The Malicious Incompetence of Trump's DOJ

Kate and Leah cover this week’s three Supreme Court opinions—one featuring a killer Ketanji Brown Jackson dissent—before turning to legal news, where bad behavior is everywhere. We’ve got a violent judge who can’t park https://www.idahostatejournal.com/judge-ryan-d-nelson-confrontation-video/video_3bda1d0b-c645-467d-8d5a-faa1f0047483.htmlin Idaho, politically motivated prosecutors in Chicago, and Trump’s generationally incompetent personal lawyers failing to do basic lawyering. Finally, Leah speaks with Mary Moriarty, Hennepin County (MN) Attorney, about the charges her office has filed against ICE agents, the breakdown in cooperation between local authorities and the feds, and FAFO https://www.federaloverreach.org/, the new coalition of prosecutors fighting back against federal overreach. The paperback edition of Leah’s book, Lawless, featuring brand-new material is out on Tuesday, June 16. Buy it here https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t! Favorite things: Leah: The Supreme Court Doesn’t Own the Constitution https://www.nytimes.com/2026/06/10/opinion/constitution-supreme-court-popular-sovereignty.html?unlocked_article_code=1.pFA.hJTG.4bW__Yr8adIa&smid=url-share, Jamelle Bouie (NYT);Supreme Court rejects Alabama's request to let it kill Jeffery Lee with nitrogen gas this week https://www.lawdork.com/p/scotus-alabama-nitrogen-gas-execution, Chris Geidner (Law Dork) Kate: The Hill https://bookshop.org/p/books/the-hill-harriet-clark/22519302, Harriet Clark Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more:http://crooked.com/eventsBuy Melissa’s bestselling book, The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky 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?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers specifically. A multi-faith group of federal employees filed a new lawsuit against the U.S. Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out saying the proselytizing Easter email sent by Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation

• 0:44Leah Litman?

  of church and state promised in the First Amendment. They are absolutely right. Not only is it in the First Amendment, it's in the first sentence of the First Amendment, quote, "no law respecting an establishment of religion." And no means no, as in no proselytizing government employees. The hits just keep on coming from this administration, and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org/crooked to learn more about their work and how you can get involved.

• 1:14Speaker 01

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• 1:59Speaker 02

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

• 2:10Speaker 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."

• 2:42Kate 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.

• 2:48Leah Litman?

  And I'm Leah Litman. This is, alas, another Just the Two of Us episode. We are without Melissa Murray today. But fear not, the Department of Justice may have beclown themselves just enough that we think we have some gags even without Melissa jokes and humor. Okay, so today we're going to be covering the opinions that the Supreme Court managed to release. Spoiler, not that many. So most of it is going to be a smorgasbord of news that includes judges going wild, as in Farrell, the Department of Justice doing a lot of oopsies, and the White House signaling that it basically views all of anti-discrimination law as unconstitutional. More precisely, it appears to think that conventional anti-discrimination law is unconstitutional because anti-discrimination law is itself discrimination.

• 3:33Leah Litman?

  As always, it will make a lot of sense, and we will explain it.

• 3:36Kate Shaw?

  Two things. One, when you said it is just the two of us, the rhythm of your voice saying "just the" sounded like you were saying this is a Just the Tip episode, and I just wanted to make sure that it's not.

• 3:46Leah Litman?

  Oh, I was honestly thinking of the Just the Two of Us song as I was saying it, like, in that rhythm.

• 3:52Kate Shaw?

  Okay, well, why not both? And yes, as Leah said, the DOJ has been very busy this week. We will explain. But does it sort of feel to you like there is this little bit of a gap because the Supreme Court is taking its sweet time in issuing, like, the horror show of decisions to come? And so DOJ has seized the opportunity to kind of step into the breach. Anyway, we will elaborate. And because we will spend a fair bit of time talking about the Department of Justice, including what prosecutors should not be doing, we're going to end this episode with a segment about what they should be doing. And that is a segment with a first time strict scrutiny guest that we cannot wait to share with you. So if you are wondering what can be done to check federal law enforcement and their

• 4:35Kate Shaw?

  overreach and protect our democracy in the lead up to the election, please tune in for that last segment.

• 4:41Leah Litman?

  And now to Supreme Court opinions. So we got three opinions last Thursday. None of the big ones. This means there are now 20 opinions left in argued cases and potentially just two weeks left of the term. That's going to make for a completely bananas next two weeks and possibly more if they go into the week of June 29. It seems like they are likely to start adding opinion days, so brace yourselves for that and possible bonus episodes to go along with those good times. I just want to say, like, what is taking them so long? Because I wrote an updated version of Lawless while you guys were doing shit and it's actually

• 5:26Leah Litman?

  out tomorrow. So if you are looking for something to read and it's in the absence of Supreme Court opinions, you can get the paperback version of Lawless out tomorrow. Just an FYI.

• 5:38Kate Shaw?

  It is an antidote both to the Supreme Court's bad decisions and also to the absence of their bad decisions. It will cure all your ailments.

• 5:46Leah Litman?

  Why not both?

• 5:47Kate Shaw?

  The paperback and its new material and newly lighter format, you know, for easy shoving in your, you know, shoulder bag, on your bicycle, wherever you're going.

• 5:59Leah Litman?

  Easy, easy, beautiful. The flawless version of Lawless.

• 6:02Kate Shaw?

  Exactly. But just, just in terms of the kind of opinion pace issue, so, you know, people who've been following this for a long time will, I think, know, but maybe sort of newer listeners don't realize, like, it is, you know, the end of the Supreme Court term is always insane, but they are really concentrating so many huge cases in the last two weeks of the term, like... Gird your loins, hydrate and rest. It's going to be a wild stretch. And as Leah said, it could be the next two weeks and they're just going to get a ton of, just dump tons of them on us in like three or four opinion days. Or they could go into the week that ends on July 4th, which they typically really try to avoid doing, but I don't know if they can get everything out before then.

• 6:45Kate Shaw?

  So it will either be two or possibly three more weeks of this. Anyway, so I guess marathon, not a sprint is the TLDR. Okay. Onto the three opinions that we did get last week. The first, Abu Womo versus United States is a case in which the court unanimously held that a defendant who was charged with knowingly falsifying a document with intent to obstruct a federal investigation had to be charged in the district where the alleged falsification occurred rather than where the federal investigation was located. So here, the defendant, who was a former Twitter employee, allegedly took a bribe from the Saudi government in exchange for giving them information about Saudi dissidents and their activity on the platform, and then made a false invoice to support his claim

• 7:28Kate Shaw?

  that the payment was just like for consulting services. He made this false invoice in Seattle. So he was actually being questioned by federal officials, said it was just payment. They said, you know, do you have any supporting material? And he like went upstairs and printed out a allegedly fake invoice. So all that happened in Seattle. But he was charged in California where the investigation was based. And here, the court, in a unanimous opinion authored by Justice Kagan, said that this California charging was improper. He had to be charged in Washington.

• 7:57Leah Litman?

  It is possible that this case might affect DOJ's ability to continue to persecute a Rhode Island hospital for providing gender-affirming care. Recall that DOJ is using a Texas district court to issue subpoenas to the Rhode Island hospital, maybe saying it's investigating this from Texas. And the Texas district judge went along with it, issuing an anti-suit injunction that purports to forbid the Rhode Island hospital or patients from filing to challenge this conduct anywhere other than the Texas district court or Fifth Circuit. At a minimum, the Supreme Court's decision suggests that any prosecution- Resulting from this, perhaps none, right? The investigation of prosecution might be the point.

• 8:39Kate Shaw?

  Hopefully none.

• 8:40Leah Litman?

  But any prosecution would have to be in Rhode Island.

• 8:42Kate Shaw?

  Yeah. And hopefully, there's no criminal prosecution.

• 8:44Leah Litman?

  Yes.

• 8:44Kate Shaw?

  And I gather there are statutory venue issues that are distinct from the kind of general constitutional venue issues, an issue in the case we just talked about. But the kind of high-level observation that there's something troubling about DOJ, like in one place, seeking to target conduct that happens somewhere totally different, does seem, you know, at least to have echoes of the Rhode Island situation where this Texas district judge and DOJ together are trying to affect activities in Rhode Island. Okay. Next case, Keithley versus Buddy Ayers Construction, Inc., is a case involving this situation where a debtor who files for bankruptcy might lose their ability to pursue a potential tort claim because they didn't list that tort claim as part of a bankruptcy estate.

