where 58 people were convicted in a
33:08
Speaker 4: scheme to steal $ 300 million from government child nutrition programs.
33:13
Speaker 4: There are still 20 more defendants who are awaiting trial.
33:17
Speaker 4: I actually think in addition to George Floyd and that
33:21
Speaker 4: unfolding in Minnesota, the involvement potentially of Somali immigrants in
33:27
Speaker 4: all of this the sort of racial underpinnings that sort
33:31
Speaker 4: of color the dynamic in Minnesota right now. He loves
33:35
Speaker 4: speaking ill of immigrants and brown people, and they're both
33:40
Speaker 4: there in Minnesota. I mean, I think this case is
33:45
Speaker 4: in many ways why he's been most recently attracted to
33:47
Speaker 4: the state. And now the guy that pursued the case
33:49
Speaker 4: that was leading the investigation has left. Does that derail
33:53
Speaker 4: that case a little bit? I mean, it's going to
33:56
Speaker 4: slow it down. I mean, not that I'm a fan
33:59
Speaker 4: of fraud. It's just the way in which there's clear
34:04
Speaker 4: partisanship that's like the judicial system is being employed for
34:10
Speaker 4: partisan political gain. And, you know, entire communities are being
34:16
Speaker 4: painted with a broad brush in really deleterious way, in
34:21
Speaker 4: a really bad way, in a really divisive and cruel way,
34:24
Speaker 4: that is the not good part of this case. Pursuing
34:26
Speaker 4: justice for fraud is a good thing. But, sorry, to
34:30
Speaker 4: my original question, how does that affect the pursuit of
34:33
Speaker 4: this case and the prosecution.
34:34
Speaker 5: Of this case? So at a minimum, it's going to
34:36
Speaker 5: slow it down, right? Because if you change out all
34:39
Speaker 5: the prosecutors who all of a sudden have to get
34:41
Speaker 5: up to speed on the case, familiarize themselves with it,
34:44
Speaker 5: They are going to have to take time to do that.
34:47
Speaker 5: But second is what you were just saying is this
34:51
Speaker 5: further politicization of the Department of Justice is going to
34:54
Speaker 5: undermine public confidence in that case, even though there are
34:59
Speaker 5: very serious, real allegations of fraud that deserve to be
35:03
Speaker 5: held accountable. But when you just destroy public confidence in
35:08
Speaker 5: institutions like DOJ, that doesn't go away, even if, you know,
35:12
Speaker 5: the stopped clock occasionally has a meritorious case or two
35:16
Speaker 5: that it pursues.
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Speaker 4: Then there's the case itself, you know, independent of who
38:56
Speaker 4: they're interviewing and who they're harassing, whether it's Renee Good's
39:00
Speaker 4: widow or her child or any of the other people
39:03
Speaker 4: who are family members of the victim here. There's the
39:07
Speaker 4: fact that the FBI is shutting out, um, men of
39:11
Speaker 4: Minnesota police and their investigative agencies. Um, The FBI taking
39:15
Speaker 4: over the entire investigation, how unusual is that from a
39:18
Speaker 4: legal perspective?
39:20
Speaker 5: It's very unusual, at least in cases like this, where
39:23
Speaker 5: there's just no reason to suspect that, the state law
39:27
Speaker 5: enforcement apparatus is compromised or somehow engaged in the commission
39:31
Speaker 5: of the crime. It's state and local law enforcement that
39:34
Speaker 5: have primary responsibility for investigating crimes. The vast majority of
39:39
Speaker 5: people who are detained and have criminal convictions have them
39:43
Speaker 5: by virtue of state and local law and state and
39:46
Speaker 5: local prosecutors. So these are individuals who have more experience
39:51
Speaker 5: and more familiarity with the locale, you know, the people
39:53
Speaker 5: who are potential witnesses, the communities. And so it is
39:58
Speaker 5: not common to just entirely exclude, right, this very helpful,
40:02
Speaker 5: you know, array of experts who have expertise and perspectives
40:07
Speaker 5: that you lack. And, you know, the lack of cooperation
40:10
Speaker 5: between state and federal law enforcement, you know, was also
40:13
Speaker 5: one of the signal flaws that led to the creation
40:17
Speaker 5: of the Department of Homeland Security. The idea was, you know,
40:20
Speaker 5: they would ensure there would be continued cooperation and communication
40:23
Speaker 5: between state and federal authorities. But obviously, that proved inconvenient
40:28
Speaker 5: at this moment. And so they just dispose of, you know,
40:30
Speaker 5: that project.
