Racism’s Over and Seashells Can Be Deadly

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This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwick. States are immediately having at it and just going ham to make use of this liberty to disenfranchise that the Supreme Court has given them. James Comey allegedly threatened the life of the president of the United States. 86, you know, in 80s, it's a mob turn for kill him, you know? Todd Blanche is not only more skilled, but more willing to be ruthless. There's been a tremendous amount of investigation, and how do you prove intent in any case? He has demonstrated a level of ruthlessness and a willingness to file charges, even if he's got to know, they're going to fall flat eventually. This has been a very bad week for American democracy. Another very bad week and also an exceptionally bad week on its own terms. Last Saturday night, a man from California allegedly attempted to assassinate the president and members of his administration, endangering thousands at the White House Correspondence dinner. Thankfully, no one was killed, but the stochastic violence that permeates American politics. ticked up another notch on this one-way ratchet. Late Monday, what can only accurately be described as Trump's personal Justice Department filed a motion that sounded as though it had been dictated word for word by the president himself, railing against, in all caps, naturally, Trump derangement syndrome and the fake National Trust for Historic Preservation that is currently attempting to block his White House ballroom vanity project in court. On Tuesday, Trump's personal law firm, formerly known as the Department of Justice, also announced a second indictment of former FBI director, James Comey, for a year-old, since deleted Instagram post of a seashell formation in the shape of the numbers 86 and 47, a credible threat of bodily harm to the president, apparently. And on Wednesday morning, in announcing its decision in Louisiana v. CalA, the Supreme Court took a wrecking ball to whatever remained of the jewel in the crown of civil rights legislation. A voting rights act that countless Americans fought for and indeed died for, this will cede the ground for a massive and historic decrease of black representation in government. on the theory that the Reconstruction Amendments, the Voting Rights Act, and the congressional reauthorization of that act meant the precise opposite of what they intended. If you haven't listened to my interview with Jeney Nelson of the NAACP Legal Offense Fund yet, she argued Calais. You can hear it in full by joining us at slate.com slash amicusplus.

Later on in the show, we're going to talk to Medeva Denny, our friend and author of the book The Originalism Trap. She's also deputy editor and senior contributor at Balls and Strikes. And we're going to talk about what happened in Calais. And Mediba will stick around and join me in the Amicus Plus bonus episode to discuss how the very same day the court halted a key tool in constituting multiracial democracy. The justices heard a case about how racist the president has to be to be considered a racist. If you are feeling despondent, we understand. We do. But returning to our guiding principle here on amicus, that legal knowledge is power, we are going to dig into some of this mess with one of the clearest legal minds that I know. Barbara McQuaid is a professor at the University of Michigan Law School where she teaches criminal law and national security law. She's a legal analyst for NBC News and MS Now. From 2010 to 2017, Barb served as the U.S. Attorney for the Eastern District of Michigan. Her new book, The Fix, Saving America from the corruption of a mob-style government, comes out on June 2nd. Very soon. It is available right now for pre-order. Congratulations on the book. Welcome back to the podcast. Save me. Save us all. This is a rough week, Dahlia. I don't know that I've got a lot of hope to offer you today. But hopefully as we have a conversation, we can offer some glimmers of hope out there because I think all is not lost, even though we are in some pretty dark times. So I want to start if we might where your book starts, which is just mobbed up behavior. The Department of Justice acting as a personal protection racket and also a just personal vengeance machine for the current president. On Tuesday, the Justice Department indicted former FBI director James Comey again, this time for posting an image on Instagram last spring showing seashells. I want to say that again, seashells arranged on a North Carolina beach to depict the numbers 8647. James Comey, to be clear, later deleted that post. Now he's being charged with two counts, one alleging that he intended to do harm to the president, the other for digitally transmitting this alleged threat. So before we do anything else, can you just describe to me what the government would have to prove to show that 86... 47, you're going to explain to me what that means, was a true threat to, quote, take the life of and inflict bodily harm upon President Trump. Well, I don't know that they're going to be able to do that. You, I'm sure, will recall, Dahlia, that in 2023, the Supreme Court decided the case of counterman versus Colorado. And that's the most recent explanation of what is a true threat. Of course, this is a delicate balance because we want to permit political speech. We want to permit people to say things that are critical of others, even the president of the United States. So a couple of phrases from that case I think are really important to recognize. So one is this idea that to be a true threat, there has to be a serious expression of an intent to inflict.