• 9:28Kate Shaw?

  So, the bankruptcy code has a lot of parts of it. One of them requires debtors to list as part of an estate, quote, "claims against third parties, whether or not the debtor has filed a lawsuit or made a demand for payment." Here, the debtor filed for bankruptcy, then was in an accident, then filed a personal injury lawsuit growing out of that accident, and informed bankruptcy counsel that he was doing so, but the bankruptcy court was never informed. The defendant in the tort suit filed to dismiss the debtor/tort plaintiff's suit on the ground that the debtor hadn't disclosed it to the bankruptcy court 18 months into the litigation. And the Supreme Court said that the right inquiry in this case, which wasn't the inquiry that the lower court had used, is to ask whether the totality of the circumstances suggests that this omission was inadvertent or mistaken.

• 10:10Leah Litman?

  We also got a very interesting federal court's opinion. And by interesting, I mean another opinion that makes a muck of federal courts, private rights of action, and statutory interpretation. Only bright side here was a dissent by Justice Jackson defending consideration of legislative history and trying to reorient, you know, the enterprise of statutory interpretation. So, in this case, FS Credit Opportunities versus Saba Capital, the court held that the Investment Company Act does not provide a private right of action, which is the legal authorization for an individual or entity to bring suit. For private litigants to challenge contracts that allegedly violate the act. The opinion by Justice Barrett leans heavily on an opinion by the great man himself,

• 10:52Leah Litman?

  Antonin Scalia, that narrowed the availability of private rights of action, which he had said must be created by Congress. And because Scalia's, and now the court's, method of interpreting what Congress has done is a wooden form of textualism that asks, did Congress use the words "private right of action"? They concluded there was no private right of action here. Now, that's a little bit of an exaggeration. They didn't actually require Congress say the magic words "private right of action", but close to it, there has to be rights-creating language that focuses on a particular class of people. And if Congress explicitly created another remedy, as it did here by giving the Securities and Exchange Commission enforcement authority, then the court infers there's no private right of action.

• 11:34Kate Shaw?

  So Leah said the opinion leans on the great man, Justice Scalia. It definitely does that. It also leans on him not just as jurist, but also, I don't know, like author of treatises. There's this treatise by Scalia and Garner, reading law.

• 11:47Leah Litman?

  As brooding omnipresence in the sky, authority on all things.

• 11:50Kate Shaw?

  That's right. Yes, it uses him in all those ways. Also, Judge Easterbrook's statutes domain, another sort of, I don't know, foundational text in textualism. But it feels to me like these are some pretty dated citations here, Justice Barrett. Like, these very tired critiques of a caricatured version of legislative history. It's improper, it's undemocratic for us to read things that committees of Congress wrote or that were said in the course of considering statutes or amendments. These are critiques that have been around for decades. I feel like they're actually more interesting recent, sort of like discussions in statutory interpretation that don't really go mentioned at all.

• 12:31Kate Shaw?

  But there's also one thing that's a little bit of like a kind of in-the-weeds observation, but if you'll indulge me, I want to quickly make it. So the opinion uses statutory history, like amendments to a statute, and reads significance into those amendments. Here's what Congress was trying to do with amending the statute. That is actually trying to divine legislative intent, which is also What legislative history is supposed to speak to, and I'm not sure Justice Barrett quite realizes that she's not really doing anything very different when she is assigning meaning to Congress's, again, changing or retaining statutory language, you know, that doesn't feel very different from doing legislative history. I was thinking about

• 13:11Kate Shaw?

  this because Anita Krishnakumar has a forthcoming book about textualism and has, I think, a really convincing argument that much of the time when the court uses this statutory history, it's not really very different from the way the court uses legislative history. But of course, the great man would say statutory history was OK and legislative history was not, and so she is just trotting those canards out. In any event, I find it a pretty maddening opinion. The three Democratic appointees agreed, although to different degrees. The principal dissent, the one that found the majority opinion, the most maddening is by Justice Jackson, who, after concluding that text, structure, and statutory history support

• 13:52Kate Shaw?

  a private right of action, also explains that properly contextualized legislative history does too, and as Leah already alluded to, gives this really forceful defense of considering that legislative history. Justice Kagan didn't join those portions of the Jackson dissent, wrote a very short, separate dissent, basically saying her views on legislative history fall somewhere between the majority and the dissent's views, but that she generally agrees with the dissenters, that even without legislative history, other material makes clear that there is a private right of action here.

• 14:24Leah Litman?

  The observation that the majority opinion is relying on these old sources of textualism is interesting because, to me, it just kind of reinforces a sense in which, at this point, this is just dogma, right?

• 14:35Kate Shaw?

  Totally, absolutely.

• 14:36Leah Litman?

  Like, you have to believe a particular thing. It doesn't matter how that debate has evolved. You just cite the foundational texts, and then you're in the club, and you're doing the right thing. And it's just so silly.

• 14:46Kate Shaw?

  Right. And you throw in, doing legislative history is like picking your friends out of a crowd, like, we need to update this, at the very least, if this is what we're gonna like.

• 14:57Leah Litman?

  I know, trying to make it interesting.

• 14:58Kate Shaw?

  I know, yeah.

• 14:59Leah Litman?

  Speaking of interesting, though, Justice Jackson's dissent. We can't read the entirety of it, but you should, ideally with Doja Cat's "Boss Bitch" playing in the background. Just a few lines to highlight. Quote, "The reports," as in the legislative history reports, "say what they say." She adds, unable to explain this compelling evidence of Congress's intent, the majority pivots to arguing that I ignore the most relevant portions of the legislative history. Parenthesis, I welcome the majority's close reading of the reports. Yes, girl. She also describes analyzing legislative history as a, quote, worthy and necessary effort because it prevents the preferences of judges from supplanting the will of the people, ever the pro-democracy justice. And then she asks what I just think is the most devastating question, which is, quote,

• 15:41Leah Litman?

  what interest does it really serve to blind ourselves to the congressional record when we interpret Congress's handiwork? Who benefits from that? There is no flattering or straightforward answer to such questions. I just love that she has this fight in her.

• 15:54Kate Shaw?

  Yeah. Yeah, this is like, I mean, I can't tell if it's because we're sort of steeped in these debates that we sort of see just like how spicy the exchange, I mean, on both sides is. But it's not a friendly disagreement, I would say, between Barrett and Jackson here. And she's also like, I just think, now, I don't know, I think Kagan, you know, just actually does feel differently about legislative history and statutory interpretation in general. But I just feel like it could be tempting, if you were Justice Jackson, to just say, like, the legislative history fight is not one that we're going to win in my lifetime. And so, like, let's, I don't know, pick other battles. And I actually think that she is principled and right, not in saying some committee report should decide definitively what a statute means, but in just saying it is crazy and

• 16:38Kate Shaw?

  dogmatic, as you said, Leah, to just refuse, to put on these blinders as this article of faith, like, we won't look at that stuff. And so she is just not willing to let this one go. And I too really appreciate it.

• 16:50Leah Litman?

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• 17:34Leah Litman?

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• 18:18Leah Litman?

  A lifetime warranty on your home wear isn't something you see often. It's the kind of commitment that tells you something about how they're made. This spring, give yourself the kind of comfort that lives with you all day, not just the moment you get home. Head to cozylearth.com and use my code STRICT for an exclusive 20% off. That's code STRICT for an exclusive 20% off. And if you see a post purchase survey, mention that you heard about Cozy Earth right here. Comfort lives here. Strict scrutiny is brought to you by Quince. Here's this season's take on why I'm Quince-pilled. Summer always changes how I get dressed. I want pieces that feel lighter and more breathable, things that are easy, but still put together. That's why I keep coming back to Quince. They focus on high quality essentials that feel and look amazing. Think breathable linen and soft organic cotton, well-made basics,

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• 19:44Leah Litman?

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• 20:17Kate Shaw?