40:31
Speaker 4: That's so insane. I, of course, like all my 9-11
40:35
Speaker 4: happened 120 years ago. Yeah, of course, DHS was created
40:39
Speaker 4: to solve that problem. And it's just been recreated. single-handedly
40:42
Speaker 4: by the Trump administration. But I mean, when you screw
40:46
Speaker 4: over the people that need to be helping you and
40:48
Speaker 4: the people whose files and evidence you need, that's probably
40:51
Speaker 4: going to hamstring the FBI's investigation, no?
40:54
Speaker 5: I would think so. But again, they're not engaged in
40:57
Speaker 5: a serious investigation.
40:58
Speaker 2: Right.
40:59
Speaker 5: You know, they are just engaged in an effort to
41:01
Speaker 5: try to find some way to smear Renee Good and
41:08
Speaker 5: to come up with heavily doctored footage, you know, that
41:11
Speaker 5: suggests the ICE officer, you know, wasn't at fault. And
41:16
Speaker 5: so they probably don't really care. I mean, they definitely
41:19
Speaker 5: don't care about actually uncovering what happened, because if they did,
41:23
Speaker 5: they wouldn't have released real-time statements that already stated their
41:27
Speaker 5: predetermined conclusions. They wouldn't have excluded these law enforcement officials,
41:31
Speaker 5: you know, from participating in the investigation. So all of
41:34
Speaker 5: their behavior to date just suggests they don't really care.
41:38
Speaker 5: What's the timeline, do you think, for this investigation? I mean,
41:42
Speaker 5: I can't remember.
41:43
Speaker 4: I mean, with high-profile cases like this, what kind of
41:48
Speaker 4: month turnaround are we looking at?
41:52
Speaker 5: I really don't know. I'm not sure that there is
41:54
Speaker 5: any sort of standard across high-profile cases. It probably depends
41:59
Speaker 5: on whether they feel like they have spoken to everyone
42:03
Speaker 5: on scene, whether they have collected all available video. So
42:06
Speaker 5: it's a little bit hard to know exactly what it
42:12
Speaker 5: might take. I mean, part of it is also going
42:14
Speaker 5: to depend on some of these high-profile cases often involve
42:16
Speaker 5: hate crime charges. And those often take longer because they
42:20
Speaker 5: require uncovering additional evidence of motive. And so, you know,
42:23
Speaker 5: could it be, again, that they are looking for some
42:26
Speaker 5: evidence related to that? I don't know. That could prolong
42:28
Speaker 5: an investigation. So it's a little difficult to say, like,
42:32
Speaker 5: we should expect it to be, you know, wrapped up
42:34
Speaker 5: within this window or that. Something tells me it's not
42:36
Speaker 5: going to be done on an expeditious timeline. Yeah.
42:40
Speaker 4: I mean, there's one thing that I find very hard
42:42
Speaker 4: to swallow and that it is sounds like, you know,
42:45
Speaker 4: first of all, The trauma itself was so profound, right?
42:49
Speaker 4: Renee Good is shot through a windshield and killed in
42:53
Speaker 4: front of her family. And then her family, her widow,
42:58
Speaker 4: is now the focus of a federal investigation, which is
43:03
Speaker 4: also known as a federal smear campaign, right? And the
43:08
Speaker 4: government has so much power in this scenario. And yet
43:11
Speaker 4: Renee Good, the family of Renee Good, has so few...
43:16
Speaker 4: has very little recourse to seek justice from the federal
43:20
Speaker 4: government and from ICE. First of all, why is that?
