Dahlia Lithwick: This Ad free podcast is part of your Slate Plus membership.
Speaker 2: That day it was just hours of hand-to-hand combat, hours of dealing with things that were way beyond anything any law enforcement officer has ever trained for.
Speaker 3: Look at all this direct evidence they have from direct witnesses. It’s compelling.
Speaker 4: I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit. What you’re proposing is nothing less than the United States Justice Department meddling in the outcome of a presidential election.
Speaker 5: Quote, Maybe our supporters have the right idea. Mike Pence, quote, deserves it.
Speaker 3: There are two different audiences for the Committee Square and maybe audience number one is sitting at the press corps.
Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the law, the Court The Rule of law and the U.S. Supreme Court. I’m Dahlia Lithwick I cover the justice beat for Slate, and we’re about a third of the way through the month of June. That’s typically the Supreme Court reporter’s Super Bowl month, but we’re experiencing just tremendous amounts of hurry up and wait. The court still has a massive backlog in decisions, almost 30 cases that we’re waiting on, many of which will be controversial and transformational and earth shattering. And yet this week, it managed to squeeze out just a handful of decisions. It added a decision day on Wednesday in order to announce one single opinion. It’s enough to make a Supreme Court reporter want to spend the whole month in prayer at the 50 yard line.
Dahlia Lithwick: NPR’s Nina TOTENBERG this week also reported on a court in complete internal disarray with mistrust and anger and recriminations and ill will and inability to meet deadlines happening inside the building. Also on Wednesday, a man was arrested with a firearm trying to harm Justice Brett Kavanaugh and his family. None of this is normal. None of this is okay.
Dahlia Lithwick: Later on in the show, Slate Plus, members are going to get to listen in to Mark Joseph Stern, break down some of the news out of the Supreme Court, including a stunning decision this week allowing border agents almost limitless protection from lawsuits for their unconstitutionally bad behavior. Thank you so much to our Slate Plus members for supporting the work that we do here on the show and in the magazine.
Dahlia Lithwick: But the big legal news this week comes not from the Supreme Court, but from Congress, where the first January six hearing opened on Thursday evening. And primetime hearings are going to follow through the summer. And the committee will file a final report in September. Every major news network, with the exception of Fox News, carried these live hearings, as I said, in primetime Fox shows, skipped having commercials, presumably, so they, our viewers, would not amble over to peek at the action on other channels. The two hour session on Thursday night was very tightly scripted. It was very tightly choreographed, led by committee leaders Bennie Thompson and Liz Cheney. And the message that they conveyed was pretty simple.
Speaker 5: Those who invaded our capital and battled law enforcement for hours were motivated by what President Trump had told them that the election was stolen and that he was the rightful president. President Trump summoned the mob, assembled the mob, and lit the flame of this attack.
Dahlia Lithwick: Joining me to pass the legal as opposed to some of the political issues surrounding these hearings, is one of my very favorite January six obsessives. NYU Professor Ryan Goodman Goodman is the Ann and Joel Aaron Krantz, professor of law at New York University School of Law. He served as special counsel to the general counsel of the Defense Department from 2015 to 2016. He’s a distinguished fellow at the National Institute of Military Justice and has published articles and co-authored several books making substantial contributions to the Law of Armed Conflict, Human Rights Law, and U.S. national security law.
Dahlia Lithwick: Ryan is a member of the Council on Foreign Relations. He is also founding co-editor in chief of the National Security Online Forum. Just security. Just Security has produced an online clearinghouse for covering the January six Select Committee. And in partnership with Protect Democracy, they have built a primer on how to understand the January six hearings to say that the collection of materials they have amassed is encyclopedic is to deserve the idea of encyclopedias. Ryan Live tweeted Thursday’s hearings. And sometimes he lets me come in and guess teach his law student. So Ryan, welcome to the podcast. It is really, really a pleasure to have you.
Speaker 3: Thank you so much for having me on. It’s just really an honor to be here with you.
Dahlia Lithwick: And I think I want to start off so many questions, but I want to start by just humbly saying, I think you have probably forgotten more details about the work of the select committee than I have ever known. And I wonder if you feel as though the distillate of the thousands of interviews and videos and witness statements that the committee has sifted through is the correct story that was told last night, which is essentially I think this is the narrative President Trump knew he lost the election. He persisted in claiming it had been stolen. He summoned a mob to D.C. and wanted them to help set aside the election results physically. And then he failed to quell the violence when he could. Is that a fair characterization of the case that was presented at least on Thursday night?
Speaker 3: Yes, I think so, with one friendly amendment, and it is just as you described it, it’s like hard for me. I’m watching these hearings with two minds, like one, all the details that I’ve accumulated over these months. And then also thinking about the spectrum of the audience that has hardly been watching or paying attention or is tuning in a new and the like.
Speaker 3: The friendly amendment is I think there is an additional scheme underway that the committee is also highlighting and it sometimes gets conflated with their messaging, and that is other devices that the president and his closest associates were using through quote unquote, legal channels. But that is like utilizing and weaponizing the Department of Justice, pressuring the Georgia officials, pushing pants on, trying to not certify the election. And I think there’s a whole lot of legal liability that they have in that space that is absent summoning the mob, inciting the mob, not stopping the mob.
Dahlia Lithwick: So in a sense, what you’re saying is one of the things that needed to be surfaced and that was surfaced last night wasn’t simply the events of January six, but it was different ways of weaponizing forces inside the White House, forces inside law enforcement forces inside the Justice Department. And I know we’re going to talk about money and other forces, but then all of that needs to be part of the story in order for the public to understand that this was not a spontaneous thing.
Speaker 3: That’s right. And Liz Cheney referred to it as, I think, a seven prong scheme. And that’s a lot that’s a lot of balls in the air for people to keep their eyes on. But that’s exactly right, that there are these separate ways in which Trump is, like you said, marshalling anti-democratic forces in different parts of the government and try to utilize it at every level that each of these strategies could have worked.
Dahlia Lithwick: So I want to lay out one legal proposition, because I think this is where it gets confusing. And I know on the shows where we talked about both impeachments, this comes up and that is just what powers this select committee has as a legal matter. And I think folks sometimes mistakenly think it has prosecutorial powers. It does not. It has no enforcement powers. This is, in a sense, a committee that is purely in existence to do fact finding. And I guess to issue warnings and it works adjacent to but wholly separate from Merrick Garland’s Justice Department and state prosecutorial interventions like we’re seeing in Georgia. So this is as a legal proposition, not in fact, a really legal body. Right. It’s doing fact finding. It is not meting out justice. Is that fair?
Speaker 3: I think it’s fair. It’s not a mechanism directly for accountability. It might feed into these other mechanisms for accountability, but that’s very indirect. And the only other piece that I would add is in some sense the committee is like one of its major mandate is legislation. So at the end of the fact finding, they’re supposed to propose recommendations for how to secure democracy against these kinds of threats. And then the second is issued a report. And then that is the kind of the fact finding report that many of us can use. The Justice Department can use it, and the American public can use it to see what they think is right or wrong in the court of public opinion.
