The DOJ’s Failed Attempts To Meddle In The Midterms

Election Day is upon us, and President Trump is already trying to sow doubt in the results – with the help of the courts. But first, Leah, Kate, and Melissa preview the cases the Supreme Court will be hearing this week, including St. Mary Catholic Parish v. Roy, a Colorado case that puts anti-LGBT discrimination back in the spotlight. Then, it’s time to get into the DOJ’s failed attempt to segregate ballots in California, and its lawsuit against Alaska for allowing more than one candidate named Dan Sullivan to run for Senate. Plus, some fun reenactments of a bonkers hearing on the D. C. golf course Trump wants to renovate. Favorite Things: Leah: Jon Lovett https://www.youtube.com/watch?v=ThqFBMennW4&list=PLOOwEPgFWm_NHcQd9aCi5JXWASHO_n5uR&index=2 and Tim Miller https://www.youtube.com/shorts/JcqXElBSifA on supporting Abdul El-Sayed | The Cheesecake Factory discourse Kate: Former President Barack Obama's response to The Cheesecake Factory discourse https://www.youtube.com/watch?v=2aLociGtH_0 | The Osborne Association’s annual benefit Melissa: Supporting Kate at the Osborne Association’s annual benefit | Obama’s shade about The Cheesecake Factory | Leah’s supercut of President Trump talking about Republican Senator Jon Husted’s butt | Dolly All the Time https://bookshop.org/p/books/dolly-all-the-time-annabel-monaghan/dcf2cdd749f867de?ean=9798217349197&next=t&&utm_source=google&utm_medium=cpc&utm_campaign=dsa_nonbrand&utm_content=%7Badgroupname%7D&utm_term=dsa-19959388920&gad_source=1&gad_campaignid=12440232635&gbraid=0AAAAACfld43w5I9svykMMx2MkMX-G2ROS&gclid=CjwKCAjwgJHXBhBGEiwAHohJq1oKF4LwKdwjdOzxiBhFYz2OePkRhClvrQK6p8BsV4pXXCQk4qxpmhoC0D0QAvD_BwE by Annabel Monaghan Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s 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&Buy Leah’s book, Lawless 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, now out in paperback Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Americans United for separation of church and state. Americans United is here to remind us, regardless of what the front page headlines say, our nation promises everyone the freedom to live as themselves and believe as they choose. And our laws should not allow anyone to use their religious beliefs to harm others. But we know that promise is not yet fully realized. It will take all of us working together across the country to educate our communities about the importance of church-state separation and mobilize people to protect it. That's why Americans United for Separation of Church and State have started their Supporter Toolkit. This document has everything you need, whether you're brand new to grassroots organizing or a seasoned pro. And there's no time like the present to get involved. It's never too late to join the fight to protect our First Amendment freedoms.

• 0:44Melissa Murray?

  Learn more and download the Toolkit at www.aue.org/supporter-toolkit.

• 0:53Speaker 01

  CricketCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We've got Governor J.B. 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 cricketcon.com. We'd love to see you there. That's cricketcon.com.

• 1:24Speaker 02

  Monday night is not just another weeknight. It's the last game of the football week, when one play can change the score, the conversation, or your fantasy matchup. And when the game gets good, the last thing you want to do is step away to figure out dinner and miss a moment. That's where DiGiorno comes in. Have a DiGiorno pizza ready to go before kickoff, then settle in for restaurant-quality taste, fresh from your own oven, while the game takes over. No stopping to figure out dinner when the matchup gets good. Stock up on DiGiorno over the weekend, so when Monday night rolls around, the only thing you sweat is the game. From the opening drive to the final snap, stay locked into the game and enjoy everything Monday Night Football brings. It's not delivery. It's DiGiorno.

• 2:09Speaker 03

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

• 2:22Speaker 04

  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."

• 2:52Melissa Murray?

  Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. The band is back together, and we are your hosts. I'm Melissa Murray.

• 3:02Leah Litman?

  I'm Leah Litman.

• 3:03Kate Shaw?

  And I'm Kate Shaw. And today, the three of us are doing what every right-thinking American is doing, which is full-body clenching for the midterm elections. Now, those are elections in which I think north of 40 million people have actually already voted. So it doesn't seem right to say the election is tomorrow. Same. But this is an election in which tens of millions have already voted, tens of millions more will vote tomorrow, if you're listening, on Monday. That is Election Day, but it is hard to think about anything else right now, isn't it, ladies?

• 3:30Melissa Murray?

  Yeah, it is. Tuesday's Election Day. I like to be with the people on Election Day.

• 3:35Kate Shaw?

  You go in person same day.

• 3:36Melissa Murray?

  So early voting for me. No, no. I like to be part of the fun.

• 3:39Leah Litman?

  Speaking of fun, the president's sex pest closing message for the pedophile protection party seems to be something along the lines of, "I like big butts and I love to lie."

• 3:49Melissa Murray?

  Well, you've got to do justice to serve mix a lot. Like, deliver that line, Leah Litman.

• 3:53Leah Litman?

  "I like big butts and I love to lie."

• 3:56Melissa Murray?

  You, other president, can't deny.

• 3:59Leah Litman?

  And now, our president-

• 4:00Kate Shaw?

  And it walks in, and, sorry, let's, yeah.

• 4:02Leah Litman?

  With an itty-bitty waist and a wrapping in your face, you get sprung!

• 4:06Melissa Murray?

  What a pull-up tuck.

• 4:08Kate Shaw?

  I think America needs any more of us. But that was delightful. All right. But now, let's roll the POTUS tapes, slightly less delightful, I think, than our version.

• 4:16Speaker 07

  I'm looking up and down, and I'm studying him, and then I made the mistake. I told, in fun, I said, "I looked at his ass." And I've never done that with a man before. It's true. No, I never did that with a man before. I examined his ass, and then I looked at his shoulders. I looked at his feet. I looked at his hand. I looked at his jawline. Studying. And I don't do this with men very often. I started examining his body, because I didn't know he was a great athlete. And I looked, and I watched up and down. I looked at his ass, and I looked at the whole. And then I looked at his hands. Look at his hands. He's got these, like, claws.

• 5:00Speaker 07

  Because I was about to say that I was examining that man for his physical prowess, and I got it. When he stood up, I looked at him. I looked him all over the place. And I should have never said what I said. But I said, I started by looking at his ass, and it was strong as hell. But I made the mistake of studying his anatomy and explaining it to the audience. And the audience loved it. By the way, he went up 12 points that day. He went from being down to being up.

• 5:38Speaker 07

  Maybe I should do that with Ken Paxton, but I'm not sure your body is going to qualify.

• 5:44Melissa Murray?

  Not wrong. Not wrong.

• 5:47Leah Litman?

  Not wrong. Perfect exemplar of the homo-social relationships that are part of the patriarchy. But the jokes really write themselves in all of that up-down lingo.

• 5:57Melissa Murray?

  I cannot believe you made that.

• 5:59Leah Litman?

  I love you, Melissa. Just for you.

• 6:02Kate Shaw?

  She writes these law review articles. She makes these mashups. What can't she do? It's just incredible. I hadn't heard all of those. I had just heard maybe the two or three.

• 6:10Leah Litman?

  Well, I just, I wanted to be sure, right, you heard them, since Melissa was shocked last week when I referred to the fact that the president was talking about butts.

• 6:19Melissa Murray?

  I had missed it. I missed it. I wasn't watching a lot of TV. And then, like, I mean, this supercut, it's like, it almost seems like he's fixated.

• 6:27Kate Shaw?

  I hadn't seen or heard all of those, and I actually, I hadn't watched the crowds behind him, which include children looking, like, pretty uncomfortable. He does the weird, curvy lady hand gesture in a way that's kind of confusing in one of them. There are just our entire gender studies dissertations to be written about that mashup, and I hope someone writes them.

• 6:48Melissa Murray?

  Whatever happens on the other side, the backside, if you will, we are looking forward to seeing all of you on the other side of all of this. That means we're going to see you at CricketCon this week. So if you haven't gotten your tickets, now is the time to do so.

• 7:05Leah Litman?

  Butt, butt, butt. Do you think-

• 7:06Melissa Murray?

  Butt, butt, butt.

• 7:08Leah Litman?

  Butt, butt, butt, yes. So do you think SCOTUS hopefuls should be doing squats to make sure the peaches are ready for primetime? Like, is this a potentially new criteria for being America's next top SCOTUS justice?

• 7:22Melissa Murray?

  You got to wonder. You got to wonder. Drop and give me 20, soldier.

• 7:27Leah Litman?

  Exactly. Also, I just want to clarify, when I said I was into this era of objectifying men's bodies, I don't think men should have to suffer through the same body dysmorphia that women did as a product of growing up in the 90s, although I did appreciate him body-shaming Ken Paxton, who just deserves all bad things. So, both and.

• 7:45Kate Shaw?

  Because stop clock correct there and only there. Agreed. Definitely not into it, broadly speaking. You know what else I am not into? Is J.D. Vance trying to get in on the action and just falling so flat when he does?

• 7:59Melissa Murray?

  That's another butt joke.

• 8:00Leah Litman?

  It sure was. Thanks for picking it up. You put it down, picking it up.

• 8:05Kate Shaw?

  We could basically do this all day. I think we're going to cut it and move on to today's show, which is going to involve previewing the cases that the Supreme Court will hear this upcoming week, cases that we will recap at the live show that we will be doing at CricketCon on Friday night. And we very much hope to see all of you there.

• 8:21Melissa Murray?

  We will also be covering the barrage of legal news, or at least some of the legal news, because it is a barrage and we can't cover everything, all of the things that happened last week. But we will be focusing on some of the litigation that is going on concerning all of the election fuckery that we've seen arise. We'll also talk about DOJ's efforts to keep doing stupid things, but to do it stupider. And maybe some other things will come up, as it were. Let's dig into it.