  So while we are on the topic of SCOTUS opinions, let's continue on with some judicial crimes. That was my attempt to doing a Melissa Mariesque segue. I'm not sure how well it worked, but, uh, but, you know, we press on. Okay. And here we're talking about literal actual crimes, not using the sort of hyperbole that we sometimes are prone to when discussing what the court does. These are literal, actual crimes. And if you somehow missed this story, let us bring you up to speed. Last week, Judge Ryan Nelson on the US Court of Appeals, this is a court of appeals judge, was charged with misdemeanor battery. He was appointed to the bench by Donald Trump during the first Trump administration.

• 21:01Kate Shaw?

  He's on the Ninth Circuit and he was actually on the panel that stayed the district court's injunction that had blocked the president's federalization and deployment of the National Guard against, remember this, the Portland chicken? The Portland frog? The National Guard was not explicitly deployed against those adversaries, but they did have to face the guard when the guard was deployed in Portland. So the majority had, so there was a panel that he sat on. That panel had blocked the injunction because that the lower court had issued because the panel concluded that the president had a colorable basis for deploying the National Guard, given the very serious crisis that the Portland frog presented. That's not what they said, just the crisis in general.

• 21:42Kate Shaw?

  But Judge Nelson concurred to go like way, way further and basically to say the president's decision to deploy the National Guard was not reviewable by judges, full stop, that the president could just terrorize the country at whim and judges were powerless to do anything about it.

• 21:56Leah Litman?

  Speaking of terrorizing people at their whims, let's watch the video of the events that led to Ryan Nelson being charged with misdemeanor battery. It's going to be kind of hard to hear slash make out what's happening, but you can see the video linked in the notes and on our YouTube channel if you watch the episode there, and we're also going to try to narrate it for you.

• 22:21Leah Litman?

  So at least what I gleaned from the video is first, Ryan Nelson can't park for shit, right? He's like basically-

• 22:29Kate Shaw?

  His car is very angled into another spot.

• 22:32Leah Litman?

  Multiple parking lines.

• 22:33Kate Shaw?

  That's true.

• 22:33Leah Litman?

  And another truck pulls up like in a spot that's like adjacent to one of the spots that Ryan Nelson's truck is kind of occupying.

• 22:44Leah Litman?

  And it sounds or looks like the person who pulled up was like, can you park or something?

• 22:52Leah Litman?

  And the judge's response to this was to grab the glasses off the guy's face and hurl them into the air, from what I can tell.

• 23:03Kate Shaw?

  There's also like some seeming to like kind of stalking following around the area surrounding the parking spaces. So we should say there's no audio. We don't know what words, if any, were exchanged like after this like parking. It's not as though the cars came anywhere close to actually like coming into physical contact. So whatever the predicate was, was like not, not that it would justify like a federal judge knocking glasses off of someone's face if that someone had like sideswiped him, but that definitely did not happen, at least as far as the video seems to reveal.

• 23:35Leah Litman?

  So free speech, they'll yank your glasses off your face when you say things they don't like.

• 23:41Kate Shaw?

  It seems, again, from what you can see in this video sans audio, like an absolutely unhinged reaction by a sitting federal judge who has now been criminally charged with misdemeanor. I think it's both battery and maybe destruction of property. So, you know, I think that judges behaving badly in all kinds, in very different ways, has been a theme of the last couple of weeks on this podcast.

• 24:08Leah Litman?

  Indeed. So in addition to judges wilding out, the last week, the Department of Justice and the White House were also on one. So what we're about to talk about actually happened at the end of the previous week, but the US Court of Appeals for the DC Circuit heard oral argument in the case challenging the president's destruction of the East Wing slash construction of a Monster Energy Drink branded UFC cage. I cannot believe that is a sentence that is now utterable.

• 24:39Kate Shaw?

  And I also, if people haven't seen it, it's not, you have to look at it. It looms over the entirety of the White House. It is so indescribably massive and hideous and gaudy and like, there's this like, just trashy, like weird, almost disco, disco lighting sounds fun. It's not disco lighting. What is it? It's like menacing flashing lights that travel up and down, this like enormous dome of a cage. Anyway, so there's a lawsuit.

• 25:09Leah Litman?

  Yeah. And here's what the Department of Justice had to say about the federal court's ability to stop the executive branch from destroying stuff.

• 25:17Kate Shaw?

  The government decided very quickly and bulldozed the Statue of Liberty, the people who ancestors, that was the first thing they saw coming to this country. But the government moved too fast. Nothing can be done.

• 25:31Speaker 05

  I think, I think that's right. Yes.

• 25:33Leah Litman?

  Again, kind of hard to make out, but basically the federal government lawyer was taking the position that plaintiffs can only stop the executive branch from bulldozing things if plaintiffs get an injunction before any bulldozing happens. And to which Judge Millet, judge on the DC Circuit, asked the federal government lawyer, so does that theory apply to the Statue of Liberty if the government starts to bulldoze the Statue of Liberty before anyone can file to stop them? There's nothing that can be done? To which the federal government lawyer basically says, yeah, I don't care. Do you? No, it was just basically a yes, but same thing. Struck me as pretty fitting that DOJ would take the position that actually, yes, they can destroy the Statue of Liberty if they do it before anyone obtains an injunction

• 26:16Leah Litman?

  to stop them. She is a woman, after all, and when you're the president, they just let you do it.

• 26:22Kate Shaw?

  That's, it's so true. And I have to say, because Trump ruins everything good, you know, I like the Statue of Liberty, so he probably wants to ruin that, too. But, you know, he brought his very, very bad and destructive mojo to Madison Square Gardens last week, clearly causing the Knicks to lose the third game of the NBA Finals. Yeah, I mean, I wouldn't rule anything out, including him turning his sights on Lady Liberty. He got very booed in MSG.

• 26:50Leah Litman?

  Yes.

• 26:51Kate Shaw?

  And I don't think he liked it. And I think that he is plotting his revenge on New York. And so, I don't know, take the statue down completely, coat her in gold? Like, I wonder if that's on the table? Put some kind of MyPillow-sponsored, like, water park on her or on Ellis Island? I mean, it's just like, the desecration of these important national, like, symbols and locations seems to sort of know, know bottom. Anyway, that's what he has done to the White House with this Monster Drink branded cage on the South Lawn, and I'm not sure what his sights will be set on next. Wait, I think this, like, just broke before we sat down to record, but have you seen the reports that there is algae blooming in the reflecting pool?

• 27:33Leah Litman?

  Yes.

• 27:33Kate Shaw?

  That he has also decided to take on as a pet project? Again, ruins everything good.

• 27:38Leah Litman?

  Nature is trying to send us a message, and thus far, we have refused to hear it.

• 27:44Kate Shaw?

  I really wonder what might, what sort of fungus could grow on the White House lawn slash cage?

• 27:50Leah Litman?

  If this is the beginning of a Last of Us-style virus, you know, wouldn't be surprised.

• 27:57Kate Shaw?

  We brought this on ourselves.

• 27:58Leah Litman?

  Would not be surprised, exactly. In other news that really bridges the divide between hilarious and horrifying, we were also treated to the release of the transcripts from the grand jury proceedings in the Broadview 6 case. This, of course, is the indictment of the protesters who were demonstrating outside of the Broadview Immigration Detention Center during Operation Midway Blitz. All of the charges were dismissed after the court indicated she would review the grand jury transcripts even after the government reduced the charges to misdemeanors rather than felonies. And the judge at the hearing dismissing the charges indicated that what she saw in those transcripts was shocking. And listeners, she did not exaggerate.

• 28:40Leah Litman?

  There are three transcripts because as we now know, even though DOJ tried to conceal this fact from the judge, DOJ had to present this case to multiple grand juries before it could obtain an indictment.

• 28:51Kate Shaw?

  Okay, so now we've actually seen the text. And the very first transcript starts off with one prosecutor saying the other prosecutor will vouch for her. As we mentioned when this story first started to come out, vouching is one of the things that prosecutors categorically cannot do in front of the grand jury. There is a literal rule against vouching. So what does this prosecutor start off with? By saying, quote, "Matt," that's the other prosecutor, "will vouch for me. I said I want to go in front of the grand jury because I know you and I trust you and you know me and you trust me. And I would never ask you to charge somebody if I didn't think there was probable cause." Textbook, "Trust me, I'm a prosecutor.

• 29:35Kate Shaw?