Dahlia Lithwick: So this leads to what was the burning legal question Thursday night that everybody walked away and looked at you and said, tweet to me, Ryan Goodman, whether there is now sufficient evidence for criminal liability. Did we learn anything last night that makes it easier if the Justice Department sees fit to do so, to go after John Eastman, Donald Trump, Mark Meadows, Jeffrey Clarke? I mean, did anything tip into, oh, now we really have a case and I know certainly legal Twitter was aflame saying this is it, it’s over now. We’ve got enough. In your view, did something change in terms of this very narrow question of criminal liability?
Speaker 3: So I think it did change, you know, almost my bottom line or I’d say from the hearing is it places enormous pressure on the Justice Department to open a full blown criminal investigation if they have not done so already. We have we can talk about this later, but we have indications they’ve opened a criminal investigation on some subset of these issues. And in a sense, I think that this is also just a curtain raiser. That’s a preview. They’re just giving us taste of what’s going to come in the next five hearings over the course of the month. So it’s just a sprinkling.
Speaker 3: But I do think what was like that other kind of bottom line, astonishing thing about the hearing is look at all this direct evidence they have from direct witnesses. It’s compelling. So we might have known about this before. So if their listeners were thinking like, why do we even need these processes, these hearings? We know this. We know what he did. Yes. But to prove it in a court of law, you also need. Credible witnesses, are they willing to speak? How specific are they? Who were they? What was the level of knowledge?
Speaker 3: Oh, my goodness. The committee is sitting on a treasure trove of very senior and mid-level, which is also very important. Trump officials and others around him who have direct evidence that I do think ratchets up the exposure to criminal liability for many of these people. In some ways, foremost, I would say Mark Meadows and second, Donald Trump. There’s just even more direct evidence against Mark Meadows in all of this, especially because he keeps a written track record of a lot of his communication.
Dahlia Lithwick: Can you just walk us through the sorting mechanism you have for your sort of gold team, blue team, purple team, red team and green team in terms of helping us think really logically and categorically about the different things that the select committee is going to look at.
Speaker 3: So the. Notable piece of the color coded parts of the investigation is that we draw this from what apparently are the actual color coding of the teams inside the committee itself. So in that sense, I can’t even take credit conceptually for how we’ve divided it up. This is how they divided up their investigation and they color coded their teams.
Speaker 3: The first one is the gold team. And gold, of course, is for Donald J. Trump and the central effort that he used to pressure federal, state and local officials to overturn the election. So this includes weaponizing, the Justice Department threatening and at one point even. Replacing that seemed like temporarily the acting attorney general with his co coo conspirator, Jeffrey Clark, and pressuring the Georgia officials. And I’ll just refer to it as the sleeper issue, which is the alternative slate of electors. I think that ends up maybe being one of the biggest issues that’ll come out of the Justice Department. So we can talk about that at some point. But I think that’s the sleeper.
Speaker 3: So everybody’s focused on like the insurrection itself and the like. But this isn’t part of the investigation, both at the select committee and at the Justice Department, I think has the strongest likelihood at this point of sweeping in a bunch of these characters. Let’s say a blue team is on the top of my list. I’m not sure it’s going to be on the top of the list in terms of what the hearings are going to cover.
Speaker 3: I would say, comma, unfortunately, in my opinion, Blue Team is the historic intelligence and law enforcement failure leading up to January six. So why were they either unaware or not communicating the warnings that they were aware of? And I know that some listeners, just because I get feedback on my Twitter feed, might object and think this is not an intelligence failure. It was highly deliberate language to call that intelligence failure. It’s in fact, my greatest concern that comes out of January six. One of them is how much is our law enforcement and intelligence agencies susceptible to political pressure and white supremacist bias in what they do? And I’m sad to say, I’m not sure we’re going to get that in the hearings. I think we might get that in.
Speaker 3: The final report from the committee. Purple team is the kind of domestic militant extremists. So that’s the proud boys, the Oath Keepers, both of which have now been subject to a seditious conspiracy charges by the Department of Justice. Big question is, will the committee or the Department of Justice be able to connect the proud boys and Oath Keepers to somebody like Roger Stone and then through Roger Stone to Donald Trump? That’s the kind of big burning question.
Speaker 3: But a non burning question, it’s more a matter of proof is the degree to which Donald J. Trump, either as a matter of morality, he inspired these groups to come to the Capitol with a pre-planned attack on the building. And there’s lots of evidence, but I think there are different ways you can document that and present that through data as well. In terms of how his tweet on December 19th, it’ll be wild. Mobilize these people and the alt right chat rooms and things like that.
Speaker 3: And then there’s also the other issue here, which is a conspiracy in the open. So we have a federal court opinion saying that the evidence does provide a prima facie case of a conspiracy between Donald Trump and these militia groups out in the open. There it is on the Ellipse. No, first he invites them, they come and then the Ellipse. He knows that they’re there as well. They’ve announced that they’re going to be there. He says, first, your country has been taken from you. Your rightful president has been overthrown. Who is me now? Go fight at the Capitol.
Speaker 3: You know, that’s the context that I think we all have to understand. And Judge Mehta has a great opinion about this, that that’s a conspiracy. We usually think of conspiracies behind closed doors, but that’s the purple team. And I think that will come out in the hearings. A red team, the rally planners, the Stop the Steal movement is that the Alexander characters? And I think a lot of people turn away from this because it looks so bizarre and it’s part of QAnon and the like. But I think it’s really important that we understand how they mobilized people, and it’s important that we try to understand whether or not there was foreknowledge on the part of the Trump team that their people would be going inside their Capitol to, quote, unquote, occupy the Capitol.
Speaker 3: And one note I would just say, and that is absent violence, if they had foreknowledge and planning and were involved in the idea that these people would go in and occupy the Capitol, it’s game over. And there’s a federal criminal statute that’s that I would say probably the mode or category of federal offense that people are being charged with for just that and. I would speculate that is exactly what happened, but we don’t have the evidence for it. I think that they thought to themselves. In their worldview, their cosmology, let’s say. Oh, it’s like the quote unquote Kavanaugh mob. But it’s going to be our people. We’re going to go in there and be face to face with these members of Congress and tell them what we think and stop them from what they’re doing.
Speaker 3: Okay. Federal crime in this instance, not in the green team is the last one green for the money. So following the money, Attorney General Garland said, quote, unquote, we follow the physical evidence. We follow the digital evidence, we follow the money, end quote, for this investigation. But one piece of this that’s quite remarkable, it sounds like, has come out of the investigation. And there’s a hint of this from Liz Cheney on Thursday, the ways in which they shifted and raised money based on fraud, lying to their people about the stolen election and where the money would go in the hundreds of millions, not tens of millions, hundreds, millions. It seems like in some ways the committee has come up on that evidence. I don’t think they thought they were going to see that beforehand. That’s a significant criminal exposure that I think that they will surface one way or another, either in the hearings because Liz Cheney hinted at it or in the final report.