• 8:50Kate Shaw?

  Okay, so first up, case previews. So of the cases the court is going to hear this week, we're going to spend most of our time today previewing St. Mary Catholic Parish versus Roy, because, yikes, this is a big one, and none of it is going to go well. So the case, we'll just intro it for you, is about Colorado's universal preschool program. That is a program that is open not just to public schools, but also private schools, including religious ones. Colorado, that means, provides funding for attendance at any school in the program.

• 9:17Melissa Murray?

  But here's the thing. In order to participate in the program and receive these public funds, preschools have to comply with a set of generally applicable standards. Among these standards is the requirement that the participating preschool sign a nondiscrimination agreement that prohibits turning away families or children based on a number of criteria, including, quote, "race, ethnicity, religious affiliation, sexual orientation, gender identity, lack of housing, income level, or disability." And predictably, the requirement to not discriminate against families and children because of sexual orientation and gender identity has created a problem. St. Mary Catholic Parish argues that making participation in the program, which, again, is optional-

• 10:00Leah Litman?

  Contingent on not discriminating on the basis of sexual orientation and gender identity violates the First Amendment's guarantee of free exercise of religion. So yes, St. Mary's arguing that it gets to participate in the program for free because free exercise. Put differently, the state can't impose conditions on the program that St. Mary doesn't like because free exercise makes the parish free of law. Perhaps they haven't heard what the Republicans have been telling us for so long that freedom isn't actually free. It is free for some people, not for others, as always. The basic gist of the claim is that in order for St. Mary to be treated equally, in order for it not to be discriminated against, it must get a hall pass from the nondiscrimination

• 10:45Leah Litman?

  standard that everyone else is required to meet. And so the appeasement strategy reveals itself. Let us explain what I mean by that statement. Our use of the term appeasement is a reference to the progression in the court's cases interpreting the free exercise clause from Trinity Lutheran to Espinoza to Carson, now to St. Mary. And it's a term coined by law professors Micah Schwartzman and Nelson Tebby to refer to one of the dynamics they observed in this suite of cases, which we will explain. So in Trinity Lutheran, which was decided back in 2017, the court asked whether the free exercise clause permitted a state to operate a funding program for playground resurfacing. Under the program, the state provided money to resurface playgrounds. However, because the state was concerned about funding religious institutions with public

• 11:30Leah Litman?

  funds, it excluded religious schools from the program. States elected to exclude religious schools because of the provision in the Constitution formerly known as the Establishment Clause. Technically, the provision is still known as the Establishment Clause, but it's a provision that is only formerly in the Constitution since the court has largely read it out of that document and into oblivion because textualism and originalism of the First Amendment.

• 11:56Kate Shaw?

  Now, the Establishment Clause, at least in our Constitution, in the copy that Melissa wrote a whole book about and that we teach our students about every year, actually does, by its terms, prohibit government from establishing religion. Again, that's literally what it says.

• 12:09Leah Litman?

  Can confirm.

• 12:09Kate Shaw?

  I got your book right here in front of me, Melissa. And here's what it says in its entirety. Quote, "Congress will make no law respecting an establishment of religion." That is actually the first part of the First Amendment. It is prior to the other parts, almost like it's important or something. It was, and in our Constitution, it still is. And it is applicable to the states through the Fourteenth Amendment, which the court regrettably has also been working diligently to read out of the Constitution, at least in large part. It is not trying to read out of the Constitution the part that it made up about how the Fourteenth Amendment prohibits efforts to facilitate diversity and remedy exclusion. Back to the religious Establishment Clause interaction with the Fourteenth Amendment, Justice Thomas has actually long objected to the idea that the Establishment Clause applies to the states at all, because I guess, of course, he has.

• 12:54Kate Shaw?

  And this is an idea that once seemed truly nuts, I think even to a lot of conservatives and originalists. But man, that Overton window, she is sure moving quickly these days. So who knows, that might be uncontroversial before long.

• 13:07Leah Litman?

  In case you think we're being hyperbolic about the Establishment Clause becoming a legal fiction, the Department of State entered the chat to post this on Twitter slash X. Quote, "America, more than any other nation in world history, was shaped by the Christian tradition of spreading the gospel unto all nations." These guys hate the Establishment Clause so much, they even seem to be banning it from outer space.

• 13:31Kate Shaw?

  Wait, we're going to talk about this later in the show, but I just had flashes of a State Department official being questioned by a district judge about the meaning of this tweet and them trying to say.

• 13:41Leah Litman?

  My body is already cratering from shame. I'm sorry.

• 13:44Kate Shaw?

  It's hard to know what "shaped by the Christian tradition" even means. Like, I'm not sure.

• 13:49Leah Litman?

  It's actually executive privilege, what that means.

• 13:51Kate Shaw?

  Exactly.

• 13:52Leah Litman?

  What is a nation? What is a gospel, really?

• 13:54Kate Shaw?

  Stay tuned for the dramatic readings, listeners. We promise they're going to be great.

• 14:00Leah Litman?

  Anyway, back in the day when the Supreme Court considered the Establishment Clause to be a part of the Constitution, it issued decisions that limited the extent to which states could fund religious proselytization, religious instruction, and more. And because of that line of cases in which the court basically said, "Public funds can't be used for religious purposes," states, for a very long time, did not include religious institutions in these public funding programs. Indeed, this is why the state of Missouri, which created the public grants for playground resurfacing at issue in Trinity Lutheran, excluded religious schools. It recognized, wait for it, money is fungible. And if religious schools get state funding for playground resurfacing, that actually

• 14:43Leah Litman?

  frees up money that can then be used for religious purposes. Basically, it would be a backdoor public subsidy for religion and a violation of the Establishment Clause.

• 14:53Kate Shaw?

  So those are the halcyon days in which the court actually enforced the precepts of the Establishment Clause. But Trinity Lutheran, all that came to a halt because the Supreme Court said, uh-uh. And there, the court said, "The free exercise clause actually prohibited the government from funding a decidedly secular activity, playground resurfacing, and excluding religious institutions from the program." In those kinds of cases, the funds had nothing to do with religion, according to the court. This is just about scraped knees. And accordingly, the program, when it excluded religious institutions, engaged in discrimination on the basis of religious status.

• 15:26Leah Litman?

  Again, just want to weigh in here to emphasize that money is fungible.

• 15:31Kate Shaw?

  Well, you don't have to convince me.

• 15:32Leah Litman?

  Well, money, no problems.

• 15:33Kate Shaw?

  But John Roberts and a bunch of, unfortunately, his colleagues were not convinced.

• 15:38Leah Litman?

  State better have my money. Give me what you owe me. Trinity Lutheran enters the chat.

• 15:44Kate Shaw?

  Exactly.

• 15:45Leah Litman?

  Ri, ri. Okay, sorry.

• 15:47Kate Shaw?

  Back to playground resurfacing. So when the court basically took this sharp turn in its previous Establishment Clause jurisprudence, it did seem, at least as I recall it, to have had a little bit of a sense of shame in terms of what it was doing. And so it tried to cast this intervention as, again, really being about this tiny little issue, just protecting kids from scraped knees, regardless of the character of the institution that they were playing in the playground of. And so it tried to cast this intervention as really modest and limited by including a footnote claiming that this decision was only about playground resurfacing and playground resurfacing only. Literally, footnote three of the opinion read, quote, "This case involves express discrimination based on religious identity with respect to playground resurfacing.

• 16:31Kate Shaw?

  We do not address religious uses of funding or other forms of discrimination."

• 16:35Leah Litman?

  That was a big giveaway about how the court was definitely doing law and real law at that. It said it was just making a rule about playground resurfacing. It's like the Bush versus Gore or TikTok versus Garland, but for playgrounds and the free exercise clause. With that caveat, the Chief Justice managed to secure the votes of Justices Stephen Breyer and Elena Kagan. And when the decision was issued, Professors Micah Schwartzman and Nelson Tebby provocatively described the Democratic appointees' penchant for occasionally siding with right-wing justices and their steady expansion of the free exercise clause and their concomitant erasure of the Establishment Clause as a strategy of appeasement. That is, they suggested that this was an effort to concede some narrow ground in order

• 17:20Leah Litman?

  to stave off more significant doctrinal shifts. And their use of the term appeasement was very purposeful because appeasement has some historical connotations. And if you have no idea what I'm talking about, Brett, I have just three words for you. Open the schools. Anyway, the Schwartzman and Tebby article is titled "Establishment Clause Appeasement," and it appears in the 2019 volume of the Supreme Court Review. Since it was published, I think we can safely say that Schwartzman and Tebby were prescient in predicting that the appeasement strategy would be unsuccessful, shocking since appeasement has typically worked so well in the past.

• 18:00Kate Shaw?

  That's a joke.

• 18:01Leah Litman?

  Again, if you don't understand why that's a joke, open the schools.

• 18:05Kate Shaw?

  Open a book.

• 18:06Leah Litman?

  Open a book. This is my shocked face, but after Trinity Lutheran, the court has had a lot more to say about the free exercise clause and government funding for religious institutions, and none of it involved playground resurfacing.

• 18:17Kate Shaw?

  Indeed. So in these later cases, the court said, hmm, turns out other funding programs that also excluded religious institutions also violated the free exercise clause, even though in these subsequent funding cases, the money wasn't earmarked for a secular purpose like playground resurfacing. It was just a general subsidy that went to religious schools, some of which offered religious instruction.

• 18:35Leah Litman?

  The first of these cases that did not pertain to playground resurfacing was called Espinoza versus Montana Department of Revenue. There, the Montana Legislature created a program that granted tax credits to individuals who donated to organizations that awarded scholarships for private school tuition. The Montana Constitution provides that government aid cannot go to any school, quote, "controlled in whole or in part by any church, sect, or denomination." To implement that provision... The Montana Department of Revenue prohibited families from using the scholarships funded by those tax credits at religious schools.