43:25
Speaker 5: Yeah, so as we were kind of previewing earlier, there
43:28
Speaker 5: are a bunch of obstacles that, again, getting back to
43:31
Speaker 5: the Supreme Court, the Supreme Court has created to actually
43:34
Speaker 5: sue federal officers for violating your rights. Now, Congress, you know,
43:40
Speaker 5: in the aftermath of the Civil War, passed rules this
43:44
Speaker 5: law called Section 1983. It's a general civil rights statute.
43:47
Speaker 5: And that's the law that allows you to sue state
43:50
Speaker 5: and local officers who violate your constitutional rights. That's what's
43:53
Speaker 5: called a cause of action. It is the legal authorization
43:57
Speaker 5: to bring suit. Congress has not passed a similar law
44:01
Speaker 5: that allows you to sue federal officers for violating your
44:04
Speaker 5: constitutional rights. So what happens then? Well, back in the
44:08
Speaker 5: good old days, you know, the Supreme Court stepped into
44:11
Speaker 5: the breach in a case Bivens versus six unnamed agents
44:15
Speaker 5: of the FBI. The Supreme Court said when your rights
44:20
Speaker 5: are violated by a federal officer and you don't have
44:26
Speaker 5: another remedy, right? then you can sue those officers for damages.
44:32
Speaker 5: You know, the Bivens case was, you know, some law
44:35
Speaker 5: enforcement officers who break into a guy's house, you know,
44:37
Speaker 5: ransack it, force him to stand naked, and then they
44:40
Speaker 5: don't try him for anything. And oftentimes when the government
44:45
Speaker 5: violates the Fourth Amendment, they do so in the course
44:48
Speaker 5: of obtaining evidence that they use at your trial. So
44:50
Speaker 5: what's your remedy then? It is asking the court to
44:53
Speaker 5: exclude that evidence. That remedy isn't available if you're not
44:57
Speaker 5: charged with a crime. And so in Bivens, the Supreme
44:59
Speaker 5: Court said, for people like Bivens, it's damages or nothing.
45:03
Speaker 5: And in that circumstance, we recognize that courts have the
45:07
Speaker 5: authority to afford traditional forms of relief like damages. So
45:13
Speaker 5: that used to be the case. This court hates Bivens.
45:16
Speaker 5: They have basically limited it.
45:18
Speaker 4: And precedent, I'm just saying.
45:19
Speaker 5: Right, and precedent, the law, the rule of law, accountability
45:22
Speaker 5: for government officers, the list goes on. Democracy, multiracial democracy,
45:26
Speaker 5: how long do we have? And they've said, unless you
45:30
Speaker 5: are suing a federal officer for a constitutional violation that
45:33
Speaker 5: basically is on all fours and exactly like one of
45:38
Speaker 5: the three prior cases where we have recognized a Bivens
45:43
Speaker 5: cause of action, you're out of luck. And so because
45:46
Speaker 5: we are seeing this unprecedented surge in immigration enforcement, engaging
45:51
Speaker 5: in unprecedented constitutional violations. There aren't prior Bivens cases that
45:58
Speaker 5: say you can sue an officer under these circumstances, even though,
46:02
Speaker 5: like Bivens, you know, for Renee Nicole Good and her family,
46:05
Speaker 5: it is Bivens or nothing.
46:08
Speaker 4: Why did Congress not pass a law that matched the
46:12
Speaker 4: law that was passed in the post, in the Reconstruction era?
46:15
Speaker 5: So I think There are several different explanations. One is
46:19
Speaker 5: so long as the Supreme Court was like filling in
46:22
Speaker 5: the gap, it was just a less pressing need because
46:26
Speaker 5: there weren't this slew of cases, constitutional violation after constitutional violation.
46:31
Speaker 5: where the court was saying, you have no remedy. You
46:34
Speaker 5: can't sue the officer. So I think that's part of it.
