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David Plotz: Hello and welcome to the Slate Political Gabfest.
David Plotz: September 22nd, 2022. It’s the Ron Desantis’s Sadistic plan addition. I am David Plotz of city cast here in Washington, D.C. I have become officially the last American to contract COVID in the United States, Biden said. The pandemic is over and I promptly then contracted COVID. So if I sound a little thicker and dumber than usual, that’s probably it’s probably just because I’m thick and dumb, but might be the COVID. I am joined by Emily Bazelon of New York Times Magazine and Yale University Law School in New Haven. Hello, Emily.
Emily Bazelon: Hey, David.
David Plotz: And the host of CBS Prime Time with John DICKERSON. It is. I’m guessing John DICKERSON. Are you playing your theme music again?
John Dickerson: Hello, David. Yes, that is listeners. The theme music to CBS News, Primetime Live, 7 p.m. Eastern, 7 p.m. Pacific.
David Plotz: This week on the Gabfest, another day, another Trump investigation. He and his children are charged in a business fraud case by New York Attorney General Tish James. Plus, of course, there is all sorts of stuff blowing up around the Mar a Lago documents case. Then Florida Governor DeSantis, a scheme to fly asylum seekers to Martha’s Vineyard is definitely wicked. But is it good politics? And then Dahlia Lithwick will join us to discuss her new book, Lady Justice, about the women lawyers who fought back against Trump.
David Plotz: Plus, of course, we’ll have cocktail chatter. New York Attorney General Tish James has charged Donald Trump and his three oldest and most icky children, donald jr. Eric and ivana with a $250 million civil fraud in new york state. Drawing on evidence provided originally by Michael Cohen but later compelled from Trump Organization employees and extracted from Trump financial and tax filings, James alleges that Trump consistently or the Trump organization consistently overstated the value of properties to get better loan and insurance terms, and then also understated values to shirk taxes. So, Emily. This is not a criminal case. Is it even important?
Emily Bazelon: Is it important? Well, it’s hugely important for the Trump Organization. I mean, the penalty is that Tish James, the A.G., the attorney general in New York, is asking for are, you know, no dealings in New York for five years, no buying of real estate in New York for five years, and they would be permanently barred the Trumps from running a company in New York. So if you think about, you know, the this is a huge private corporation in New York. And so in that sense, the consequences are major. And I think there’s questions about whether the Trump Organization can survive this kind of legal attack. She’s also trying to get back $250 million if lenders and banks start refusing to do business with the Trump Organization. You could imagine them going bankrupt down the line. That would really, really be at odds with Donald Trump’s self-image.
David Plotz: One early defense seems to be from the Trump lawyers is all the loans were paid off. And so the people who made the loans made out fine. What’s the big deal?
Emily Bazelon: Well, first of all, he defrauded the IRS. That is us. That should matter separately as the taxpayers. You know, as to the financial transactions, if you vastly, vastly inflate the extent of your wealth in order to get better loan terms and then you pay the loans off, is it no harm, no foul or harm?
David Plotz: It’s harm.
Emily Bazelon: The harm.
David Plotz: Exactly. The harm to the company that made the loan, which could have charged you would have charged you a higher rate because you had you come in with honest documents and said they’ve been defrauded. They should have made. They should have Goldman Sachs or whoever Deutsche Bank should have made an extra $50 million, which they didn’t make.
Emily Bazelon: Exactly. The fact that you’re made whole at the end, does it mean that you make as much money as you would have absent the fraud?
John Dickerson: And also, when you testify on a document that something is true, you shouldn’t be allowed to lie even if everybody gets hold at the end.
Emily Bazelon: What I found powerful about this filing was just the repetition and the extent do of example after example of great, great exaggeration. You know, Donald Trump saying his department had triple the number of square feet it actually has. I shouldn’t say Donald Trump personally, because I think that’s going to be a hard thing to prove, actually. But the Trump Organization, the people who signed off on these deals and it’s true about, you know, the golf course, oh, we’re charging really high initiation fees. And that’s why it has all this value. Oh, wait. No, it doesn’t. We’re selling all these units.
John Dickerson: Because they never charged the fees.
Emily Bazelon: Right? Because they never charged the fees. We’re saying that this undeveloped land has, you know, vastly more value than it’s ever been assessed. It’s just over and over and over again, the same pattern. It’s kind of amazing that they got away with it. They were just saying different things to different people on different documents over and over and over again in a way that redound into their own financial benefit.
David Plotz: The whole thing with the apartment I love because they said this 10,000 square foot apartment. First of all, how a 10,000 square foot apartment is so big. But they were saying it was actually 33,000 square feet, which is unfathomably big.
Emily Bazelon: I mean, like the whole apartment building.
David Plotz: It’s an enormous. And then and then say that it was worth 330 million when no apartment in that building had ever sold for more than 16 million. It was just incredible.
John Dickerson: The lawsuit outlines over 11 years 200 of these different instances of false and misleading asset valuations. And what strikes me about it is that this goes to the heart of what has been the long term Donald Trump marketing scheme, which is basically to overvalue and exaggerate everything. In fact, he lists it as one of his key tricks in Art of the Deal. But it’s one thing to exaggerate in marketing. It’s another thing when you’re actually filing these documents, which is where he seems to have gotten into. The big problem here.
David Plotz: This case, I will say, is definitely the least surprising of all the investigations. It is so unsurprising. It is one that you obviously could have been brought against him 11 years ago. It could have been brought against him 20 years ago had somebody investigated it. It is is so clear from even one second of watching Donald Trump do anything that this is what he does. And it’s kind of amazing that he’s gone this long without it being charged. But he probably he’ll probably skate on this to probably figure out a way to skate.