• 19:10Kate Shaw?

  The court, in another opinion by playground resurfacing expert and noted institutionalist, Chief Justice John G. Roberts, said Montana could not prohibit parents from using scholarships at religious schools. Note here that the Montana Supreme Court, when it interpreted the state constitution, had actually invalidated the entire scholarship program. So, parents couldn't use these tax credit funded scholarships at secular or religious schools. But that equal treatment was not enough for the court's then five Republican appointees, who said that parents were entitled to use these funds to support religious education. And that should have been a clear warning of what was yet to come.

• 19:45Leah Litman?

  After Espinoza came Carson versus Makin, another banger from the Chief Justice's album entitled Free Exercise Should Actually Be Free, at least for some. Free exercise clause, establishment clause, parentheses, John Roberts version. This case challenged Maine's tuition assistance program for parents who live in school districts that do not operate a secondary school. Now, Susan Collins of Maine was very shocked and surprised to learn that the court didn't actually limit its free exercise jurisprudence to resurfaced playgrounds. No one else was, but you know what they say about Susan. Those Republican-appointed Supreme Court justices always seem to pull a fast one on her.

• 20:20Kate Shaw?

  Indeed. She was assured this was a playground's only rule and really taken aback by its expansion. So, under the Maine program at issue in Carson versus Makin, parents designated the secondary school they wanted their child to attend, and the school district then sent money to that school to subsidize the tuition. Both public and private schools were eligible to receive funds, just as long as the schools were, quote, "non-sectarian."

• 20:41Leah Litman?

  And the Supreme Court invalidated that Maine program as well. I hope you're sensing a theme here. So, as a result, the court effectively required a state to use public funds to pay for religious education as part of a general tuition program designed to provide free public school education. And now, free public school education included religious education.

• 21:01Melissa Murray?

  Just like James Madison intended.

• 21:03Leah Litman?

  Anyway, that brings us back to the St. Mary case. Again, the claim here is that the state runs a universal pre-K program in which private and public schools, including private religious schools, are eligible to participate. The state just asks anyone and everyone participating in the program, and therefore, receiving these state funds, to abide by general conditions, including the condition that they not discriminate on the basis of sexual orientation and gender identity. And St. Mary, with the usual opposition to LGBT rights is my religion take, is arguing that the state cannot impose a generally applicable condition on them. That is, they say that to treat St. Mary equally, the state has to give them special preferential treatment.

• 21:46Kate Shaw?

  So, given that wind up, it is not hard to predict how this case will go. And I think that's especially because, in addition to the line of cases that we just walked through, Colorado specifically has lost a series of cases involving anti-LGBT discrimination in contexts other than school funding. So, there was the Masterpiece Cake Shop case regarding a baker who didn't want to bake a wedding cake to celebrate a same-sex wedding, 303 Creative, which involved an aspiring website designer who didn't want to design websites for same-sex weddings. And in both of those cases, the court made crystal clear that applicable anti-discrimination laws are no match for religious objections. So, very likely, this case, at the intersection of those two lines, comes out the same way. And I mean, one thing, just a flag, that I'm going to be really interested in watching is how differently the players in this case characterize the facts. And that has been

• 22:31Kate Shaw?

  also a theme of a lot of these, at the intersection of free exercise and establishment cases. I'm thinking, of course, in particular about Kennedy versus Bremerton. But the challengers here are like, hyper-focused on the fact that they say some schools have gotten exemptions from these generally applicable anti-discrimination directives, including what they really point to are these admissions policies that prioritize admission for children with disabilities or from low-income families. And this, they say, opens the door to religious schools discriminating based on religious objections. I mean, I guess, make it make sense. But they also are basically saying, this is a policy that is rife with exceptions, and so, we should get one too. And Colorado characterizes its approach and just the law in general very, very differently.

• 23:13Melissa Murray?

  So, the thing I'm going to be looking for here is not simply the way they skew the facts on either side. There's going to be a discussion here about what the real discrimination that is afoot is about. So, back in Espinoza, the provision of the Montana state constitution that they had referred to, the one that said you couldn't use public funds for religious schools, it's known as a Blaine Amendment. And they came up in the late 19th, early 20th century, and as part of this sort of nativist, anti-immigrant, anti-Catholic fervor. So, there really is a history of discrimination associated with these kinds of provisions. But they've also subsequently been re-amended, re-cotified in state law and state constitution. So, you know, question about whether they have been cleansed over time of this anti-Catholic

• 23:55Melissa Murray?

  bias. But this court, and these Republicans, love to dig in on the real discrimination, the real racism, coming from the 19th century, the early 20th century. And that's a reason to literally throw the whole constitution out. They do this with guns. They tried to do it with abortion. They're going to do it here. And Justice Alito loves this anti-Catholic fervor. Note, and Kate has noted this, when certain pieces of legislation, say, a travel ban, get cleansed of its anti-Muslim bias by being reiterated time and time again and reissued, that's not a big deal. Like, it's easy to get rid of your Islamophobic.

• 24:33Kate Shaw?

  Or legislative maps, either.

• 24:33Melissa Murray?

  Yeah. I mean, you can do that. But this stuff, this is durable and indelible. So, watch for that as well.

• 24:39Leah Litman?

  You know what they say, "The way to stop discrimination against conservative religious organizations is to start discriminating against gay people." That's going to make its way into a chief opinion one of these days, Jen.

• 24:50Kate Shaw?

  It's kind of subtext there, kind of already.

• 24:52Leah Litman?

  Yeah.

• 24:53Kate Shaw?

  But yeah, maybe, maybe the subtext will be.

• 24:54Leah Litman?

  But one day, it's going to stay with his whole chest. Exactly. Maybe also his butt.

• 24:58Kate Shaw?

  Also, that's good. Also, yeah, I just can't wait for Donald Trump to start objectifying the chief, sooner or later.

• 25:05Melissa Murray?

  State of the Union's going to be lit.

• 25:07Leah Litman?

  Manifesting, manifesting, manifesting.

• 25:11Melissa Murray?

  Going to be lit.

• 25:18Leah Litman?

  Strict Scrutiny is brought to you by Cozy Earth. It's November, which means the holidays are right around the corner. And me being me, of course, I'm already thinking about gift giving. And by thinking about it, I mean, I've made my gift-giving plans. I'll be giving what I would want myself. And for regular listeners, you won't be surprised to know that what I want is more Cozy Earth cuddle bubble blankets. Actually, Cozy Earth put together a holiday capsule, where they put their bestsellers in holiday colors this year. You know, the same sheets, same pajamas, new prints. And this gift feels like it was picked for the season and not pulled off any old shelf. Picture this with a bubble cuddle blanket. It's dark by 5:00. The tree is lit. You're in your jammies, your Cozy Earth jammies. What do you want? The bubble cuddle blanket, of course. I've already spoken to

• 26:02Leah Litman?

  all of you about why I love the bubble cuddle blanket. I can also add my dog Stevie's testimony here, and my partner's as well. The texture is comforting. The weight is perfection. It is the blanket for all seasons and the perfect gift to give someone who you want to make sure feels appreciated and seen and bubble cuddled. This is for the person who has everything or the one you know best. It's something they wouldn't buy for themselves and will use every night. This is Cozy Earth's best pricing of the year, and it's live now through December 3. Waiting won't get you a better deal. Their popular colors and sizes always sell out first. And the holiday colors usually go before everything else, since they're here for the season, not year-round. So, if you have one in mind, start there, because

• 26:43Leah Litman?

  you can't go wrong. You get a 100-night trial and a 10-year warranty. So, there's no risk in trying it. Cozy Earth's biggest sale of the year ends December 3. Head to cozylearth.com and use code SCRUTNY for 35% off home and sleepwear. That's cozylearth.com code SCRUTNY. And when they ask you a checkout where you heard about them, let them know Strict Scrutiny sent you. This episode is sponsored by BetterHelp. If I could permanently delete one thing from my brain, it would probably be the Trump presidencies or the Supreme Court, more seriously. It would probably be all of the mental space that my anxiety and security and never-ending self-made to-do lists take up. And all of the things that go into my inbox that I can't put out of my mind until I actually do them, those things just stick with me. And if you're

• 27:27Leah Litman?

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• 28:09Leah Litman?

  or live outside the United States, you can still get 20% off your first month. Sign up and get 20% off at betterhelp.com/strict. That's better, H-E-L-P, dot com slash strict.

• 28:29Leah Litman?

  All right. Also on the calendar this week, the court decided to dock it some habeas cases to make Leah Littman so happy.

• 28:36Kate Shaw?

  And you say they never do anything nice for you, Leah.

• 28:38Leah Litman?

  I mean, here they are.

• 28:39Melissa Murray?

  Well, they're gonna fuck it up, at least in one of them. So, not.

• 28:43Leah Litman?

  But you knew that. They gave you something. Be grateful, Leah.

• 28:46Melissa Murray?

  No.

• 28:49Leah Litman?

  All right. First up is Maxwell versus Dennis, which is about whether a habeas petition can seek the habeas petitioner's accelerated transfer to.

• 28:57Melissa Murray?

  A different kind of custody. Here, the specific question is whether the petition can seek the prisoner's transfer from prison to a halfway house or home confinement.

• 29:05Kate Shaw?

  And this is another one of these cases which the court needed to appoint an amicus because the federal government actually agrees with the petitioner, the Fifth Circuit got it wrong. And so it selected another good boy of the Supreme Court clerk alumni community, Brian Barnes, an alito clerk at Cooper and Kirk. What is there even to say at this point?

• 29:23Melissa Murray?

  All the women advocates had their voices stolen by the sea witch, so they're not available.

• 29:27Leah Litman?