46:38
Speaker 5: And then, honestly, kind of like the lead-up to the
46:40
Speaker 5: Supreme Court overruling Roe v. Wade, people failed to appreciate
46:44
Speaker 5: the direction that the court was headed in. They didn't
46:47
Speaker 5: see where the court was going when they actually had
46:50
Speaker 5: the opportunity to do something, when they had the supermajority
46:54
Speaker 5: in the Senate and could have passed federal protections for
46:58
Speaker 5: Roe abortion rights, federal protections for individuals whose constitutional rights
47:03
Speaker 5: are violated by federal officers. So that's the kind of
47:07
Speaker 5: hindsight's 2020 sad aspect of the story. The positive spin
47:11
Speaker 5: I am choosing to put on it is as follows.
47:13
Speaker 5: This is one of those rare circumstances where Congress can
47:16
Speaker 5: easily fix something the Supreme Court has fucked up. All
47:19
Speaker 5: they need to do is just pass a law, amend 1983,
47:23
Speaker 5: and say, applies to federal officers too. And that fixes
47:28
Speaker 5: the problem.
47:28
Speaker 2: Right.
47:29
Speaker 4: That was actually the op-ed by two law professors this
47:32
Speaker 4: week who suggested that Congress should pass something called the
47:34
Speaker 4: Renee Good Civil Rights Act, basically to account for the
47:38
Speaker 4: gaping hole that exists in our judicial system, which makes
47:40
Speaker 4: it very impossible, I should say, in this day and
47:43
Speaker 4: age to sue federal officers for wrongdoing. I mean, so
47:46
Speaker 4: that would just be an act of Congress. So simple,
47:48
Speaker 4: so easy, Leah.
47:51
Speaker 5: Yeah, I'll just snap my fingers. Or maybe if everyone
47:54
Speaker 5: in the world claps their hands at the same time,
47:56
Speaker 5: a Congress will appear.
47:57
Speaker 4: Oh, my Lord. Okay. I mean, that then gets me
48:01
Speaker 4: to a sort of a big question here, because you've
48:03
Speaker 4: said to a number of answers, you have invoked the
48:07
Speaker 4: highest court in the land, the Supreme Court. And I
48:09
Speaker 4: think the lowest court in my estimation, but seriously, girl preach.
48:16
Speaker 4: For a long time, it's felt like the courts have
48:18
Speaker 4: been the bulwark against the Trump administration, right? Especially in
48:21
Speaker 4: the immediate aftermath of Inauguration Day, right? They're preventing executive
48:27
Speaker 4: overreach with the hollowing out of federal agencies. But that,
48:30
Speaker 4: I think, thinking that the courts are always there as
48:33
Speaker 4: a fail-safe doesn't really hold up. I mean, New York
48:36
Speaker 4: Times report recently found that Trump's the appellate judges that
48:41
Speaker 4: he has picked have ruled in his favor 112 times
48:45
Speaker 4: compared to the 13 times they have ruled against him.
48:48
Speaker 4: So give me your sort of like big picture analysis
48:52
Speaker 4: on how the courts are functioning here in terms of
48:55
Speaker 4: where they've slowed or blocked his agenda and where they've
48:59
Speaker 4: ultimately given him.
49:00
Speaker 5: A hall pass. I think the federal trial courts have
49:03
Speaker 5: done a really admirable job in generally trying to hold
49:07
Speaker 5: And I think it's no accident that that is why
49:14
Speaker 5: we have also seen the Supreme Court steadily narrowing the
49:16
Speaker 5: power of district courts, you know, to issue nationwide injunctions.
49:20
Speaker 5: or to issue other forms of relief, you know, that
49:22
Speaker 5: would be effective against this administration. I also think it's
49:26
Speaker 5: no accident that we are seeing this administration put forward
49:29
Speaker 5: even more extreme nominees than they did during the first administration.