  I've got the evidence, so just indict." I'm honestly impressed that the vouching was done in such an explicit, stringer bell kind of prohibited way. Like, no, you don't, "I take notes or say I'm vouching in the face of a clear..."

• 29:52Leah Litman?

  While vouching before the grand jury.

• 29:55Kate Shaw?

  You could literally find this if you're like, "Was there vouching?" And you Ctrl F'd the word "vouch," you hear her saying it. So, you know, it's like on law school exams where the person is named P., plaintiff, or D., defendant. Here, it is V. for voucher.

• 30:10Leah Litman?

  So there were many highs and lows in these transcripts. For me, I think the best thing was the grand jurors making the Fifth Amendment great again. And Kate, I know Melissa isn't here. I really want to do a reenactment. It's not going to be the same without her, but we will soldier on. So do you want to be grand juror or prosecutor?

• 30:33Kate Shaw?

  Um, I will be prosecutor. How about you be grand juror? But yes, once again, Melissa, we will do our best to do you proud. But, but we just, there's no way we can do it as well as you would have. But, all right, onward. You begin as grand juror.

• 30:45Leah Litman?

  Okay, grand juror. Girl, are you actually presenting any new actual facts or just a different viewpoint on your side? There wasn't the word girl in there, but the rest of it was verbatim.

• 30:58Kate Shaw?

  Every other word but girl was in fact in the transcript. Prosecutor responds, okay, I'm feeling the skepticism already. Are you going to be able to listen with an open mind? Tell me the truth.

• 31:09Leah Litman?

  I know.

• 31:13Kate Shaw?

  Okay, then you have to go.

• 31:15Leah Litman?

  I heard this case like last week and I thought it was a crock of shit then. And I still think it is.

• 31:22Kate Shaw?

  Okay, thank you for your opinion, everybody.

• 31:25Leah Litman?

  Do you have unlimited tries?

• 31:28Kate Shaw?

  Do we have? What did you ask?

• 31:31Leah Litman?

  Unlimited tries, like you keep coming back as many times as you want.

• 31:36Kate Shaw?

  Oh, I don't think we have to worry about that. Okay, another, now we have a second prosecutor. We have to, I'll, I'll do the second prosecutor. I think the saying is the second time is the charm.

• 31:48Leah Litman?

  Just like reading the grand juror telling the prosecutor, your case is a crock of shit. And why are you still at it?

• 31:57Kate Shaw?

  And why do you keep coming back again and again? Like, we're

• 32:01Leah Litman?

  A very legitimate question.

• 32:05Kate Shaw?

  You know, in, in, you're shooting free throws. Like, you don't get unlimited tries until you make one. Like, you're, you know, giving a presentation at work. You're taking a law school exam. Like, typically, like, you put up and then you shut up, and that's kind of it. And I think it was a fair question, which is like, why in this of all spaces does one side just get to keep going again and again?

• 32:26Leah Litman?

  Yeah.

• 32:27Kate Shaw?

  Okay, so there is that. Then, of course, we have the prosecutors identifying the grand jurors who wouldn't vote to indict the protesters and dismissing them, one by one, until the prosecutors arrived at a grand jury with the minimum required number of grand jurors who would return an indictment. And the prosecutor also talking about how he spoke with grand jurors outside of the grand jury room. I mean, as I think we said in an earlier episode, like, I think we all have a reasonable basis to think we need to see grand jury transcripts in the many other political prosecutions this administration is pursuing, and there are a lot.

• 33:00Leah Litman?

  And other prosecutions as well. So, just related to this, two kind of pieces of news that are definitely tied up with the latest exposure of the Department of Justice's misdeeds. So, there are now allegations of grand jury misconduct in other Chicago cases involving the same prosecutors. So, in one, a judge has ordered an evidentiary hearing where the defense alleges that the prosecutor again engaged in vouching, disclosing off the record negotiations with the defendant, and more. And in what seemed like a bid to prevent said hearing into prosecutorial misconduct, the US attorney moved to dismiss the charges. Note that this is what happened in the Broadview VI case, where the prosecutor also tried

• 33:44Leah Litman?

  to ward that off. And yet, those grand jury transcripts were still released. And it looks like there is still going to be an inquiry into this case. So, the judge has ordered the hearing, right, to continue, or a hearing to continue even after the prosecution filed the notice of moving to dismiss the case. And this case involves allegations of fraud related to federal COVID funding. And then there's an entirely separate case where a different judge agreed to review the grand jury transcripts in a case where the defendant pled guilty because the judge said, quote, "The front office has created, as you know, a credibility crisis, and that is a real problem," end quote. The party of law and order, ladies and gentlemen.

• 34:22Kate Shaw?

  Indeed.

• 34:23Leah Litman?

  Genuinely wondering, is this a good time or the best time or, you know, not a good time to be engaging in crimes? It seems like they have tied up DOJ with people who are not engaged in crimes and that the crime spree might be at the DOJ. The call is coming from inside the house.

• 34:39Kate Shaw?

  So this reminds me of that period where Trump, this happened, I think, in both Virginia and Jersey, but Alina Haba in Jersey, Halligan in Virginia, but trying to install these pretty unqualified people as US attorneys. This was particularly true in Jersey. And it sort of seemed like actual federal law enforcement ground to a halt in the state of New Jersey, you know, which is a state where sometimes like people like to do crimes. I mean, Illinois too. And I do wonder.

• 35:06Leah Litman?

  And you literally have judges, you know, begging the prosecutor, like, come before me and please tell me you have sorted out who's leading this office. Because if you're wrong, this is going to invalidate all of the cases.

• 35:18Kate Shaw?

  Absolutely.

• 35:19Leah Litman?

  That proceed under this invalid structure.

• 35:20Kate Shaw?

  Right. So it is a different and more under the radar set of prob, at least until now, set of problems, it seems, in the Northern District of Illinois. So it's not, you know, this high-profile person at the top, but it does seem as though like in the recesses of the grand jury room and who knows where else, like, justice is not functioning as it normally does in that office.

• 35:46Leah Litman?

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• 40:12Kate Shaw?

  Okay, so this is not a grand jury matter, but it is another politically vindictive prosecution that we wanted to mention, and that is one that flamed out when congressional candidate Brad Lander, hero of the resistance, all-around mensch, full disclosure, my brother-in-law is working on his congressional campaign, was found not guilty on charges related to him allegedly obstructing an elevator while he was inspecting conditions at an immigration detention facility here in New York. This was another utterly bizarre, baseless charge. Lander had been and has continued to be a regular presence and voice in protesting the administration's egregious conduct during immigration enforcement.

• 40:50Kate Shaw?

  In particular, its practice of apprehending people showing up for regularly scheduled immigration court dates. And he has been trying to hold the federal government accountable. He had been previously, even before the events that led to these charges, been taken into custody at a federal courthouse when ICE was conducting enforcement operations there. Anyway, so he was acquitted in that case.

• 41:13Leah Litman?

  And those weren't the only big oopsies from DOJ or Trump lawyers last week. Last week, the Department of Justice Civil Rights Division, that would be the one led by Harmeet "You Are Hose" Dillon, filed papers in the cases where they had indicted journalists who were documenting demonstrations at churches in Minnesota, indicating that actually, they may have made some false statements in their applications for those warrants. The application for a warrant refers to Georgia Fort, an independent journalist who was indicted, as chanting while inside the church and using her camera as a weapon. Here's what Civil Rights Division says about that now. Quote, "The statement about Fort chanting was incorrect,

• 41:54Leah Litman?

  but the error was due to simple inadvertence. The characterization of the camera as a weapon, though not ideal editing, is immaterial. Although the government regrets any error and does its best to avoid them, mistakes are inevitable."

• 42:07Kate Shaw?

  This is like a bullshit apology. This is really like-

• 42:11Leah Litman?

  It's astonishing. You are saying criminally indicting people. You could not manage to dot your i's, cross your t's, determine whether the allegations were true?

• 42:20Kate Shaw?

  It's also just like, it is not, it sort of purports to be a mea culpa. And it isn't even. Like, it's so defiant, even in noting these pretty egregious errors-

• 42:31Leah Litman?

  I'm sorry I hurt your feelings. I'm sorry if your feelings were hurt. Apology. I'm sorry if you didn't like the false facts judge. Sorry.