  The sea witch of the Supreme Court. The court is also going to hear Guerrero versus Johnson, which is about whether a claim relies on a new rule of constitutional law made retroactive by the Supreme Court that was previously unavailable, when the petitioner theoretically could have asserted the claim, but the claim was practically unavailable because of legal standards or scientific standards at the time. So here, the petitioner sought to raise an Atkins claim that the Eighth Amendment prohibited the state from executing him because of his intellectual limitations. Well, the Atkins decision itself was on the books. When the petitioner filed his first habeas petition, his Atkins claim was practically unavailable because the governing diagnostic regime treated IQ scores as dispositive. And he had scored a 78 and 88. And at the time, the court would say those IQ scores categorically meant he could not

• 30:10Leah Litman?

  have intellectual limitations, even though the DSM, the Diagnostic and Statistical Manual, later changed. So the rigid IQ threshold no longer exists, and it now focuses more on adaptive functioning.

• 30:22Melissa Murray?

  All right. Also on the docket this week, this one's for you, Civ Prohead. There is a case about pleading on the docket this week. The case is called Young versus Fulton Judicial Circuit District Attorney's Office. It is about whether, in circumstances where a defendant has filed an answer without pleading an affirmative defense, the defendant can assert the affirmative defense as the basis for summary judgment. The specific facts here are that Young sued her employer, the Fulton Judicial Circuit District Attorney's Office, alleging that she was the subject of unlawful discrimination. But, under the terms of Title VII, Young's position, she was a personal staffer to an elected official, isn't subject to protections and prohibitions under Title VII.

• 31:05Melissa Murray?

  The question, then, is whether the employer could raise that argument at summary judgment if it didn't raise it in its answer to the complaint. And this one, I predict, is going to be very hotly contested.

• 31:18Kate Shaw?

  Well, Melissa's pretty excited about this one.

• 31:19Melissa Murray?

  Tingling.

• 31:20Kate Shaw?

  No, tingling. Weirdly, it had less amicus participation than I expected. I'm sure when that argument happens, we will hear from the Civ Pro stands out there. Okay, so let's now move on to other legal developments, many of which are election-related. And the first is that huge sigh of relief because the Ninth Circuit has rejected the Department of Justice's attempt to make an end run around a California District Court in one of DOJ's ongoing efforts at election interference. So you may remember, in last week's episode, Leah and Alyssa discussed how the Department of Justice filed a case in California District Court, asking the court to require the state of California to segregate 20,000 ballots. The Justice Department said the ballots were cast by people who were potentially not legally authorized to vote.

• 32:03Kate Shaw?

  Now, why, you may ask, did DOJ say it thought these people weren't legally authorized to vote? I, too, wonder. They were a little cagey there, so we're not totally sure, which obviously makes their claims super credible and means the court should forthwith order segregation.

• 32:17Melissa Murray?

  Forthwith?

• 32:18Kate Shaw?

  Posthaste.

• 32:19Melissa Murray?

  Beyond not having a lot of evidence to support this claim, and that is putting things generously, the DOJ also didn't really specify a procedure for how they would segregate the absentee ballots. So this basically is akin to a request to throw out all of these ballots. DOJ, being DOJ, decided to give the district court just a few hours to rule on its request. And when the court, instead, promptly scheduled a hearing, the DOJ ran to the Ninth Circuit to appeal the district court's non-decision. And as we said at the time, that is not how appeals work. Little DOJ, that's not it.

• 32:58Leah Litman?

  And by a two-to-one decision, the circuit agreed with us and ruled that that is indeed not how things work. You need to have something to appeal in order to file an appeal, and a district court failing to act on your bananas-made-up emergency deadline of a few hours ain't it. But the decision was two-to-one because Judge Bumitay, a Trump 1.0 appointee and SCOTUS hopeful and shortlister, filed a dissent. There is no low to this clown show.

• 33:25Kate Shaw?

  This dissent is really something. It is certainly not law, so let me just take off a couple of things that it sort of is. One, it seems to be a trial balloon for a novel theory of executive branch implied supreme equitable power over the requirements of state law. Like, I think he's just like, he's putting it out there.

• 33:43Melissa Murray?

  Who knew that the framers rejected the idea that there would be like a congressional negative over state law and that Congress would have to like approve state laws before they go into effect? But implicitly adopted the view that the executive could just nullify state laws, right, that weren't active, that he didn't like.

• 34:00Kate Shaw?

  Well, it turns out there's all kinds of stuff in Article II that we just didn't realize was there, but that Bumitay and some of his ilk can, in fact, see the invisible ink that the Constitution was penned in. Some of it struck through, some of it is only now emerging. Anyway, he writes, quote, "Does the federal government have the power to stop this potential attack on the integrity of our elections? Under both federal law and the Constitution, the answer must be yes." It's completely made up. It's also a lot of like rhetorical Gorsuch cosplay, like he's really trying to write like Gorsuch.

• 34:31Melissa Murray?

  I think that's by design, for sure.

• 34:33Kate Shaw?

  But with even less law, which is really saying something. Anyway.

• 34:37Leah Litman?

  It's like the fusion of two already unhinged theories, the unitary executive and the independent state legislature theory, only it's like the independent unitary executive, right? Where like the executive alone gets to independently determine the rules regarding elections.

• 34:54Kate Shaw?

  The federal executive alone gets to determine state election rules.

• 34:57Leah Litman?

  Exactly.

• 34:57Kate Shaw?

  That's right.

• 34:58Leah Litman?

  Don't want to call it a theory, it doesn't deserve that, but wow.

• 35:02Melissa Murray?

  Fanfiction.

• 35:03Kate Shaw?

  This is wild.

• 35:04Leah Litman?

  So Judge Bumitay also refers to the ballots as, quote, "likely illegal." It is very unclear how he came to that determination, because, as we noted, scant evidence for this was presented, but I guess DOJ's say-so must have been enough. Bumitay did cite the California prosecutions that DOJ filed in late October as support for this claim that the ballots were likely illegal, so I guess manufactured evidence is as good as real evidence now.

• 35:28Melissa Murray?

  And somewhere in the galaxy called the Fifth Circuit, Judge Jim Ho is curled up in the fetal position, quietly sobbing to himself that Judge Bumitay got to take a crack at this election fuckery and write this epic dissent. So just imagine it right now, listeners, Judge Ho whimpering between loud sobs that, "I'm really happy for you, Patrick. I'm so glad you got this chance, because, you know, you really deserve it. You are a really good judge, and you deserve this. You deserve all of this attention." Not at all jealous, not even a little bit, like, "It could have been me, could have been me."

• 36:01Kate Shaw?

  Wow, that Judge Ho voice sounds kind of like the John Roberts voice.

• 36:05Melissa Murray?

  They're all the same voice, but I was trying to make it more Gretchen Weiner. You know, it did strike me as like Gretchen Weiner. Do you remember that part of me?

• 36:12Leah Litman?

  And none for you, Gretchen Weiner slash Jim Ho.

• 36:16Melissa Murray?

  Stop making it happen. It's not going to happen.

• 36:19Leah Litman?

  Exactly. Stop trying to make election fuckery happen. It's not going to happen. The Bumitay dissent, so unhinged, it prompts a separate writing from Judge Bennett, another Trump appointee, who's not exactly some secret Rhino lib, because Judge Bennett had previously said that Trump had the authority to deploy the National Guard in his immigration enforcement escalation.

• 36:37Kate Shaw?

  I had forgotten that was the guy. That's the guy who's like Bumitay this cray?

• 36:41Leah Litman?

  Exactly. This is the guy who Judge Bumitay provoked because Judge Bumitay's hackery was too much. So Judge Bennett began his separate writing as follows, quote, "I write separately, however, in light of the dissent. Even if I were to conclude we had jurisdiction, there are several reasons why I would deny the United States emergency motion. One, this is not an appeal, but if it were an appeal, even I would be like..."

• 37:03Kate Shaw?

  They would lose. I'm out. When you've lost Judge Bennett big, yeah, that really tells you something. Okay, so, but we're not done with Bumitay because we have to talk about his Purcell analysis, which is also bananas. I think it's suggesting that Purcell doesn't apply, and there's no risk of voter confusion because the voters have already cast their ballots. The federal government is just demanding not to count them. This still definitely seems like changing the rules, to me. And also, even though, as we said, the Department of Justice wasn't very specific. About what exactly it wanted done in terms of segregation. It seems pretty inevitable that mucking with ballot processing this late in the game will impact way more than whatever subset of the ballots the Department of Justice claims, even without evidence, were illegally cast.

• 37:48Kate Shaw?

  So again, election disruption would almost certainly follow from giving DOJ any kind of win here. So the dissent also laughably states that the suit doesn't seek to change the rules because it's always been true that non-citizens can't vote. And so changing the ballot counting protocols in California somehow wouldn't be a rule change. Like, I don't know, real galaxy brain stuff. But also, it would mean, like, this rationale would mean Purcell should never apply whenever a lawsuit alleges there is something illegally happening. And it is not at all hard to imagine the federal government making these kinds of allegations everywhere it is worried that the president's party might be in danger of losing a close race, screaming about illegality and somehow evading Purcell by doing so. So just can't be right.

• 38:33Kate Shaw?

  And Judge Sanchez, the other judge on the panel who we haven't mentioned, wrote a separate concurrence to explain why Purcell does indeed still apply in this case.

• 38:40Leah Litman?

  So Boomtay's hackery, not enough for some, somehow. So the Judicial Action Group, which a sister organization, the Judicial Action Group Foundation, describes the two as working alongside each other to, quote, "unite spiritual intercession with practical action to advance judicial renewal in America." And that organization gave Judge Boomtay a red card, not a green card, as a future SCOTUS nominee.

• 39:07Kate Shaw?

  Didn't go far enough.

• 39:09Leah Litman?

  Exactly.

• 39:10Kate Shaw?