49:34
Speaker 5: You For them, you know, 90 plus percent of cases,
49:39
Speaker 5: you know, who are some of the people they have
49:41
Speaker 5: appointed to the federal courts in the second term? Emile Beauvais,
49:44
Speaker 5: you know, the guy who literally came up with the
49:46
Speaker 5: strategy of trying to evade court orders and allegedly reportedly said,
49:50
Speaker 5: we'll just say fuck you to the courts.
49:52
Speaker 3: That guy.
49:52
Speaker 2: Cool, cool, cool.
49:53
Speaker 5: No, that guy.
49:53
Speaker 4: Now on the Court of Appeals.
49:55
Speaker 5: Exactly. Lifetime tenure. The guy who also attended a Trump
49:58
Speaker 5: rally after he became a federal judge. You know, there
50:02
Speaker 5: are also people that they have put up for the
50:04
Speaker 5: federal district courts who have described themselves as zealots on
50:09
Speaker 5: the issue of fetal personhood, the idea that the Constitution
50:12
Speaker 5: requires abortion to be illegal nationwide. So they are slowly
50:17
Speaker 5: transforming the federal courts, particularly the lower federal courts that
50:21
Speaker 5: have proven effective at checking this administration. So you're right,
50:27
Speaker 5: we can't count on the federal courts to always be there.
50:29
Speaker 5: You know, we have to take a belt and suspenders
50:31
Speaker 5: approach to thinking about our rights. You know, as we
50:34
Speaker 5: were talking about, Congress should have codified protections for Roe,
50:36
Speaker 5: you know, not just relied on the idea that the
50:38
Speaker 5: Supreme Court was always going to stick to precedent. And
50:42
Speaker 5: we also need to think about what these institutions should
50:45
Speaker 5: look like in the post-Trump world. Because, you We should
50:51
Speaker 5: think about how can we safeguard our institutions and like
50:55
Speaker 5: harden our democracy so that we don't slip back into
50:58
Speaker 5: this when we finally pull ourselves out.
51:02
Speaker 4: In the after times when he's no longer president and
51:04
Speaker 4: there's a truth and reconciliation committee and we begin to
51:09
Speaker 4: rebuild our democracy. You'll hear a little bit more from
51:11
Speaker 4: Leah in one quick sec, but first on the latest
51:14
Speaker 4: episode of my show, Runaway Country, I interview Michael Moore,
51:18
Speaker 4: the former chief of police for the LA Police Department,
51:21
Speaker 4: because he offers some very interesting and I'm going to
51:24
Speaker 4: say controversial perspective on how law enforcement is is looking
51:28
Speaker 4: at the events of last week and understanding what exactly
51:32
Speaker 4: happened to Renee Nicole Good. And then The Bulwark's Tim
51:35
Speaker 4: Miller joins me to question the parallel realities Americans appear
51:39
Speaker 4: to be living in, despite ample video footage and even
51:42
Speaker 4: in cases of life or death. We take visits from
51:45
Speaker 4: Earth 1 to Earth 2. Tune in to Runaway Country
51:48
Speaker 4: wherever you get your podcasts or check it out on YouTube.
52:01
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53:32
Speaker 1: I just want to.
53:42
Speaker 4: Get your thoughts, since I have you here as our
53:44
Speaker 4: legal eagle, on some really high-profile cases that are making
53:48
Speaker 4: their way through the courts. On Tuesday, SCOTUS weighed in
53:52
Speaker 4: for the first time on trans athletes participating in women's sports.
53:56
Speaker 4: And for years, most of those decisions have been left
53:59
Speaker 4: to state and local organizations, right? But the Trump administration
54:02
Speaker 4: is pushing to make the ban a federal issue. And
54:05
Speaker 4: some sources say that justices appear inclined to uphold it.
54:09
Speaker 4: I can't imagine. The Roberts Court?
54:10
Speaker 3: I know.
54:12
Speaker 4: What's your feeling on how that's going to shake out?
54:15
Speaker 5: I think the best case scenario is the justices say
54:18
Speaker 5: the state bans on trans girls and trans women, you know,
54:22
Speaker 5: participating in sports don't violate Title IX, the federal law
54:27
Speaker 5: that prohibits sex discrimination in educational institutions and services. That's
54:33
Speaker 5: the absolute best case. From there, it only gets worse.