• 42:37Kate Shaw?

  We will see how that goes over. But I guess, honestly, there is something to say for the filing in that case, which at least acknowledged error, even if it didn't fully own it. But it was a filing. That stands in pretty stark contrast to Trump's personal lawyers in his case against the BBC. This, if you've sort of lost track of which- Which one this is is one of the many Trump cases against media entities. It's also one of several that seeks $10 billion in damages. Not totally sure what's going on with that number, but it seems to pop up again and again. This suit alleges essentially that the BBC was mean to Trump in the way it edited clips of his speech on January 6th, 2021, which is obviously like a multi-billion dollar

• 43:21Kate Shaw?

  wrong, those editorial choices. And on Monday, the district court in that case filed an order to show cause as to why the plaintiff, again, one Donald Trump, had failed to file a response to the defendant's motion to dismiss the case. The order noted that the plaintiff filed two 11th hour procedural motions, but that didn't explain the delay or ask for the response deadline to be extended. And the judge was like, do you oppose the motion to dismiss? And why shouldn't I sanction you for completely blowing that deadline? To which Donald Trump's lawyers basically said they didn't file a response because the court's protective rule order, like rules about what can and can't be unsealed and procedures for unsealing, were too complicated for them to understand.

• 44:06Kate Shaw?

  I will quote here, "The delay in filing the opposition memorandum on the docket was caused by plaintiff's good faith efforts to comply with the protective order entered in this case and the court's procedures governing sealed filings."

• 44:19Leah Litman?

  I tried, your honor, therefore you can't criticize me. I don't know exactly what that was. Maybe he should have made some DEI hires for attorneys instead of dipping into the Dicks as ex-husbands and incel lawyers DEI pool. And the wild thing is, something like this happened not once, but twice last week in the same case. So a separate docket entry noted that the plaintiff, again, one Donald Trump, had failed to submit a position regarding a judicial order setting the procedures for discovery. That's a, you know, stage of the case. It says, quote, "While counsel are free to disagree with the relief and basis on which the opposing party may seek said relief, they are not permitted to disregard the court's

• 45:02Leah Litman?

  orders and procedures," end quote. It's almost like actually diligently pursuing this lawsuit in a federal court is not the purpose of filing this lawsuit. Are you beginning to get that sense? Almost. Yes, yes, I am. I just feel like it. Do you think they'll try to set up a slush fund out of this one? I mean... Like, we settled the case with the BBC and therefore Donald Trump will be paying, I don't know, the Proud Boys a billion dollars, right? Like, no, no less related. The federal government could try to intervene and actually set up a difference, a media fairness slush fund. Oh, my God, let's not give them any ideas. Just BBC, please don't agree to yourselves setting up a slush fund. I mean, we beg you. I don't think they would, but, I mean, a lot of people have capitulated.

• 45:46Leah Litman?

  These tactics are just so strong arm. And anyway, it's really important not to, even if it seems like a small thing, to reward this kind of behavior. Okay, so let's pivot to the White House and Department of Justice outside of the courts and some of the internal executive branch activities. It basically seems like the Justice Department, and in particular, the Office of Legal Counsel or OLC, which is in some ways like a mini Supreme Court for the executive branch inside of the Department of Justice, basically, they seem to have decided that as the Supreme Court is taking its sweet time in issuing its decisions, they are going to get in on bad decision slash bad lawyering season.

• 46:27Leah Litman?

  So they at least initially have done so by releasing an opinion concluding that a big chunk of anti-discrimination law and that is disparate impact liability is probably unconstitutional. So disparate impact liability is, as Kate was saying, a species of anti-discrimination law, among other places, in Title VII, unemployment, the Fair Housing Act, and many other civil rights provisions. And what it does is it prohibits some policies that result in discriminatory effects but aren't necessarily intentional discrimination. And the Office of Legal Counsel, in all of its wisdom, thinks that is the reason. Real discrimination. The top line summary of the memo read, quote, "EEOCs," that is, the Equal Employment Opportunity

• 47:09Leah Litman?

  Commission's Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer's likely intent, and pressure employers to engage in race-based decision-making.

• 47:23Kate Shaw?

  Okay, so basically, like Calle said about the Voting Rights Act, the thinking on display here is that these regulations, because they direct employers to avoid business practices that disproportionately exclude or disadvantage racial minorities, if those business practices aren't really necessary, that that is illegal because it requires employers to consider, to think about whether they really should be excluding racial minorities. And the horror, that is a constitutional problem. So, OLC, not surprisingly, invokes the appalling decision in the Alabama case that followed on the heels of Calle. That's a case where the court allowed Alabama to implement a set of maps that lower courts had concluded were racially discriminatory twice, in part because Alabama refused to

• 48:07Kate Shaw?

  follow the Supreme Court's own decision, telling them that their maps violated the Voting Rights Act. OLC, right, the Justice Department memo we were just talking about, says, quote, "Corrections are necessary to resolve the tension between disparate impact claims under Title VII and our color-blind Constitution," and cites this Allen versus Milligan order.

• 48:24Leah Litman?

  And like Calle did, the opinion effectively nullifies an amendment that Congress made to Title VII when Congress expanded disparate impact liability after the Supreme Court had narrowed it in a decision known as Ward's Cove. Some more news, there are still several cases challenging the slush fund for insurrectionists. In one case, Judge Leon, ruled from the bench, denied Citizens for Responsibility and Ethics in Washington their request for a temporary restraining order against the slush fund. Judge Leon concluded that the case was moot after carte blanche, that is, additioning Attorney General Todd Blanch and DOJ lawyers, said the fund wouldn't go forward. Judge Leon said at the end of his ruling, quote, "I give the Department of Justice fair warning.

• 49:08Leah Litman?

  Don't play possum with this court," end quote. I'm sure that'll do it. In another Judge Brinkma in the Eastern District of Virginia concluded that the case was not moot and issued an injunction blocking the fund. The judge gave the Department of Justice a week to get a sworn declaration saying that the fund is actually dead, dead, dead before the judge would agree to say the case is moot and there is no longer a live controversy.

• 49:36Kate Shaw?

  I feel like Todd Blanch is going to vouch for the deadness of the fund.

• 49:39Leah Litman?

  I vouch for the fund being dead, Your Honor.

• 49:44Kate Shaw?

  I'm sure that that will set the judge right at ease.

• 49:47Leah Litman?

  Oh, yeah, completely.

• 49:49Kate Shaw?

  Okay, so there is a big piece of news that we alluded to, but that we really need to now give its proper treatment, and that is Leah Lemon.

• 49:57Leah Litman?

  The paperback release of Lawless. I am calling it Lawless: Leah's Version, not only because I unironically stan Taylor Swift, but also because I got to make updates to all the chapters and add a new section on the Unitary Executive and how the court has enabled Trump. And I just feel like it's useful pre-budding to all of the celebrations and plaudits the court is going to get for invalidating the birthright citizenship order. It just tries to put that in a kind of bigger picture and trace the Unitary Executive to, you know, Richard Nixon, thinking he was the victim of something, and his people. But, yeah, so I really enjoyed writing it, and I hope people will check it out.

• 50:40Kate Shaw?

  And as Leah was just saying, if you haven't gotten the book, you need to get a paperback. But even if you have gotten the book, because this is, because she's Leah, has like basically like written kind of a new book, like some additions and then an entirely new chapter. So even if you already have a hardcover, get a copy of the paperback.

• 50:55Leah Litman?

  It includes the Dark Lord of the Third Circuit, Emile Bové, among other characters.

• 50:59Kate Shaw?

  You don't want to miss it.

• 51:00Leah Litman?

  There we go. Okay, so as we said during this episode, we spent a lot of time talking about prosecutors doing fuck knows what. And I actually wanted to add one additional, pretty terrifying example of this, and that is MSN now broke the story that FBI agents might be terrorizing pro-democracy and voting rights organizations. So the FBI reportedly ...rated offices of the Ohio Organizing Collaborative, a pro-democracy organization that helps register voters in the state. And agents, again, according to this story, reportedly showed up at the homes of people who worked for the organization, maybe also just some canvassers asking for information and electronic devices.

• 51:44Leah Litman?