  Judge Ho breathes a sigh of relief.

• 39:12Leah Litman?

  Exactly.

• 39:13Kate Shaw?

  Still in it.

• 39:14Leah Litman?

  So because the Ninth Circuit dismissed the appeal, the California District Court continued with its proceedings. The DOJ filed supplemental declarations to bolster its attempt to cast out on the election and raise the specter of unauthorized voting. One of those declarations came from a Shasta County official named Clinton Curtis, who once claimed he could tell fake ballots by their smell. Smells like teen spirit or just crack and crackpot conspiracy theories.

• 39:37Kate Shaw?

  I will say that when you mentioned this, I was like, I haven't heard about this guy, really? Definitely claims that he can smell fishy ballots, for sure. I mean, he can feel them. He can feel the sketchiness.

• 39:48Leah Litman?

  He can feel them and smell them.

• 39:50Kate Shaw?

  In general, but the smell is part of it.

• 39:51Leah Litman?

  He has a sixth sense, as Karen says in Mean Girls. I can always tell when it's gonna rain.

• 39:59Kate Shaw?

  Can he feel it in his butt, you think?

• 40:01Leah Litman?

  Probably. Okay. All right. The California District Court rejected the government's request for a TRO, Temporary Restraining Order, to block California from processing and counting certain ballots. And it is truly an excellent opinion. It rules against DOJ on basically all possible grounds, which is a clear indication that it is incredibly smart, because those arguments were fucking crazy. The court says that the federal government doesn't have standing or a cause of action. And the opinion also rejects the claims on the merits, finding that DOJ's evidence is, wait for it, not credible. It also says that Purcell precludes the DOJ's request.

• 40:42Kate Shaw?

  And despite covering all this ground, it manages to do it in a tight 25 pages. So definitely worth checking out.

• 40:48Leah Litman?

  So DOJ has now gone back to the Ninth Circuit and asked it to rule by Friday, the day we're recording. And indeed, as we were recording, the Ninth Circuit issued their decision denying DOJ's request for an injunction pending appeal. It is once again, two to one. So the request went to the same panel that had adjudicated DOJ's non-appeal. The panel decided that nothing in federal law preempts California's statutory scheme that it enacted and contains a few other kind of notable observations about how the executive branch should not be allowed to contravene the Elections Clause by undermining the Constitution's plain text. The decision also suggests that doing this delisting or segregation or throwing out ballots

• 41:33Leah Litman?

  would violate federal law, which prohibits these kind of mass efforts to displace voters during an election or sufficiently close to an election. So that's the panel decision. And then, of course, Judge Boomtay added his own thoughts.

• 41:46Kate Shaw?

  All right, well, I didn't even see it come across the wire since we sat down.

• 41:49Leah Litman?

  Once again, you have, like, read an opinion that just got issued. Like, this is basically like when you read that. I've not been carefully able to read it all, right? It basically, like, assumed DOJ, right, had standing and whatnot, and then rejected it on the merits, you know, including on Purcell. I'm sure there is good stuff in here that I missed. And none of that good stuff is in Boomtay's dissent, because...

• 42:06Kate Shaw?

  All right, well, no, there's definitely no good stuff there. All right, well, we will, uh, we'll give it a careful read when we're done. But at least for now, seems like DOJ's requests are going nowhere. I mean, could they possibly try to go to SCOTUS with this thing?

• 42:18Leah Litman?

  Hello, John Roberts? It's me, Todd Plant.

• 42:22Kate Shaw?

  We'll see, maybe. They're also, it seems, pursuing in parallel efforts to threaten California officials, actually harkening back to the District Court.

• 42:31Leah Litman?

  Sorry. Melissa, Judge Boomtay wrote some of his dissent just for you. Because you want to know what history he invokes?

• 42:39Kate Shaw?

  Tell me.

• 42:41Leah Litman?

  Reconstruction and the Enforcement Act. When that Congress, quote, "made it a crime to cast a ballot without having a lawful right to vote." He is literally invoking, like, the KKK Act and the Reconstruction Congress as a basis to throw out 20,000 votes. It's just art.

• 42:57Kate Shaw?

  Jokes write themselves.

• 42:59Leah Litman?

  The new reconstruction is happening right now.

• 43:02Kate Shaw?

  All right. Well, speaking about completely distorting reconstruction history, right? We do also have the federal government literally threatening state officials, but for following state law and actually allowing people to cast votes. And so that has been a development essentially like alongside this effort to get the vote segregated. In the ruling earlier this week that was on appeal in the order that Leah was just reading from, the court wrote basically that threats against state and county election employees have to cease immediately because that is something that the Justice Department has also been doing.

• 43:32Leah Litman?

  According to reporting by Bloomberg, DOJ, forever unbothered and undeterred, decided that it was going to continue sticking it to local and state election officials. It directed California's US attorneys to start criminally subpoenaing state and local officials over their roles, facilitating allegedly unlawful voting. So again, the jokes just write themselves. A federal judge told you to stop immediately. What are you gonna do? I'mma keep doing it.

• 43:58Kate Shaw?

  Get at it tomorrow.

• 44:00Leah Litman?

  Also, undeterred from courts telling it to slow its roll and limit its general cray-cray, the DOJ told another state, Washington State, to segregate 400 ballots. It seems that DOJ's weekly affirmation that it writes on a Post-it note and pins on its mirror every morning is something along the lines of, if at first you don't succeed, do it again, but stupider. And speaking of which, DOJ filed an amended complaint in its case against Alaska. So the amended complaint adds a few paragraphs on The New York Times, reporting into Democrats' alleged ballot recruitment efforts, i.e. efforts to recruit other candidates into the ballot to help their candidate. Of course, the amended complaint adds some digs at the paper, such as, for example, this,

• 44:45Leah Litman?

  quote, "Although what The New York Times reports is not always true, its reporting here aligns with what the United States has been alleging on information and belief."

• 44:55Kate Shaw?

  It is tricky for them to try to cite The Times after having spent all this time disparaging them.

• 45:01Leah Litman?

  But remember that whole thing about the media ban on unfavorable coverage? Here's some coverage we like.

• 45:06Kate Shaw?

  Totally. And so we're gonna just completely try to use it opportunistically. Anyway, the basic theory of the case still seems to be that maintaining election integrity requires conducting elections in a fashion where Donald Trump or his preferred candidate always wins. And in addition to the California efforts that we were just talking about, the Department of Justice has reportedly also issued criminal subpoenas in connection with their effort to cast out on the Alaska Senate election by suggesting that Senate candidate Peltola and Democrats did something illegal by allegedly recruiting a spoiler to also run in that Alaska Senate race. And, look, whatever you might think about Dems supposedly finding another Dan Sullivan, this one a Dan J. Sullivan, to run for Senate, being sleazy in politics is not a crime.

• 45:49Kate Shaw?

  Recruiting candidates to siphon votes away from an opponent is a time-tested tradition that has also, on many other occasions, included ones with the same name as a candidate on the ballot. And I haven't seen any evidence that what DOJ is suggesting, that there was a federal criminal act of any sort here, has anything to support it.

• 46:09Leah Litman?

  I'm just staring at Snyder versus United States, because as we all know, that there is no real graft, grift, or corruption.

• 46:18Melissa Murray?

  It's just tips. These were just tips, tips for the voters.

• 46:22Leah Litman?

  It's legal to give tips and gratuities to state officials.

• 46:27Melissa Murray?

  Right. Like,

• 46:27Kate Shaw?

  Why can't you find one with the same name and run that person?

• 46:30Leah Litman?

  And on the kind of First Amendment politics and whatnot, you know, the Supreme Court has said that the First Amendment means the government can't criminalize some lying in politics. Otherwise, you'd have prosecutions of people who may not have

• 46:41Melissa Murray?

  Because politics is dirty business.

• 46:43Leah Litman?

  promises. Yes, exactly. And this isn't to say, right, they should have done this or whatever, but like, get over it, right? There's nothing illegal. And also, what makes this so dumb is that Alaska has ranked choice voting. So if there's any place where recruiting a spoiler would not matter, it is Alaska. You can just vote for the two Dan Sullivans if you're unsure.

• 47:05Melissa Murray?

  Rank them one and two.

• 47:06Kate Shaw?

  I have to interrupt for one second, Leah, which is that Chris and Alex Wagner were on Runaway Country the other day debating whether it's Dan Sullivans or Dan's Sullivan.

• 47:14Leah Litman?

  Oh.

• 47:15Kate Shaw?

  Anyway, I think you just weighed in on the side of Dan Sullivans.

• 47:18Melissa Murray?

  I just want to know was Chris wearing a pink tank top and a chain when they had this conversation?

• 47:22Kate Shaw?

  Chain, yes. I believe the shirt was gray. And he took the Dan's Sullivan like Attorney's General position.

• 47:28Melissa Murray?

  I like that. Dan Sullivan.

• 47:29Kate Shaw?

  Yeah, it's OK. Sorry, your mileage may vary. Sorry, you were making a substantive point, Leah.

• 47:33Leah Litman?

  The additional substantive point I was going to note is that because of the Alaska Supreme Court litigation, Dan S. Sullivan appears on the ballot labeled as the incumbent. So it's so maddening to watch this get airtime, like, including in The New York Times. That's the big slime in politics now? Not the executive branch's election interference? Come on.

• 47:56Melissa Murray?

  Per usual, the president of these United States decided to post through it. On Truth Social, where else, he wrote, maybe Natalie wrote, who is to say, quote, "It has been determined that the Dems in Alaska illegally searched for a man named Dan Sullivan."

• 48:14Leah Litman?

  Who determined this? Also, why is it illegal? Because FYI, it's not illegal. It may be shady, but it's not illegal.

• 48:21Kate Shaw?

  I actually am a real defender of some well-placed uses of the passive voice, but this is a place where there's a good reason that we don't really use the passive voice in these important sorts of situations, which is, it has been determined.