Dahlia Lithwick: I almost feel, Ryan, like I could say goodbye to you and we could hang up. Because already what you’ve done is just lay out a map of something that is so much more capacious and sprawling than what a lot of people who were watching on Thursday night really can process.
Dahlia Lithwick: And it makes me a little bit sad for the reasons you described, that some of the law enforcement failures may not bubble to the surface over the course of the June hearings. Because I agree with you. And, you know, my bias is that I watched this happen in Charlottesville and and watched it happen again in Ottawa this past winter, where law enforcement failures, I think, are such a crucial part of the story that I guess are politicized quickly and are misunderstood quickly.
Dahlia Lithwick: But I do think that it’s really important for those of us who are watching this for the first time or maybe the second time, if we watched prior hearings to understand that there’s an immense amount of investigation going on into systems and operations and operatives that we may not get to meet in these hearings, but that really each of them signals a failure, a massive Democratic failure in whatever of your buckets of there are.
Dahlia Lithwick: I guess my other just framing question for you is, in watching on Thursday night, it seemed to me that the facts that materially changed the kind of crime story that people really grabbed hold of was former Attorney General Bill Barr just straight up saying the word bullshit, I think twice about the stolen election claims.
Speaker 4: I had three discussions with the president that I can recall. One was on November 23rd. One was on December 1st and one was on December 14th. And I’ve been through sort of the give and take of those discussions. And in that context, I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit. And, you know, I didn’t want to be a part of it.
Dahlia Lithwick: And because it was fun to watch in a sort of King Lear sense, Ivanka Trump’s testimony that she was certainly persuaded by Barr’s conclusion.
Speaker 2: I respect Attorney General Barr.
Dahlia Lithwick: And so I. Accepted what he was saying. And then I think there was this other thing that the press really seized upon, which is that Mike Pence was essentially just ditched there. He was issuing orders for, you know, military presence at the Capitol that I guess were not being followed. Mark Meadows was fussing about the narrative.
Speaker 5: Here is General Mills description of his conversation with President Trump’s chief of staff, Mark Meadows, on January 6th.
Speaker 4: He said, We have we have to kill the narrative that the vice president is making all the decisions. We need to establish the narrative that, you know, that the president is still in charge and that things are steady or stable or something. I immediately interpreted that as politics, politics, politics, red flags. For me personally, no action. But I remember distinctly.
Dahlia Lithwick: A lot of this was known, as you said, a lot of it matters because we’re seeing it come out of the mouths of the people in question. But did the press essentially in grabbing those pieces of Thursday’s hearing, were they grabbing the right things in terms of that which materially changed the legal story?
Speaker 3: Not exactly. It’s a little bit of a misfit from what they were focused on. And I myself was also focused on that compelling audio from General Milley, who is not a former official. He’s our current chair of the Joint Chiefs of Staff, as he was during the time, just in terms like, oh, my God, that’s also happening inside for our country. The vice president, who’s not able to issue orders, was issuing orders to the military, and they were taking it as such to secure the Capitol.
Speaker 3: So, yeah, in terms of the crime, and I did focus on a few items that are direct witnesses providing very specific evidence that adds to the equation. So I’ll give a few examples. One. Mark Meadows and Donald Trump being made fully aware they had lost the election, including from Attorney General Barr. And I think Attorney General Barr emerges as like prosecution witness number one. What a threat he is to the defense team. Oh, my gosh. But then a bunch of other of Trump’s closest associates, people who are still loyal to him, saying he was made fully aware that he had lost. There’s no turning back. There was no chance of the numbers coming on in his favor. That’s a huge element for one way of running the prosecution.
Speaker 3: BARR McQuaid has written this fantastic, very deep dive model prosecution memo. She’s a former U.S. attorney for Michigan. It’s based on that idea. If you can prove that he was made fully aware by all of these people that he’d lost the election. That is the missing element that you would need. And then you’ve got it for corruptly obstructing the congressional proceedings. Second one, we have an admission from Meadows. Measure is not just made fully aware, but he says in response. So there’s no there there. That’s the direct quote. Okay, great. So we’ve got that on Meadows. That’s why I think Meadows is there’s a lot of other exposure. Meadows apparently also told Mitch McConnell at the time that Trump will come around. He knows he’s lost, which means Meadows knows he lost. And then Meadows is the point person for all of this. Lots of criminal exposure. You could imagine if the Justice Department truly followed this as a robust investigation, they would nail Meadows and flip him if they wanted to. So it really does add to the equation.
Speaker 3: Last one.
Speaker 5: And aware of the rioters chance to hang Mike Pence, the president responded with this sentiment, quote, Maybe our supporters have the right idea. Mike Pence, quote, deserves it.
Speaker 3: That goes beyond what was reported by The New York Times and others. And Maggie Haberman has done fantastic reporting in this space, says on her Twitter feed. This goes beyond what I had in my reporting, because in her reporting, we weren’t sure what the tone was. Was it sarcasm? Was it joking? That is very significant because it shows that Trump is even if you thought he was not trying to incite it at the time, he’s instrumentalized it. He’s using the crowd to riot, to put all this pressure on Pence and he wants the violence or he certainly is a derelict in his duties to try to stop it and because he shares their goal. So a whole lot of ways that I think this is just, again, a sprinkling of what probably is to come. But I think that did add to the climate.
Dahlia Lithwick: Ryan, can I tell you what I’m worried about? And you soothe and mollify me now.
Speaker 3: I am an eternal optimist.
Dahlia Lithwick: And I am not. I am a recovering optimist. I am a broken optimist. But I was very struck and I think I kept slacking this Thursday night to my colleagues at the magazine by the Donald Trump befuddled man baby piece of this, by which I mean one of the defenses all along has been, you know, he just doesn’t know what’s going on. He can’t form the requisite criminal intent because he is basically just delusional all the time. And we’ve seen this trotted out for years now.
Dahlia Lithwick: But I’m really struck, Ryan, by the extent to which what was shaping up is the narrative. And we saw this a little bit, by the way, in the Peter Baker, Susan Glasser, expert on Jared Kushner in The New York Times this week. Was this kind of zeitgeisty of all the grown ups in the room, were the grown up adjacent, or the aspiring grownups in the room were ghosting. They were just walking away. And that’s really Bill Barr, right? He’s you’re a one defense witness or prosecution witness. And if all the grown ups are walking away, leaving the man baby surrounded by the my pillow guy and Sidney Powell and Rudy Giuliani, there’s a sense in which even the fact that folks were telling him or telling Mark Meadows, there’s no there, there almost goes away. And I just am very struck in watching.
Dahlia Lithwick: I keep trying to think, Ryan, about this taxonomy of cowardice. The people who are like no ice stuck it out until it was clear his mind couldn’t be changed. And then I just left that in a weird way. They bolster the claim that the man baby in the room was surrounded by nutjobs, and so he’s not culpable for anything. Am I just way over reading the extent to which a little more grownups around him makes him at least a plausible former of legal ideas, as opposed to somebody who was just getting jolly along by a bunch of people who were as out of touch as he was.