  Some of them may have had subpoenas. It's obviously terrifying, and we should all be alarmed at what, again, seems like another obvious attempt at election interference. You know, the executive order isn't going anywhere, so now they are just trying to intimidate people. So, again, having spent so much time talking about what prosecutors shouldn't be doing or what law enforcement shouldn't be doing and how some of that subverts democracy, please stay tuned for our next conversation with a prosecutor who is actually doing the thing, working to protect our democracy with a great new organization, FAFO.

• 52:23Leah Litman?

  Yes, the acronym is F-A-F-O, so be sure to stay tuned for that. Strict scrutiny is brought to you by Babbel. When I travel, it's basically one long adventure in search of the best food. Breakfast pastries, but also, you know, dinner. And so in that quest, I need to be able to say things like, which pastry has the highest sugar content? Or, more garlic and spice, please. If you're traveling this summer and also in search of good food when you travel, here's a real travel hack. Don't wait until you land to start learning the language. Instead, try Babbel. Even just 10 minutes a day with Babbel can help you start having real conversations in as little as three weeks. Instead of memorizing random vocab, you're learning phrases you'd use ordering dinner,

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• 54:48Leah Litman?

  And now, I am delighted to be speaking with Mary Moriarty, Hennepin County Attorney, also known as the District Attorney in Minneapolis and surrounding suburbs and counties, and one of the founding participants of a great new organization known as F A F O. We'll explain more about that later. Mary, welcome to Strict Scrutiny.

• 55:05Kate Shaw?

  Thank you so much.

• 55:07Leah Litman?

  So, Mary, we've talked about your office on the show before, but haven't actually had the opportunity to talk to you. And we've been talking about your office because your office has been one where it actually has two cases involving state charges filed against federal officers. Can you remind us what those cases are about?

• 55:24Kate Shaw?

  Certainly. We filed a case on a, what I would describe as kind of a road rage situation involving an ICE agent named Gregory Morgan. We charged him, we had a nationwide warrant for his Arrest. He did turn himself in several weeks ago, and he has this week filed a motion to remove to federal court. The other case that we charged is Christian Castro, who we believe shot Julio Socisalise in the thigh. We also had a nationwide warrant there. He was arrested in Texas, and right now we are working our way through extradition proceedings.

• 56:03Leah Litman?

  Got it. I think of the first case as a case of what I'm calling DWI, driving while an insane ICE officer, given that this is a case where the ICE officer on the road was driving in an unmarked vehicle, pulled up and pointed a Glock at, you know, these poor people's heads. And anyway, so just a berserk kind of set of facts. So you mentioned that the second case, there is right now the extradition proceedings of the first case, the defendant is trying to remove the case to federal court. So before, you know, you make the decision to charge these cases, there's an investigation. And when you're investigating someone who is part of a law enforcement body, how is federal law enforcement

• 56:46Leah Litman?

  or cooperation supposed to work in an ideal world?

• 56:50Kate Shaw?

  The way it's supposed to work and has historically worked here is that everybody works together. In fact, in our political assassination case, where the defendant just pled guilty to the federal charges yesterday, we had a joint investigation with the FBI. We were working with the US Attorney. We all got the investigation results. We charged, and they charged. That's the way it has worked here, and that's the way it should work.

• 57:15Leah Litman?

  And that case, just to remind our listeners, involved the assassination of the Minnesota legislator Melissa Hortman, as well as her husband and her dog.

• 57:24Kate Shaw?

  Yes.

• 57:25Leah Litman?

  Okay, so that's how it's supposed to work. How has federal cooperation been working, either in the cases involving the federal immigration enforcement or the political assassination case you were just referring to?

• 57:36Kate Shaw?

  Not well at all. In fact, when Renee Good was shot, I was on the phone with the FBI. Our state local law enforcement agency is the BCA, the Bureau of Criminal Apprehension. So I was on the phone with them. I was on the phone with the US Attorney, and everybody agreed this would once again be a joint investigation. And then suddenly the BCA was kicked off the case. And so we realized then and there it was going to be a different situation. They took away Renee Good's car. It's shrink wrapped. It's still sitting in a warehouse somewhere. They won't share any evidence that they collected or got from any statements. And then when Julio Sosisaliz was shot, we also thought we had a joint investigation. The BCA did show up at the scene.

• 58:21Kate Shaw?

  And what happened was at some point, the FBI said, well, we're no longer allowed to work with you. But the good news about that particular case was the crowd got really angry. There was a large crowd of community members and kind of got ICE to leave. And so the BCA was able to collect evidence in that case. But then when Alex Preddy was shot, it was on a Saturday morning and we were prepared for non-cooperation. But it was pretty remarkable. When you saw the video, it was federal agents with their backs to the crime scene with batons, actually physically keeping the BCA from entering that scene to investigate, which is what the BCA is trained to do.

• 59:03Kate Shaw?

  In any law enforcement involves shootings involving a Minnesota peace officer, they are the people that are directed to show up. So we were prepared. We got a search warrant on a Saturday from a judge, so a judicially signed warrant, unlike many that you see from ICE. But we got a warrant and the federal government refused to honor that. So we were also prepared.

• 59:25Leah Litman?

  Which is funny because they don't think they need warrants. And I guess they don't think when other offices get warrants, it matters. Really, really two for there.

• 59:33Kate Shaw?

  Yes. And we had been working with two law firms from Washington DC, the Washington Litigation Group and ICAP. And they've been working with us for free and they've been tremendously helpful. But we were prepared. We filed a lawsuit in federal court, asking for a temporary restraining order that they collect the evidence, that they preserve it and that they not alter it in any way. That was actually granted by a federal judge on Saturday. So we could see the progression of non-cooperation here despite continued efforts. And I'll actually say the people on the ground or the line people really would like to cooperate. And have reached out. We've had many conversations and every time it goes to the administration, it gets stopped cold.

• 1:00:18Leah Litman?

  So this sounds like a just silly question to ask, but just for clarity's sake. Like, what are some of the issues with this lack of cooperation? Like, what does it do, you know, in practice?

• 1:00:33Kate Shaw?

  That is a great question because normally when prosecutors get cases, at least in Minnesota, we don't have our own investigators by and large. So they have been investigated by law enforcement. So we know everything that we have and that we don't have. For instance, if there's a shooting, we know if there's video. If there's a law enforcement shooting, we know whether the officer gave a statement or other officers there. And I will say, we also know who they are. And I think that would surprise most people to know that we don't even know for sure who the agents were who shot Alex Preddy. That has never been verified. ProPublica published a report on it. But you have to think about this from a prosecutor's perspective.

• 1:01:16Kate Shaw?

  We have to be able to prove our case beyond a reasonable doubt. And that usually doesn't have to include identifying the name of the agents who were involved in it. So it is making us approach it from a what do we actually have from our own investigation with the BCA? And what don't we have? And also, what would they say? You know, for instance, in the Preddy case, we were told by the media, I guess, that they were all wearing body cam. We don't know that. We don't have that. We have to sit here and wonder, well, what would the agents say?

• 1:01:51Leah Litman?

  Right.

• 1:01:51Kate Shaw?

  And that creates barriers because you don't know what you don't know. You can just guess at that.

• 1:01:57Leah Litman?

  So you mentioned that there's a lack of cooperation. But I'd have to imagine that in addition to a lack of cooperation, there's also fears about less of a defensive posture than an offensive one, where there might be a concern that if, let's say, BCA or, you know, state or local law enforcement tries to conduct an investigation, that the federal government, or at least some in the federal government, would retaliate against them. You know, has that also kind of impeded the ability to just carry out, you know, normal police power stuff?

• 1:02:31Kate Shaw?

