Trump’s DOJ Shakedown

Kate and Leah dig into a very busy week of legal news as Trump wields his SCOTUS-enabled executive power in increasingly unhinged ways. They also discuss continuing challenges to the president’s deployment of the National Guard in blue cities, ProPublica’s reporting https://www.propublica.org/article/immigration-dhs-american-citizens-arrested-detained-against-will on “Kavanaugh stops,” and, for dessert, the bonkers text exchange https://www.lawfaremedia.org/article/anna--lindsey-halligan-here between Trump lackey–turned–U. S. Attorney Lindsey Halligan and Lawfare’s Anna Bower. Then they speak with author Irin Carmon about her new book, Unbearable: Five Women and the Perils of Pregnancy in America https://bookshop.org/p/books/unbearable-five-women-and-the-perils-of-pregnancy-in-america-irin-carmon/58ef27a6cc76796c?ean=9781668032602&next=t. Presale for the West Coast tour starts Tuesday, Oct 28 at 10am Pacific time and runs through Thursday, 10/30 at 9AM Pacific. The code is DISSENT. Favorite things: Leah: Resistance Is Cringe—But It’s Also Effective https://www.theatlantic.com/ideas/archive/2025/10/no-kings-protest-good-cringe-resistance/684595/?gift=DWZS7XsWkZZzV_Qd7Q3wdXOT-1QlgOfugyRIgb5TaSs&utm_source=copy-link&utm_medium=social&utm_campaign=share, Quinta Jurecic (The Atlantic); The Democrats' Main Problem Isn’t Their Message https://www.nytimes.com/2025/10/19/opinion/democrats-attention-elections.html?unlocked_article_code=1.uk8. D9iD. PNAbGarmezT0&smid=url-share, Chris Hayes (NYT); The Peril of a White House That Flaunts Its Indifference to the Law https://www.nytimes.com/2025/10/24/us/politics/white-house-boats-law.html, Charlie Savage (NYT); Everybody/Elizabeth Taylor Mashup https://www.instagram.com/p/DQAwfwriTzP/ (Backstreet Boys/Taylor Swift) Kate: Five Tuesdays in Winter https://bookshop.org/p/books/five-tuesdays-in-winter-lily-king/bde5e0aa6ecef609?ean=9780802159496&next=t, Lily King; I’m Still Here https://imstillhere-film.com/ Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Leah Litman?

  This Halloween, the scariest ghouls aren't in haunted houses or that rando in your DMs. They're in our legislatures, courts, and even the halls of Congress. Christian nationalists are working overtime to impose their agenda on all of us. From forcing religious doctrine into public schools, to funding private religious education with taxpayer dollars, to rolling back our rights and freedoms. If you're looking for the Ghostbusters to come save us, you'll find them at Americans United for Separation of Church and State. They're fighting back against every attack on our fundamental right to live as we choose, so long as we don't harm others. AU is fighting back and has filed 10 lawsuits so far to defend freedom of and from religion in every aspect of our lives. Whether you're a supporter of public education, passionate about LGBTQ+ and reproductive

• 0:44Leah Litman?

  rights, or all of the above, AU relies on the help of its supporters to do this important work. You're also a strict scrutiny listener, so you get it. A threat against the rights of one American is a threat to all of us. If you're looking for something more to do to fight back against the growing authoritarianism in our country, consider joining Americans United for Separation of Church and State. Learn more by visiting au.org/crooked, because church-state separation protects us all.

• 1:11Speaker 01

  The Supreme Court's word feels final, until it's not. After Roe v. Wade fell, I wondered, could something like this happen in Canada? I'm Phelan Johnson, and on my new podcast, See You in Court, we explore eight cases that shaped a country fighting to protect its stance on everything from abortion to gay rights to junk mail. Find and follow See You in Court wherever you get your podcasts, because as Americans know, case closed doesn't mean story over.

• 1:43Speaker 02

  Mr. Chief Justice, may I please support? It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.

• 1:55Speaker 03

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:26Kate Shaw?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I'm Kate Shaw.

• 2:32Leah Litman?

  And I'm Leah Litman, and this episode is off the record. More seriously-

• 2:36Kate Shaw?

  No, no, you have to say at the end of the episode, Leah.

• 2:39Leah Litman?

  Well, no, I learned my lesson from one Lindsay Alligan, and I'm putting it up top.

• 2:43Kate Shaw?

  Up front, okay, got it.

• 2:45Leah Litman?

  Anyways, we are between oral argument sessions at the Supreme Court, so we are going to bring you up to speed on legal news outside of oral arguments at the court. And that legal news includes ongoing litigation challenging militarization of American cities, the destruction, literal and metaphorical, of the White House, the latest presidential extortion, the latest antics of the most qualified and best people selected by this administration for positions in both Articles Two and Three, and more.

• 3:14Kate Shaw?

  And then we're going to shift gears, also in a dark timeline, but with like some real moments of hope, or at least the actual best people, and that is Iren Carmon, the New York Times bestselling author, who is the author of the new book Unbearable: Five Women and the Perils of Pregnancy in America, which is out tomorrow. So stay tuned for that conversation. So we're going to start with a discussion of what we will call last week in Article Two, although, as you will hear, much of it is also very linked to SCOTUS and Article Three. Let's start with a listicle Brett Kavanaugh-style. Since we last recorded, one, the president posted a video of himself pooping on his fellow Americans, ones he theoretically represents. Supreme Court loves to tell us the president is the most democratically accountable elected official.

• 3:58Kate Shaw?

  He represents all of us, and this is what he thinks of many of us. Two, the president has proceeded to destroy, physically, not metaphorically, though that too, a big chunk of the White House because he wants a new ballroom. And three, news came to light that he is attempting to shake down the Department of Justice, and really, American taxpayers, to the tune of more than $200 million, like officially, not even off some sort of grift.

• 4:25Kate Shaw?

  His second agenda item, the physical demolition of the east wing of the White House, is in some ways a defining image, if not the defining image of the second Trump administration. The guy is literally tearing down the White House, which he does not own, again, because he wants a ballroom. Or, in the press secretary's words.

• 4:43Speaker 05

  He's a builder at heart, clearly. And so, his heart and his mind is always churning about how to improve things here on the White House grounds. But at this moment in time, of course, the ballroom is really the president's main priority.

• 4:56Kate Shaw?

  The priority. Okay, we all got ours. And we just wanted to briefly play some tape from this past May, when the corruption scandal du jour, which somehow seems quaint now, involved the president shaking down a foreign government for a luxury jet. This is what we had to say back then. I'm going to manifest something, but I feel like some of the defenses of, I mean, these are ridiculous, but like, some of the discourse around Trump and this absurd and corrupt plane exchange have noted that Air Force One, the one that's currently in use, is a little rundown and in need of repairs. And I just have to say, that's kind of actually true about the White House. Like, it's like, the West Wing is actually not in the best

• 5:41Kate Shaw?

  shape. It like, the carpet's a little frayed. Now, I don't know if Trump goes to those parts of the White House, but like, I want to know who's going to offer him a new White House. And I'm scared I might just be manifesting that.

• 5:52Leah Litman?

  I guess it is east, not west wing, at least so far, but yet another prediction we take no joy in. That one was a little eerie to reflect back on, and...

• 6:06Kate Shaw?

  Well, now I'm worried that I said, you know, the West Wing needs a little upgrade too. Like, I don't know, there's nothing to stop him at this point.

• 6:12Leah Litman?

  Who's listening? Who's listening?

• 6:14Kate Shaw?

  To just turn that bulldozer just towards EOB and just...

• 6:17Leah Litman?

  Make a U-E.

• 6:19Kate Shaw?

  Knock the Sit Room down, because who really needs intelligence at this point, anyway? So, yeah.

• 6:26Leah Litman?

  And at the same time that he is destroying federal property, and again, recall, he has successfully extracted contributions for his fancy ballroom from several different corporations and corporate executives. He has also reportedly demanded that the Justice Department pay him about $230 million because of several federal investigations into him. This, to be clear, would be more than $200 million extracted from federal taxpayers, handed over directly to Donald Trump. The demand arises out of the FBI's investigation into Russian interference in the 2016 presidential election, which his lawyers maintain violated his rights, and the search of the Mar-a-Lago property for the classified documents that Trump refused to turn over when requested

• 7:10Leah Litman?

  to do so by the DOJ.

• 7:13Kate Shaw?