unlawful violence on another person. An encounterman, they said the individual uttering it must have a mens rea of at least recklessness. By that standard, it seems almost inconceivable to me that anyone could believe that 8647 was this serious expression of an intent to do unlawful violence to President Trump. And I think not only do we have the shells and the photo that James Comey posted, along with the words something like, Interesting arrangement of shells on my morning beachwalk or something like that. When he was interviewed the next day by the Secret Service, he immediately said, I had no idea people perceived those numbers to be a threat of violence. I reject violence in every form, and I am taking that down. To find 12 jurors unanimously beyond a reasonable doubt that that amounted to this serious expression of an intent to inflict. unlawful violence on someone, I think is just a far-fetched legal theory. So let's just spell it out. 86 means you wrote a whole piece about this in restaurant parlance. It means. Cancel the bacon double cheeseburger. Exactly. It means, you know, the mac and cheese no longer wanted. It does not mean, I don't think, murder person 47, obviously, is this president. But Trump believes otherwise, Barb. Do you really think that he was endangering your life or threatening your life without? Well, if anybody knows anything about crime. They know 86. You know, it's a mob turn for kill him. You know, you ever see the movies? 86 him. The mobster says to one of his wonderful associates, 86 him. That means kill him. So this is the president. explaining to us that he knows that this is, in fact, an explicit threat of true harm. Your book title is so on the nose here. Like, here is Trump ironically telling us mob language. But is this sufficient to convict the idea that he says, everybody knows this is mob speak for murder the guy? No. You know, one thing I want to mention just about the title of the book about, you know, mob style government. When I came up with this title, you know, like two years ago, it seemed like...

really insightful. And now it's so obvious that this is a mob-like government. So I feel like my insights have been exposed by the Trump administration themselves. But no, because as you well know, when you're looking at a crime, what's important is the mens rea, the mental state of the defendant, not the mental state of the victim or purported victim. Here, the fact that Donald Trump thinks this means to kill somebody or that this is mob speak for to kill somebody, you have to show that James Comey was reckless. That is, he knew that there was a risk that this would be seen as a death threat, and he deliberately disregarded that risk anyway in posting this thing. I think based on his statements, based on, I think, the common sense of a jury, it's going to be very difficult for them to believe that he intended to communicate a death threat. As you mentioned, 86, to me, you know, it's from the restaurant business. You can tell Donald Trump, despite the fact that he's involved in the hospitality industry for most of his career, never worked as a waiter. Because I think anybody who's ever worked in a restaurant understands what 86 means. Cancel the order or we're out of that item. It's 86th. It is capable of so many different interpretations. And I think the other thing, Dahlia, that's going to be really important here is I think James Comey is going to have a very strong argument for selective prosecution. That's an argument that gets tossed around a lot. It's rarely granted because it's very difficult to prove what selective prosecution requires. It's a violation of due process, but what you have to show is that the basis of the charges was not a legitimate law enforcement basis and that other people who were similarly situated. were not prosecuted. And it's that second prong that can be so difficult to prove because how do you find people who did the same thing who were not prosecuted? It's very difficult. It's like the dog that didn't bark. But here we've got a plethora of examples. Jack Posobiac is saying 8646. That, of course, is Joe Biden. I don't recall any prosecution of him. If you go on Amazon today and search for 8647 or 8646, you will see shirts and hats and bumper stickers and all kinds of things. Nobody is suggesting that Jeff Bezos be charged with a crime for offering these items on Amazon. And so I think for that reason, we are going to see a very strong argument. In fact, if I can give you just one more example, Trump himself. posted online a photo of that truck bed. Remember from 2024, this is while he was a candidate for president and Joe Biden was running against him. A picture of like Joe Biden, like bound and gag that looked like he was in the back of a pickup truck, Trump posted that, you know, sort of like cheering them on. And so I think for that reason, we are going to see this fall flat, even if we don't get into the First Amendment arguments. which is another basis. I think the selective prosecution argument is very strong in this case. In a way, it just isn't in most other cases. Barb, can you talk for one quick second about the fact that it took almost a year, right? You mentioned the Secret Service, interviewed James Comey immediately thereafter. Kash Patel had a very, very weird statement in which he was like,