Emily Bazelon: I don’t know. I’m not sure. Why do you think that?
David Plotz: Because he skates on everything well.
Emily Bazelon: But Letitia James, I mean, he’s calling this a political witch hunt. I would say that she has the goods. It looks like if she can prove all of this in one, imagine, she probably can. But she also has a political motivation to keep this going.
John Dickerson: Do you think, Emily, that this is a civil case, any of the criminal entities that could pick it up? I mean, the Manhattan district attorney’s already. Going after the Trump Organization with the help of its former top financial officer. It’s going after the organization, not Trump. But do you think any of the anybody will pick this up from the criminal side?
Emily Bazelon: I mean, it’ll be interesting to see what happens with the Southern District of New York. Those are the federal prosecutors. But the Manhattan DA’s office head, rather infamously a few months ago decided not to pursue criminal charges against Donald Trump, or at least they didn’t officially and the investigation. But the two top prosecutors who were working on it stopped working on it. It seemed like the new district attorney in Manhattan, Alvin Bragg, was just wary and hesitant and uncertain about whether he could prove these criminal charges in a way that his predecessor had not been. And it meant that the two top prosecutors working on this left the office in a kind of loud and angry fashion.
Emily Bazelon: I mean, you look at all these allegations and you think, like, why was Bragg so concerned that they might not be able to prove anything, although, you know, a criminal standard is still higher in terms of proving intent and mindset. So it’s not it does it’s not definitive that there could be criminal charges here. But I think people are going to look at all this evidence and think, huh, why did I get cold feet? Exactly. Apologies for my dog. She doesn’t know when not to make noise.
David Plotz: So there are so many of these investigations going on against Trump. I, I don’t work in a news organization which is catalog number. I know a lot of news organizations have catalog them. There’s the Georgia criminal investigation, DOJ potential criminal investigation regarding January 6th. And of course, there is the Mar a Lago documents case. Yesterday. On Wednesday, a federal appeals court slapped down Judge Cannon, who had been so respectful of Trump’s claims and told her. Told them what? What did the federal appeals court tell?
Emily Bazelon: Tell Cannon that she’d abused her discretion by telling the government that it could only look at these hundred or so classified documents for the purpose of a national security investigation, as opposed to also pursuing what the government says is an intertwined criminal investigation. I read the this is the 11th Circuit Court of Appeals, a three judge panel. I read this opinion this morning and it was like, oh, great, the rule of law. There are these old entrenched standards that everybody’s agreed on. And when you would allow, as Judge Cannon did, a kind of reprieve for a plaintiff like Trump. And no, she didn’t apply the correct standard. And this is bananas. And the government should be able to have access to these documents to to do what it’s doing.
Emily Bazelon: And this executive privilege crate claim that Trump is making doesn’t have any evidence behind it. And, you know, the special master in the case basically said the same thing in open court this week. He said, you’re claiming that you somehow declassified all these documents when you were president, but nobody’s presented any evidence of that in court where there’s actually a penalty for lying and you can’t have your cake and eat it, too.
John Dickerson: And he said, present the evidence now to which the Trump team said, Well, we don’t want to present the evidence now because we might want to use that in a future criminal trial if we’re indicted, if the president is indicted for these documents. So they tried to wriggle out of that, which I don’t think he’s going to let them do, or he’ll just say, okay, well, since you can’t prove that he declassified them and we should stop the record here and say he can’t do that, he can’t have declassified them. He shouldn’t have the documents in the first place anyway. Nevertheless, the Special Master has to engage with the argumentation being made by the defendant. And I think, isn’t it, Emily, the case that basically if they don’t make a defense of their claim that he declassified them, then the special master can just say, okay, well, I have no recourse but to assume that these are classified as they are marked and therefore we’re going to treat them that way.
Emily Bazelon: Yeah, I mean, it’s a little confusing because now that the 11th Circuit has ruled, I mean, the Trump team could appeal to the whole 11th Circuit. They could just kind of keep this ridiculous set of claims going forward. But it seems like either way, pretty soon the government is going to get access back, the investigation will be back on track. And the main tactic I think here was delay. DeLay, and this was a relatively short delay.
David Plotz: John. Let’s close out this topic. But thinking about the political implications, according to The New York Times today, the poll numbers around Trump have not changed despite all these investigations. In what way, if at all, to the Trump legal turmoil stories play in the midterms?
John Dickerson: I don’t know. I mean, what we’ve seen in the polling is that to the extent that people were moving away from Trump in the Republican Party, the the all the lawsuits create a rallying effect. And they bring you know, they bring people around to rally around the former president. He is still the leader of the party. I think what it does possibly and this is particularly on the national security piece, what’s amazing, by the way, if we could just go back to the New York case for a minute, is that there is nothing about Tish James’s assertions that shocks the mind or conscience. In other words, everybody who has watched Donald Trump operate on the public scene knows he does this. He bragged about truthful hyperbole. And so anyway, it’s just but it’s still it’s still extraordinary.
John Dickerson: Anyway, back to the national security implications, I think are stickiest for Republicans. And I think that that candidates who you’ve already seen moving away, some of them anyway, from their previous dalliances with the idea that the election was stolen in places like Pennsylvania and Arizona Republican candidates, that is it obviously does create some problem for them because their electorates are not made up entirely of the hardest core of the Republican Party.