  So this is just a kind of an outright demand for a payment. It is ostensibly done under the auspices of this process for suing the federal government under a federal law known as the Federal Tort Claims Act. So you have to first make these demands for money, and then the federal government decides whether to pay out or settle. And if they decide not to pay out, then you can elect to sue them. So you might wonder, which upstanding Justice Department officials would be making the decision under this statutory scheme whether to settle these claims? Well, I'll tell you. They would include the current Deputy Attorney General, Todd Blanch, who served as Trump's lead defense lawyer, as well as the chief of DOJ's Civil Division, Stanley Woodward, Jr., who represented one of Trump's co-defendants in the classified documents case, and also

• 7:57Kate Shaw?

  represented other Trump aides, including Cash Patel, in investigations related to January 6th. So, to be clear, Trump's former personal lawyers in these matters would be the ones deciding whether he is entitled to compensation for these matters. Very legal, very ethical.

• 8:15Leah Litman?

  Even Donald Trump himself recognizes, "This is weird AF."

• 8:22Speaker 06

  It's interesting because I'm the one that makes a decision, right? And, you know, that decision would have to go across my desk. And it's awfully strange to make a decision where I'm paying myself. In other words, did you ever have one of those cases where you have to decide how much you're paying yourself in damages?

• 8:38Leah Litman?

  No shit, Sherlock. But, you know, who might not think this whole situation strange? Who might think? But of course, the president himself and people the president can control, the president has to control, would be the ones deciding whether the president can extract more than $200 million from the federal law enforcement apparatus.

• 8:56Kate Shaw?

  Would it be like Richard Nixon?

• 8:58Leah Litman?

  John Roberts, so close. Um, you know, it was, it was Roberts immunity opinion, after all, that gave the president unfettered control over the investigative and prosecutorial functions of DOJ, even if he was deploying those functions for improper corrupt purposes. Personal game. It was John Roberts who has insisted on treating the entire executive branch and specifically the DOJ as merely an arm of the president. Roberts has handed the president more and more power over every part of government and kaboom.

• 9:31Kate Shaw?

  Yeah. And this is all playing out in ways that should have been foreseeable to Roberts. We are seeing that this vision of the president with total control over his minions in the Justice Department and maybe the rest of the executive branch clearly yields corruption and autocracy, at least in the hands of this president, who John Roberts, well understood, was at least potentially returning to the White House to reap the benefits of this outrageous immunity decision. So just the current iteration is the president seeking to literally pay himself millions of dollars because he controls the executive branch and the people within the executive branch and their decisions. And that is because John Roberts handed him that control.

• 10:14Leah Litman?

  And I am wondering whether we should start calling Donald Trump a Roberts Baron or like Roberts's Baron or Roberts Robber. I don't know.

• 10:24Kate Shaw?

  That's good.

• 10:25Leah Litman?

  Or maybe this particular grift of using the federal government as the president's personal piggy bank, like the long John con. I'm still workshopping this. It's been a long week, but those are some of the options.

• 10:37Kate Shaw?

  I think Roberts Baron, I think Roberts Baron's very good.

• 10:39Leah Litman?

  I liked the Roberts Baron one.

• 10:42Leah Litman?

  But, you know, even Trump and his lawyers recognized not only that this is weird AF, but that John Roberts gave them a leg up in their quest to extract or extort more than $200 million from the federal government and American taxpayers. Because in Trump's demand letter, ostensible demand letter to the Department of Justice as part of this federal tort claims act scheme, the memo argues that prosecutors, quote, "should have foreseen" that he had immunity from prosecution for official acts and cites John Roberts' opinion in Trump versus United States. It argues that, quote, "given the Supreme Court's immunity decision and Judge Cannon's dismissal, the prosecution on grounds," you know, et cetera, et cetera, that the special counsel was unlawful. "There was no constitutional basis

• 11:26Leah Litman?

  for the search or the subsequent indictment."

• 11:31Kate Shaw?

  It is just all too much. And, you know, I like Roberts' barren, but whatever, like, catchphrase you land on, like, it will be the Kavanaugh stops of corruption. But however we term it, I really just think there is no question that John Roberts bears an enormous amount of responsibility for what we are seeing on display at this White House right now.

• 11:54Leah Litman?

  Yeah, I mean, like, I think that also probably includes what's going on with the East Wing, which are Roberts renovations. But like, less than one year, right? From him telling the president, "You are above the law and you have immunity." The president is literally raising the White House.

• 12:10Kate Shaw?

  And these strikes, the Roberts strikes on what may just be fishing vessels in the Caribbean.

• 12:16Leah Litman?

  Oh, we will get to those.

• 12:17Kate Shaw?

  Those are attributable to John Roberts, too. So, yes, okay, so not to get ahead of ourselves. But we do think it is important to continue to link the Supreme Court and its immunity decision to the accelerating lawlessness and corruption that we are seeing in the White House. And, you know, on that topic, how else is Donald Trump using the essentially boundless powers over the Department of Justice and federal investigations and prosecutions that the Supreme Court handed him? Well, turns out DOJ is for divas now. Because President Trump commuted the sentences of George Santos, the former Republican congressman, who pled guilty to wire fraud and identity theft and was serving a federal prison term for those charges.

• 13:02Kate Shaw?

  But no longer because Trump sprung him last week. Let's just stop and quickly assess some of the other beneficiaries of Trump's pardons and commutations. I mean, this is a non exhaustive list. So Chris Collins, Republican from New York, Duncan Hunter, Republican from California, Steve Stockman, a Republican from Texas. These are all former Republican office holders, all congressmen convicted during Trump's first term subsequently pardoned. Let's go on. Rick Renzi, a Republican from Arizona, Robin Hayes, a Republican from North Carolina, Mark Syljand, a Republican from Michigan, Duke Cunningham, a Republican from California. According to The Washington Post, by the end of his first term, Trump had pardoned more than half of the Republican congressman convicted of felonies in the 21st century.

• 13:47Kate Shaw?

  It's a longer list than I remembered.

• 13:49Leah Litman?

  Yes, I know, I know. I was shocked when I went back and was looking at it.

• 13:55Kate Shaw?

  Oh, and that guy, and that guy, yeah. So that was all in the rearview mirror. When John Roberts took a look at the landscape and decided the way the Constitution should work is that we should remove any constraints on the person who wields this pardon power and in fact, enable more of it. And just like a couple more names to throw in, Michael Grimm, Republican from New York, Brian Kelsey, a former Tennessee state senator. And that list doesn't even include people in Trump's inner circle like Steve Bannon, Paul Manafort, Charles Kushner, Sheriff Joe Arpaio, Roger Stone, Las Vegas Council member Michelle Fiore. Again, I don't think that list is exhaustive, but it is pretty stunning.

• 14:36Leah Litman?

  No, and he's still on a roll. He was asked about another recent pardon of the Binance founder Changpeng Zhao, who was convicted and sentenced for money laundering. As a question will make clear, Zhao's company, Binance, does a lot of business with, you guessed it, the Trump family crypto company, How Cozy.

• 14:54Speaker 07

  On the pardon of Changpeng Zhao, apologies if I'm mispronouncing that name. Binance has significant business interests with World Liberty Financial, the president's family's crypto company. How do you respond to allegations from Democrats that this is a corrupt act?

• 15:08Speaker 05

  I would respond and say the president is exercising his constitutional authority.

• 15:13Leah Litman?

  Once again, thank you, John Roberts, for clearing the way for corrupt exercises of exclusive presidential powers and official duties.

• 15:22Kate Shaw?

  This is what he meant by, I won't forget it.

• 15:24Leah Litman?

  Yeah, exactly. No, seriously, thanks. I'm not going to forget what you allowed me to do.

• 15:29Kate Shaw?

  Yep. So we have all of this kind of beneficence and mercy toward his friends and political fellow travelers, and compare that with recent moves to indict and prosecute critics and opponents. The takeaway is clear. The law does not apply to Trump's allies, but made up laws apply to opponents and dissenters. And sort of more, to return to something we mentioned a couple of minutes ago, kind of this week in the unitary executive theory news, we also learned that the president authorized more strikes, these are lethal strikes, against individuals he appears to have unilaterally, and unclear based on what evidence, declared narco traffickers. So this was the eighth known strike,

• 16:13Kate Shaw?

  the first in the Pacific. This was off the coast of Colombia rather than in the Caribbean. Two or three people were killed in this strike, which brings the total to more than 30 people who have been killed across all of these strikes. The New York Times reported that President Petro of Colombia has said several strikes killed Colombian nationals, and he accused the United States of murder. Trump has said he is cutting off foreign aid to Colombia in response to that accusation. And I want to just quote briefly from the New York Times' Charlie Savage on the kind of strike campaign broadly. So Savage says very clearly that legal experts say these strikes are unlawful. And then he kind of relays this sort of legal opinion in what I thought was actually really refreshingly direct language for a piece of news analysis.

• 16:58Kate Shaw?

  So he says, quote, "They," being the legal experts, "say the premeditated extrajudicial killings have been murders, regardless of whether the 43 people blown apart, burned alive, or drowned in 10 strikes so far were indeed running drugs." There are...