• 48:31Leah Litman?

  What he's talking about is sowing doubt in this election if it turns out that Mary Peltolo wins. Like, that's all this is about. And, like, let's just call it out.

• 48:41Melissa Murray?

  Post through it, sir. Thank you for your attention to this matter.

• 48:49Leah Litman?

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• 52:17Leah Litman?

  On the general theme of if at first you don't succeed, just try something dumber, Jim Comey was indicted. Again, kind of, but not really.

• 52:26Kate Shaw?

  Yeah, kind of, but not really, because, OK, so for the third time in a little over a year, the Trump Justice Department has filed criminal charges against former FBI Director Jim Comey. Except this time, as Leah's opening kind of alluded to, he wasn't actually indicted. Prosecutors instead filed what's called an information against him. This distinction matters, right? So in order to get an indictment, you need to present a case to a grand jury, and the grand jury has to return an indictment that is not the case with a prosecutorial charging document called an information.

• 52:54Leah Litman?

  And that thing, getting an indictment, is something DOJ has struggled with, including in the Broadview 6 case, where grand jurors memorably told the DOJ its case was a crock of shit. So it seems that DOJ elected not to even try this time around. You know, they presented, as Kate said, what's called an information, literally just a prosecutorial charging document. But Comey doesn't seem to have waived his constitutional right to a grand jury indictment, which would make this information charging unconstitutional and all of the charges invalid.

• 53:26Melissa Murray?

  Well, let's dig into the charges. The charges, the charges, relate to the allegedly illegal sharing of classified information. This is from a decades-old event that has been thoroughly investigated and debunked. And it seems like at least one of the charges is outside of the statute of limitations. But hey, if you're ignoring the Fifth Amendment on GP, why not blow past the statute of limitations as well? Like, be a legend. Just do it.

• 53:52Leah Litman?

  Just do it again, but dumber.

• 53:54Kate Shaw?

  It seems like this latest effort to target Jim Comey is going to likely come to the same end as the previous efforts, which is to say it's going to go nowhere. But again, they just keep trying to come at him.

• 54:06Melissa Murray?

  Well, here's the thing. They're trying to bankrupt Jim Comey. This is basically just about getting him to have to get defense counsel and soldier up. That's what this is.

• 54:14Leah Litman?

  And it's to scare others.

• 54:16Melissa Murray?

  And scare others. Yeah. Like, you too can catch three, maybe two and a half indictments.

• 54:21Kate Shaw?

  Right. So, again, it definitely seems like Jim Comey is on the cusp of winning that case. And last week, the family Comey got another important victory. And that was not in the case of Jim Comey, but actually his daughter, Maureen Comey. In her case, Judge Jesse Furman in the Southern District of New York concluded that the administration's attempt to fire her, she's a former Assistant United States Attorney in the Southern District of New York, and Judge Furman concluded that the effort to fire her violated the Civil Service Reform Act, which provides job protections for officials like Maureen Comey. And Furman concluded that those protections are consistent with Article 2 of the Constitution, because Comey was likely an inferior officer in her role as an Assistant United States Attorney.

• 55:03Kate Shaw?

  So in addition to concluding that a different statute that is just about Assistant United States Attorneys didn't give the Attorney General some sort of plenary authority to remove AUSAs, and concluding that the firing violated the statute, the CSRA, the court also issued a declaration that the removal violated the separation of powers, the Fifth Amendment's due process clause, statutory rights, the Administrative Procedure Act, although the court didn't rule on a separate First Amendment argument. Judge Furman ordered back pay and reinstatement, but just for purposes of calculating back pay reinstatement up until the time that Maureen Comey found a different job at a law firm, so she wasn't actually seeking. So there was no ruling on whether she could actually be reinstated in her position as Assistant United States Attorney.

• 55:44Melissa Murray?

  So I don't want to manifest anything, but do you remember when we talked about the decision when Slaughter first came out, and there were all of those questions about whether Slaughter's premise would apply to inferior officers, like civil service protections, basically? I wonder if this case teased that up.

• 56:01Kate Shaw?

  Well, there's about five different cases right now. So there's hers, Assistant United States Attorney. There's a case called Jackler with immigration judges in the federal circuit. There's a case called Rogoff involving an acting United States Attorney in the Ninth Circuit somewhere, a couple FBI cases. And there are, I would love to talk about this sometime. I think there are very different dimensions and angles to each of those cases. But for sure, like, whether and how Slaughter applies to inferior officers and then to the broader civil service, I think is a huge question, and this could well be the vehicle for the court answering at least part of it.

• 56:29Melissa Murray?

  I've not been following those as closely as you have, Kate, because obviously, you're knee-deep in this. This is what you study and write about. But I just thought that Jesse Furman's discussion of the sort of connection between Article 2 was, I was like, oh, wow, this is, maybe this is going somewhere. So, anyway, I don't want to manifest anything, but.

• 56:46Kate Shaw?

  It's a great opinion, though. I will definitely co-sign that.

• 56:49Leah Litman?

  All right. In other legal matters in which this administration is losing big and DOJ's response is to continue doing the same thing, only dumber, the president has continued to post through the case challenging his administration's alleged plan, although the executive branch is disputing whether it is a final agency action and/or a plan, to destroy the East Potomac Golf Course and replace it with a bigger, better, wetter, more expensive golf course that the pores cannot afford to play. One of Trump's latest Truth Social posts maintains that the existing course is dangerous because gaping holes in the netting mean, quote, "Golf balls soar through the holes at high speed and hit unsuspecting golfers, including a White House staffer who was sadly

• 57:34Leah Litman?

  hit violently in the chest." Note that a quick fix for this problem would be to simply repair the netting, not to raise the golf course and build another golf course in its stead. But what do I know? I don't have an edifice complex. The president then added, "The driving range should not be a threat to life and limb, and as the wife of someone who golfs, I agree with that." And then he names the judge in this case, Judge Anna Reyes, and says, quote, "We will hold the judge fully responsible for anybody who is hurt or killed on this very dangerous, dilapidated, and unsightly golf course." The judge here, Judge Reyes, has already been getting death threats because she has

• 58:18Leah Litman?

  continually been involved in some of this litigation from the administration and often has been a bulwark against the administration's most excessive impulses. And so this is unlikely to help in that. I will also note that in noting the dangerous, dilapidated, and unsightly golf course, it seems the president is most worried about it being unsightly and dilapidated. Not that it is actually dangerous, but that's just me.

• 58:39Kate Shaw?

  Last week, the president also expressed the view that it is, quote, "not fair, appropriate, or constitutional"

• 58:47Leah Litman?

  Post through it, Kate.

• 58:48Kate Shaw?

  "to have to give advance notices to a judge who has," I'm sorry, this is actually, I think, what he wrote, "no expertise in golf, architecture, landscaping, construction, or anything else having to do with building such a capital W world, capital C class, capital P project."

• 59:03Leah Litman?

  So she went to law school, but she did not get her executive MBA in golf course design, and that's a problem.

• 59:10Kate Shaw?

  Can you just keep the Constitution out of this, sir? Anyway, whenever the judge's expertise or lack thereof in, I guess, golf, architecture, landscaping, and other kind of relevant areas, it does seem that she has, at a minimum, a real command and expertise when it comes to the record in this case and the rules of professional conduct. Because on Friday, she held a hearing. It was telephonically broadcast, so if you had the fortitude, you could call and listen in. The topic of the hearing was whether there is a plan or final agency action to remake this golf course, and also, this was kind of central, whether DOJ complied with its obligations to the court in representations that it had made during previous stages of and hearings in this litigation.

• 59:52Leah Litman?

  And this hearing did not go well for the government or the comfort of anyone listening in, as several of us did. Audio can't be recorded in these hearings, even though you can phone in to listen. So we are going to do our best to attempt to reenact, to the best of our recollection, some of what transpired. But all this to say, these are not direct verbatim quotations.

• 1:00:16Kate Shaw?

  Was it John Oliver, who at some point had, like, dogs playing Supreme Court justices?

• 1:00:21Leah Litman?

  Yes. I wish we could get Cole and Shadow and Stevie to do this.

• 1:00:25Kate Shaw?

  Oh, my God. My dog at least would not abide in the absence of our canine friends. This is what we're going to do.

• 1:00:30Leah Litman?

  Let's set the scene for this hearing. The hearing began

• 1:00:32Kate Shaw?

  Disaster piece theater.

• 1:00:34Leah Litman?

  The hearing began with the judge reading the rules of professional conduct to the number three lawyer at DOJ, including the duty of candor. And what follows are some events slash excerpts of our recollection of this hearing. Okay, so we're going to assign characters. Melissa, do you want to be, you're our obvious resident thespian, do you want to be judge or DOJ lawyer in these?

• 1:00:58Melissa Murray?

  I want to be the DOJ lawyer. I'm wearing an ascot for this purpose.

• 1:01:01Leah Litman?

  Melissa gets to be the lawyer. Kate, you and I will rotate off judges. Does that sound good?

• 1:01:06Kate Shaw?

  It sounds great.

• 1:01:06Leah Litman?

  Do you want to be the judge in this one?

• 1:01:08Kate Shaw?

  Sure. Okay. So first, I'm the judge. I'm asking the Interior Department, sorry, Melissa, you got to get into interior lawyer character, and then we will move into number three at DOJ lawyer character. Okay, let's begin. Counsel, was the Secretary of Interior involved with the golf course plan? There is a wide range of meanings of being involved. I'm not sure I know what being involved with means here. It didn't actually sound like that, but I like it anyway. All right. I don't have an ascot prop, but I will whip out my prop, which is a book. I'm holding Melissa's book about the Constitution. But in fact, what the judge whipped out was a dictionary, I presume a physical dictionary book, and turned to the definition of involved,

• 1:01:49Kate Shaw?

  we're just working from memory here, but some derivation of involve, involved, involvement, and proceeded to read it to try to assist the lawyer in answering her question. Scene.