Speaker 3: Yeah, it’s a great question in terms of a difficult nut to crack. So it was like I chose my words carefully. He was made aware that he had lost but is aware he lost like his mindset is so divorced from reality today. Donald J. Trump, you could say, know he thinks he won. He still thinks he won. It was stolen from him. And therefore he likes some of the mens rea. Like if you won and it was stolen from you, then you do tell the Georgia State official, find the votes because they’re there for me. So that’s it’s tough in that way.
Speaker 3: And then he’s surrounded increasingly over time with the QAnon crowd, Sidney Powell, Mike Flynn and others. That said, I do think he has throughout the entire period Mark Meadows as his point person and his direct agent and Giuliani. And I don’t think Giuliani is I do actually put people in different categories. I think some of these people are like, true. Q And until I believe it, I don’t think Giuliani’s that I think he’s instrumental. He knows how to utilize that, but that’s not what he’s doing.
Speaker 3: And Mark Meadows, similarly so those are two people. They are his main agents, his personal lawyer and his chief of staff. They have extraordinary criminal liability. Giuliani, times ten on the fake alternative slate of electors. He is the puppet master for that across seven states. So they are the agents of the President Trump. Now, what did he know and how much was he involved in those communications with them? Because they could flip. And then there are some other people that stay through it, like the White House counsel and the senior acting’s at the Department of Justice who are adults in the room telling him time and again, this is false, this is illegal, and if you do X, we will resign. And the only reason Trump backs down from doing X is because of the threat of their en masse resignations. I think that builds the case against him pretty significantly, and he bears responsibility legally, in other words, because of it.
Dahlia Lithwick: Wow. I feel better. Thank you. Thank you, Ryan Goodman. I think it’s all going to work out okay.
Dahlia Lithwick: Now, I want to also before we turn to, I really do want to talk about the sort of secret slates of electors and all of what you’re describing as the stuff it’s really essential that folks miss. But one question before we get there, and that is the great big gaping Mike Pence shaped hole in this investigation. And let’s just play the. Audio of Liz Cheney describing what Mike Pence is doing. As you said, he’s essentially acting as president, giving orders as though he is the president and yet the president is the president.
Speaker 5: Not only did President Trump refuse to tell the mob to leave the Capitol, he placed no call to any element of the United States government to instruct that the Capitol be defended. He did not call his secretary of defense on January 6th. He did not talk to his attorney general. He did not talk to the Department of Homeland Security. President Trump gave no order to deploy the National Guard that day, and he made no effort to work with the Department of Justice to coordinate and to support and deploy law enforcement assets. But Vice President Pence did each of those things.
Dahlia Lithwick: I guess my question for you is how complicated is it for the select committee to be working around Mike Pence, who is at the center of this story and yet has nothing to do with what the select committee is actually able to show us. And I know why. I know he has presidential aspirations of his own. And he’s I mean, he wants to be not alienating Trump supporters and simultaneously to have clean hands on the day of January six. But it does present a problem for the committee that Pence is the hero of the story and utterly absent.
Speaker 3: Yeah, I think that’s right. I think it has to be the case that the committee would be on much greater solid ground if Mike Pence were coming forward as a witness or if he had, in fact, testified behind closed doors. And then they could play some of the video of that testimony. And he’s absent. And I also agree with your political diagnosis of what his machinations are. He’s running for president 2024, and he doesn’t want to alienate the Trump part of the party. And there’s maybe one wildcard, I would suggest, maybe, which is, depending on how the hearings go, maybe he changes his mind, but very low probability.
Speaker 3: But the counterbalance is that we will have testimony, it sounds like, from two at least of his closest aides. So Greg Jacobs, his chief counsel, and Marc Short is chief of staff. And that’s going to be very damaging. And we already saw a clip from Marc Short. And the fact that the committee has confidence in trying to bring these people forward, that sounds like they know what they’re going to get.
Speaker 3: Oh, and I should also mention there was the other one I was thinking of as well. His national security advisor, General Kellogg, has seemed to have given very strong evidence based on some of the documents that have come out of the committee. And I assume that they also have a video or audio of his transcribed interview. And then in addition to that, we do also have a lot of documentation with respect to what was happening with Mike Pence and the efforts to pressure him. And I suppose maybe there’s some side to like. It would create a spectacle where he there it would turn it into this other dimension in the political sphere that would be distracting from the case because it’s not personal. And I also very much worry about him. If Pence testified, I’d be sitting here thinking, is he really going to be fully candid? Is he going to speak about how Trump was doing his best because he’s playing a political game is a huge part of this, so he’s not there. But I do think that we’ll have strong testimony from others.
Dahlia Lithwick: So now I want to give you tons of space to talk about what you described, I think very aptly as a this sort of sleeper issue that is shot through everywhere but is really hard to wrestle to the ground. And that is the election subversion. That is John Eastman. That is I’m going to just say partly Ginni Thomas. That is this independent state legislature doctrine. And I want you to talk about it, because even though we talk about it a lot on the show, it’s the kind of thing that is so freaking hard to get your head around because it’s all happening kind of, as you said, you know, states are putting things and we’ve got, you know, fake electors who are signing documents. There’s an immense amount of pressure.
Dahlia Lithwick: And part of the reason I want you to talk about it is to my mind, and again, this is the world that I live in. This is an ongoing threat to the 2024 election that if we don’t help folks understand that all of the stuff that was happening in secret phone calls and, you know, meetings and the stuff that is really hard to bring to life in a televised hearing is the stuff that is going to happen with the force of law in 2024, unless we can get our heads around it, talk about these sleeper issues and why it is. In fact, I think for those of us who think about the rule of law, the most chilling part, much more chilling in some sense than the mob itself.
Speaker 3: I completely agree with everything you said and especially the framing of this as an ongoing and future threat through to the 2024 election, primarily because it shows, as you also described it. It’s a vast conspiracy. Of course, this one was at least in seven states. The politicos in all of their states on the Republican side, the very people who ended up being the electors, that the people who would provide the votes for Trump if he did, went to the Electoral College, and they were all involved and implicated in what looks like a very likely criminal scheme, just as one example. And they were going to defy the voters in their states.
Speaker 3: And in some sense, the implicit understanding of all of this is the way in which they were doing is by just disenfranchising large sections of their state, primarily heavily populated by black Americans in urban areas. That was it like on that basis, they say the election that was held is invalid and they would override the will of the people in their states because they’re trying to discount certain votes and break their oaths to do it. That’s the future threat as well.
Speaker 3: And as you also laid out that. Occurred in 2020 in a kind of bizarro, ad hoc way, organizing, etc.. Behind the scenes, Republican legislatures in some of these states are now laying the groundwork to legalize these ways of trying to snap back the vote from the public and create these alternative slate of electors despite what Americans who they choose to be their president.