John Dickerson: So to the extent that Donald Trump and his legal troubles are constantly in the news cycle, it could create a condition where a candidate trying to inch back towards the middle if they could, could get themselves in trouble, that would get covered, as opposed to keeping the campaign focused on Joe Biden. You know, inflation, interest rates and all of that, which is what Republicans would seek to run on. So I guess my concluding thought is while it it energizes a part of the Republican base, it also keeps the focus off of Joe Biden, which I think some Republican candidates would prefer that the focus be on Biden.
David Plotz: Slate Plus members, of course, get bonus segments on the Gabfest. You can become a member by going to Slate.com plus Gabfest. Plus, we’re going to talk about the Adnan Syed case. He was released from prison this week, week his murder conviction was vacated. We’re going to talk about that case, which inspired the first season of Serial and launched a million podcasts.
David Plotz: Ron DeSantis and Greg Abbott, the Republican governors of Florida and Texas, respectively, have somewhat successfully redirected the national political conversation this week by bussing migrants to the vice president’s house in Abbott’s case, and by flying Venezuelan asylum seekers to Martha’s Vineyard. The two governors have incensed liberals, which is definitely the number one goal, but also especially DeSantis. This case exposed themselves as a remarkably sadistic people. So is it against the law for Abbott and DeSantis to transport migrants in the way that they have?
John Dickerson: I’ll give an opinion and we can shoot down. I think you can transport them. I don’t think you can lie about the reason you did it or trick them or misrepresent yourself as an official in the doing so. So you can send somebody on a plane, but they have to get on it voluntarily. And you definitely can’t pretend you’re an immigration official when you get them to get on the plane.
Emily Bazelon: And additionally, what DeSantis did is both creepier and legally weirder. The funding was for people traveling from Florida, but these people were in Texas, and they were not necessarily unauthorized immigrants because they had presented themselves for asylum. And that’s a different category.
David Plotz: Is it wrong in principle to relocate the border to D.C. or New York or even Martha’s Vineyard? I mean, right now, the border is where people cross in. Is it stupid to expect that all people sort of get processed and dealt with in the place that they cross? Or does it make sense to for some of them to go to places like D.C. or New York or potentially Martha’s Vineyard to face whatever they’re going to face as asylum seekers, as migrants? Whatever it is.
Emily Bazelon: I mean, I think the idea of spreading the burden of processing immigrants and taking care of them throughout the country makes sense. Right? In the same way, you could argue that what’s broken about our whole asylum system internationally is that it’s always border countries who end up with most of the immigrants. You could argue that we’re repeating that in the United States, in places like Texas and Arizona, but that would require a lot of forethought and consideration and thinking about the people who are involved, as opposed to just making scoring political points.
Emily Bazelon: Right. Because what Abe and DeSantis did was to trick some people, at least in Desantis’s case, and then just dump them on totally unprepared cities that didn’t have warning words set up to take care of them. I mean, there’s just like a level of cruelty in this that I think is the you know, this is why you started with the idea that it’s wicked. There was an inherent wickedness. And so this question of like, could we do border crossings differently that share the burden throughout the country is subsumed by just like the cruelty of this particular set of operations.
David Plotz: It makes you crazy and it does make you feel like this is. This is just. Want and gratuitous cruelty is the refusal of Abbott and DeSantis to notify and coordinate with the places they’re sending people to. It’s just if they were sending people and they said, by the way, we have buses coming in, they’ll arrive at four, six and 8 p.m. where they should come to Union Station here that we have 16 people on the first one, 32 on the second. Then you can then it’s a sort of defensible position. But the the fact that it’s done, it’s treating these migrants as as purely as I mean, what is it is as.
Emily Bazelon: Well ammunition, political.
David Plotz: It’s treating them as not. Yeah, they’re not human. They’re not being treated as humans are being treated as. Yes. As tools in a political fight. And it’s that it’s just not how you treat human beings. Right, John? In Catholic and Catholic doctrine.
John Dickerson: Your question, David, is is an interesting one. But wherever you send people, migrants who come across the border, they have to have facilities there to process their claims, take care of them, find them housing while their claims are being adjudicated and so forth that none of that was happening in Martha’s Vineyard. And that was the point was that the difficulty in Martha’s Vineyard would highlight the political point that DeSantis wanted to make.
John Dickerson: So let’s imagine you were in a court of law and you had to prove that you were kind to the migrants. Would there be any evidence you could marshal in your case? And there wouldn’t be very much that that in other words, those who use these migrants to make their political point cared about them as human beings, as children of God.
John Dickerson: If you’re a if you are a Christian, you believe that we are all children of God and that our maximum obligation, maximum obligation above all the others is to a fellow child of God. So is there any evidence there was any interest in those fellow children of God? And there is none.
John Dickerson: In fact, there’s lots of evidence of the contrary, because as my initial point was made, the more their situation scratches up against, you know, the inability for Martha’s Vineyard to handle them, the press coverage and all that, it brings glory to the political objective as opposed to what’s supposed to be the objective is to bring glory to the human species by treating other humans equitably.
David Plotz: Is it a political error, John, for DeSantis to do this, especially given that his targets ended up being Venezuelans who are legally. In the United States fleeing a socialist dictatorship?
John Dickerson: I don’t know. It depends what we’re talking about. I mean, he’s got a what what makes DeSantis interesting among the many reasons is that he’s running in a governor’s race right now and he’s potentially running for president. And the last two governors who tried to do that had pretty easy races for Governor George W Bush and Chris Christie. DeSantis his race is not super easy. We’re not as easy anyway as it was for those two.