54:37
Speaker 5: It's possible they will also say these bans don't violate
54:42
Speaker 5: the Constitution's Equal Protection Clause. That would be worse because
54:46
Speaker 5: it would foreclose another potential claim that could be used
54:50
Speaker 5: to challenge these bans. the lower court in this case
54:54
Speaker 5: suggested they needed more evidence in order to weigh that claim.
54:59
Speaker 5: And so the idea that the Supreme Court will just
55:01
Speaker 5: go ahead and resolve it after the lower court said
55:03
Speaker 5: we need more evidence, right, should be some indication of
55:06
Speaker 5: how aggressive, right, they are inclined to be with respect
55:10
Speaker 5: to trans rights. And then still worse is the possibility,
55:14
Speaker 5: oh yeah, that They're not going to do it in
55:17
Speaker 5: this case, but there's a possibility that some justice floats
55:20
Speaker 5: the possibility that Title IX itself forbids the participation of
55:26
Speaker 5: trans girls and trans women in women's sports. And so
55:30
Speaker 5: then it's not just that you can't challenge states where
55:35
Speaker 5: states have laws that ban trans girls and trans women.
55:38
Speaker 5: It's also that states won't be allowed to include trans
55:42
Speaker 5: girls and trans women. So- That's the range of possibilities.
55:48
Speaker 5: Rooting for the first one real hard.
55:51
Speaker 4: Wow. It feels like the federal government has real leverage
55:56
Speaker 4: over states where this is being fought out. And the
55:59
Speaker 4: education department is also fighting Maine, California, Minnesota. over efforts
56:04
Speaker 4: to cut off federal funding because those states allow trans
56:07
Speaker 4: girls to compete on girls' sports teams, right? This is
56:10
Speaker 4: sort of a parallel situation.
56:12
Speaker 5: It is multi-front litigation. They are also targeting hospitals that
56:17
Speaker 5: provide gender-affirming care and research universities. They are targeting schools that, again,
56:25
Speaker 5: provide inclusive policies for trans students and trans athletes. So
56:30
Speaker 5: they are engaged in this all-out war on the existence
56:36
Speaker 5: of trans people and their ability to basically participate in society.
56:40
Speaker 4: I mean, I feel like the connective tissue between what's
56:43
Speaker 4: happening with that group of people and what's happening with
56:45
Speaker 4: migrants and brown people in the country is just a
56:48
Speaker 4: sort of brutalization and a diminution of their humanity. And
56:53
Speaker 4: I worry that the impunity with which this administration is
56:57
Speaker 4: going after people they deem not worthy of belonging in
57:00
Speaker 4: this country is that that is going to give them
57:04
Speaker 4: license to, I don't know, legally be as aggressive as
57:07
Speaker 4: they possibly can be and shoot for the moon in
57:10
Speaker 4: terms of punishing or otherwise dehumanizing people that don't fit
57:15
Speaker 4: within their political agenda. I mean, that actually really worries me,
57:19
Speaker 4: that they see what they can do in a place
57:20
Speaker 4: like Minneapolis and they're like, oh yeah, you think we
57:23
Speaker 4: can get trans girls out of sports? Yeah, we're going
57:25
Speaker 4: to do that plus plus.
57:27
Speaker 5: Exactly. I mean, I think people have noticed this In
57:31
Speaker 5: the case of Renee Nicole, good, right? Like, it didn't
57:34
Speaker 5: really matter who she was. She's a white woman. She
57:37
Speaker 5: is now the enemy, you know? And they are just
57:39
Speaker 5: willing to lump in anyone who, again, they, like, harbor
57:43
Speaker 5: animus toward or who criticizes them or tries to stand
57:46
Speaker 5: in their way. Like, they will dehumanize all of those
57:49
Speaker 5: people and just, like, attempt to normalize... the state violence,
57:53
Speaker 5: you know, against them.