  That was very apparent as Operation Metro Surge was going on. And we have something like 36 different Different law enforcement entities here in Hennepin County, uh, which is Minneapolis and its suburbs, as you said. And what we were hearing from community, what you were hearing, what you were seeing in videos too, is community members saying, hey, we're being occupied by our own federal government. Who is here to help us? Who is here to protect us? And I had conversations with local law enforcement chiefs. And it was very interesting because they said they didn't have jurisdiction. And I said, why do you think that? Yes, if, if anybody from the federal government comes into your community

• 1:03:12Kate Shaw?

  and you believe that they may have committed a crime, yes, you have jurisdiction to investigate. Uh, and try to collect as much evidence as you can. In fact, we would like you to go to the scene and collect evidence and video that may have been taped over. But here, here was something that was really telling. You know, ultimately, they said, our officers are afraid of being arrested or something worse. And, you know, my position on that was, yes, this is unprecedented. It's unprecedented for all of us, and I totally get that. And yes, they could be arrested and, and yes, uh, maybe worse. However, you signed up to protect and serve your community. And your community is out there with whistles. And so you need to kind of have a hard look in the mirror and figure out,

• 1:03:58Kate Shaw?

  you know, who you really signed up to protect and serve. So that it was a big issue, and I think it remains a big issue. Uh, and something that, you know, as I, it is part of FFO. When I've talked to other DAs, I can say the things I wish I would have known uh, before this hit us. And one of those things would be to have conversations with local law enforcement to try to bring them along. Um, and have conversations about, hey, you know, in, in a perfect world, you would get there, you might intervene, you are wearing body cam, you are collecting the names of witnesses and contact information, so there can be an investigation. After the fact, but those, as I discovered, those conversations need to happen before something like this, before they are in that situation.

• 1:04:41Leah Litman?

  So you've already kind of begun to gesture at this, but I do want to spell it out because I think many people are wondering, you know, what can I do? What should we be doing now, you know, in order to address ongoing federal overreach and potential additional federal overreach in the lead up to, you know, potentially the election? And so you mentioned that one thing that has been useful is the fact that people on the ground, for example, you know, suggested to ICE, no, you actually need to allow local law enforcement in to investigate and that there were actually photographs taken of federal law enforcement actively not investigating, you know, Alex Preddy's murder and that all of that was useful, you know, to allowing state officers to do their jobs.

• 1:05:23Leah Litman?

  So, you know, are there other pieces of advice, you know, you would offer either to members of the public or as you were just saying, to other district attorneys who are thinking about, you know, my area, my state might be a target of some federal law enforcement searches, you know, whether now or in the lead up to the election, you know, what should I be doing now in order to protect my community?

• 1:05:48Kate Shaw?

  I think that's a great question and I, you know, as you know, local prosecutors really don't have to deal much with federal law. And the administration started out by saying, and they still continue to say in some respects, that federal agents have absolute immunity and you heard people saying, no one can touch you, you can do whatever you want.

• 1:06:07Leah Litman?

  Our vice president said this, so, oh yeah, I heard it.

• 1:06:12Kate Shaw?

  Yeah, and you have to think that that had an effect on ICE agents who were being told that. And so I think being prepared to say, no, that is not the case and educating the community, educating frankly, the ICE agents and everybody, police, everybody to say, there is no such thing as absolute immunity and you can't come in here and commit crimes that are, that if it was anybody else other than the federal government would be a crime and that we are prepared to investigate. One of the big issues here, and I think Minneapolis, like many other cities, has a lot of camera surveillance and it's taped over after two weeks. So we had opened up what we call our transparency and accountability project or TAP. We started out investigating 17 K.

• 1:06:57Kate Shaw?

  including bovino throwing green gas canisters at people in a park. And what we discovered was that the video had been lost. And so you've got to be able to preserve that video. But I think it is, there's a deterrence value. And I don't think there's a deterrence value in a lot of things, especially with young people. But with this, I think being prepared and starting the messaging that if you come to our community and you commit a crime, we will do our best to investigate that and prosecute that. And I would say it's really important now with elections coming up.

• 1:07:31Leah Litman?

  Yeah. So you mentioned, you know, working with other DAs, guidance with other DAs. And we've now alluded to FAFO or F A F O a few times. Do you want to share with our listeners what FAFO is? Since I've only been kind of, you know, using the acronym for perhaps obvious reasons.

• 1:07:47Kate Shaw?

  Yes, and I'm pretty sure, you know, it was Larry Krasner from Philly who came up. I'm sure he wanted that acronym and we just had to find words to fill it. It is the Coalition for the Fight Against Federal Overreach. And it is a very, we're very serious about banding together. Because right now, given what the federal government is doing, local prosecutors can be at least one lane of fighting back. And but but it really requires us working together. Because I think if you're just in this by yourself, it can be really isolating. And you need help.

• 1:08:24Leah Litman?

  Yes.

• 1:08:25Kate Shaw?

  For instance, we're very fortunate to have the help of the Washington Litigation Group and ICAP. Because you have to be able to understand even before you're thinking about prosecuting, obviously. But, okay, what happens if you do charge?

• 1:08:38Leah Litman?

  Right.

• 1:08:38Kate Shaw?

  And we came to learn that the defendant can make a motion to remove to federal court. But I think none of us, I certainly can speak for myself. I had no idea that if it was removed to federal court, we remain the prosecutors. And that state law applied, substantive law and procedural federal law applied. But and a really important thing here is that the president cannot pardon a conviction because it's under state law. And so those are basic things that I think most local prosecutors just don't have to think about. And then what do you do when you have this motion to remove? And the ICE agent says that they should have supremacy clause immunity. What does that mean?

• 1:09:21Kate Shaw?

  And that is something that a judge has to decide. Uh, I think I mentioned.

• 1:09:25Leah Litman?

  Which means it's not absolute, by the way, right? If the judge has to decide it, you think.

• 1:09:31Kate Shaw?

  I'm glad you pointed that out because it's actually a potential defense. That doesn't prevent us from prosecuting, but you want to know what that means because you do not want to bring a charge and then not be able to overcome the argument that they were acting within the scope of their duty and they did nothing above and beyond that. So you need to be prepared on topics that you never thought you had to think about since law school. And so that's one thing that we are talking about in FAFO. What do we need to know? How do we get prepared if this should happen in our communities? And elections are something we're really talking about because I, I think it's really important to prepare for the worst and hope that nothing happens. Um, but what do we do if ICE agents show up at polling places?

• 1:10:16Kate Shaw?

  What do election judges do if they're told or asked or demanded by ICE? Hand over your ballots or something like that. So we're doing a lot of preparation on that front, uh, here in Hennepin County. And I know we're working on that in FAFO as well.

• 1:10:31Leah Litman?

  So that's all very encouraging. I mean, there's so much we can all do to help one another, whether it's resource sharing, you know, pooling of knowledge. Um, or, you know, just making each other not feel alone. You know, when you see one person fighting, I think it's easier, you know, to be brave. Um, and I like to think of your office as basically doing, you know, what the Knicks did, um, in their recent come from behind victory. Right? They didn't give up. They stayed in the fight and you know what? They pulled it off. Um, so may you bring those same vibes, uh, to not only Minnesota, but the rest of the country. Uh, Mary, I do want to ask, um, you one last question, which is what's giving you hope? You know, in the work you've been doing, um, you know, let's say the last 18 or so months.

• 1:11:12Kate Shaw?

  Uh, one thing was the community response here to Metro surge. I don't think it's really possible to appreciate everything that community members did. By driving neighbors' kids to school, by bringing food, by paying rent. I mean, it just, people coming together was just remarkable. And it was actually the community members that ultimately drove ICE out. They're still here in some respect, but it was the really negative publicity, if you want to put it that way, that I think made them leave. And that was all by the community. Um, the other thing, and you talk about this, I'm a big fan of the podcast too. Uh, until you get to the Supreme Court, when you, when you fight back, you win.

• 1:11:56Kate Shaw?

  You really do, because a lot of the things that the Trump administration is doing are just illegal, but they're not entirely illegal until a court says they are. And much of what they do is to sow fear. Um, this is what they were trying to do in Metro surge too. And if you just comply because you're afraid of what might happen, that's what they want. And so when you push back, uh, either in court or in any other way that, uh, is in your lane, like our lane is, uh, accountability, you, you usually win. And so that gives me some hope, even though the Supreme Court is fairly tragic right now. Um, to say the least, uh, but in the lower courts were, were winning.

• 1:12:38Kate Shaw?

  Um, and they just don't want to fight much of the time.

• 1:12:42Leah Litman?

  Right.

• 1:12:42Kate Shaw?

  I mean, we, we actually, as you know, were, um, it was announced, we found out via Twitter. Um, I did not know that that was how the Department of Justice announced its past pattern and practices investigations. Um, but they announced one investigating our office for a policy that we had just put into place while at the same time pulling out of the federal consent decree for the pattern and practice. But anyway, we fought back on that and we won. Um, so I do want to say to people, I know it's scary and this is.