John Dickerson: So the question has to be, does this does this help or hurt him in Florida? Does this help or hurt the Republican Party? Does this help or hurt to Santos in in 2024 if he runs for president? I think that there is a. First of all, if you believe the turf theory of politics that you want the public debate, debate to be on your turf, then this is a good one for Republicans. So you can have the debate about how the migrants were treated.
John Dickerson: But then, you know, there is not a great deal of evidence of the Biden of Joe Biden putting lots of political capital on on fixing the immigration issue. The immigration issue is quite thorny. The issues of of the hold over from the pandemic, plus the uptick in migrants from these countries where you can’t sort of do immediate deportation from Cuba. Venezuela makes it more difficult. They’re just more bodies in in the country. So anyway, having a debate on this issue is good for Republicans because it gets them energized in a in a non-presidential year. But I think the the cruelty aspect and the more the details come out about just tricking people in need, I think both might have long term damage.
John Dickerson: And then secondarily, if you if this is your instinct, if owning the libs is is your go to play, that it will continue being your go to play. And that test, the old theory of FDR, which is can you stay and the highest note of the register for the for a long and sustained period of time and build a political coalition. You may excite your team, but can you bring people to you from outside of the kind of narrow band who really loves owning the libs? And that’s that is yet to be tested.
Emily Bazelon: Yeah. I mean, I have to hope this is narrowcasting for all the reasons you’ve been describing. One thing that makes me wonder whether it might have broader appeal is just the idea that illegal immigration and immigration generally is a subject that helps Republicans more than Democrats. The polls show people trust Republicans more than Democrats on that issue. You know, among Hispanic voters, where I think there are some idea that they would feel the opposite, it’s more complicated. And we know from polling, recent polling this week that, yes, Hispanic voters are still favoring Democrats, but not by the much wider margins, which were true in the Obama era and even when Hillary Clinton ran for the presidency. And so just in terms of what’s top of mind, I, I wonder whether this is kind of subliminally helpful despite its dastardly qualities.
David Plotz: Jeff As listeners, we have a thrilling announcement on Wednesday, November 2nd. We are doing a live show in Atlanta, Georgia, live in Atlanta on November 2nd, right before the election. There’s so much going on in Georgia in in the election. And we thought where where better to do a show to capture the the frisson of the election. Talk about the amazing Warnock Walker Senate race. Let’s talk about the investigations that are going on in Georgia and just to be with you so you can get tickets at Slate.com slash Gabfest live we’re going to be doing on the campus of Georgia Tech as we did last time we were in atlanta. Slate.com slash Gabfest live to get tickets to our live show on Wednesday, November 2nd. Please come. It’s going to be super fun. Welcome to the Gabfest Dahlia Lithwick thank.
Dahlia Lithwick: You for having me.
David Plotz: Back, of course, is Slate’s chief legal correspondent, the host of the Advocate podcast and now the author of Lady Justice, a book out this week about some of the women lawyers who resisted Donald Trump and his allies, including former Acting Attorney General Sally Yates, Stacey Abrams, Becca Heller, Roberta Kaplan and others. Dahlia, congratulations. Why did you decide that? A good way to look at law and justice and the Trump administration was through the lens of these women who resisted him.
Dahlia Lithwick: I felt as though there’s been a lot of conversation about women in politics, you know, women and activism, women and marching women and registering voters. But women in law was kind of a thing that I felt. Like maybe it hasn’t been explored enough. And Emily will confirm that I’ve been obsessed with this question of do women approach law and lawyering differently? Do they judge differently? Do they think differently since the get go?
Dahlia Lithwick: So I you know, I guess I am very interested in the ways in which when politics fails, law might step in. And if that is so. Is there some. Secret sauce that women bring to that equation when law steps in. I don’t know if that’s a very orthogonal answer, but I think that it’s I’m just very, very interested in what happens when women pick up sort of the instruments of law instead of just the instruments of politics, which are important. And in my view, there’s a lot of ways in which there is a special relationship between women in law.
Emily Bazelon: And what is that special relationship in parts of the book? I think you’re making a pretty subtle kind of point where you say, you know, law is in some ways an alternative to violence and chaos. And for women and other marginalized groups, that has advantages since controlling by what you call brute brutality and brute force. It doesn’t work so well for those groups. And yet, on the other hand, I think you’re also very clear eyed about the limitations in the way in which law can be a disappointment and a kind of bad boyfriend. That was a metaphor that came to mind as I was reading. And I sort of wonder, as you are thinking through that, what kinds of special sauce you thought women were bringing to the law and whether in the end it kind of served a larger purpose of social good or frustrated it.
Dahlia Lithwick: First of all, Emily, no one has ever accused me of subtlety ever in my journalistic career. So I will take that to the bank. I mean, I think it’s both. I think that it’s extreme vulnerability and an awareness of extreme vulnerability and also an awareness of real, meaningful, possibly enduring power. And I think that all marginalized groups, particularly in this country, live on that really tricky seam right where the law is, as you say, a terrible boyfriend from the founding.
Dahlia Lithwick: The law has been, you know, the prime mechanism of oppressing women and minorities from the get go. And I think that there’s like a little bit of muscle memory there. You know, I think it’s it’s not that long ago that women could never credit card. It’s not that long ago that women couldn’t accuse their own husband of rape. And so I think that there’s a way in which women live on that tricky thing, where I’m sure you all have heard me say this before. It’s my favorite Homer Simpson quote about beer.