57:55
Speaker 4: Well, and they're betting that the fact that Renee Nicole
57:57
Speaker 4: Good was a lesbian gives them a pass to torture
58:02
Speaker 4: her family in the wake of her death and smear
58:04
Speaker 4: her name and her story nationally with the full force
58:09
Speaker 4: of the federal government, right? And nothing's going to stop
58:11
Speaker 4: them in the same way that if you're an observer
58:13
Speaker 4: standing there with your camera phone, and we've seen videos
58:15
Speaker 4: of this this week, They can push you down to
58:17
Speaker 4: the ground, regardless of whether you're following the law and
58:20
Speaker 4: an American citizen and have every right to be doing
58:22
Speaker 4: what you're doing. There's just a sense of lawlessness that
58:25
Speaker 4: is held on the part of the law itself.
58:27
Speaker 5: It is terrifying, Leah. I mean, it's absolutely terrifying. And
58:34
Speaker 5: the idea that there is no longer a consensus in
58:38
Speaker 5: this country that federal agents shouldn't be going door to door,
58:42
Speaker 5: car to car, hauling people out, throwing them on the
58:46
Speaker 5: ground and assaulting them. I mean, I would have thought,
58:49
Speaker 5: you know, before January of 2025, if you just showed
58:54
Speaker 5: anyone a video and you didn't tell them, right, who
58:58
Speaker 5: the officer was and who the target was, everybody would say,
59:02
Speaker 5: we don't do that here. That's not okay. And now
59:05
Speaker 5: they have polarized this where, again, they are asking for
59:09
Speaker 5: permission from their ideological allies to engage in this kind
59:15
Speaker 5: of violence against anyone and everyone. And it is clear
59:21
Speaker 5: there is just no low they won't stoop to in
59:25
Speaker 5: order to, you know, traffic and some ostensible justification, you know,
59:30
Speaker 5: for what they're doing.
59:31
Speaker 4: Let me ask you one more question, just as I
59:32
Speaker 4: think about this, because you're conjuring the specter of a
59:35
Speaker 4: future where there is no Trump administration. And I want
59:38
Speaker 4: to live in that future for just a moment. But
59:41
Speaker 4: if you're Kristi Noem or Stephen Miller, who's the, you know,
59:45
Speaker 4: sort of one of the architects of all of this,
59:47
Speaker 4: and it's like one could say knowingly and willfully recruiting
59:50
Speaker 4: people who are either unqualified or uninterested in following the rules.
59:54
Speaker 4: And violating the rights of American citizens. Like, are you
59:58
Speaker 4: hoping that Trump is preemptively pardoning you before you before
1:00:01
Speaker 4: he leaves office? And what is your expectation? Because so
1:00:04
Speaker 4: much of this feels like, OK, for now, you guys
1:00:06
Speaker 4: can do this because the circumstances are in your favor. Right.
1:00:12
Speaker 4: But there is going to come a time for. accountability,
1:00:16
Speaker 4: and there is going to come a time for the
1:00:18
Speaker 4: legal and judicial system to hold you responsible for the
1:00:24
Speaker 4: crimes that have been committed in the country's name. So, like,
1:00:27
Speaker 4: what's your expectation as far as Trump's exit and, like,
1:00:30
Speaker 4: with this stuff in his rearview mirror, what's legally possible
1:00:33
Speaker 4: for him to do? I mean, I would assume everyone
1:00:35
Speaker 4: in the administration gets a preemptive pardon. What do you
1:00:38
Speaker 4: imagine that scenario is like?
1:00:39
Speaker 5: It's possible that that's what they are hoping for and
1:00:42
Speaker 5: that that's what they will get. But honestly, I also
1:00:45
Speaker 5: think they are telling themselves two things. One is that
1:00:49
Speaker 5: Democrats just don't have the spine. They don't have the backbone.
1:00:51
Speaker 5: They would never, right, actually hold anyone meaningfully legally accountable.