• 17:14Leah Litman?

  Many, many, many, many reasons to be skeptical of the administration's claims that these strikes are necessary to stop narco traffickers because of the fentanyl trade. I mean, fentanyl doesn't come from Venezuela or Colombia. Another is that what happened when the administration apprehended, you know, survivors of some of these strikes, it repatriated them, sent them back to their home countries, which is definitely what you would do with individuals. You are very confident are big, bad, evil narco traffickers responsible for the deaths of Americans? And prosecutors in one of those countries, Ecuador, declined to charge one of the men, saying there was no evidence he had committed crime. In Ecuador, the other survivors hospitalized in Colombia with brain trauma and is on a ventilator. And like, we don't know exactly what will happen to him in the event he ever

• 17:59Leah Litman?

  becomes conscious.

• 18:02Kate Shaw?

  And the president recently spoke about the lethal strikes in, well, let's just play the audio clip. It's like, it's a way we thought people should hear.

• 18:12Speaker 08

  And, Mr. President, if you are declaring war against these cartels and Congress is likely to approve of that process, why not just ask for a declaration of war?

• 18:22Speaker 06

  Well, I don't think we're going to necessarily ask for a declaration of war. I think we're just going to kill people that are bringing drugs into our country. Okay, we're going to kill them. You know, they're going to be like, dead.

• 18:35Kate Shaw?

  So, to underscore what the experts quoted in the Savage article, and really every expert I have heard from says is not at all a close question. This is wildly illegal. It is also terrifying. It is brazen. Killing civilians with no process is illegal. And not to bring this back to SCOTUS, but remember those SEAL Team Six hypos in the immunity case? They do not look so far-fetched right now.

• 19:03Leah Litman?

  No. And those hypotheticals were, well, what if the president orders SEAL Team Six to assassinate someone? You know, there, the specific hypo was a political rival. But again, this is how these things begin. And, you know, just to clearly, more clearly link this to the court as well, the Savage piece, you noted, Kate, says these strikes draw on two claims that the president has made about the presidency and the law that thus far, I think the Supreme Court is kind of in agreement with. And one of those claims or premises is that the president's determinations are the determinations of the executive branch they're controlling, and executive officers can't question. Them, the president can fire them if they do. And the other claim is that the president just declares certain conditions, factual

• 19:47Leah Litman?

  or legal, to be the case, to give himself additional powers. You know, he did this in the Alien Enemies Act case, tariffs and more, and now these strikes. And the combination, I think, lines up well with John Roberts and his fellow aristocrats' views about the presidency, that the president gets to control everyone in the executive branch and everybody, including courts, have to defer to presidential determinations.

• 20:10Kate Shaw?

  And on that topic, specifically tariffs, which you just mentioned, the president has given us some insight into how he is making decisions about those tariffs, which have obviously been a key, sort of central fixation of his presidency. And these are the tariffs that the Supreme Court will decide if he has the authority and legal basis to impose. And given that we suspect that these guys, meaning the Supreme Court's supermajority, are going to insist on treating this president as normal and entitled to deference, and they are likely to continue invoking the presumption of regularity, we wanted to, as a corrective, highlight for your consideration the recent tariff decision on Canada.

• 20:51Kate Shaw?

  The president was clearly quite triggered by an ad that Canada ran against the Trump tariffs, which suggested accurately, with video evidence, that Ronald Reagan wasn't so into tariffs. So the president went on a rant on Truth Social, which included-

• 21:08Leah Litman?

  Tariffs are very important to the national security and economy of the USA. Based on their egregious behavior, all trade negotiations with Canada are hereby terminated. Thank you for your attention to this matter, President DJT.

• 21:21Kate Shaw?

  So when Leah's voice gets a little louder there, that's in the all-caps portion of "the truth," which I think actually, you know, kind of translated.

• 21:29Kate Shaw?

  Right, so these are the Basie's personal peak that Trump is imposing tariffs based on, and the Supreme Court may just give him essentially unlimited power to keep doing that. And on that topic, a reminder that we are going to be breaking down those oral arguments on tariffs at CrookedCon in DC, which is as good a reminder as any to ask whether DC Striktes or, you know, anyone in the Maryland, Virginia, DC area, or really anyone who can get to DC, have you gotten your tickets yet for CrookedCon on November 7? So it's a full day of programming. We're going to be closing out the day with a live pod at the Reagan Center, and there are still some tickets available. So head to

• 22:13Kate Shaw?

  crookedcon.com if you want to pick up tickets. It is less than two weeks away. It is a really fantastic lineup for the whole day, and we are very excited to be wrapping the day up, and we would love to see you there.

• 22:26Leah Litman?

  Yes. And speaking of live shows, we have a very big announcement. Thank you for your attention to this matter. We are heading to the West Coast for the first time ever. So plan to spend your kids' spring break with us next year because we will be at the Herbst Theater in San Francisco on March 6th. Then on March 7th, we're heading to the Palace Theater in Los Angeles. And because you all are our favorite dissenters, you get first dibs on tickets before they go on sale to the general public. So the pre-sale starts Tuesday, October 28th at 10 a.m. Pacific time and runs through Thursday, October 30th

• 23:07Leah Litman?

  at 9 a.m. Pacific time. The password is DISSENT, all caps, one word. That's D-I-S-S-E-N-T. We'll put the code in the show notes and grab your tickets now at crooked.com/events.

• 23:24Leah Litman?

  Strict scrutiny is brought to you by Fatty 15. The news is a lot. Usually, it's just a Supreme Court term that gives me beggy eyes and stress sleep. But now it's everything else, too, which means I need to be extra attentive to the cost of aging at the cellular level to help ensure improved long-term health and wellness. And I'm so excited to share with you guys, C15 from Fatty 15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough to support our long-term health and wellness, and you guessed it, healthy aging. Fatty 15 co-founder, Dr. Stephanie Van Watson, discovered the benefits of C15 while working with the U.S. Navy to continually improve the health and welfare of aging dolphins. Based on over

• 24:05Leah Litman?

  100 studies, we now know that C15 strengthens our cells and is a key healthy aging nutrient, which helps to slow biological aging at the cellular level. In fact, when our If our cells don't have enough C15, they become fragile and age faster. And when our cells age, our bodies age too. This eventually led to studies finding the first new nutritional deficiency in 75 years called cellular fragility syndrome, which is caused by a lack of the C15. As many as one in three people worldwide may have low C15 levels and cellular fragility syndrome. Thankfully, Fatty 15 repairs age-related damage to cells, protects them from future breakdown, and activates pathways in the body that help regulate our sleep, cognitive health, and natural repair mechanisms that support our overall health.

• 24:50Leah Litman?

  I take my Fatty 15 in the morning. It's like inoculating myself against reading the news at the cellular level. Best of all, Fatty 15 comes in a gorgeous reusable glass bamboo jar and refills are shipped right to your door. Fatty 15 is on a mission to optimize your C15 levels to help support your long-term health and wellness, especially as you age. You can get an additional 15% off their 90-day subscription starter kit by going to fatty15.com/strict and using code strict at checkout.

• 25:21Speaker 09

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website, plus more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 25:57Kate Shaw?

  On the topic of the West Coast, which is, I think, kind of like Melissa Murray-esque Segway. She's the queen of Segways. We try in her absence. We do our best to muddle through. But there is news from the West Coast that we should bring you up to speed on, and that involves the challenges to the president's deployment of the National Guard, which are very quickly developing. And we're going to stop for a minute to take stock because there is litigation unfolding in a few different places, and this litigation challenges the president's deployment of the National Guard in Los Angeles, also in Portland, also in Chicago. And each of these cases is at a slightly different stage of the litigation. So the Ninth Circuit heard oral argument in the appeal from Judge Breyer's initial ruling invalidating the deployment of the National Guard in LA, which we talked about

• 26:42Kate Shaw?

  a couple of times. The Ninth Circuit stayed that ruling while the litigation remained ongoing. And the full Ninth Circuit opted not to revisit that ruling on bunk. So the next stage of this case will be the Court of Appeals formally affirming or vacating the decision on whether the president can federalize and deploy the National Guard in Los Angeles.

• 27:00Leah Litman?

  Now, in the case involving LA, there's also a separate ruling, another ruling by Judge Breyer that concluded some of the National Guardsmen were in violation of the Posse Comitatus Act because the Guardsmen were engaged in ordinary law enforcement, which they cannot do. So Judge Breyer stayed that ruling himself, and there's an appeal pending on that ruling.

• 27:20Kate Shaw?