Hey, you know, here's some stuff that happened before the grand jury. James Comey allegedly threatened the life of the president of the United States. And as you all now know, shortly after posting that threat, he deleted that threat and then issued an apology. All of that information was presented to the grand jury. And Mr. James Comey will have his day in court and his ability to speak to a jury of his peers. Thank you. It just feels as though every piece of this is just horrible lawyering from the Justice Department. Yeah. I mean, you know, Kash Patel is the king of the Keystone Cops when it comes to competence on some of these kinds of things, including here where this is arguably a violation of federal rule of criminal procedure 6E, which prohibits the disclosure of matters occurring before a grand jury. I don't think we're going to see a prosecution of it, not in this administration and probably not in any administration. It's not a harmful disclosure, but it is a clumsy disclosure to say, hey, look, the grand jury heard this. story that James Comey said. So in other words, we presented the exonerating evidence and they still returned an indictment. I wonder why he mentioned that. It strikes me as potentially an effort. to cut off an inquiry into the grand jury transcripts themselves. You may recall when Lindsey Halligan indicted James Comey back in the fall, there was all of this strange irregularities about she left the room at 4.30 and then they didn't come back until 6.30. And maybe they voted on a document that was different from the one that she presented to them. And the judge ordered the disclosure of the grand jury transcripts. And so perhaps in an effort to get ahead of that, that is why Kash Patel decided strategically to mention this thing to say, look, we're going to tell you right up front that we told the grand jury this thing and we still got probable cause. But with regard to the duration of time between the events in May of 2025 and April of 2026, when these charges are filed, 11 months. What possible additional investigation could have been done during that time? And Kash Patel and Todd Blanche Bolt said that we were undertaking additional investigation and all that time. They had the photo on the day it was posted. They interviewed him the very next day. It's hard to imagine what additional evidence they were looking for for this case unless they were searching James Comey's communications to find some other evidence that he intended to kill the president, which I can't imagine bore any route. I saw a cartoon today, Delia, that strikes me as the kind of work that they may have been doing, which is a cartoon depiction of Todd Blanche questioning a witness saying, isn't it true that you saw the shells that James Comey arranged, and that witness is SpongeBob's SquarePants. So that is about the kind of investigation I expect to have been done. But I think what's telling about that duration of time is...

If they really thought this was a serious crime, they would have charged him the next day after this thing was posted. Maybe they would have interviewed him and tried to find out, did he mean to follow through on this? Did he mean to communicate a threat? You know, it seems like it went nowhere because it should have gone nowhere. But if they really thought it was a serious threat, they would have gone after him then. Instead, they went after him in the fall with this false statements charge, which of course was... baseless. It fell apart on procedural grounds, but that was going nowhere either on substantive grounds. That failed. So now it was sort of, well, what else do we have on James Comey? And I can't help but think that the timing of this attempted assassination of President Trump at the White House correspondence dinner didn't give them perhaps an opportunity to exploit. Ooh, while the country is acutely aware that there are risks to the life of the president, that this is the moment we should spring these charges on. on the public because that will show that James Comey is all part of this, you know, reckless effort to put the president's life at risk. So it's a very cynical view, perhaps, but my positive take is this case is going nowhere. No such thing is too cynical for amicus, to be clear. I need to stay on Todd Blanche for one more moment because when he was asked... How will you prove, this was your point, mens rea, how will you prove intent when James Comey said he didn't associate 86 with doing harm and he took it down promptly? This is his answer. It's so gorgeous. How do you prove intent in any case? You prove intent with witnesses? with documents, with the defendant himself to the extent to the extent it's appropriate. And that's how it will improve intent in this case. This is exactly what you just said, Barb, right? Like, who are they interviewing to show that, like, a photo of shells on a beach represents the intent to harm the president? And I raise it only. to make the point that you've made actually in writing about Todd Blanche, you've said he's potentially much more dangerous than Pam Bondi. And I'd love to hear why. Trump, like, explicitly said to Pam Bondi, maybe we were supposed to consume it or not. Like, I need you to do a better job of indicting the people that make me mad. Todd Blanche seems... quite aggressively, A, to be auditioning for the AG job, but B, he seems to be much less constrained by, like, whatever the thing was that once constrained Pam Bondi, he's going for it. Yeah. The reason I said he may be more dangerous is twofold. One is, you know, Pam Bondi was the Attorney General of Florida, a substantial job, a job that requires some management. But, you know, she's an expert in Florida state law. Todd Blanche came up through the federal system. He was an assistant U.S. attorney in the Southern District of New York, which is a very fine office. He then worked in some large, big law, very reputable law firms. And so I think his legal skills and experience give him some potency there that perhaps Pam Bondi lacked in navigating the criminal justice system. But I also think he has demonstrated a level of ruthlessness and a willingness to file charges.