1:00:57
Speaker 5: I mean, you had to drag Merrick Garland's DOJ for
1:01:02
Speaker 5: years in order to get them to potentially investigate Donald
1:01:07
Speaker 5: Trump's role in January 6th. And so I think they
1:01:10
Speaker 5: can look at past practice and be like, okay, we're
1:01:13
Speaker 5: dealing with these spineless people. They're not actually going to
1:01:16
Speaker 5: do anything, so that's probably part of it. And then
1:01:20
Speaker 5: I think another more terrifying lens is They don't really
1:01:24
Speaker 5: imagine or see a world where Republicans are no longer
1:01:27
Speaker 5: in power. They are acting like they will have a
1:01:32
Speaker 5: stranglehold on power for the foreseeable future. And so they're
1:01:36
Speaker 5: just not bothering to worry themselves with the possibility of
1:01:40
Speaker 5: a regime that isn't controlled by someone like Stephen Miller
1:01:44
Speaker 5: or J.D. Vance or whatever creepy weirdo is milling about
1:01:48
Speaker 5: with them.
1:01:52
Speaker 4: Well, I'm here to say that what we have seen
1:01:56
Speaker 4: and part of the reason you see some semblance of
1:01:59
Speaker 4: a spinal cord in Congress is because the people, the
1:02:04
Speaker 4: citizens of this country, are out there on the streets,
1:02:06
Speaker 4: people who are not normally out there with camera phones
1:02:10
Speaker 4: following a line of ICE officers as they inflict terror
1:02:13
Speaker 4: upon communities. They are enraged. They are engaged. I sound like...
1:02:18
Speaker 4: I'm running for office.
1:02:19
Speaker 5: But they're there.
1:02:20
Speaker 4: You know, people have their eyes open to this stuff.
1:02:22
Speaker 4: And if the Trump administration thinks that the citizenry will
1:02:26
Speaker 4: go quietly into this good night, I think they got
1:02:28
Speaker 4: something else coming for them.
1:02:29
Speaker 3: Yeah.
1:02:30
Speaker 5: From your lips.
1:02:33
Speaker 4: Leah, it is such a joy. I mean, it's not
1:02:35
Speaker 4: a joy to talk about this stuff, but it is
1:02:37
Speaker 4: so helpful and it's great to see you, but it's
1:02:41
Speaker 4: also so important to get a real sort of legal
1:02:45
Speaker 4: understanding of what's possible and what isn't possible, the challenges
1:02:49
Speaker 4: and also the opportunities that exist for all of us
1:02:51
Speaker 4: as we witness and bear witness to this insane chapter
1:02:57
Speaker 4: of American history. So thank you, my friend, for your
1:02:59
Speaker 4: time and your brilliance. And everybody should listen to strict
1:03:02
Speaker 4: scrutiny because it's the best.
1:03:05
Speaker 5: Well, thank you. Happy to come back anytime. And if
1:03:07
Speaker 5: you are looking for something to call your representative about,
1:03:10
Speaker 5: call them about a Bivens fix. Call them about abolishing
1:03:12
Speaker 5: qualified immunity for ICE. You name it. There are specific
1:03:15
Speaker 5: asks you can make in order to build a movement
1:03:18
Speaker 5: around and to organize people around.
1:03:21
Speaker 4: We're going to put that at the bottom of the screen.
1:03:23
Speaker 4: Just call your representative and ask for a Bivens fix.
1:03:26
Speaker 5: 1-800.
1:03:27
Speaker 4: No, I don't know. It's not a 1-800. It should
1:03:29
Speaker 4: be just to get to the switchboard, but you have
1:03:31
Speaker 4: to look up your representative's phone number, but do it
1:03:33
Speaker 4: because it's worth it because fuck. These are the times
1:03:36
Speaker 4: to make big calls. Leah, thank you.
1:03:39
Speaker 5: Thank you.
1:03:40
Speaker 4: That is our show for today. Thank you, Leah Littman,
1:03:42
Speaker 4: for joining me. John, John, and Tommy will be back
1:03:45
Speaker 4: in your feeds on Tuesday.
1:03:49
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