Dahlia Lithwick: But I think it’s also true of law, which is it’s both the cause of and solution to the problem. And I think that if you are in any way an entity that was carved out of the founding documents, carved out of constitutional protections, carved out of statutory protections, and you’ve kind of fought your way into those protections, then you’re always mindful of the fact that it can be taken away and weaponized against you. And maybe the best way to think about that is all the women who are just shocked after Dobbs, who just were like, What? What how does the court just take away a 50 year old? Right? And how does it not just take away that right, but in a matter of weeks, allow for a system in which women will be incarcerated for their miscarriages or fetal endangerment. And so it’s not just that it’s a muscle memory. It’s that it’s happening. And I think women are kind of very mindful of both that vulnerability and that power.
John Dickerson: Dahlia, do you think there’s something that happened in the Trump years to all the other avenues of reasoned debate that collapsed, all the norms that disappeared all the way in which political debate and the political process was such a mess that the law and women in the law who had the relationship you just described, which is it sure ain’t perfect, but at least there are some bedrock principles like the Constitution itself, which can be used and cobbled together in an argument to convince some people like there is some flaw. It’s not all the way down. There is a flaw you hit where reason, debate and argumentation and facts can play and that that in the end was the bulwark against the Trump era.
John Dickerson: You know, we were just talking about the charges in New York State against him. His career of hyperbole runs up against the law. The 61 claims of the election being stolen ran up against facts and reason. So is there something special about the Trump years that the court became the only place and the women you write about had kind of felt in their careers? The court was the only place as well.
Dahlia Lithwick: You know, one of the things I noted kind of early and often in the Trump era was that he was the losing est president in American history. I mean, he lost more law. You know, there’s a massive presumption that the administrative the administration wins. And he lost a lot and he lost big. And you know. Sure there. Some wins. And we you know, I’m mindful of the fact that at the end of the day, the travel ban, you know, was blessed by the Supreme Court. I’m mindful of some of the ways in which he did prevail. But I think, you know, those election cases are a really good example of, you know, the justice system as a kind of a natural experiment in what happens when you can put facts on the record and hope.
Dahlia Lithwick: And, you know, we really saw this at the 11th Circuit this week. I mean, by and large time, you know, occasionally there’s erratic alien canons, but that this is a place where you can can use facts and laws in ways that matter materially. And I do think as we realized the things that we thought were rules were just soft norms. You know what? You can block Merrick Garland. What you know, he can do is violate the Hatch Act with impunity. Wait, what? I’m sorry. You know, time and time again, we realized there was no law for that. And so I think you’re right.
Dahlia Lithwick: As the reliance on politics and norms disintegrates, one of the things that. Kind of rises up in its place is the ability to use the courts and the law to, at minimum, create a historic record. And one of the things that I think Robbie Kaplan says in her chapter about Charlottesville is, at minimum, we created a historic record of what happened in Charlottesville. And that’s it’s a sad, cold comfort that sometimes that’s all you can do. But I think it’s better than just the mayhem of invent your own ending.
David Plotz: One thing that’s become pretty clear in recent months is that not all women lawyers have resisted the predations of Donald Trump. You mentioned Judge Canon Justice Amy Coney Barrett with the key vote for Dobbs. Sidney Powell is one of the architects. If you can say that such incoherence qualifies as architecture of Trump’s election sabotage legal strategy. How do women lawyers like these fit into your kind of model of Lady Justice?
Dahlia Lithwick: You know, I want to start by saying, you know, the essentialism is always painful. You know, there were a lot of extraordinary male lawyers. There are a lot of really, as you note, more and more in recent years, really wildly unhinged female lawyers. And so I can’t make categorical statements.
Dahlia Lithwick: You know, I’ve thought a lot about Amy Coney Barrett. I’m actually kind of interested in what Emily thinks of this, the optics of having for the foreseeable future a six justice supermajority and then the three perpetual dissenters for the first time in history will not just be women, but two of whom are women of color, and all the ways in which that feels like it’s constructing the reality of what polling shows about women generally. And you know what polling suggests about how women are thinking about the court. And so it’s really interesting that one of those people in that six justice supermajority is a woman because it maps exactly David on to your question about, you know, there are a lot of women who are on the other side.
Dahlia Lithwick: And I you know, I said on an interview the other day that I think the theology piece of this comes into play. I think it’s perfectly evident to me that Justice Barrett is in the manner of lots of former Scalia clerks, you know, very, very much in the mold of a Federalist Society, true believer. And I think very, very clear to me. I guess I’ll just say that in her view, you know, the saving of a single fetal life makes all this worthwhile. And so I do think that it very closely relates to the role of religion and the way that women break on some of those questions. And, you know, that isn’t to say by any means that Amy Coney Barrett is just wrong, but I think she has an extra factor weighing into her jurisprudence that I can’t right out of the equation.
Emily Bazelon: Dahlia, tell us a story from your book that you think gets at what women or one of these particular female lawyers brought to the legal battle against Trump that captures what you want us to understand.
Dahlia Lithwick: I built the arc of this to start with Sally Yates, because we love, you know, saviors, right? We love lone heroes. And because for a couple of days after the travel ban, she was the singular voice of saying, I will not put the imprimatur of the Justice Department on a defense of a travel ban that I think is clearly rooted in religious animus.