• 1:01:58Leah Litman?

  Okay, so exchange number two. This exchange is between the judge and the Department of Justice lawyer, the number three lawyer at the Department of Justice.

• 1:02:07Kate Shaw?

  All right, you do this one, Lea. You're the judge now.

• 1:02:10Leah Litman?

  The president's Truth Social post read, quote, "I am pleased to announce that the Department of the Interior has developed a plan to build a world-class championship golf course on the site of the current East Potomac Golf Links. Restoration work will begin on November 15." What does this mean? Like, was there a plan that was completed? Is DOJ's position that Trump issued a command via Truth Social post on October 18?

• 1:02:36Melissa Murray?

  May I consult with my client?

• 1:02:38Leah Litman?

  Sure. We think that this is a directive, and I'm reticent, though, to put meaning behind the president's words, though. When the president posts on Truth Social, does he mean it?

• 1:02:53Melissa Murray?

  I cannot say. I don't know how to answer that. I don't. I don't.

• 1:02:59Leah Litman?

  What did the president mean when he said on October 18, quote, "The course will close on November 15"?

• 1:03:06Melissa Murray?

  I don't know what the president meant, and if I did, I couldn't talk about it.

• 1:03:10Leah Litman?

  Okay, so you're saying that you, as a lawyer, the third highest ranking lawyer for DOJ, and I want to use your words here, cannot say? That was your words, right?

• 1:03:22Melissa Murray?

  Cannot say. Cannot say.

• 1:03:24Leah Litman?

  Cannot say what the president meant when on October 18 he posted, "The course will close on November 15."

• 1:03:31Melissa Murray?

  That seems to fall squarely within the executive privilege. Yeah.

• 1:03:36Leah Litman?

  He posted it publicly. Your view of executive privilege is that when I say to you, "Did the president mean on October 18 when he said the course will close on November 15?" And if I ask you if that's what he meant, you're claiming you can't tell from the words, and asking you anything further would require an assertion of executive privilege?

• 1:03:56Melissa Murray?

  Yes. Yes, Your Honor. It would be improper of me to explain my views, or my beliefs, or my interpretation of the president's actions. That is what executive privilege is.

• 1:04:11Leah Litman?

  That is quite an extraordinary view of executive privilege, but we'll leave it there for now. Scene. I just want to say, this idea that there's like an executive posting privilege, where like the implied meaning of a social media post is subject to executive privilege, is incredible.

• 1:04:29Kate Shaw?

  I wish she had gone a step or two further, because when he said, "My beliefs and my interpretation are subject to executive privilege,"

• 1:04:37Leah Litman?

  No, they aren't.

• 1:04:38Kate Shaw?

  We can quibble about a lot of things executive privilege related, but your views or understandings as a lawyer, those aren't subject to executive privilege. We're not asking you, so this is what I think she should have pressed on. I'm not asking you, if you spoke to the president about his tweet, I'm not asking you to reveal deliberations inside the Oval Office or at the Department of Justice or anywhere else. I'm asking you what you think that meant. And that is not plausibly subject to assertion of executive privilege. But she kind of was so, I think, stunned.

• 1:05:07Leah Litman?

  Well, under the unitary executive theory, it might be.

• 1:05:10Kate Shaw?

  It's all subject to executive privilege. And maybe that's implicit in what he was

• 1:05:13Leah Litman?

  Exactly. Everyone's thoughts, right? They all mind meld with the president, so they're not allowed to share their thoughts.

• 1:05:18Kate Shaw?

  Psychic chain of command, and thus it's all subject to this executive privilege. We are like a week away from that being in a brief. Should we go on to another dramatic reading?

• 1:05:28Leah Litman?

  Sure. You can be the judge in this one. Yeah.

• 1:05:30Kate Shaw?

  Maybe one or two more exchanges. All right, so we're talking here about the National Planning Commission submission. Okay. When did work begin on that?

• 1:05:37Melissa Murray?

  It began in the last few weeks. There are many, many renderings before that, you know, for some time now. Yeah.

• 1:05:46Kate Shaw?

  So weeks, and no one, no one mentioned that in a seven-hour hearing. This was on October 19.

• 1:05:52Melissa Murray?

  I don't remember any question asking for that, especially since the map drawing was already out there.

• 1:06:00Kate Shaw?

  Are you serious? We're taking a 15-minute break.

• 1:06:03Leah Litman?

  This is one of those times where like, an organ almost exploded inside of me. It was so uncomfortable. We'll play you one more, just a little bit more farce.

• 1:06:17Kate Shaw?

  This one's my favorite.

• 1:06:18Leah Litman?

  Okay, okay, okay. So this also is with the number three lawyer at the DOJ. Let's start with basics. Mr. Woodward, what is a Link-style golf course?

• 1:06:27Melissa Murray?

  I don't know. I don't know.

• 1:06:29Leah Litman?

  I thought you were a golfer.

• 1:06:31Melissa Murray?

  I said I play golf. I wouldn't call myself a golfer.

• 1:06:35Leah Litman?

  Scene. Do you know what this reminds me of? There was an episode of America's Next Top Model where Simon Doonan from Barney's was on, and he said something to one of the girl, I guess he told her she looked like a hoe. It was very Hermione Dillon-esque. And she started crying. And he's like, "Why are you crying?" And she's like, "You called me a hoe." He's like, "My dear, I didn't call you a hoe. I said you had a ho style."

• 1:07:05Melissa Murray?

  That's what this reminds me of.

• 1:07:06Kate Shaw?

  Not a golfer, just play golf.

• 1:07:09Leah Litman?

  Just that golf style.

• 1:07:12Kate Shaw?

  That's amazing. So those are just some choice excerpts. There was a lot more. I also could not bring myself to listen to all of it, but I did listen to about 20 minutes. The hearing ended with Judge Reyes saying she believes professional misconduct may have occurred and setting a briefing schedule.

• 1:07:26Melissa Murray?

  Seems like it. I don't know. I didn't listen to the whole hearing or the previous one, but that was definitely the tenor.

• 1:07:30Kate Shaw?

  So she has set a briefing schedule for potential interim relief in the case. And on professional misconduct, she proposed appointing a special master to conduct an investigation. And if the parties didn't consent to that, she will do the investigation herself.

• 1:07:44Melissa Murray?

  Take note, John Roberts, someone seems to be able to do an investigation in the judiciary.

• 1:07:49Kate Shaw?

  Well, we will see, but I have more faith in the Judge Reyes chambers than in SCOTUS. So speaking of oversight, let us end maybe on a hopeful note about things that might be and should be on the horizon.

• 1:08:03Leah Litman?

  Yes, and that would be more oversight. So our friends at Court Accountability, together with other anti-corruption organizations such as Public Citizen, issued a call to Congress for independent oversight and meaningful anti-corruption reforms. The open letter draws on the can't stop, won't stop reporting from ProPublica that we have been talking about for the last several weeks. That reporting was about alleged pay to play arrangements involving a defense contractor and several members of Congress, and the Trump administration dismantling the federal corruption teams that were investigating the misconduct. So we especially love the part of the letter that calls attention to how any oversight and reforms must cover the Supreme Court as well. As the letter details, and as we've discussed at length, it was the court that opened the floodgates to all of the money,

• 1:08:48Leah Litman?

  including the dark money that continue to plague our elections, dark money that's made it easier for corporate interests to try to buy their way out of regulation and investigations and accountability. And it was also the court that gave the president such sweeping control over the investigations and prosecutions, not just at DOJ, but at other agencies that might themselves investigate corruption.

• 1:09:10Kate Shaw?

  And of course, the court, or at least some of its members, are not immune to the siren song of the billionaire benefactor themselves. From private jet trips to Alaska, to private jet trips around the country, to a biopic funded by a billionaire, to vacations at private resorts, to appearing at Coke donor events, all this should ring a bell, to riding on a boat named the Happy Hooker while drinking Glacier martinis. Okay, that one is a deep cut. That was actually Scalia way before the recent round of ProPublica revelations. But that should give you a sense that this stuff is not new and that some of these justices have been dipping their toes into these corrupt waters. That is also included signing up to teach courses at the Scalia School of Law that involve paid trips to Italy and stays at some pretty nifty pied-à-terres,

• 1:09:53Kate Shaw?

  as Neil Gorsuch said when being offered them, also a deep cut, although not quite as deep, fantastico.

• 1:10:04Leah Litman?

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• 1:12:12Leah Litman?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

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• 1:13:37Leah Litman?

  Also, on the topic of oversight, the Democrats on the House Judiciary Committee issued a report. It is titled, quote, "We Have Certain Things in Common, Jeffrey." The case against Donald Trump emerging in the Epstein files and DOJ's desperate efforts to cover it up. The report marshals evidence that it says require an independent investigation into the president's role in the sex trafficking and sexual abuse that was perpetrated by Jeffrey Epstein and those in his circle.

• 1:14:03Kate Shaw?

  So the report, among other things, includes a new on the record rape allegation against the president of the United States. To be clear, we don't know what kind of vetting may have gone into this report, and we don't know what to make of the allegations, which are new. But what we have found remarkable since the report was issued is the near total absence of coverage, even mention of this report in mainstream media.

• 1:14:24Leah Litman?

  And compare that with the round the clock coverage of the Democratic campaign in Alaska's recruitment, alleged recruitment, of a spoiler, another Dan Sullivan to appear on the ballot. That is so single mindedly the focus. Now, the Alaska governor is saying he may refuse to certify an election victory for Peltola.

• 1:14:43Kate Shaw?

  No, but in terms of, yeah, like where the media coverage really sort of focuses.

• 1:14:48Leah Litman?

  Yeah.