  In the meantime, however, there have been big developments in litigation concerning not LA but Portland. The last time we updated on this topic, a Trump-appointed district court judge in Portland had blocked the administration's deployment of the Oregon National Guard and deployment of other states' National Guard to Portland in a truly epic opinion that meticulously went through the facts and concluded that the president's determination that there was a need to deploy the Guard was simply untethered to reality or facts. Regrettably, in a two-to-one decision with two Trump appointees in the majority, a panel of the Ninth Circuit has now stayed that district court decision that had blocked Trump's deployment of the National Guard in Portland against the Portland Frog and Portland Chicken, among others.

• 28:06Leah Litman?

  So the per curiam opinion by the Trump appointees is simultaneously chilling and ridiculous. It gives Trump an unreal amount of deference when it comes to characterizing what is going on in Portland, like characterizing it contrary to what the evidence shows is happening. And also deference on when the president can determine that he is unable to execute the laws of the United States. And just as a reminder, you know, under the relevant statutes, the president can federalize and deploy the National Guard when the president is unable to execute the laws of the United States.

• 28:36Kate Shaw?

  So the panel relies on some pretty sketchy evidence to rule in favor of Trump here. So it begins by talking about the shooting at the ICE facility in Dallas, as if that justifies the deployment of the National Guard in Portland. The panel says Trump can basically gesture toward anything that happened this year, seemingly anywhere, and use that as a basis for federalizing and deploying the Guard at the end of September. So the district court had, to my mind correctly, focused on conditions on the ground at the time that the Guard was deployed. And the panel criticizes the district court for that choice, basically saying the district court was wrong to impose time limits on what circumstances the president can point to.

• 29:19Leah Litman?

  I mean, there was some pretty intense activity in the Boston Harbor and Lexington and Concord, you know, more than 200 years ago. Can he federalize the Massachusetts National Guard on that basis? But like, more seriously, how about the Minnesota National Guard, you know, in response to Black Lives Matter protests?

• 29:36Kate Shaw?

  Yeah, you're giving them ideas again. We have to stop them.

• 29:39Leah Litman?

  I don't want to have to replay this tape. So, I know. The panel in this Portland case also faulted the district court for pointing out that the president makes shit up. Literally, the panel wrote that the court, quote, "aired by placing too much weight on statements the president made on social media, including, you know, having described Portland as war ravage," writing that, quote, "The president may exaggerate the extent of the problem on social media," end quote. So, Unitary, you get to unite reality and imagination. What-

• 30:13Kate Shaw?

  John Roberts would approve.

• 30:14Leah Litman?

  Yeah. And again, just to come back to, who is the guy this panel insists on deferring to and acting like they are engaged in very serious determinations? Well, that guy provided some insight into how he is making these decisions on deploying the National Guard. Over on Truth Social, Trump said he's fielding calls from the CEOs of Salesforce and Nvidia, which help him determine whether to deploy the National Guard to San Francisco. I am not making this up. He says he spoke to the mayor and he's like, quote, "We can do it much faster and remove the criminals that the law doesn't permit him to remove."

• 30:57Leah Litman?

  And it's like, are you saying the law doesn't authorize you to remove these individuals? And then he says he's been getting, like, you know, really great- People to call him like Jensen Huang and Marc Benioff. And do either of them live in San Francisco? I thought Benioff moved to Hawaii.

• 31:14Kate Shaw?

  I have no idea, but I do think that we have now learned that friends of Trump get not only pardons, but also a direct say in whether the US military gets sicked on Americans.

• 31:28Leah Litman?

  Well, those friends are also now apparently like paying for the US military because it's now been reported that Trump received like $130 million that he is going to put to the Department of Defense during the shutdown. I mean.

• 31:41Kate Shaw?

  Which I don't think there's any colorable case that this arcane sounding, but real actual statute, the Anti-Deficiency Act. I don't think there's an argument that it's not violated by the, you know, ballroom renovations, but they're, they're making some arguments that the White House is different. So executive branch lawyers love to say the White House is different.

• 31:58Leah Litman?

  Yeah, fine, whatever.

• 31:59Kate Shaw?

  It's wrong here, but even if there is an argument that it might apply differently to the White House, I don't think there's any argument that the Anti-Deficiency Act does not clearly bar private parties from contributing hundreds of millions of dollars to the Treasury to pay salaries. Like, you can't do that.

• 32:20Leah Litman?

  Oh, it's just, it's just wild.

• 32:25Kate Shaw?

  Yeah. Um, this was one of those weeks, which is basically almost every week at this point, but back to the Ninth Circuit panel opinion. So the pro curiam to judge majority was joined by a separate concurrence by one of the members of that pro curiam, Trump appointee Ryan Nelson, who wrote separately to say he did not think the president's determination to federalize the National Guard was reviewable at all. So the suggestion there is it is not enough for courts to give presidents enormous amounts of deference. Apparently they shouldn't have any substantive role in reviewing these determinations. Full stop.

• 33:05Leah Litman?

  These guys are so thirsty for fascism. It's unreal.

• 33:10Kate Shaw?

  And they write it down.

• 33:12Leah Litman?

  Yes. I know.

• 33:14Kate Shaw?

  You can all read that.

• 33:15Leah Litman?

  Like, you know, I realize Stringer Bell was chastising people for taking notes on a conspiracy. Like, are you motherfucking taking notes on a autocracy plan, right? Not like a criminal, it's just nuts anyways. The dissenting judge in the Portland case, Judge Graber, had some things to say. So the dissent invoked the police logs and how in the two weeks leading up to the president's federalization of the guard, there were zero, that's zero, reports of any incidents disrupting the execution of the laws.

• 33:48Kate Shaw?

  Even the frogs were not being disruptive. No one was being disruptive. Yeah, the dissent is very much worth a read. It concludes, and I'll quote here, quote, "I urge my colleagues on this court to act swiftly to vacate the majority's order before the illegal deployment of troops under false pretenses can occur. Above all, I ask those who are watching this case unfold to retain faith in our judicial system for just a little longer." And I read that and I just was like, oh, God. I feel like I used to issue a similar kind of creed or occasionally on this podcast.

• 34:20Leah Litman?

  Sounds familiar.

• 34:21Kate Shaw?

  Let's not totally give up.

• 34:22Leah Litman?

  Maintain your faith, maintain your faith in law.

• 34:24Kate Shaw?

  And I have to say, I reading that was sort of like, my thought in my mind was, you sweet summer child, we used to be on the receiving end of. And yet, the day the opinion was issued, another judge on the Ninth Circuit had already called for a vote on on bank rehearing and requested briefs to be filed within two days. So that would give the full Ninth Circuit the power to override this appalling panel opinion. And that all may be quickly developing.

• 34:52Leah Litman?

  Yeah, you know, speaking of the best people that Trump put in Article Three and also Article Two, we wanted to provide you some updates on Brett Kavanaugh and Kavanaugh stops, the federal government lawyer's projections about the implications of the Supreme Court striking down or eviscerating the Voting Rights Act, and, as promised, Lindsey Halligan. But first up, Brett Kavanaugh. So, ProPublica did some incredible reporting on Kavanaugh stops, that is, ICE's practice of stopping and detaining people as part of their immigration enforcement. So a reminder that Brett Kavanaugh, in voting to authorize the administration to be able to deploy roving immigration patrols, who would stop and question people based on the color of their skin and where they were. Kavanaugh described these as "brief investigative

• 35:35Leah Litman?

  stops during which ICE would promptly allow people to go once they established their citizenship or authorization to be in the United States."

• 35:46Kate Shaw?

  So these characterizations, as we noted at the time, were made with zero citations and seemingly zero regard for the contrary fact finding by the district court. And moreover, they have been thoroughly debunked by this point, based on what we have all seen with our eyes and what has been reported. And that was already true regarding reporting that had happened before this Kavanaugh opinion, but it has really been established beyond any shred of doubt since. And that includes ProPublica's latest, which documented more than 170 cases, yes, you heard that number right, of US citizens being detained at raids or protests in the immigration enforcement sweeps. ProPublica did totally incredible reporting work, tracking down these individuals,

• 36:31Kate Shaw?

  speaking to them. More than 20 of them reported being held incommunicado for over a day. This is what Brett Kavanaugh apparently likes to call being promptly released. The cases include nearly 20 children, including two with cancer, who were held for weeks with their undocumented mother. They also include cases where immigration officers dismissed US citizens' IDs as fake. One was disappeared for days.

• 36:57Leah Litman?

  Speaking of bad decisions we have to revisit, so this is a potential bad decision. And we wanted to go back to our discussion about the possible implications of a Supreme Court ruling nullifying, eviscerating, limiting in some grand fashion what remains of the Voting Rights Act, and specifically Section 2's restriction on voting discrimination. As we documented last episode, it seems like the Republican justices on the court are inclined to severely restrict the force of Section 2 and/or the ability to remedy violations of Section 2.

• 37:29Kate Shaw?