Dahlia Lithwick: And then I wanted to land on Stacey Abrams, on Nina Perales, on these armies of women who work in massive groups, often women of color, to get us away from the kind of lone savior story that, you know, if we all just like light our advent candle with Bob Mueller on the front or with Adam Schiff on the front, then, you know, democracy is safe. I’m not sure that’s a super helpful narrative. And I actually don’t think it’s a narrative that actually works very well for the way women organize and do justice. I think that that huge groups of women working often in obscurity is a much better narrative about how women work. And so, you know, plot somewhere in the middle of that arc.
Dahlia Lithwick: I love Robert Kaplan and Karen Dunn in Charlottesville in one way, because I think they were doing what we were talking about with John, which is creating a historic record of what happened in Charlottesville in August of 2017. But I also love it because they filed their civil lawsuit against the organizers of the Unite the Right rally in the fall of 2017. And it didn’t go to trial until the fall of 2021. And that was just years of slogging. Discovery. Endless motions, trying to take depositions, having white supremacists threaten the families of the lawyers who brought the case. Phones dropped in toilets like everything that could go wrong did go wrong. Very little public attention. And then this trial that actually ends up with a $26 million civil judgment against the white supremacists.
Dahlia Lithwick: And by the way, the trial itself didn’t get, in my view, enough attention. It was a huge, huge story that I think didn’t quite fit into whatever narrative we wanted to tell. And so for me, I think about Robert Kaplan and Karen Dunn and the Charlottesville story as a really emblematic tale of women who looked around literally a day after Unite the Right said, Why isn’t the Justice Department investigating this, as, you know, racial violence and incitement to violence? They’re not we don’t know anything about this.
Dahlia Lithwick: Okay. I guess we’ll do it anyway. We don’t have plaintiffs. I guess we’ll fly down there and interview a bunch of people. Okay. We don’t have actual great statutory relief we can seek. Way we’ll use the KKK act. That might work. I mean, just the level of absolute leaping in creativity. Anything we can do. Someone’s got to do this. I guess it’s me.
Dahlia Lithwick: For me is so, so, so much the story of every one of these women, you know, in every one of them at some point or other. Becca Heller in the airport, you know, that travel ban, what I call this sort of airport revolution, is openly doubting herself, but she’s like, I guess someone’s got to do this. I’m just like, you know, 30 year old. I don’t know what’s going on. I guess it’s me. And I love that because I really, really think, you know, much more so than the savior, you know, Robert Mueller story. I love the story of people just looking around and saying, I guess if DOJ isn’t doing this, I better teach myself a whole lot about the Klan act and fly down there. So that’s the story that I, I mean, so many of them follow that pattern. But I guess for me, the idea that it took years, nobody noticed they won. Not enough of us noticed. That’s that’s a great story.
Emily Bazelon: C Letitia James this week.
Dahlia Lithwick: Exactly. Same deal.
David Plotz: Dahlia Lithwick the book is Lady Justice. It’s out this week. Dahlia, congratulations and thanks for coming back on the Gabfest.
David Plotz: Let us go to cocktail chatter. When you are recovering from COVID as I am and you’re drinking, which seems like a bad idea, but yet I’m doing it. What will you be chattering about, Emily?
Emily Bazelon: I’ve been watching two TV shows that I’m really enjoying, and they sort of seem like a pair to me. One is somebody somewhere, which is this, I guess, a comedy, although it’s very it has its bittersweet moments starring the comedian Bridget Everett. It’s set in Manhattan, Kansas, the little apple, as she calls it, which is where Everett is from in real life. And it just it has great characters. It’s a very kind of in some ways, like incredibly localized portrayal of a family going through hard times. And I’m also a huge fan of Reservation Dogs, a show that is set in a Native American reservation in rural Oklahoma. The creator of the show, Sterlin Harjo, lives on the Muskogee Reservation, which is part of Tulsa. And again, you just feel this intense sense of the location and the community that’s being portrayed, just infusing all of the comedy and drama.
David Plotz: John, what is your chatter?
John Dickerson: My chatter is about the new Bob Dylan. My chatter was about the Bob Dylan book. But Simon Schuster would like me not to talk about that until it comes out on November 8th. So you’ll have to wait for that chatter until November 8th. Until then? Back to our regular programming.
David Plotz: My chatter is about a super modern song that has a philosophy behind it. I know if you guys got the chance to hear the new Space Force anthem, so we have a new branch of the military Space Force, and all of our military branches have anthems. And so they’ve written a new anthem, Semper, supra. Let’s listen to a bit of it.
David Plotz: So anyway, it’s you know, it’s not great. It is definitely not a great song. It’s it’s very generic. It’s interesting that it it’s a modern song. It sounds old, mate. They made it sound archaic, even though it was just written. But I took it as this wonderful reminder of how great the other anthems are. So if you go back and listen. They are so good. So the the the army has the army keeps rolling along, which is a retrofit of the caissons go rolling along, which is a World War One song. It’s okay. That one’s okay.
David Plotz: Then the Marine Corps song from the Halls of Montezuma. Incredible song. Just a great song. Rousing a rousing song. Anchors Away from the Navy. Great. And the best to them. The wild blue yonder for the Air Force. So good. Like we should be proud. The U.S. military doing itself proud. I didn’t check what the Coast Guard song was. I know they have one, too. I apologize. Coast Guard, the sometimes forgotten branch. But Semper, supra. I don’t think it’s going to kind of live in history the way anchors away does, but. All right, so it goes. Listeners, you send us chatters. It’s really nice for you to do that. You tweet them to us at Athlete Gabfest. You email them to us at Gabfest at Slate.com. Something that you are chattering about, your cocktail parties. And this week’s chatter comes from Danny Edgel.