even if he's got to know, they're going to fall flat eventually. And, you know, this has always been Trump's ML, right? He can kind of win by losing. And so even if you file charges against James Comey or the Southern Poverty Law Center or try to charge members of Congress for creating a video that just says what the law requires. even if you are ultimately unsuccessful. You can show the president that you're in there fighting for your guy. You can show the MAGA base that you are there representing their interests. And then you can blame some woke judge for not seeing the case your way. And so it's an absolute abuse of power. It's unethical. You know, the principles of federal prosecution that govern the Justice Department say that prosecutors should bring a case. only if they believe the evidence is sufficient to make it probable that they can obtain at trial and sustain on appeal a guilty verdict. And it's hard for me to believe, if I could get into Todd Blanche's brain for just a moment, that he really thinks that. It's just so baseless in this case, along with the Southern Poverty Law Center case, that I can't. conclude anything other than that he just doesn't care, that he's willing to lose because he can win by losing. I'm trying to parse whether you're saying that Pam Bondi cared. I don't think she cared a lot, but I think you're saying he's also just really savvy. Like he's got a better skill set for not caring and executing. Is that, am I over reading? I think a little of both. I mean, I think that he's got... certainly the skill set having come up through the federal system of perhaps knowing where he can bring cases. But I also think he, having seen what happened to Pam Bondi, she got fired. Obviously Donald Trump wanted successful charges against other people and more charges. We have not yet seen charges against Adam Schiff, for example. We have not yet seen the grand conspiracy come to fruition. And so maybe he perceives that Todd Blanche is not only more skilled, but more willing to be ruthless. You mentioned the case against the Southern Poverty Law Center. Can you just briefly explain, Barb, what the Justice Department is charging here and why you think the case will fail and why it's just so worrying even if it's doomed to fail? Well, this, too, is a criminal charge against the Southern Poverty Law Center, one of the most well-regarded civil rights organizations in America. And the charge is that that organization defrauded its donors when it claimed that it was in the business of dismantling racist groups, hate groups like the KKK and the Aryan Nation. And their theory is that the Southern Poverty Law Center made payments to individuals, it calls field operatives, and that that itself was fraudulent. It seems to me that this is one of those things where you can get the indictment out the door and try to disparage the reputation of the Southern Poverty Law Center. But I can't imagine this theory is going to hold water because, you know, what the Southern Poverty Law Center itself has said is.

Do we pay informants? You bet we do. That's how we dismantle these hate groups. We have people on the inside. It's the same thing the FBI does. You can't take down groups unless you have somebody on the inside. And so you bet we paid these informants who shared information with us. And guess what we did with it? We shared it with the federal government. We shared it with the FBI. And they know that we did that. And so the idea that they were defrauding donors by making these payments, I think unless they've got evidence that they were, in fact, supporting and creating the kinds of commotion that was furthering the interests of groups like the KKK, then this fraud theory is just not going to hold water. And this does seem to be the theory. Todd Blanche said in announcing these charges, that the Southern Poverty Law Center was manufacturing racism to justify its own existence. manufacturing racism. Well, number one, I don't think anybody has to do that. But that's the theory. This is like the white supremacist dream, right? Fantasy that there's no racism. They're just creating it themselves so that they can ride to the rescue and be the heroes and attract donations for their noble cause. If they've got evidence of that, then let's see it. But it seems far-fetched to me. What seems more likely is what the Southern Poverty Law Center has said, which is We pay informants to do this. And so this is the kind of case that may have to go to trial for the facts to come out. But I'd be very surprised if the Justice Department has the evidence to back these claims. More in a moment with Barb McQuaid. This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic question. Who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients' care, especially from those with low incomes. Together, we have the power to protect and expand affordable care. Visit plannedparenthood.org slash defend and make a gift today. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote, Keir Starmer offered Britain not.

And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing Street meat grinder. The Nobel Peace Center called Ground News, quote, an excellent way to stay informed, avoid echo chambers, and expand your worldview. Here's how to get started. Go to groundnews.com slash AC to get 40% off their unlimited access vantage subscription. That's groundnews.com slash AC and you'll get 40% off the vantage subscription, whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com slash AC. Hey, everybody. This is Knox from the podcast with Knox and Jamie. Back to school always brings a little nostalgia, fresh notebooks, new shoes, sharpened pencils, and trying to remember your friend's home phone number. But today, staying connected looks a little different. Between pickups, practices, and after school activities, kids need a way to reach their parents. And parents need peace of mind, too. That's where Gab comes in. Gab makes phones and watches designed for kids with no social media apps or internet browsers. Kids get the connection they need, while parents get features like GPS check-ins, managed contact, safer messaging, and Gab music. which is Clean Songs curated for kids. This year, skip the adult smartphone and choose a phone made with kids in mind. Use code get gab to get $25 off at gab.com slash get gab. That's Gab, G-A-B-B. Let's return now to my conversation with Barb McQuade. I have to stay on the flim flammery, if that's a legal word, of Todd Blanche for one more beat, Barb, because I have to say it took my breath away. That ballroom lawsuit and putting his name, other Justice Department folks put their name on a pleading that, like, with all due respect, looks like they, like, copied and pasted, a truth, social, all caps, like, screaming rant. Can you first, maybe before we get into, why, why, why you would sign off on that litigation? Can you tell us briefly what is happening in Ballroom Gate? Yes. So one of the organizations for Historic Preservation has filed a lawsuit to block the building of the ballroom. And it's in that lawsuit that on the day after the White House correspondence dinner, I guess it was the Monday after Todd Blanche and others at the Justice Department filed a motion with the court and a letter to the opposing side saying, this incident over the weekend demonstrates why we need this secure ballroom. And we think that this historic preservation organization ought to withdraw its lawsuit. But then it went on to say that they suffer from, as you said, Trump derangement syndrome. It had the random capitalized letters. I mean, this did not look like a polished legal brief. And as I said before, you can criticize Todd Blanche for a lot of things, but he can write a brief. And the idea that he's doing the random capitalization and the name calling and even making reference to Trump derangement syndrome, I mean, this clearly is intended for Trump himself to get his approval. It is not going to get the attention of your opposing.