  Also remember that in the argument, the lawyer for the federal government insisted, hey, no big deal to make it near impossible to prove violations of the VRA and adopt our reading that would eliminate only something like 15 political opportunity districts for minority voters. As we said in our last episode, that was the lawyer for the federal government suggesting it is no big deal if we just reduce by something like 15 the number of congressional representatives who are racial minorities.

• 37:56Leah Litman?

  Well, Nick Stephanopoulos, a professor at Harvard Law School and voting rights expert, wrote on the Election Law Blog that the federal government's statistic was, quote, "highly misleading" and that the federal government's proposal, quote, "would cause many more than 15 districts to lose their protection under Section 2." Professor Stephanopoulos estimated that the federal government's estimate was off by more than 300% and that there are close to 70 congressional districts that could be stripped of protection under the Voting Rights Act. So that's 70 seats, reducing by 70 the number of districts that are political opportunities for diverse voters and diverse candidates.

• 38:32Kate Shaw?

  And we are already seeing what this would look like and what districts and which representatives states would target if they were freed from the constraints of the Voting Rights Act. So in North Carolina, the Republican-controlled legislature passed a new congressional gerrymander that would expand on their current gerrymander. So the current one is bad enough. It creates 10 Republican seats and four Democratic seats, where the breakdown is like 50-50 or 51-49, and where Democrats routinely win statewide office. But Republicans decided, apparently, 10-4, not enough. Their new maps would lock in an 11-3 Republican majority in a swing state by targeting and likely erasing the district of, you guessed it, Black Congressional

• 39:12Kate Shaw?

  Representative Dawn Davis. And that is just a preview of what a post-VRA world would look like. Also, on the voting rights front, as we were sitting down to record, the Department of Justice announced that it was sending poll monitors to a few places in this coming November, specifically New Jersey and California, where there are important elections happening. We warned of this incredibly alarming development.

• 39:38Leah Litman?

  Yeah, new GTL gerrymander and trial run on voter suppression by a bunch of losers. But like, more seriously, like, okay, this is this cycle, there are important elections, but it's off-cycle. It's just a few locations. It might not seem that concerning, but this is just the tip.

• 39:55Kate Shaw?

  And also, wait, GTL is a Jersey, it took, my mind was worried.

• 39:59Leah Litman?

  Jim Tann and laundry.

• 39:59Kate Shaw?

  Okay, that was the Jersey Shore, right? I was like, Jim Tann, what's the L?

• 40:02Leah Litman?

  Look at you.

• 40:03Kate Shaw?

  I got two of three. Okay, laundry, they did laundry. I'm not, I don't think I ever saw a minute of that show, but GTL kind of crossed over into the broader culture enough that I do recall it. Okay, that's good.

• 40:12Leah Litman?

  But this deployment in just a few places is just the tip because it is a test run to see what they can get away with in either or both 2026 or 2028. Like, are people paying attention to this? Is there outrage? Will there be pushback, et cetera? Because this is all kinds of fucked and could fuck up democracy even more.

• 40:32Kate Shaw?

  So if you're wondering, should I be alarmed?

• 40:34Leah Litman?

  Yes.

• 40:34Kate Shaw?

  Should I be activated about, you know, the actual use of federal officials potentially to intimidate voters and to affect the outcomes of elections? Yes, you very much should.

• 40:49Leah Litman?

  But there are some things that maybe shouldn't be triggering you into all-out alarm bells at this point. So there's been some reporting that there was, the Supreme Court is going to consider Kim Davis's request to overrule Obergefell versus Hedges and that, you know, a justice had called for a response in the case. The Supreme Court schedules every single petition for certiorari, you know, for discussion at particular conferences. That is not any indication whatsoever about what the court will do. Like, every single case, literally every request for the court hearing case is formally listed. And then even a request for a response, I mean, that can be done by a single justice, that can sometimes be done by a single clerk. Some justices authorize their clerks just to do it. Honestly, when I was there, some clerks did it.

• 41:34Leah Litman?

  They would ask another clerk to do it so that they didn't have to write their pool memo that week, like, as a delay tactic. And, you know, honestly, this could also just be like one clerk or a justice wanting to like troll or trigger people. Like, we just don't know, and it's just not that meaningful of an indicator. So as far as things to, like, really be alarmed about at this point, like, we're just not there yet on that particular case specifically.

• 42:00Leah Litman?

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• 43:29Leah Litman?

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• 43:46Speaker 10

  Long Play, our docu-series exploring the people and forces shaping the South, is back. Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South, too. We're in the final stretch of the midterms, and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time- To get back out on the road and take a closer look at what's actually happening on the ground. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 44:36Leah Litman?

  Okay, wanted to give you more updates on what all of the great people, the best people who are now part of Article Two are up to. And oh, dear listeners, we have a great one for you. And that is the story on Lindsey Halligan. And we should underscore, again, this is all off the record. But Halligan is the former-

• 44:56Kate Shaw?

  The whole episode is off the record, but this part is double off.

• 44:58Leah Litman?

  Exactly, exactly. It's like a special designation. You might not have heard of it, Kate, because you're not like a real journalist. But yeah, no, this is, this is double off the record anyways. It's a special term for podcasters. But, okay, yeah, so Halligan, the former insurance lawyer and personal lawyer to Trump, who Trump installed as the acting US Attorney in the Eastern District of Virginia, where she has sought and obtained indictments against, you know, former FBI Director Jim Comey and New York Attorney General Tish James, indictments that the former Trump-selected US Attorney and career attorneys were unwilling to touch because there are no crimes. Well, it seems that Lindsey Halligan hasn't enjoyed the reporting on her hackery. So what did she do? She dialed up one of the people who has been reporting on her antics, and that's Anna Bower at Lawfare.

• 45:43Leah Litman?

  And specifically, Halligan Signal Chatted her, straight out of the Pete Hegseth playbook.

• 45:51Kate Shaw?

  Only with a variation, because this appears to have been intentional rather than inadvertent. Anna wrote up and excerpted her exchange with Halligan in a pretty jaw-dropping account that really must be read in its entirety. The exchange between the two spanned multiple days and featured a few highlights that we will just mention. So, quote, "Anna, Lindsey Halligan here," the first message read, "you're reporting things that are simply not true. Thought you should have a heads up." Halligan proceeded to complain to Bauer about the New York Times reporting, although wouldn't ID what exactly the New York Times, in her estimation, got wrong.

• 46:36Leah Litman?

  And in the course of this back and forth in which Halligan is like, they got stuff wrong. And Anna's like, what did they get wrong? And Halligan is like, it's all wrong. It's all wrong. Halligan says, Anna, you're biased. Your reporting isn't accurate. I'm the one handling the case. And I'm telling you that if you want to twist and torture the facts to fit your narrative, there's nothing I can do. Waste to even give you a heads up. And then, then the icing on the cake. So when Anna Bower reaches out to DOJ for comment on the exchange, because of course she reports on it and posted at Law Fair, she then gets a subsequent message from Lindsey Halligan that reads, quote, "By the way, everything I ever sent you is off the record. You're not a journalist, so it's weird saying that,

• 47:18Leah Litman?

  but just letting you know," end quote. This is art in its highest form. You have to read the entire story documenting the exchange. It is insane.

• 47:30Kate Shaw?

  So folks who are not familiar with this, calling up a reporter who you also say you don't think is a reporter, even though you talk about her reporting in the exchange, to complain about other reporting and then to say to the person who you say you don't think is a reporter, after the fact, that the conversation is off the record and that those are the rules of journalism, is just chef's kiss. And I should say that Bauer is, comes off really well in this exchange.

• 47:56Leah Litman?

  Yes.

• 47:57Kate Shaw?

  She's genuinely apologetic.

• 47:58Leah Litman?

  She's so reasonable.

• 47:59Kate Shaw?

  When she has handed this insane request slash demand that there'd be some retroactive immunity that attaches to the entire exchange, Bauer says, I'm really sorry, but that is just not how any of this works. And Halligan is incensed because I'm not sure she knows how any of this works.

• 48:16Leah Litman?

  No, she obviously doesn't.

• 48:18Kate Shaw?

  Nope.

• 48:18Leah Litman?

  I do wonder whether some Supreme Court justice is going to say the shadow docket is off the record at some point soon in the future. But all of these exchanges-

• 48:28Kate Shaw?

  Well, certainly they think their, their, their hot mic aside at the end of oral arguments.

• 48:33Leah Litman?

  Yeah, that's off the record.

• 48:34Kate Shaw?

  Like the one we played last week from the Voting Rights Act argument. They definitely think those are off the record.

• 48:38Leah Litman?

  Yes. The exchange between Bauer and Halligan should obviously go in the Louvre to replace the jewels that have been stolen.

• 48:46Kate Shaw?

  There's space right now.

• 48:47Leah Litman?