Speaker 6: Hi, Gabfest This is Danny from Madison, Wisconsin. And my listener chatter is about a piece from the Green Bay Press-Gazette regarding a case that the Supreme Court is going to be hearing in November regarding the Indian Child Welfare Act, which for the past 50 years has stated that adoption agencies must prioritize the tribes of children and of indigenous children when they’re being adopted. And a white family in Texas is challenging the law because they want to adopt an indigenous child. This law could open the doors to a lot of painful wounds being reopened for Indigenous families and indigenous children in this country.
David Plotz: This is really interesting that we’ve been talking about this issue for a long time. I feel like we talked about this on the Gabfest ten years ago. There’s been a whole bunch of cases.
Emily Bazelon: We did, I think, because Indian Child Welfare Act cases have come up repeatedly.
David Plotz: What’s also weird is, of course, such is a huge tribal rights activist. So it’s not it’s not the usual split because in the last big Indian rights case, it was 5 to 4. But Gorsuch with was with the four.
Emily Bazelon: Yes, you’re right. There were two. They went in opposite directions. Gorsuch basically won the first one and then lost the second one. And those were about native sovereignty on native lands to prosecute crimes instead of having the federal government prosecute crimes. But yeah, it’s going to be really interesting to see what happens to the interpretations of the Indian Child Welfare Act since Gorsuch has joined the court.
David Plotz: That is our show for today. The Gabfest is produced by Cheyna Roth our researchers Bridgette Dunlap. Our theme music is by They Might Be Giants. Ben Richmond is senior director for podcast operations. Alicia montgomery is vice president of Audio for Slate. Please follow us on Twitter at that site, Gabfest. Tweet chatter to us there for Emily Bazelon and John DICKERSON at David Plotz. Thanks for listening. We’ll talk to you next week.
David Plotz: Hello, Slate. Plus, how are you? If you are a podcast listener, I’m guessing that you are. You may have heard of a little podcast called Serial. So probably the podcast era, as we know it was, was. Kickstarted by the podcast Serial back in 2014 when they investigated a murder in Baltimore, murder of a girl named Hayman Lee, who was a Baltimore high school student and a man named R Boy, who then became a man named Adnan Syed, had been convicted of that murder. And the Sarah Koenig, the creator of Serial, went back and kind of reinvestigated that crime and raised doubts about whether maybe Sayyid. Was innocent or whether at least the evidence wasn’t very strong.
David Plotz: Many, many years have passed. Lots of things have happened, some of which we can talk about. But this week, the Baltimore prosecutor’s office asked for this conviction of Syed to be vacated, saying they could no longer stand behind the conviction. They for a bunch of reasons. They didn’t exonerate him, but they said that cops had overlooked two other suspects, that they had not turned over key information about one of these other suspects to the defense that they had misused cell phone records. They had relied on perhaps unreliable witness, and therefore they couldn’t stand behind their prosecution. And a judge taking their recommendation has vacated say it’s conviction and he is out of prison. It’s prohibitively unlikely that he’ll be retried for this crime, given that he’s already served 20 some years and given the doubts that the prosecutor’s office has already said about their own material.
David Plotz: Emily, what did you make of this story?
Emily Bazelon: There are a few things that I find really disturbing about this latest chapter of this case. The first is that this exonerating evidence had been in the file all along. It was in the form. And now I’m talking about these alternate suspects and what the government knew about them. It was in the form of handwritten notes, which apparently, according to the latest episode of Serial, about this this about I said getting out according to the latest episodes of Serial. They were kind of hard to read these notes, but they were there.
Emily Bazelon: And it’s just kind of unreal that a case that has gotten so much attention that it took all of this time for a new prosecutor to go back and actually look in the files and find this information that the government had all along. I mean, that’s just really, really distressing. It’s also relatively typical in these cases of what are called Brady violations, where the government has some evidence and they don’t turn it over to the defense originally. And then it just sits there for a really long time.
Emily Bazelon: And, you know, in thinking about this, like I just keep going back to this problem of it’s really hard to solve crimes. And in this case, this case was hard to solve. And I think sometimes once investigators and prosecutors fasten on a particular suspect and a particular theory, they just don’t want to let go of it. And so, yeah, there were these other suspects, but they kind of dismissed it and they never let the defense have them. And then the other thing that’s really disturbing is that one of these alternate suspects committed other sexual assault and is in prison for them, and those crimes were committed after the murder. That’s at issue here. And so, you know, look, we don’t know who did it and I don’t know the identities of these alternate suspects. But if it turns out that that person is the murderer here and those crimes were committed in part because the government had the wrong idea all along, that’s really, really upsetting.
David Plotz: Isn’t it the case, Emily, that actually almost all crimes are really easy to solve and then the hard ones to solve are hard.
Emily Bazelon: I mean, that’s interesting. I don’t know about the almost all I mean, lots and lots of people plead guilty, but that doesn’t necessarily mean that they were easy to solve. Right, because the government can bring to bear all this pressure of big penalties. So I feel a little agnostic about what the numbers are here. I think it is true that there are a class of violent crimes that are very upsetting to the public. And when it’s not when there isn’t an obvious suspect in those crimes, they are especially susceptible to this problem of confirmation bias because there’s attention to them. And police and prosecutors feel kind of, you know, under the gun in terms of the public’s expectations. And I think that is often where we see these terrible errors and just kind of failures in the system.
John Dickerson: Have we talked about the cell phone data yet? Because that was all.
Emily Bazelon: Yes. Let’s talk about that, too. Yes.