counsel, and it is most certainly not going to be viewed favorably by a judge. And so this is clearly an effort to... amp up Trump and the MAGA base and try to make the political case that the assassination attempt on Donald Trump is why we need this ballroom to keep him safe. Now, of course, that's a ridiculous premise because it suggests that people only come to the president. He never goes anywhere else, that he should be sequestered in this fortress. The White House correspondence dinner was not his gig. This was a private event to which he was invited. Your choices are go or don't go. It's not, let's all have it over at my place. And the idea. that a president would stay confined to the White House and not travel to political conventions, which of course are held in convention centers all over the country, or would not attend a political rally all over the country in swing states is absurd. So I just think it doesn't make that point. But, you know, in the old words of Saul Olinsky, the community organizer from Chicago, never let a good crisis go to waste. And so while the country is feeling very mindful of the genuine risk that a president faces of assassination, let's jump on that. moment and now justify this ballroom that has never been about this. It's always been about the grandiose dreams of Donald Trump. So I should note that our colleague Sharon Ali wrote about the ballroom obsession this week for executive dysfunction. That's Slate's newsletter that surfaces under the radar stories about what Trump is doing to the law, how the law is pushing back. You can sign up at slate.com slash dysfunction for weekly dispatches. But Barb. I think I'm hearing you say Todd Blanche was just willing to put his name on a bunch of like complete crazy pants because there's no consequences. And it raises the question for me, how can there be no consequences? And we've talked about all these DOJ lawyers who have stood up in front of judges and been sort of. called out and told that they're not believed. I mean, massive, massive damage at every level to the Justice Department. But is there just truly no way to hold the acting attorney general to account for conduct that is, by every measure, intolerable under the rubric of how DOJ operates? Yes. Somebody who spent almost 20 years of my professional career at the Justice Department, it's really heartbreaking to see this complete disparagement of the reputation of the Justice Department, which once stood for something, you know, decency, honor, care, the rule of law. I know many judges would say, the first thing I do in a case is I read the government's brief because I know they're going to give it to me straight. They're going to tell me what the issues are. It's not going to be shaded or slanted. I'm going to know the facts. And then from there, I'll read the other arguments because I'll have a good base. line that I can trust. That's just out the window. I mean, Todd Blanche is taking the fun out of dysfunction. It's shameful. And in terms of, is there any check, I guess if I walk through the various checks available, one, criminal charges for, you know, malicious prosecution and other kinds of things. This administration isn't going to charge him with any crimes. At the end of this administration, I imagine President Trump will give prospective pardons, blanket pardons, to many of the people in his administration.

potentially state charges, those are going to be very difficult to prove, I think, for matters occurring in federal court. Civil matters. Can you sue him civilly for depriving you of your civil rights? Maybe, but that brings with it immunity. It's only a qualified immunity. It's not absolute. But typically if you're acting within the scope of your duties, it's pretty easy to be able to stand behind some sort of immunity. That leaves us with one other thing, which is disbarment. It doesn't seem like there is any tomorrow for many of these administration officials. You know, it's a you only live once kind of mentality. But we've seen with people like John Eastman and Sidney Jerome Powell and Rudy Giuliani that ultimately they can lose their bar licenses. For some of those individuals who are nearing or at retirement age anyway, maybe they don't care. But Todd Blanche is a young enough man, I would think, to hope to have career aspirations beyond this. But I suppose if... Every time there is a consequence for your actions, you simply blame the other side as having Trump derangement syndrome. You can undermine the credibility of anyone who tries to check your power. But I imagine that's the real consequence here. But perhaps Todd Blanche is not worried about that and believes that with the billions in wealth that the Trump family is accumulating during this second term, that he will be taken care of. We've talked about one sort of half of the mobbed up scenario, which is going after your enemies. But the other half has to be rewarding your friends. And a few weeks back... President Trump promised his top administration officials pardons before he leaves office. I think the quote that I read was, I'll pardon everyone who has come within 200 feet of the oval. So this is the corollary, right, of vindictive, relentless, serial, frivolous prosecution. This is anyone who does what I say is going to get pardoned. And can you just, to the extent that there's... any legal basis for preemptive forward-looking pardons for anyone who came within some distance of the oval? Like, what? What now? Yeah. So, you know, the pardon power doesn't have a whole lot of guardrails around it. It is something that the president has. The idea is that it is there to allow the president to exercise mercy, especially when a person has shown remorse for committing a crime. When I was at the Justice Department, and for all the decades before that, there was an office of the pardon attorney, and they... looked at applications for clemency, whether that was a full pardon or a commutation of sentence. And they looked for ways that the person had expressed remorse, had become a contributing member of society, and for uniformity. They typically required that a person be convicted of their crime, serve their sentence, and at least five years passed since their release, so that they could demonstrate that they had turned a new leaf. And that would be the basis for a pardon.