  I know. That story was honestly like a welcome return to a world of like old time crime. You know, that wasn't like criming straight up out of the White House.

• 48:55Kate Shaw?

  Is that why it was so delightful? I couldn't tell why I found I loved the story as much as I did. But yeah, it was just like a quaint or simpler kind of crime.

• 49:02Leah Litman?

  Yeah. But it wasn't just the ending of a conversation between Halligan and Bauer. It's that Lawfare had to post an update to the initial post that had described the exchanges between Halligan and Bauer. And the post script is, quote, "Hours after Lawfare published this article, Justice Department spokeswoman Natalie Beldassary provided the following additional comment, quote, 'Thank you for including my statement in your story. I just realized I spelled Lindsey's name wrong in the initial response. Would you mind correcting?'"

• 49:37Kate Shaw?

  Real prose over there is the only conclusion.

• 49:41Leah Litman?

  Yeah.

• 49:42Kate Shaw?

  It was a rare, that and the Louvre heist were sort of rare notes of levity in a grim week. In other, much more serious news, SCOTUS found a shadow docket application, a request for emergency relief that it didn't want to grant. So that was a significant development. But no, it was not one from the Trump administration. This was the court continuing its trend of denying requests for stays of execution, this time in the case of Anthony Boyd out of Alabama. Boyd sought to challenge the state's plan to execute him by way of nitrogen gas. This is a protocol that asphyxiates someone, causing them to experience the symptoms of asphyxiation over a period of two to seven minutes or even substantially longer.

• 50:24Leah Litman?

  So Justice Sotomayor dissented from the denial of a stay and she was joined by justices Kagan and Jackson. And the beginning of Justice Sotomayor's dissent lays out in graphic and explicit detail what nitrogen asphyxiation would be like. You know, a short excerpt, quote, "For two to four minutes, Boyd will remain conscious while the state of Alabama kills him. He will immediately convulse. He will gasp for air. He will thrash violently against the restraints holding him in place as he experiences this intense psychological torment. Boyd asks for the barest form of mercy to die by firing scud, which would kill him in seconds rather than by a torturous suffocation lasting up to four minutes. The Constitution would grant him that grace. My colleagues do not."

• 51:06Kate Shaw?

  So because, you know, only three justices would have granted that application, the execution did go forward. It was carried out. And Lee Hedgepath, who reported on the execution, wrote that it was the longest nitrogen suffocation execution in the methods history, making two to four minutes sound merciful. This apparently lasted for 37 minutes, during which Boyd gasped for air inside a gas mask more than 225 times. I mean, such a horrifying story. And also, the kind of moral clarity on display in that Sotomayor dissent is, you know, the one thing that gives me hope that there's anything like

• 51:47Kate Shaw?

  law out there that will be able to be reconstituted if we are ever in the after times. So it really was powerful, but obviously not enough to persuade two of her colleagues, which is what it would have taken. Okay, so one last note. Arizona Attorney General Chris Mays has filed a lawsuit against Speaker Mike Johnson, seeking a ruling that would force Johnson to seat Arizona Congresswoman-elect Adalita Grahalva. Grahalva was elected to Congress, as we mentioned last week, in a special election back in September, and Johnson has still not sworn her in. And as we also described last time, there are a lot of people saying that Johnson has not sworn her in because Grahalva has pledged to sign a petition that would force a vote on release of a bunch of Jeffrey Epstein documents. She would be the 218th signature, which is the magic number for moving those

• 52:32Kate Shaw?

  documents toward release.

• 52:35Leah Litman?

  And that is the news, which means we will now turn to a conversation with the wonderful Arin Carmon about her wonderful new book, which is out tomorrow, Unbearable.

• 52:51Melissa Murray?

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• 54:49Leah Litman?

  Strict Scrutiny is brought to you by Sony Pictures Nuremberg. As the world grapples with the unveiled horrors of the Holocaust, the Allies, led by Supreme Court Justice Robert H. Jackson, create an unprecedented international tribunal to hold the highest ranking Nazi officials accountable. Among them, US Army psychiatrist Lieutenant Colonel Douglas Kelly is assigned the extraordinary task of assessing the mental state of Herman Goring, the notorious former Reichsmarshall, and Hitler's second-in-command. During this trial of the century, Dr. Kelly becomes locked in a psychological duel that reveals a sobering truth: Ordinary men can commit extraordinary evil. Nuremberg, written and directed by James Vanderbilt, starring Russell Crowe, Rami Malek, Leo Woodall, and Michael Shannon. Only in theaters November 7th.

• 55:32Leah Litman?

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• 55:47Leah Litman?

  Now, we are delighted to be joined by Arin Karmon, the author of the fantastic new book Unbearable: Five Women and the Perils of Pregnancy in America. Arin, we want to give credit where credit is due, and we hear that friend of the pod, Sam Alito, might have been the inspo for this book. Did I hear that right?

• 56:05Speaker 12

  I'd like to thank my guy, Sam. That is absolutely correct. Fun fact, I'm sure a lot of us remember where we were when the Dobbs leak happened. I was actually about to go live with true friend of the show, Chris Hayes, to talk about a national abortion ban that had been introduced in the Senate that day. We had no idea what was coming, and during the commercial break, I got a text saying, like, "Wait, read this political link 30 seconds before we go live." And Chris and I made our way through that segment live. And so I will never forget that. I believe I said, "They called us Chicken Little. Now this guy is falling."

• 56:43Leah Litman?

  And you were on live TV when it happened? Oh, my God.

• 56:45Speaker 12

  Yeah, both of us were like, "What?" Unfortunately, we couldn't say what we're really thinking, which is what the fuck? I mean, you know, as you know, the outcome was not the surprise, but the leak and, you know, and perhaps the vehemence of the opinion and its absoluteness. And so I, when I finally had the chance to read the full leak, which as we know was basically verbatim when it was issued as an opinion, of the many things that jumped out at me was the recitation of the Mississippi 15-week ban that was at issue in Dobbs. And specifically, this kind of very familiar anti-abortion recitation of the week-by-week development of a fetus. And as it happened, I was six months pregnant at the time, happily so,

• 57:29Speaker 12

  although, you know, none of your business, Sam. And I, I felt a new layer. You know, I've been doing this for a long time. I don't believe you need to have been pregnant or currently be pregnant to have an opinion on reproductive autonomy. But it drove home the dehumanization of pregnant people of the opinion that nowhere did that opinion offer a similar recitation of the burdens and the encroachments on a person who is pregnant against their will and the state is blocking their door to medical care. And so when, you know, when I got to the line, I have it right here. When I got to the line where he said, "At 12 weeks, the unborn human being has, quote, 'taken on the human form in all respects.'"

• 58:13Speaker 12

  In all respects, okay. It's saying, hey, what's up? It's not replying to your texts. And so at that point, I decided I would title the piece in response once I had reported on the substance of the opinion. I would call it "I Too Have a Human Form." And it became the basis of my thinking for what is now my book, Unbearable, which is a reported narrative book that takes five women through the course of pregnancy care, their own pregnancies. One of them is a provider who's trying to provide better care. In Alabama and in New York City, and to kind of answer this fundamental question of how did the person who is pregnant

• 58:52Speaker 12

  become so erased, dehumanized, punished by the law and by medicine?

• 58:59Kate Shaw?

  Yeah.

• 58:59Speaker 12

  So, thanks, Sam.

• 59:00Kate Shaw?

  Can I jump in and actually prompt one more sort of Sam Alito exchange? Which is, so, that's Alito in Dobbs, and I do think the book is this incredibly powerful corrective to that erasure that you just described. And there's one other moment in a much lesser-known, but also really important case about abortion, involving in Tala, the federal statute that by its terms requires hospitals to provide stabilizing care to patients in crisis in general, including pregnant patients. And that stabilizing care, by, again, the terms of the statute, I think sometimes includes abortion care. Anyway, so, the Sam Alito clip we want to bring to our listeners involves an exchange that I think also highlights what you were just talking about, which is the fixation

• 59:42Kate Shaw?

  on the fetus, often at the expense of a pregnant woman, but also the denial and gaslighting that that is, in fact, what Sam Alito and the conservative majority on the court are doing. So, you'll hear Sam Alito in an exchange with then Solicitor General Elizabeth Prelogar.

• 59:56Speaker 13

  But to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization, I think that that is an erroneous reading of this statute.

• 1:00:06Speaker 14

  Nobody's suggesting that a woman is not an individual when she doesn't deserve stabilization.

• 1:00:13Speaker 13

  Well, the premise of the question would be that the state of Idaho can declare that she cannot get the stabilizing treatment even if she's about to die. That is their theory of this case and this statute, and it's wrong.

• 1:00:24Leah Litman?

  He literally suggested that a few months later.