Speaker 3: So it’s just so chilling. It’s another reason that I do think it’s good to surface this part of the seven pronged effort to overturn the election. I just wanted to highlight it. I guess the two things I would say for folks to think about in terms of why it is a sleeper are specific to the alternate slate of electors. So this is the one in which in seven different states, even though Trump lost the Trump campaign with Giuliani as the puppetmaster, got these people to create these fake documents that said they are the duly authorized electors and send them to the National Archives. So claiming to say that the vote should go for Trump in their state.
Speaker 3: Two things that were just spotlighted. One, we basically know the Justice Department is criminally investigating the scheme. That’s a big deal. That means they have the predicate to open those investigations. And CNN reported a direct quote from the subpoenas that have been sent to the Georgia fake electors. It asks them to cooperate and tell them about all the communications with any agents of Donald J. Trump, not Donald Trump campaign. Donald Trump. So there’s like starting to draw a direct line to Trump and Giuliani is fingerprints all over this. So that’s why in the Justice Department, that’s serious stuff.
Speaker 3: So when we talk about is Garland investigating, I think he’s that’s just a piece of the puzzle. There’s six other pieces we need to be investigating, but that’s a big deal. And then the second is just to flag something for people that even close observers have missed. Mary McCord, who’s a professor at Georgetown and a former very senior official at the Justice Department, has filed from her center at Georgetown a civil complaint in Wisconsin against the fake electors there. And the civil complaint includes, as its predicate, three criminal offenses, three federal criminal offenses. That’s important. I mean, she’s so well-regarded, the fact that she thinks that those federal crimes attach to the scheme. It’s another part of a big deal as a sign of where these things might be going and the security. We’re going to be producing pieces around that piece, in part because it really hasn’t been surfaced. It’s such an unusual set of circumstances, basically unprecedented and hard to grapple with, like so where does that meet with the federal law?
Dahlia Lithwick: Thank you. That’s incredibly clear.
Dahlia Lithwick: And now I want to just turn to the gross stuff for one minute, which is the footage we saw of Oath Keepers and Proud Boys and Assault. And just absolutely to my mind, harrowing testimony about this was not a bunch of tourists. This was a mob that was, I think, hellbent on doing violence that saw law enforcement as a problem.
Dahlia Lithwick: And I think my initial question and this is just a bit of a feelings question is how was it for you watching that new footage and watching witness testimony? As we’ve said throughout this conversation, this is the soup that you’ve been swimming in for a year and a half. Was it as viscerally painful and jarring for you as it was for those of us who were watching this who just got snap back to that day, but seeing new footage and body cam footage in ways that were really I think I just want to say retraumatizing.
Speaker 3: I mean, I’ll be very honest in a way, not because I’ve been swimming in this for so long, in a way not because one of the things that we did with just security very early on is sift through all of these grotesque scenes on Parler and the like and found some very incriminating videos. And there’s actually a term of social science where it’s psychic numbing. So apparently the investigators who went in to Hiroshima after the events were able to do what they were able to do. And the doctors, because of psychic numbing that at a certain point you get numb to it in a way. And I think that’s another form of trauma, obviously.
Speaker 3: But that said, for me personally, the US Capitol Police officer, Caroline Edwards testimony kind of broke through in a different way. I mean, to be honest as well, tear up to just think about it. And that’s just to see the person and what she went through. And she takes you right back to what she’s experiencing through her words and visually seeing her pain. That’s just so frightening. And we were taken straight into it, basically, as she’s describing it to us, a war zone, carnage from an assault of these like violent white supremacists, many of whom had planned it.
Speaker 2: I was slipping in people’s blood. You know, I was. Catching people as they fell. You know, I was. It was. Carnage. It was chaos. I can’t. I can’t even describe what I saw.
Speaker 2: Never in my wildest dreams did I think that as a police officer, as a law enforcement officer, I would find myself in the middle of a battle. You know, I’m trained to detain, you know, a couple of subjects and and handle, you know, handle a crowd. But I’m not combat trained. And that day it was just hours of hand-to-hand combat, hours of dealing with things that were way beyond any any a law enforcement officer has ever trained for.
Speaker 3: So, yeah, that shook me in a way that I think there are moments in all hearings in some sense, where witnesses will say things that will stick with us and stick in the history books. And I thought that was one of those moments.
Dahlia Lithwick: And what did you make of. I almost don’t want to cite this as the HANNITY defense, but I guess the more robust. The claims are that the Oath Keepers and the Proud Boys planned this, that they this was not a spontaneous uprising, that they had weeks of coordinated efforts. We saw conversations between them. The idea that this just fell into place day of I think has been soundly debunked. And yet the answer seems to be, at least again, the HANNITY defense is that means that Donald Trump is off the hook because these guys were coordinating with each other and he did nothing. Is there any plausibility to the idea that the more we learn about what was happening on the ground and the coordination of the other groups, the more it looks like Donald Trump had absolutely nothing to do with this.
Speaker 3: Yeah, I don’t think so in a few different ways. So first they were sent their signals by Donald Trump and they received it. So that’s also the call and response that is part of the conspiracy and judge made his opinion. And second, their plan includes mobilizing the quote unquote, the normies. So there’s all these other vast people who’d showed up for a rally, political rally. They didn’t show up to commit federal crimes, but then they were turned into this mob. They only get those people into that frenzy because of Donald Trump. He’s an essential ingredient. Without him, it doesn’t happen. They couldn’t take the capital in their small numbers. That wouldn’t have succeeded. It only succeeds because of him. I just think he’s so culpable in so many ways. The other one is, even if all of that were true, that it was all preplanned and had nothing to do with it, then what did he do after it happened? He’s, you know, dead on arrival in terms of, I think, criminal and other moral responsibility.
Speaker 3: And then the last one is, I would say the following as well. Boy oh boy. To Donald Trump and Mark Meadows know going in. This was volatile. It was a powder keg. They had announced they were coming. They said they were coming. When after Trump said be here, be while they publicly announced it. And Meadows is told, for example, that there’s a threat of violence the next day. That comes from testimony by somebody might be a star witness. Cassidy Hutchinson. His aide has told the committee that. Meadows We have him in an I think it’s an email or a text message on January 5th saying that the National Guard will be there. Trump when he says in his defense, all I said that we should have 10,000 or 100,000 troops ready. All of that is evidence. They knew they were sitting on a powder keg. They knew this could be seriously violent. And then he gives that speech at the Ellipse. I think that’s foreknowledge and culpability. I think he’s in deep trouble because of it.
Dahlia Lithwick: And Ryan, before I say goodbye, I guess I want to ask about the question we’ve been dancing around a little throughout this discussion, which is Merrick Garland and the Justice Department, because I think we can all agree and we’ve done conversations on this show about running out of runway here. The clock is ticking. We have midterms coming up in November. I guess if Donald Trump announces his candidacy, you know, the calculus changes in terms of what Merrick Garland would be willing to do. So I guess I just want to ask, to the extent that you can offer a just sort of scholarly, neutral opinion, you’ve got I’m sure a lot of people shouting at you on Twitter that Attorney General Garland is just being too halting, too polite, too tentative, too cautious. He will never meet this moment.