Instead, what we're seeing now is President Trump using it preemptively and blanketly as sort of a get out of jail free card to enable people to commit crimes on his behalf. And I don't think that is the way the founding fathers intended it when they designed it. But I don't know that there's much of a check on it. You know, we saw Gerald Ford give a pardon to President Nixon. Of course, back then, we thought presidents could actually be convicted of crimes, Dahlia. How naive. So yeah. So yeah. Until the Supreme Court, of course, ruled that presidents are immune. kind of a one of these generic, now it was after the fact, but he said it was a pardon for anything Richard Nixon had done or may have done that would constitute a crime. So that kind of expanded the definition and our understanding a little bit of what a pardon could be. And then we saw Joe Biden, pardon Hunter Biden and some others like Dr. Anthony Fauci for fear that President Trump would make good on his threats to go after these people out of vengeance. And so. I see now supporters of President Trump point to that, point to what Joe Biden did to say, well, they did it. And so it's only fair that President Trump do it as well. But of course, the political climate of the end of Joe Biden's administration was of a successful candidate for president vowing revenge on some of these people, you know, people like Liz Cheney, simply for serving on a committee that investigated the attack on the U.S. Capitol. And so I think what Joe Biden did was. correct and appropriate to protect those people who were doing their duty and would perhaps be charged for doing it. I mean, you know, if James Comey had gotten one of those, we wouldn't see these nonsensical charges. If Liz Cheney hadn't gotten one, you can bet she'd be charged for the crime today. And so I think that between Gerald Ford and Joe Biden has now given President Trump, a hole to drive a truck through. And that is what he will do. And I don't know that there's any way to check him from giving pardons to everyone in his administration. Just parenthetically, let's all recall under the 8647 rubric that didn't Trump say of Liz Cheney that there should be guns trained on her fate. Like, it is amazing how many things don't amount to actual. threats, but, okay. He thought General Mark Millie should be executed, right? But, you know, yawn, yon, political rhetoric. Oh, you know Trump. That's just Trump being Trump. He's funny. When he does it, it's funny. Hilarious. Can't you take a joke? So I do want to talk about Calais for a minute, which came down on Wednesday. We broke it down in depth on the show when it came down. We're going to talk to Mediba Denny about it in a second. But I didn't hear voting rights expert Rick Hassan suggest for the first time this week that maybe he might be open to serious structural Supreme Court reform. I'm hearing a lot of...

that are worth exploring to make our Congress more meaningful. Congress is where the action is supposed to be, right? Congress is in Article 1. They're supposed to be most representative of the will of the people. It took Charles III to come in and tell us about the importance and the value of a Congress on checking executive power. So maybe, you know, you're more of an expert on the court than I am, but maybe some of this power can come from a Congress so that when you get a case like Calais, Congress can come back and enact new legislation that might correct or fix what they broke. I love what you're saying because it's a curative to the slight nihilism post-Calais, which is now even voting doesn't help us. And what you're saying is we have to really think very hard about how we vote and that too can be repaired. Listen, we started this conversation a little, do me a little gloomy. And yet. Friday was Law Day, next to Constitution Day, in the fall, the only other day, dedicated as best I know, to celebrating the rule of law. Stop and think about the fact that there are more white sales than there are law days. But it's okay. That's good. Your book is not just a diagnosis of the mobbing up of America and all the ways we've just talked about. Your book is a prescription for what needs to happen next. You've talked a little bit about that. But I think we've got a lot of listeners here who are really feeling disempowered and a little bit gut punched by Calais and by seemingly. utterly immune to the dings and pings of lawfulness justice department. Can you tell us what some of your fixes are and maybe more urgently, Barb, because you think about this harder than most people, what the kinds of folks who are listening to this show who are feeling like, wow, if you can get. charged for shells on a beach. Like, what can I possibly do? What can people possibly do? Not just on Law Day, but, you know, every day to try to correct the ship because you're not hopeless. No, I'm not hopeless. I think there's a lot of things that we can do. I mean, one of the things, you know, the book talks about a lot of institutional things, guardrail things that will require Congress or others to move into that space. But things that ordinary people can do. One of the things that concerns me most is how much money there is in politics. It can be very difficult to organize when your opponent has millions of dollars coming in dark money through packs. But there's still more of us than there are of them. I think about who one. the popular vote in the last several elections. We the people do have the power to organize and get out and vote even in the wake of Kaleigh. And so I think