• 1:00:27Speaker 12

  Yeah, right, right. Yeah, there's so much that I want to say. I mean, of course, I have a whole discussion of this moment in the book, too. It was really important to me to show that this predated Dobbs, this kind of dehumanization of pregnant individuals, but that Dobbs clarified it and intensified it. So, one of the discussions I have in my book is understanding that despite the kind of gaslighting of no one is suggesting she's not an individual, which really does nicely bookend with the unborn taking the fully human form in all respects.

• 1:01:01Speaker 12

  Is that it is not an unintended consequence. That there is in the black and white text of, for example, Apalog, the pro-life obstetricians organization, that is a very well-known writer of amicus briefs in all these abortion cases, that helps draft the laws that then end up getting challenged to the Supreme Court. Sometimes verbatim taken from their practice guidelines. They themselves lay out in black and white that in weighing these emergency situations, absolutely nothing can be done that can implicate the provider in even potentially or unintentionally harming a fetus.

• 1:01:43Speaker 12

  And what it lays out is advisable instead of performing abortion care where it is indicated, is so outrageously disrespectful and adds risk to pregnant women. For example, when there's premature rupture of membranes, which is a case that has come up again and again. So this is when the amniotic fluid is leaking. Somebody has gone into premature labor before fetal viability. And so even if there were, you know, an emergency delivery instead of abortion, there would be no chance at a live birth, no chance at a baby. But so interested are Apalog in maintaining the purity

• 1:02:25Speaker 12

  of like not even looking like it's an abortion for the provider's sake, for their values, not asking the pregnant individual what she wants or needs, or what would be the best for her health, that they say that you should do a C-section in that instance, even though it causes significant additional risk that is completely preventable. A C-section is always a cost-benefit analysis that can harm her future fertility, that can cause complications to her own health. And so Some would argue I go a little too in the weeds on this, but it, to me, is such an illustration of the profound contempt for the health and life of the individual who is carrying that pregnancy.

• 1:03:07Speaker 12

  And so for Sam Alito to say, no one is suggesting that it is being lived across this country, including one of the women who I wrote about, Allison, who is actually an attorney at the ACLU of Alabama, and who I met, actually because she was the lawyer of one of the other women that I write about. And I learned that in the aftermath of Dobbs, when she was seeking to become pregnant through fertility treatments with her partner, she had a series of miscarriages in which she was denied miscarriage care, she was denied her options, DNC or Mifepristone, because of the chilling effect of Alabama's abortion law.

• 1:03:48Kate Shaw?

  Yeah.

• 1:03:48Speaker 12

  So in this case, there was not even a fetal heartbeat. She had four miscarriages. She wound up driving for hours to Tuscaloosa's former abortion clinic, even though on paper, as we know, there are many instances in which on paper, it's technically legal, and yet we are told this never happens, or that this is malicious compliance.

• 1:04:09Kate Shaw?

  Yeah. So Allison is one of the five protagonists that you sort of structure the book around. So there are five characters navigating in different ways, various aspects of pregnancy, the law, the medicine, and the experience of pregnancy. And you use those characters to explore the really expansive scope of Dobbs' sort of harm and the radius that it has created. But you also situate the stories and the fallout from Dobbs, as you were alluding to a couple of minutes ago, in the context of very longstanding societal and legal disrespect for pregnancy and childbearing, despite claims to the contrary, that very long predate Dobbs, but that also laid the groundwork for it. And actually, maybe to tie this for a minute to recent events, NBC reported last week

• 1:04:53Kate Shaw?

  that pregnant women who are being detained by ICE are reporting being shackled, being subject to solitary confinement, deprived of food and prenatal vitamins. There are allegations that pregnant women are miscarrying in ICE custody. So, you know, either specifically or kind of more generally, can you just talk for a couple of minutes about how certain people and certain populations have been the canary in the coal mine for how law and society would treat pregnant individuals in this post-Dobbs world?

• 1:05:22Speaker 12

  Absolutely. I mean, the foundation of reproductive control in this country goes back to American slavery. When, and Dorothy Roberts really powerfully in the book talks about it, in her own work, of course, talks about how depending on the economic goals of the government, Black women's reproduction was either encouraged when it was to the benefit of the plantation owner, and that is also the foundation of obstetrics and gynecology in the United States, is the experimentation on enslaved women, or controlled in the form of eugenic sterilization. And so, one of the things that Dorothy Roberts says to me in the book that has wrung in

• 1:06:05Speaker 12

  my head forever is that what is tested and tolerated in Black women is later turned more broadly. And so, you know, when I read about the abuses in ICE detention, I think also about how these kinds of controls are tested on marginalized women, how freighted and racist the language of the so-called anchor baby has been, and it's been so central to the Trump administration's stigmatization of certain kinds of childbearing, even while claiming to be pro-life, not to mention family separation. But unfortunately, even US citizens who are pregnant in incarceration in the United States are suffering some of the same indignities, and it's being done, in these cases that

• 1:06:47Speaker 12

  I wrote about, in the name of the good of their children. Even if they've already given birth, their children are fine, even if they're not getting good access to prenatal care in jail, surprise, surprise, they're having pregnancy emergencies and not being taken to the hospital. In one case, there was a preventable, likely preventable stillbirth that occurred in the Alabama carceral system. And so, to me, it really distills the logic of punishment. So, the woman that I write about, Haley Burns, is white. Hales from Alabama. She is in maintenance, on maintenance medication for opioid addiction. And also uses a little bit because of postpartum depression, not knowing that she's pregnant.

• 1:07:32Speaker 12

  She goes to seek prenatal care. And six days after she gives birth, the police shows up in her son's hospital room and arrests her, incarcerates her for two months. And when she is in jail, she ends up in a cell with three other pregnant and postpartum women who are being jailed for the sake of their fetuses.

• 1:07:52Leah Litman?

  So another part of the story you weave together is about the implications that Dobbs has for non-abortion care, which you were already alluding to. But this also includes the implications for IVF, in vitro fertilization and assisted reproductive technology. And longtime podcast listeners might recall how the Alabama Supreme Court issued a decision that basically ended IVF in that state. And the book argues that the conceptual and sociological moves that paved the way for Dobbs also facilitated the moves to end IVF. So could you elaborate a little bit more on that?

• 1:08:25Speaker 12

  Absolutely. I mean, I think it is quite literally the legal framework in the IVF decision. That happens in 2013 with an Alabama State Supreme Court case known as Ankrum, where Tom Parker, a justice on the Alabama State Supreme Court, who's closely associated with Roy Moore, finds that a fetus is a person for the purpose of child abuse statutes all the way back in 2013, before we had Dobbs. But he laments in this opinion that because Roe v. Wade and Planned Parenthood versus Casey exist, that his hands are tied, but that abortion stands on its own and constraining the recognition of fetal personhood.

• 1:09:09Speaker 12

  So they go ahead and they say a fetus is a person when it comes to a child abuse statute. This chemical endangerment charged, the legislative history of it is allegations of people taking their kids to meth labs. Now it's being used primarily against pregnant women. This is one of the reasons that Alabama leads the country in criminalizing pregnant women. So a very punitive kind of regime when it comes to this. And so, so that's the ruling in 2013. So in 2020, when a mentally unstable person drops some embryos in a facility in Mobile, Alabama, and destroys the embryos of people who are obviously crushed by this situation because of the lack of security to facility,

• 1:09:52Speaker 12

  they bring a claim under 19th century wrongful death of a minor law. By this point, Dobbs has happened. They cite several ways in which fetal personhood, embryonic personhood, has been enshrined in Alabama law. There is the abortion referendum where they recognize personhood. There is Ankrum. And there is now that the law of the land is Dobbs. And Tom Parker happens to be, by that point, the chief justice of the Alabama State Supreme Court. And so when he writes that embryos in a Petri dish are, quote, "extraterrestrial children", he is building on something that had already largely been tolerated,

• 1:10:35Speaker 12

  which is the criminalizing of pregnant women for crimes against their fetuses. So when it was women who were struggling with opioid abuse or crack addiction, we did not see that kind of outrage. But it proves Dorothy Roberts' observation that first, these are, these policies are tested on disfavored people, but they are building a larger regime of control that soon expands to broader populations, including, at this point, you know, IVF being largely accessed or accessible to people who have means. And so ironically, Allison, the lawyer of ACLU, at this point, she's considering starting IVF.

• 1:11:18Speaker 12

  She finds herself going to these rallies in Alabama against the State Supreme Court decision. And she's seeing upper-middle-class white people who she feels, you know, okay, we're all in the same boat. We're all trying to build our family. But where were you guys when we were having these other conversations? And certainly, how do you feel about abortion now? Because you've seen the same logic of abortion bans, even though you thought it would never be you. And I think one of the themes, I think that ties together, the argument of the book and the individual's experiences is these silos do not exist in the minds of the people who are engaging in reproductive control and oppression. They see these as all interconnected, you know?