Dahlia Lithwick: You’ve already described very serious moves that the Justice Department has made to bring about accountability. I guess my question for you is, do you have some sense that the work of the select committee and the sort of cover that was given by Thursday’s opening session in some ways gooses Merrick Garland, who may or may not be on the fence about how far to go here.
Speaker 3: Yes, that’s a great question and something I think about a lot. I do think he seems very reluctant to move. I think he’s got a skewed sense of what it means to politicize the Justice Department, because following the rule of law is what he should do. Absent the political pressure coming from the other side, that’s not politicizing it. I think he is responsive. He’s not to ways in which people force the question. He’s not proactive.
Speaker 3: So the Justice Department, in a number of very good things that have facilitated this investigation and facilitated this civil cases. When asked to do so, when pushed to do so, then they respond, well, hey, do we have are you going to claim executive privilege? No, we’re not. You can have all of our former senior officials. Hey, are you going to claim that Mo Brooks is acting in his capacity as a member of Congress or politically, they say to the court politically, and it also implicates Trump that way. It’s just responsive. So even though I point to the alternate slate of electors, I’m surprised by that. And I do think that the committees work seriously ratchets up the pressure on him to do something. I’m not even sure the committee, at the end of the day has to do what they do. They have the ability to issue a referral. But as we said at the outset, the referral is not anything. It’s not a real power. It’s just basically any of us in a certain sense, going to see referral to the Jesuits.
Speaker 3: Please take this up. We’ve discovered some evidence of crime. The committee’s work alone will be that de facto, and I think that’s what I thought was coming out of the committee on Thursday and will be in these other hearings. They have a body of evidence. It is so clear. We also have these other federal district court cases that have also started percolating up. How can you not open a full criminal investigation? How can you not? And I think it also is agenda setting. So in a sense of it just shapes the mandate that he must have. And the cover, as you also put it, that he can have to say this is of such a serious nature and we’re all aware of it, and that the response to it is this kind of.
Speaker 3: Q Anthony and conspiracy and disinformation coming from the other side. Come on, let’s be adults in the room of the country. Attorney General Garland, you have to move ahead. There’s no legitimate response on the other side of the equation. And all I’m saying here at some level is to at least open a full blown criminal investigation. I’m saying what others would say, which is like an indict, but I could see that claim to coming out in a certain sense.
Speaker 3: Yeah. So I think it’s very important and there’s no way. I think even the people who think some of these former senior Justice Department officials, oh, don’t worry, he’s got it. Trust him. Look, he told us he said he’s going after at any level of authority, which is I’m not trusting that. And it’s just those are just words at a certain point in time, even if they were right, like they thought that he should be trusted at some level to follow through. This is very significant. And it’s not just him, it’s the department. So it looks like one of the things that he cares about, the attorney general, Bill Barr, even cared about, is, do they lose that department or did they lose some of the people inside the department when they move forward in a certain way? That constrained Bill Barr in some respects, because people in the department adhere to the rule of law. There are a lot of holdovers there, some Trump kids obviously in that department. So I think that this is a another way in which even if you think Garland wants to do the right thing, this bolsters him. This gives him serious cover like it does put it to him in the sense of how could you not?
Dahlia Lithwick: And so I think that’s probably the answer to what was going to be my last question, which is when people are making comparisons to Watergate and how that changed public opinion or to the Clinton impeachment or Benghazi or what have you, or even the two impeachment trials of Donald Trump.
Dahlia Lithwick: I think your answer is those are not perfectly apt comparisons because the job here is not simply to change the hearts and minds of, you know, people who watch Fox News and didn’t change the channel. The days of that sort of mid-century persuade ability are long gone. This is about doing something that is, in a way, a very kind of transactional conversation between the Justice Department and the select committee. And we’re all getting to witness it, but we are not supposed to be changing hearts and minds here. That’s what you’re saying.
Speaker 3: Or I would just say that there are two different audiences for the committee’s work, and maybe audience number one is sitting at the Justice Department.
Dahlia Lithwick: Ryan Goodman is the Ann and Joel Aaron Krantz, professor of law at NYU School of Law. He served as special counsel to the general counsel of the Department of Defense from 2015 to 2016. He is the founding co-editor in chief of the National Security Online Forum. Just security. And let me commend to you again the amazing clearinghouse that they have put together covering the select committee. Ryan, thank you. More than I can say for really, really clarifying something that felt murky but essential and I think is actually, as of this moment, crystal clear and essential. And I really thank you for your time doing that.
Speaker 3: It’s great to have our in conversation with you. Thank you so much.
Dahlia Lithwick: So my friends, we have now achieved peak Amicus this is the Amicus plus with Mark Stern. Mark covers the courts, the law. Now I’m self-conscious because Mark was like that. He describes it differently every week. The courts, the law, justice, state courts, LGBTQ issues, democracy and its demise for us at Slate.com. Also, I have to tell you, it is his birthday as we were taping this and so happy dance. Mark, grateful that you are with us.
Speaker 6: Thank you. Dahlia always happy to be here. Thank you for giving me the birthday gift of letting me show you the images that I bought generated of Supreme Court justices eating spaghetti with their hands.
Dahlia Lithwick: Yes. And we may have to put those up on the website. Mark, we were carbon loading last weekend. We were expecting a big blockbuster week at the Supreme Court, it being a third of the way through the month of June. And we got kind of a tiny clutch of cases and then an extra decision day on Wednesday for one case. So it’s just crazy both the pace and the weirdness of the way June is unfolding. But we did have actually a very consequential case about border officials and I guess, immunity from any possible accountability. So why don’t we start there?
Speaker 6: Yeah, I think we should start with the top line takeaway, which is that there are 20,000 Border Patrol agents in the United States today. They operate not just at the border, but within 100 miles of the border where two thirds of Americans live. And on Wednesday, the Supreme Court just granted all of them absolute immunity from civil suits when they violate constitutional rights, which I think is a really big deal and deserves to be treated as such.
Speaker 6: But and this is the weird effect of a term filled with blockbusters. The other cases are so much bigger that terrible decisions like this one end up getting drowned out and become like page ten News. So it’s a terrible development in the court’s continued assault on civil enforcement of constitutional rights. Not a surprising one, but one of the biggest blows in this area that we have received in the past few years. And as we’ll discuss. The liberal justices didn’t even try to hide the reason for it. They just called out the reality that Trump’s justices are dragging the court away from landmark civil rights rulings that allow us to actually enforce our civil liberties in courts.
Dahlia Lithwick: And why don’t you just give us one more B mark on the reasoning in the majority opinion for, as you say, this continuing devolution of accountability and this continuing notion that more and more law enforcement officials can be immune from civil suit under, I think this time a really stretchy theory of why it is that border officials cannot be held accountable.