John Dickerson: Yes. In this in this case.
Emily Bazelon: Yeah. That was another upsetting part of this. The government relied on this cell phone data to place Adnan Syed at the scene of the crime or near it. And it turns out for what seemed to be quite technical reasons, that that data was not actually relevant or couldn’t show what the government said that it showed. And again, it’s kind of unreal that it took so long to figure this out, especially given the level of attention this case received.
David Plotz: Do you guys think that this is indirectly the result of Serial? Is it the case? It’s certainly not the case that Serial produced this exoneration or this this non exoneration, this vacation of the sentence. But it is true that Serial kickstarted this tremendous interest in the case, which undoubtedly put pressure on prosecutors to pay more attention to it and and take every step correctly.
Emily Bazelon: I don’t think so, frankly, because I think a lot of these cases. Rely on the same kinds of forensic and investigative techniques that have led to the errors. And the biggest problem with Brady violations, this whole idea. Right. The prosecution has a legal obligation to turn over the exonerating evidence it has. Why? Because it’s the government that controls the police force and the investigation, right? I mean, defense lawyers often don’t have their own investigators. They are never the people called to the crime scene. So it’s the government that collects all the evidence. That’s why they have this responsibility.
Emily Bazelon: The problem is that nobody can see what the government has failed to turn over. If they keep it a secret, it’s like, you know, you’re both setting the rules and enforcing them in secret yourself. And so the incentives just don’t align well enough. And the Supreme Court has never really come back and dealt with that. The Brady rules from the 1960s, they haven’t revisited it. Punishments are penalties for prosecutors and the police when they fail on this count, are almost never enforced. And so we just have a system that just doesn’t care enough about innocence.
John Dickerson: Emily, can I ask you a huge macro question, which is, given that this there are so many cases and I wonder if anybody’s ever put a number on them in which there have been wrongful convictions or people who turned out to be innocent later, or basically situations where justice was not served and in fact, was miscarried. Has there become any. Has the system gotten any better? Which isn’t to say it’s gotten down to zero false prosecutions. But is there a is there a way in which the law is is just better?
Emily Bazelon: I mean, yes. On the other hand, after Serial there was an effort to exonerate a non seed based on a claim of ineffective assistance of counsel that his lawyer had been deficient and he won a kind of initial trial court ruling and then that ruling was reversed by the appeals court. What set off this vacated sentence was actually a new sentencing law in Maryland that said that because he’d been sentenced as a 17 year old before he was an adult, he was entitled to reconsideration.
Emily Bazelon: And then, honestly, I think he got really lucky. There was a new prosecutor in the office of Marilyn Mosby, who’s the state’s attorney in Baltimore, who, like, really dug in and went and got these files and looked through them carefully. And Sherm, I don’t know, maybe that was because of Serial or maybe she was just in the right place to do her job in that way. It is an amazing example of how media attention can kind of change the arm, what a case means, and how much attention it’s getting. On the other hand, it’s kind of amazing that Serial was in 2016 and here we are six years later before we have what seems like a full investigation of the facts.
David Plotz: I think. What’s probably. Would shock all of us if we had to spend a lot of time in prosecutor’s offices or in police officers or in criminal courts, is just how routinely they’re just shabby, poorly done, incompetent things, and people just let it go like that. It just must happen all the time.
David Plotz: I suppose this is you’ve written about this a lot, Emily, but I mean, the Syed case was just one example, and I guess her claim the any claim is probably and in fact, they did a second season of Serial where they went to the Cuyahoga County Courthouse in Cleveland. And they just sat in that courthouse for a year and looked at a whole bunch of different cases and almost every one of those cases. So there were some the cops were lying. There was missing evidence. You know, the judge was the judge was negligent when they were dealing with it. The judge clearly wasn’t paying attention. There was a counsel the lawyers just were had totally messed it up. And and it’s it’s just not a very it’s not a system that is 100% effective.
Emily Bazelon: Yeah. Huge freedom is at stake. And yet there is just a lot of indifference and the kind of, you know, I think it’s expensive to do these things really well. It takes a lot of resources. State courts and local police agencies are not the places where we spend the most money. And, you know, one thing that has always disturbed me is that civil cases where there’s only financial transactions that are usually at stake tend to have much more high priced lawyers and a kind of more deferential set of rules than the criminal system in which we’re talking about whether people go to prison or not.
John Dickerson: And that’s what was animating my question, which is that it would be. Useful to know and perhaps the work has been done. What the failure rate is. I mean, I guess that’s maybe impossible, but I mean, you know, and then say, would you let any other institution or private company or whatever have this kind of failure rate where in some cases life is on the line? I mean, actual life, other it’s just your life is totally ruined forever. I mean, it’s not much of a difference.
Emily Bazelon: Well, one measure of failure rate, it sort of depends what you want to look at. Some work suggest that something like 3 to 5% of people who are in prison are innocent. That could be a vast undercount because they really only looked at serious crimes. That might sound like a low error rate. However, given that we have more than 2 million people incarcerated, it’s a lot of actual thousands of people. And that doesn’t count all the people who are in jail or prison based on unconstitutional or illegal moves. You can be not innocent and yet still have been punished based on the government breaking the rules. And so that’s a larger group of people. And the question is just how much we care about all of this. And the answer so far has been episodically, we care a lot. Adnan Dede has gotten a lot of attention and that’s a good thing. But do we see real systemic change as a result of these cases? I feel skeptical about that.
David Plotz: All right. By Slate Plus.