It's always been so encouraging to me to see the people who are showing up, for example, at the no king's protests. I know sometimes people say, what value does that have of showing up and shouting into the void? But it has very important value because there are other people on the sidelines who will see this show of protest and say, wow, what is it that has them so angry and will cause them to look into things? I also think that it is really important that those of us who are in the fight see others out there. can really be galvanized by seeing other people. Are you preaching to the choir? Maybe, but sometimes the choir needs a little boost. And so I think showing up and those kinds of things can be very persuasive. I also take a lot of optimism from what happened in Minneapolis. Now, of course, we had the tragic deaths of Renee Good and Alex Prattie. But ultimately, the people of Minneapolis won. When ICE agents were there and those protesters showed up peacefully, they showed up in the bitter cold. That was inspiring, I think, to all of us. And ultimately, they succeeded. And we saw ICE withdraw and de-escalate. And we saw the end of the CBP commander, Gregory Bovino, who was the most aggressively leading that charge into his forced retirement. So that tells you that when popular opinion goes against an administration and it is showing out and showing up an administration's policies, they will react and change. And so I think. all of us have the ability to do that. We need to talk to our friends and our neighbors and explain what we're seeing because I think too many people say, You know, I'm disgusted by it all. I'm just going to throw up my hands and focus on the things I can control, like my family and my job and the rest of it is beyond me. And I'm just going to watch, you know, Celebrity Bachelor Apprentice on TV and watch my sports teams and talk about the weather and my dog. That's all great, except we can't be disengaged because that's what an authoritarian wants, a disengaged populace. is the antithesis of a democracy. And so we need to stay engaged and remind our friends and neighbors that we have tremendous power in a democracy. We just need to use it. You know, one of the, to the extent that there can be a silver lining from Kelle, it's that in states that value. a fair vote, and this goes back to, you know, what you said about representative democracy, seeing that the fix is in could create a massive backlash. And we've seen this in multiple sort of different areas where you try to take away people's right to vote. People react really badly to being told that the fix is in. And so maybe, maybe. to the extent that we can message Calais, and I haven't really thought about it until we've spoken right now. But do we agree to having the fix be in? Like, we don't have to. And maybe that's kind of the slight filament of how to talk about this case going forward. Barbara McQuaid is a professor at the University of Michigan Law School.

She teaches criminal law, national security law. She's a legal analyst for NBC News and MS Now. And from 2010 to 2017, she served as the U.S. Attorney for the Eastern District of Michigan. Barb's new book, The Fix, Saving America from the corruption of a mob-style government, will be out. June 2nd, published by seven books. You should be pre-ordering it right now. Barb, I really want to thank you both for the book. And for coming here, you are crystal clear in a moment where there's a lot of Merk. And I am insanely here for it. Thank you. Thank you, Dahlia. Always appreciate being on your show and listening to it. It's words of wisdom. We're going to take a short break. And when we come back, the voting rights repercussions of the Supreme Court's reckless decision in Calais, that's after these messages. I'm Jake Stouk, co-founder and CEO of Serval. We built Serval to automate the IT work that slows companies down. Onboarding, password resets, access to applications, my laptop stopped working. While employees wait for help, their real work is put on hold. IT Desperally wants to automate this work, and that's why they need Serval. You just tell Serval what you want to automate in plain English, and it's built. No drag-and-drop workflows, no expensive consultants. Employees get unblocked, and IT teams go from drowning in tickets to building what actually matters. With Serval, IT becomes the AI engine powering the entire company. This is a new way to run IT. We guarantee you'll automate 50% of all tickets, and we'll prove it to you in a free four-week pilot. Go to serbel.com slash tickets. That's S-E-R-V-A-L dot com slash tickets.