Speaker 6: Yeah, this case called Ecbert V Bull, a real tongue twister involves a kind of loophole which allows individuals to sue law enforcement officers who violate their constitutional rights if those officers work for the state or a local government. So if a county sheriff violates your rights, if a municipal cop violates your rights, you can go into federal court and sue them for money damages and say, I deserve X amount of money for this violation of my rights, which is historically how rights have been enforced in this country.
Speaker 6: Let’s be clear. This is not some novel, you know, innovation by the trial lawyer bar. This is going back to common law, going back to before the founding, how we vindicated our rights in this country. And so the problem here is because this statute doesn’t mention federal officers, people who work for the many federal agencies that use law enforcement, often at the border. So CBP and ICE, but also just a slew of other agencies like the FBI that operate domestically if those agents violate your constitutional rights. There’s no federal statute that gives you the right to sue them in court.
Speaker 6: And so in a 1971 case called Bivins, the Supreme Court held that essentially it doesn’t make any sense to have a right without a remedy, and that if Congress doesn’t provide for a remedy of a violation of your rights, then federal courts have the ability and the obligation to do so. Because and just to oversimplify a little, you know, the whole point of constitutional rights is that the political branches can’t take them away. But if you have to rely on the political branches. To let you vindicate those rights in court, then they may as well not exist in the first place and they are completely hollow guarantees because you are at the mercy of Congress to determine whether or not you will have any means of redress at all when the government, specifically the federal government here infringes on your constitutional liberties. So this is another case in that genre.
Speaker 6: But things have changed a lot since 1971. The conservative justices on the Supreme Court today think that Bivins and the follow up cases are totally legitimate. They think that it violates the constitutional separation of powers for federal courts to allow these kinds of civil suits against federal agents when they are expressly authorized under statute. And for many years, the conservative majority has been cutting back on on these Bivens claims these lawsuits against federal officers for violation of constitutional rights. And they’ve basically said you can only bring a Bivens claim if the facts of your case perfectly mirror the facts of Bivins.
Speaker 6: The 1971 decision and the facts of Bivins involved federal agents essentially violating the Fourth Amendment rights of an American citizen on American soil by using excessive force. And that is exactly what happened in this case. Federal agents violated the Fourth Amendment rights of an American citizen on American soil by using excessive force against him, violently throwing him against a car and then against the ground for absolutely no justifiable reason. That agent was actually trespassing on this guy’s property without a warrant. And yet the Supreme Court shut down the resulting lawsuit because it held. The incident took place close to the Canadian border and because it was close to the border. It implicated national security. And because it implicated national security, it was different from Bivins. So different, in fact, that the claim has to be tossed out.
Speaker 6: And in the process, the court, through Justice Clarence Thomas, who wrote the majority opinion, narrowed even further the universe of claims that can arise here and said basically, if there is ever a reason to think that Congress is better positioned to decide whether this person should be able to see if there’s ever a reason to think that Congress, rather than the courts, should be deciding what kind of damages this individual can get, then the courts are not allowed to hear that case. And then Thomas spends the rest of the opinion saying that Congress is always better equipped than the courts to figure out how these kinds of cases should be handled.
Speaker 6: So the upshot of this ruling is that you can almost never bring a federal civil suit against a federal agent because the judge will always be able to say or always be required to say really by the Supreme Court, well, this is different from Bivens, and Congress hasn’t told us what to do here. And because Congress is better position than I am, I have to throw this case out.
Dahlia Lithwick: Like I said, stretchy. Very stretchy.
Dahlia Lithwick: I guess you’ve already hinted at this, but one of the things that’s shocking is the dissent in this case, because there’s a creeping willingness. And you pointed this out in a really good piece at Slate.com. You pointed this out that this willingness to name exactly what’s going on is kind of new, and that in her dissent, Justice Sotomayor, joined by Justice Breyer and Kagan, is willing to say something that is even more precise and factual and damning than her comment about the stench of illegitimacy that we’ve heard in the past, even more than I think some have. Justice Kagan’s commentary about the shadow docket.
Dahlia Lithwick: So I just wanted to give you a chance to reflect, if you would, Mark, on what feels like calling it like it is. And whether and I’m just thinking I’m really mindful of the conversation we had on the show last week, Marc, about whether this is refreshing truth telling or the beginning of the end of the legitimacy of the Supreme Court when the justices do this.
Speaker 6: So what Justice Sotomayor wrote here was that the only reason the precedents for Bivens is getting shredded. The only reason that the court has walked back decisions from just a few years ago, from when Justice Kennedy was on the court, is because it is, quote, restless and newly constituted. And in doing so, she’s essentially pointing out that what’s changed is that Kavanaugh has replaced Kennedy and Barrett has replaced Ginsburg. And the new justices are not only flipping the outcomes of cases, but aggressively reaching out into these controversies to try. To move the law rightward as fast as possible.
Speaker 6: And this is a criticism that has arisen occasionally throughout history at the court when justices get really angry about these abrupt U-turns in the law, but not one that any of the current liberal justices have ever made or signed on to. And I don’t think it’s super shocking that Justice Sotomayor would say that she has been the one to tell it like it is, especially over the last year or so.
Speaker 6: But to have Brier and Kagan join Institutionalist to the Bone, you know, they believe so deeply in this court and its integrity and the importance of presenting a kind of unified front for them to join feels like them waving a red flag all around and saying, we need to pay attention to what’s going on here. And I think that they don’t want to de-legitimize the court, but they are willing to take that risk of stepping out and and just making this subtext as explicit as possible, because they think it is that important for the American people to understand what is going on behind the scenes over at First Street.
Speaker 6: So, again, I doubt that either of these justices or all three of them have any interest in delegitimizing this institution. They still work there. They want the court to work, but it’s clearly not. And they one does need us to know that this is not just pure law. This is not just brilliant brains in jars applying the Constitution as written. This is a group of activists, of restless activists who are refashioning the law in their own image as quickly as they can. And that is a new and dangerous thing.
Dahlia Lithwick: Before we leave the substantive stuff and turn to gossip, Mark, I just want to give you a minute to talk about, you know, a Supreme Court decision that came in late Thursday, an order without an opinion saying that the court won’t interfere with a Pennsylvania race that is actually very important. Give us sort of a sense of what the court did. And then, if you would, just one little minute on Justice Alito, who dissented for himself, Gorsuch and Thomas.
Speaker 6: Yeah. So this was a dispute over mail ballots in Pennsylvania, which under the law are supposed to be dated in the sense that you, the voter, are supposed to write the date on it. But a lot of people forget that detail. And it appears under state law that even if your ballot arrives on time, even if it arrives well in advance, even if it’s postmarked well before Election Day, if you just forget to write the date that your ballot gets voided.
Speaker 6: And the third U.S. Circuit Court of Appeals held that rule in Pennsylvania violates really important federal civil rights law that was passed in the Jim Crow era that was designed to combat the very common tactic of throwing out ballots in the Jim Crow South on the basis of totally immaterial omissions or errors. And this law has stood the test of time and for many years has ensured that when voters make tiny little mistakes that don’t matter at all, that their vote can still be counted and the Third Circuit held. Yeah, that still holds true in this case. The voter just writing the date on the ballot is immaterial to whether that ballot is legitimate, especially if it actually arrives on time or before the election. There is no legitimate purpose in throwing out these ballots, and this federal law says that election officials are not allowed to infringe upon the right to vote on the basis of these kinds of just niggling errors.