• 1:14:48Kate Shaw?

  And it definitely seems quite possible that the conspicuous absence of even discussion of this report is at least partially the product of the president's litigation campaign against media entities for unfavorable coverage and publicity, which have chilled willingness to air these allegations. This is something we wrote extensively about in a piece that is forthcoming soon in the Northwestern University Law Review. And this is a real phenomenon that I think we're seeing play out in real time.

• 1:15:14Leah Litman?

  The ban on the media is sort of the most obvious example of the president's efforts to control the media. But these kinds of things are also really important on the fact that this is not being discussed by anyone is evidence of that. Just the levels of psycho misogyny and psychopatriarchy in right wing politics are just shocking. Between this, the vicious attacks on Amy Acton over her sexual abuse as a child, it's all giving me nightmares and flashbacks to when people were saying the country was going to reject Trump for his misogyny back in 2016, like the Grab 'Em by the Pussy tape featuring prominently there. And it's just excruciating to watch. But we said we would end on a hopeful note. So favorite things, I will go first.

• 1:16:00Leah Litman?

  Jon Lovett's plea to fellow tribe members about voting for Abdul El Sayed on the October 26 episode of Pod Save America. I appreciated that immensely, and it was just very well done. And then Tim Miller over at our friend The Bulwark on Bulwark Takes, his riff on the same, really appreciated that. Again, living in Michigan and like seeing all of the ads and the prospect of having MAGA Mike Rogers elected as a Senate amidst this like cratering approval for the president and just the appalling behavior of the party is just, again, very difficult to handle. And then, on a lighter note, the Cheesecake Factory discourse I have loved.

• 1:16:41Leah Litman?

  So Arby's and Cheesecake Factory are like my two kind of favorite nostalgia restaurants. So I got Arby's like after I was fully vaxxed. We went to Cheesecake Factory. That's where I get to like get special takeout because there's no place close. So we have to like drive far and I get it to like celebrate tenure and stuff because like I just associate, I don't know, I have like very positive memories because like it was in the mall near where I grew up. That's your first clue. These are, again, like nostalgia favorite restaurants. And I've loved the Cheesecake Factory discourse. What can I say?

• 1:17:10Kate Shaw?

  Okay, you basic bitch.

• 1:17:12Leah Litman?

  I am. I am a basic bitch, and I don't care. I know I am.

• 1:17:16Kate Shaw?

  It's awesome. When we took the kids back to school shopping at a mall in Jersey, end of August, early September, we stopped at the Cheesecake Factory for a meal afterwards, and they had not ever been. And they were just like, what is this place? This menu is like 150 pages long. It's insane. It's really fun. And actually, they have a really good vegetarian selection now, which they did not always. It had been a while.

• 1:17:36Leah Litman?

  Well, they would have to because it's fucking 90 pages.

• 1:17:40Kate Shaw?

  Well, it used to be like one vegetarian thing. Anyways, it's actually great and very extensive. Now, we had a delightful meal.

• 1:17:46Leah Litman?

  I'm going to stand 10 toes down on this. I have been ragging on the Cheesecake Factory since it came up in that Neil Gorsuch, Lisa Blatt exchange. Was that in Snyder? I don't remember. Maybe. Yeah. My husband loves the Cheesecake Factory. And now, we've been married for a very long time. But the reason we've stayed married in the face of this assault on my taste buds is that we just have agreed that he gets to pick it up and get takeout, and I don't have to eat it. Because I just don't understand it. I don't understand it. I can't do it. I just can't do it. Like, I don't understand why the menu is spiral bound. Like, maybe that makes me an elitist bitch like President Obama. I don't know. But I'm going to stand 10.

• 1:18:25Kate Shaw?

  It's a big country, guys. We can all have our own views on the Cheesecake Factory. This is beautiful. This is democracy.

• 1:18:30Leah Litman?

  Yes.

• 1:18:32Melissa Murray?

  I don't understand it. I don't understand. Like, why is this menu spiral bound? Why is there gold everywhere? Like, why are the lights so dim? Why can't I read here? What's going on?

• 1:18:42Kate Shaw?

  Guess what I had for my graduation party when I graduated high school?

• 1:18:46Melissa Murray?

  Crusted chicken romano. What?

• 1:18:47Kate Shaw?

  Cheesecake Factory.

• 1:18:49Melissa Murray?

  Which entree, though?

• 1:18:51Kate Shaw?

  Who can remember?

• 1:18:52Melissa Murray?

  The fact that you can order a half portion, but it's really a portion and a half?

• 1:18:56Kate Shaw?

  The tropho populism and the outrage is funny for a million reasons, but also like when we went at the back to school trip, one of my kids actually wanted a piece of cheesecake, but we had to go. So we got the piece of cheesecake was like $1,250. It was so expensive.

• 1:19:07Melissa Murray?

  Oh, my god. That's because it's a fucking half cheesecake.

• 1:19:11Kate Shaw?

  It was big. No, it was a slice.

• 1:19:11Melissa Murray?

  Well, no, it's also because the president has ruined the economy.

• 1:19:14Kate Shaw?

  There's that too.

• 1:19:15Melissa Murray?

  The cheesecake is passing through the street of Hormuz, is what we were saying.

• 1:19:19Kate Shaw?

  Basically.

• 1:19:21Melissa Murray?

  They're massive. It's massive. You can feed like three kids with that cheesecake.

• 1:19:26Kate Shaw?

  We could do an hour on this. I will just say my tiny little favorite thing on the many chapters in the cheesecake episode story that we are still writing as a country is Barack Obama's recent response. So not his original.

• 1:19:38Melissa Murray?

  Oh, my god, I love that.

• 1:19:39Kate Shaw?

  Not his original joke about Saddam Hussein designed a cheesecake factory like as a description of the Oval Office under one Donald Trump, the second version.

• 1:19:48Melissa Murray?

  Hilarious.

• 1:19:48Kate Shaw?

  It was great. Obviously, like, they decided to manufacture this faux outrage, they being the Trump administration. And then Obama taking back to the stage, I think it was in Georgia, and describing Trump as having mobilized a whole of government response to the cheesecake factory joke. I just loved so, I howled.

• 1:20:07Melissa Murray?

  They hate him so much because you hate him because he ain't him.

• 1:20:10Kate Shaw?

  Exactly. Also, right, Obama noting that like, they didn't object to the Saddam Hussein comparison. He didn't care about being compared to Saddam Hussein. He just decided to, and then he sends his Treasury Secretary. Like, just imagine if I had done 100th of the ridiculous things that these clowns do. Yeah, you couldn't, you couldn't do. Melissa, I don't know if you want to end with more on cheesecake, but let me just maybe say one more thing, which is that in other favorite things last week was the Tuesday night Osborne Association's annual dinner. So this is an awesome criminal legal system reform and sort of justice impacted, family focused organization in New York that does amazing things like free buses so that kids and family members can visit incarcerated loved ones, to all kinds of enrichment and training programs in various jails and prisons. They're an awesome organization that my husband,

• 1:20:55Kate Shaw?

  Chris, and I have supported for a while. And they gave us a little award at their event this year. And it was really a beautiful and moving event.

• 1:21:01Melissa Murray?

  Voices for justice.

• 1:21:03Kate Shaw?

  Yeah, that's what they called it. Anyway, and Melissa was an awesome friend and supporter and came when we asked her to come introduce us. And she did, and she was amazing. And Osborne is great. If you don't know them, check them out. And I met several stricties in the wild there, although the only one whose name I wrote down was Ryan McCarthy. Ryan, thanks for listening. It was great to meet you. And Melissa, I thanked you already in person, but thank you for being there. It really meant a lot to us.

• 1:21:25Melissa Murray?

  So that was one of my favorite things as well. It was really great to learn more about the Osborne Association's work and of course, to support you and Chris for your support of them. I just want to come back to the cheesecake factory because I just want to like, just put a pin in this. I am not opposed to chain restaurants. As you know, Leah, I'm 10 toes down on Arby's. I love an Arby's. I really, really do. There are other chain, Benihanas, love that shit. I just can't get down with the cheesecake factory. That's just my bet noir. I can't do it. And so I loved the Obama shade for cheesecake. I also loved how everyone responded to it. And I also loved that Obama was like, when they go low, I go to hell. And he started talking shit about them too. And he was just like, you know, like, they hated my tan suit. It's because I looked hot. And I'm like, sir, correct.

• 1:22:10Melissa Murray?

  That's right. I've been, like, the audacity of taupe. Yes, we tan. That suit was hot. Nobody can do that but him. And I'm like, I love that for him. I love to see this version of post presidency Obama, like, just talking shade, talking shit, more of that. Leah also very much appreciated this butt mashup you put together. I didn't know I needed it. I don't actually need it, but I loved it. And in addition to the butt mashup, my other favorite thing this week is Dolly All the Time by Annabelle Monahan, which I just picked up in an airport and started reading. It was fantastic, fun, frothy. Love it. I was in Charlotte this week doing this incredible event with Public Square and the Foundation for the Carolinas

• 1:22:54Melissa Murray?

  and the Charlotte Mecklenburg Library System. And I met some great stricties. So I want to shout out Susan, David, who is located in Brazil and wasn't in Charlotte, but he had a friend who came to Charlotte to tell me about David in Brazil. Thanks for listening all the way down there. Liz, Tara, Lara, Alex, and Angie. Great to meet you all. All right. Let's go to cheesecake factory.

• 1:23:16Kate Shaw?

  Yeah.

• 1:23:25Melissa Murray?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rau and Farah Safari. Music is by Eddie Cooper. Our team includes Alona Munkowski, Matt DeGroot, Ben Heathcote, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:23:55Melissa Murray?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner. For Crooked Media Presents Live Election Results. We're going to have Jon Favreau, John Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3, at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:24:35Melissa Murray?

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• 1:25:04Speaker 02

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