• 1:11:59Speaker 12

  So people who have a more expansive, justice-oriented view of reproduction, I think also it behooves us to see the sociocultural, the political, the medical, and the legal connections because out there in the world, these are all different, same individuals, different parts in their lives, or people who they never thought it would be them. But this same logic of fetal personhood, of dehumanizing the pregnant individual, has come down on them when they least expect it.

• 1:12:28Leah Litman?

  Which is so weird because I was assured that after the court overruled Roe, Republicans would definitely support people who chose to have children, invest in social safety nets for families,

• 1:12:36Speaker 12

  I'm waiting.

• 1:12:37Leah Litman?

  And all of the other wonderful things, yeah, no.

• 1:12:39Speaker 12

  It's coming, two weeks.

• 1:12:40Leah Litman?

  Any day now.

• 1:12:41Kate Shaw?

  Right. Well, not that that claim needs rebutting, but there is a lot in the book that does rebut it. And one aspect that we wanted to ask you about is the story of Dr. Yeshica Robinson, who is an amazing character. And the part of the story I wanted to ask you about was so Alabama, she's an abortion provider. Alabama law forces her to close her abortion clinic in the wake of Dobbs. She then moves to open a birth center that would provide alternatives to the hospital care that she had found very wanting as a provider, and also training for Black midwives who wanted to offer culturally competent care. And she encounters just tons of resistance in those efforts, and you report those. So could you just share a little bit of that story with our listeners?

• 1:13:20Speaker 12

  So we just talked about one kind of irony of these walls between what we think of as different experiences of reproduction coming down and only finding out when things go really wrong. Well, people who are familiar with legal restrictions on abortion remember trap laws. In some ways, they're kind of quaint in the world of draconian fold bans. But of course, these bad faith regulations that bore no relationship to medical need that were levied on abortion clinics, turning them into ambulatory surgical centers, giving really, you know, onerous requirements for licensing and for admitting privileges. Well, I mean, you wouldn't think of necessarily out-of-hospital birth midwifery,

• 1:14:04Speaker 12

  which includes many anti-abortion people, by the way. Most of the midwives in Alabama consider themselves pro-life. You wouldn't think of that as being a threat to the state of Alabama, giving people options for safe birth.

• 1:14:19Speaker 12

  This is something you could imagine like an anti-abortion campaign being like, "Wow, we shut down the abortion clinic and now it's a birth center." Well, no, because there's also a business interest and a legal political control interest in birth that is deeply enshrined in a lot of state governments, including in Alabama. And so, low and behold, when Dr. Yeshica Robinson and her husband, who was the owner of the abortion clinic in Huntsville, Alabama, find out about new restrictions on birth centers, which, you know, midwifery was actually banned in Alabama for a long time for the same reasons I just laid out. So slowly, they are fighting for better options. So what happens?

• 1:15:02Speaker 12

  They're sitting and they're listening to what these regulations are on birth centers, and they sound exactly like the trap laws. They're the width of the hallway, and they're the stretcher, and they take you through the trial. And one of the reasons that I, in which they challenged these restrictions, and the parallels between the contempt for these providers who are fighting for their patients, when they were on the stand trying to offer abortions to their patients, and now trying to offer them another outcome to a safer, healthier pregnancy and birth, drives home how much this is not about, also to quote another antique term, "the state's sincere respect for fetal life."

• 1:15:46Speaker 12

  To constrict the options of the people who are bearing that fetal life for business reasons, for legal reasons, for control reasons, I think tells the fuller story of what all this is really about, and it's not about babies.

• 1:16:02Leah Litman?

  Well, it is an account that is enraging, but also where the players are genuinely inspiring. Thank you, Arin, so much for joining.

• 1:16:11Speaker 12

  Thank you so much for having me. Love hanging out with you guys.

• 1:16:14Leah Litman?

  Again, the book is Unbearable: Five Women and the Perils of Pregnancy in America. It is out tomorrow. You can preorder your copy now. There's a link in the show notes, but get it ASAP. We have been recommending the book ever since we had a chance at a sneak peek and discussed it in our Dobbs retrospective. And if you want to hear more strict scrutiny and Irin and unbearable crossover, Irin is doing an event with our very own Melissa Murray at the New York Public Library on Wednesday, October 29th at 7:00 PM. Again, that's at the New York Public Library on Wednesday, October 29th at 7:00 PM. And there will also be a link to that event in the show note.

• 1:16:47Kate Shaw?

  Irin, thanks so much again for joining us. The book is fantastic.

• 1:16:50Leah Litman?

  Thank you.

• 1:16:51Kate Shaw?

  Hopefully that gave our listeners a sense of this must read book. And before we go, we're just going to share our favorite things for this week. You want to start, Leah?

• 1:16:58Leah Litman?

  Yeah. So I really liked Quinta Jurassic, Resistance is Cringe, But It's Also Effective in the Atlantic. As someone who has embraced and self identifies as cringe, I just liked that. I also liked Mr. Kate Shaw in the New York Times. The Democrats-

• 1:17:15Kate Shaw?

  AKA Chris Hayes.

• 1:17:15Leah Litman?

  AKA Chris Hayes. The Democrats' main problem isn't their message. Just talking about how Democrats basically need to find good communicators who are willing to basically be a little bit more unpolished and off the cuff and kind of entrepreneurs and how they reach people. We've already invoked this piece, but Charlie Savage's piece in the New York Times, The Peril of a White House That Flaunts Its Indifference to the Law, was just fabulous. Like, in its really straightforward clarity in describing what the administration is doing and how wildly illegal it is without the kind of hedging, both sides-ism and obfuscation that I think oftentimes accompanies reporting about law

• 1:17:57Leah Litman?

  and legal news. Then, on a very different note, there was a mashup this past week, launched by A.J. McLean of the Backstreet Boys, who blended a Backstreet Boys song with Taylor Swift's Elizabeth Taylor on his Instagram. You have to listen to it.

• 1:18:18Kate Shaw?

  I've missed this entirely. Is it good?

• 1:18:20Leah Litman?

  It's fabulous. Full audios on SoundCloud. Loved it. It's the mashup I didn't know I needed.

• 1:18:26Kate Shaw?

  Okay, I'm gonna run and listen to it as soon as I'm recording. And just to underscore what you said about the Charlie Savage piece, yeah, like the fact that it was not an opinion piece, it was a news piece. But sometimes there aren't two sides, and this is one of those times, and I think it was very clear-eyed about that. Couple of things I will recommend. I am still on my Lily King bender, so I've now read her short story collection, Five Tuesdays in Winter, which I loved. Shout out to University of Chicago 3L Abby Berman, who I met at O'Hare. I had to go to Chicago just for one day this week, and Abby had been at our Chicago Live show a couple of weeks ago, and we were on the same plane back to New York. Abby, it was awesome to meet you. And then finally, on that same plane, I was flying very late at night, and I'm usually

• 1:19:09Kate Shaw?

  very productive on planes, but like, I was too brain-dead, so I watched a movie. And I watched the Brazilian film, I'm Still Here, about life under dictatorship. And, you know, maybe that's a heavy-sounding choice, given that, you know, it's not really a way to escape our current timeline, but it is a beautiful film and incredibly acted. And, you know, I don't think I'm spoiling anything to say. It's bad and dark, but there is an after time, and I took some comfort in that. So highly recommend that film.

• 1:19:41Leah Litman?

  So one additional note before we go. In our unrelenting media ecosystem, the news moves so quickly, it can feel like we're watching our country whiz past us. The car is moving so fast, we can't possibly see the individuals being left behind, or worse, run over. On her new podcast, Runaway Country, veteran journalist Alex Wagner talks to the voices at the center of the headlines, from the fringes of the resistance to the marrow of MAGA, to the many people who found themselves smack dab in the middle of a fight they never asked for. Because if you want to understand our unreal times, you've got to talk to the very real people who are experiencing it all firsthand. Join Alex as she brings together the stories of everyday Americans trapped in our national car with no brakes, alongside conversations with some of the smartest thinkers in politics. Buckle up, this road could lead anywhere.

• 1:20:25Leah Litman?

  Tune in to Runaway Country with Alex Wagner every Thursday, wherever you get your podcasts, or subscribe on YouTube.

• 1:20:35Kate Shaw?

  Strix Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote, Jo Motosky, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strix Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrixScrutinyPodcast. If you haven't already, be sure to subscribe to Strix Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:21:31Speaker 10

  Long Play, our docu-series exploring the people and forces shaping the South, is back. Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South, too. We're in the final stretch of the midterms, and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time to get back out on the road and take a closer look at what's actually happening on the ground. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmeri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 1:22:12Speaker 15

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