Speaker 6: And by the way, it was a Trump judge who wrote that decision. This was not like a raging liberal panel. And so the interesting thing is that the the material dispute in this case was about a very minor state court race, but it had a bigger effect on the race between Dr. Oz and McCormack in Pennsylvania for the Republican primary, because that came down to a bunch of mail ballots, some of which were undated. And it was not really clear like which way the partisan Supreme Court justices would want to rule to help Republicans. Like, are they strategizing to figure out do they want us to win? Do they want McCormick to win? And at the end of the day, the majority just said, we’re not dealing with this. We’re not going to enter this case. We’re not going to interfere. And Dr. Oz has already taken victory. McCormick has conceded, and the Democratic state court judge wins the race.
Speaker 6: But Alito wrote this dissent that I think is really frightening because it lights a path toward a new evisceration of federal voting rights law by turning the right to vote into a totally non-existent guarantee. So Alito says your right to vote is not violated when your ballot is thrown out on a technicality. In fact, your right to vote does not even encompass the right to have your ballot counted. The right to vote, really, under federal law only means. Means that you can go to the polls or get your mail ballot and fill it out and hope that it gets counted. And if it doesn’t, for whatever reason, you don’t have any recourse. And that is, I think, the weakest of the arguments that the A.I. voting team here brought to the Supreme Court.
Speaker 6: I was really surprised that Alito adopted it, but I think that he is playing the long game. And I think that what he’s doing is teeing up a future decision where the court pares back the right to vote to exclude the right to have your vote counted. And it is worth noting that in a lot of cases in the 1960s, especially the one person, one vote case, the Supreme Court declared that the right to vote includes the right to have your ballot counted and that Congress passed this particular law against the backdrop of those decisions in that language.
Speaker 6: So, again, I think that Alito’s dissent is terrible. It was joined by Thomas and Gorsuch, not Kavanaugh or Roberts or Barrett notably. I think it’s it’s encouraging that the other three didn’t sign on and didn’t interfere, but it still doesn’t bode particularly well for the next time this case comes up, because at that stage, it will probably have a more clear cut partisan valence. The court will be choosing essentially to hand victory to either a Democrat or a Republican. And under those circumstances, maybe Kavanaugh, Barrett and Roberts will be more forthcoming in their views and more aggressive in their intervention.
Dahlia Lithwick: Yeah, that that happened.
Dahlia Lithwick: For your birthday, let’s end on the gossip portion of the show. Nina TOTENBERG had some reporting out of the court this week that made it look like, wow, the most dysfunctional workplace in the history of workplaces. You know, just awful mistrust and paranoia and fear. And clerks who can’t work together to get opinions done and just. Yeah. And, you know, now having to turn over phone records and man, it was I mean, for those of us who I think always secretly wished we’d clerked at the court, it was a big like, Oh, I’m so glad I’m not clerking at the court right now. That seems like a horrible place to be. Do you have any thoughts on whether all of this stuff we’re describing is really fundamentally impacting the ability of the court to get to the end of term?
Speaker 6: I do have thoughts, but first I just want to admit that there is a small, sadistic part of me that loves this, that loves that these hyper privileged clerks and their justices, but especially the clerks who have risen to the very top of the legal profession, who are going to spend the rest of their lives ensconced in incredibly powerful and lucrative positions, often suppressing the rights of the poor and vulnerable that they, before they go off to collect their $400,000 bonuses at their new jobs, have to be treated like suspects in a criminal case for the first and only time in their lives. These are people who never got put in time out, who never got sent to the principal’s office, who have spent their whole lives developing a sterling record.
Speaker 6: And surely when looking at, say, Fourth Amendment cases, that, of course, they’re guilty. They were treated like they were guilty, so they must be guilty. And now they’re being asked to turn over their phone records. They’re being asked to sign affidavits, a penalty of perjury and federal criminal charges. They are being subjected to the exact kind of nonsensical and just horribly authoritarian law enforcement techniques that they themselves are probably writing opinions greenlighting. And I love that. And I just think that they totally deserve it, except for the good ones who are going to go on to defend the rights of the vulnerable them. My heart bleeds for the rest of them. You deserve this.
Dahlia Lithwick: Wait. So for your birthday, I gave you the gift of schadenfreude. Okay. Nice. The.
Speaker 6: The best gift that there is. So what was the actual question?
Dahlia Lithwick: I think was. Is all this shit show getting in the way of finishing the term?
Speaker 6: Oh, yeah. It seems very obvious, right? Probably the leak was always going to cause a delay, but the resulting clown car of an investigation is surely pushing back a lot of opinions. Because how do you get work done when you have this environment of a war zone inside the court where everyone’s a suspect? And based on the reporting we’ve seen from Nina TOTENBERG, from Joan Biskupic, from others who have an ear in the building, it sounds like no one trust each other. There are intense hostilities on both sides. I think we’ve only heard a fraction of the nightmare that’s going down in there. And I think it’s almost certainly causing this weird and kind of unprecedented delay, a bottleneck of opinions that just can’t get out because for whatever reason, the clerk. The justices. Nobody trusts each other and they can’t do the collaborative work that’s necessary, for better or for worse, to publish an opinion. And that is very bad for those of us who have summer plans in July.
Speaker 6: I also think it’s probably not great for the country, which deserves an answer on a lot of these questions one way or the other. But this is something that the justices may have to deal with for the rest of their professional careers, depending on the resolution or lack thereof of this investigation. And in that sense, it just makes the court an even more political body that looks even more similar to Congress or executive agencies or the White House, where there is infighting and squabbling and hostilities that get in the way of productive work. And it has been a long time coming for the Supreme Court. And perhaps the only real surprise is that it took as long as it did.
Dahlia Lithwick: Mark Joseph Stern covers the Supreme Court and the law at Slate.com. Everybody tweet, happy birthday at him. Nobody deserves it more. And Mark, I’m going camping in July with or without decisions. So I think you should just do what you’re going to do. And if the court just needs to resolve the term with a bunch of unsigned per curiam opinions on the shadow docket, so be it. Well, that’s.
Speaker 6: What I call legitimacy.
Dahlia Lithwick: Democracy. It was good to know. Yeah. Thank you, Mark.
Speaker 6: Thanks, Dahlia.
Dahlia Lithwick: And that is a wrap for this particular episode of Amicus.
Dahlia Lithwick: Thank you so much for listening in. Thank you so much for your letters and your notes and your questions. You can always keep in touch at Amicus at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is vice president of Audio and Ben Richmond is senior director of operations for podcasts here at Slate. We will be back with another episode of Amicus next Saturday. Until then, do take care of yourself and thanks for listening.