• 1:13:12Kate Shaw?

  Because I think part of the reason we need to band together and talk about supporting each other, because it is scary. And at the same time, when we push back, we generally win.

• 1:13:23Leah Litman?

  Yes. Well, I love that as an ending note. Mary Moriarty, thank you so much for taking the time to speak with us on Strict Scrutiny. We're obviously going to be following all of the great things your office has been doing.

• 1:13:33Kate Shaw?

  Thank you so much.

• 1:13:35Kate Shaw?

  Thanks again to Mary Moriarty for that great conversation.

• 1:13:37Leah Litman?

  So favorite things?

• 1:13:39Kate Shaw?

  Let's do it.

• 1:13:39Leah Litman?

  Okay. So two things I had wanted to highlight, actually two and a half. So one is Jamel Bouie had another terrific piece in the New York Times titled "The Supreme Court Doesn't Own the Constitution." Definitely worth checking out.

• 1:13:54Kate Shaw?

  Great piece, great title and great piece. I mean, everything Jamel is doing these days, I mean, always is so good, but this piece is really exceptional.

• 1:14:01Leah Litman?

  Totally agree. Second is the Supreme Court did something I will put in my favorite things, although I'm not going to give them credit. So the Supreme Court declined to stay a lower court ruling that had blocked the state of Alabama from using an execution protocol that gassed people to death after the court found the protocol constituted cruel and unusual punishment. This, of course, is a huge victory, getting the Supreme Court not to issue a stay that greenlights an execution. So the district court had issued this decision after a full trial, and I really do think that the court's decision not to stay it reflected the great lawyering in the case from, among others, the plaintiff's lawyers

• 1:14:42Leah Litman?

  who are at Arnold and Porter, as well as lawyering from our friend Steve Vladek, who was on an amicus brief, who again explained the kind of particular procedural posture of the case and why the court shouldn't intervene because of it. My half favorite thing would be I've been listening to the new Olivia Rodrigo album. So it's not my favorite. There are a few songs on there that are growing on me. So I loved "The Cure." That is definitely a highlight, but that, you know, had been released in advance of the album. I like "Expectations."

• 1:15:14Leah Litman?

  Out of My Way and Megats for Brains, those are also, I think, high points on the album for me.

• 1:15:19Kate Shaw?

  I have not listened yet. Okay, so that's a good weekend, like, family undertaking because we're driving.

• 1:15:25Leah Litman?

  Yeah.

• 1:15:25Kate Shaw?

  And I wonder, so, underscore what you said about the court's sort of unexpectedly correct order in denying this stay application that I'm sure the state thought they had a good chance of winning at SCOTUS. And I also wonder, in terms of, like, you know, I think excellent lawyering, Vladek, and also that the court did allow a nitrogen gas execution to go forward, and Sotomayor wrote an incredibly powerful dissent.

• 1:15:51Leah Litman?

  Yes, that's true.

• 1:15:52Kate Shaw?

  And I wonder whether the fear of drawing another dissent like that was also a factor in the court doing the right thing here. It seems at least possible. Okay, so I will just mention a couple of favorite things. I just finished the novel The Hill by Harriet Clark, which is like, kind of a memoir, because it is like, kind of about her life, I think, but it's written as a novel, and it took, it was a little bit of like, a slow wind-up for me. I was not super into it at the beginning, but it's pretty amazing. So I would say, if you're thinking about it, I would stick with it. It's just really beautiful, and very moving, and weird, and just really, really good. Okay, so that's my recent fiction recommendation. I was, I missed last week's episode because I was in Zurich, where I'd never been, for this conference on global threats to the

• 1:16:35Kate Shaw?

  rule of law, and it was just amazing to, like, hear from these scholars and jurists from all kinds of places, and I just learned a ton, and I'm grateful to the organizers. And I want to shout out Renata Wietz and Elizabeth Holtz Leitner, who are both awesome scholars who were at the conference, and who listened to the pod. And it's like, always a trip to, you know, you're in London, you're in Austria, like, you're listening to our podcast. And they were, anyway, it was great to meet you both. Finally, I mean, I cannot claim that I am a, like, longstanding, real fan of the New York Knicks. As I've said before on this podcast, I am actually mostly a WNBA fan.

• 1:17:13Leah Litman?

  Yeah, yeah, yeah.

• 1:17:13Kate Shaw?

  There's a great story about my husband took the kids and not me, because I was somewhere else to a Knicks game. Knicks were, the Knicks and the Bulls were playing. We're like, mostly a Bulls family, actually, in terms of the NBA. And- My youngest daughter, like, not a huge sports fan. And so he took our three kids, my older two, were like, were super excited. And they got to MSG, and the players came out onto the court. And my youngest kid was like, wait, this is men? And my husband was like, where's Ellie?

• 1:17:38Leah Litman?

  Where's Ellie, the elephant?

• 1:17:39Kate Shaw?

  It's OK, they can play. Like, they're actually pretty good at it. But I just, like, love that the orientation in my family is, like, so, at least for some of us. My husband actually loves the NBA. But anyways, very WNBA-focused. That said, the, just like, the city and the energy around this, like, the whole, like, postseason, the Knicks and this, you know, NBA Finals, has been just glorious and kind of reminds me of the best things about New York City, which are just really important in this moment, in which, like, the worst things about the federal government seem to be, like, on display constantly. Anyway, it just feels like an antidote sometimes. Anyway, so go Knicks.

• 1:18:17Leah Litman?

  I can even feel the immaculate vibes here in Michigan, just through the screens and whatnot. It's really incredible.

• 1:18:26Kate Shaw?

  I took my dog for, I won't even talk about, like, game four was so insane, but I took my dog for a walk in the last five minutes. I was, like, too stressed. I just, like, needed to, like, shake it off. They were, like, coming back, but I didn't think they could come back fast enough. So, like, a shadow needs to go, so we go for a walk. And I just, like, hearing people screaming through their windows on my Brooklyn block.

• 1:18:43Leah Litman?

  Oh, amazing.

• 1:18:44Kate Shaw?

  And slightly in, like, these, like, one or two-second delays, because, like, everyone's Wi-Fi and, like, whatever cable news they're listening to is, like, a little bit different. So it was just, like, this chorus of shouts that was just so euphoric. Anyway, so it'll already be post-Saturday by the time you hear this episode, so we'll see what happens. But I am excited for game five.

• 1:19:03Leah Litman?

  So, speaking of immaculate vibes, Pride Month is here, and it's time to dress like it. This season, the Crooked store is dropping gayer than ever in two brand-new designs and bringing back an old favorite, the Gay for Democracy shirt. Plus, classics like Dreamboat Willie return in a new colorway alongside the ever-reliable Join or Die tee. Whether you're celebrating with your community, showing up to protest, or guilting your straight friends into buying you Crooked merch in the name of gay rights, there's something here to match your Pride Month style.

• 1:19:33Kate Shaw?

  And let's be honest, Pride doesn't end, so you'll be wearing these items long after June. Head to crooked.com/store to shop. And we will be back in your ear holes next Monday, unless the Supreme Court decides to give us some big opinions between now and then, and we'll have bonus episodes come your way if that happens.

• 1:19:54Leah Litman?

  Strict scrutiny is a Crooked Media production. Our show is produced by Malley Raul and Michael Goldsmith. Jordan Pamas is our intern. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Eric Schut, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:20:23Kate Shaw?

  Hola, es Mr. Monopoly. ¿Has soñado con ganarte 50 mil dólares para el pago inicial de una casa? ¿O una gift Cherokee del año? Monopoly volvió a McDonald's. Y esos son algunos de los premios que podrías ganar. ¡Fe por lo tuyo! No se necesita comprar 50 estados de Estados Unidos y DC. 18 años o más. Consulte las reglas en playrmcd.com y playrmcd.com/me para información sobre jugar sin una compra por correo antes del 2 de noviembre. El Chance Card Game termina el 8 de noviembre. El juego termina el 22 de noviembre de 2026. Detalles de los premios en las reglas. Monopoly es una marca registrada de Hasbro.

• 1:20:53Speaker 01

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