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It is absolutely okay to feel gutted to the core by Wednesday's decision in Louisiana v. Calais, which upended the constitutional and congressional project to protect multiracial democracy in America from two plus centuries of racist voting practices. Calais all but guarantees a massive and a historic decline in hard-fought minority representation at... Almost every level of government. On Wednesday, the Supreme Court's far-right supermajority in a six to three opinion penned by Samuel Alito Samuel Alito hollowed out what was left of Section 2 of the storied Voting Rights Act while declining to admit what he was even doing. By Thursday, the governor of Louisiana had declared that primary elections that had already begun in that state would be canceled, so new maps could be drawn. Other southern states, including Tennessee and Alabama, have signaled they're also prepared to redraw their maps, and Florida just did so as Calais was being handed down. We talked to Jenae Nelson of the NAACP's Legal Defense Fund immediately after CalA came down, and she called the decision a catastrophe. And I got to say with a few days to process it, that almost seems like an understatement. So we're following up today with our friend Mediba Denny. She's deputy editor and senior contributor at Balls and Strikes. She's author of the extremely... Prussian as it turns out book, The Originalism Trap, How Extremists Stole the Constitution, and how we the people can take it back. Thanks for being with us, and I am sorry, it just is a really hard week. I am glad, as always, to be able to talk about this with folks and also absolutely morose and furious. So we're a couple days out from the decision, which was a surprise to nobody who heard oral arguments. But I have to say I'm feeling worse about the ruling in no small part, I think, because we've already seen the race to the bottom begin. And it was a dishonest, smash-and-grab piece of craftsmanship by Samuel Alito. And it... in the end, feels like a monarchic court, screwing over Congress, screwing over voters, ignoring precedent, and just giving itself this monarchic role in... Every election. How are you feeling? I think you're right when you said, if anything, catastrophe kind of feels like an understatement now that it's had a little bit to really sink in and assess. You're also correct when you talk about the imperial nature of the court, that they are really just doing whatever they want, whenever they want, because they believe that they can and that no one will stop them. When I read Calais.

My sort of reaction was they are just exercising all kinds of powers, rewriting laws entirely to what they would have preferred them to say, taking power from Congress in order to prevent people of color from accessing political power in perpetuity. It's horrendous. It's handcuffing Congress so you can put black people in shackles. It's deeply offensive, lawless ruling that cannot be understood as. judging in any meaningful sense, it's just bigotry. I do want to talk about the big picture in how we got here because you wrote in your book about the mockery of history that was necessary for Chief Justice John Roberts to get to his opinion in Shelby County versus Holder where he was able to be like shruggy emoji. Thankfully, racism is done in America and so like we're all good. And this week it felt like Samuel Alito just lifted that banner high, like the same just complete distortion of history from supposed originalists and then brought it all the way home to end whatever's left of section to it. So can you just walk us through the arc of how we got? from the Voting Rights Act, the reauthorization of the Voting Rights Act, what we thought was a very, very clear way of thinking about this to Samuel Alito, just assuring us that we're all good here. Samuel Alito was really just freestyling in the opinion, much as John Roberts was without regard for the actual historical background, without regard for the actual laws that Congress wrote down. And we've seen a lot of assaults on the Voting Rights Act over time. So I think that the Calais ruling kind of also has this sense of, haven't you done enough? Please, like, stop kicking. It's already dead. Leave it alone. The first really serious low to the Voting Rights Act was Shelby County. And there we see John Roberts simultaneously say that, you know, things are better now, times of change. We've had a black precedent. So sort of whitewashing the actual history while simultaneously inventing a historical standard. He says that, oh, there's this longstanding principle of equal sovereignty of the states. So it's really messed up and offensive to that principle that the Voting Rights Act treat some states differently than others. It's a defense to their equal sovereignty. That's not a thing. He just sort of said that there is this long history of this, even though there is not, and said that history shows times have changed considerably, even though they have not. But by doing this, he hollows out the most innovative section of the Bowdoin Rights Act, which said that states and, you know, municipalities, electoral districts that have...

a history of misbehaving, a bad track record of respecting people of color's building rights, said you can't go changing up your building policies without running them by someone first. We need to make sure that you are behaving now. If we take a look and it looks legit, you can proceed. If not, you got to walk that back. So Robert says no more of that. We are freeing states to do as they wish, you know, regardless of the laws that Congress wrote, regardless of Congress's constitutional power. And states immediately have at it, much in the same way that now with Calais, states are immediately having at it and just going ham to make use of this liberty to disenfranchise that the Supreme Court has given them. That's what we saw in Shelby. But one of the things that the court said in Shelby is they're like, don't worry, we got rid of that section. But you still have, you still have the other big provision. You always have section two. We always have section two. We will always have section two. Bye. Yeah. They tell us not to worry. We have Section 2. So we can still bring these claims saying, okay, even though you can no longer stop bad laws from going into effect, you can still challenge bad laws that are already in effect. You know, after they've already hurt some people, you can do something about it then. You know, people said this is terrible, but okay, I will use the tool I have. And so they have been using the tool they have. And then the John Roberts Court comes back and says, okay, well, hang on, hang on. That's a little bit too much of that tool. Samuel Alito gives us this opinion in Bernovich that establishes all these new, what he calls, guideposts for how you can make a successful claim out under Section 2, making it harder and harder to prove with these standards that have no... basis in law. They're just sort of what Samuel Alito personally wants. One of the ones that was really striking to me says something like, okay, these amendments were made in 1982. And so laws and policies that were commonplace around and preceding 1982, those are presumptively okay because I don't think the law meant to address those. That doesn't make any sense at all. The law is trying to, you know, push back against racist policies, not preserve them. So he already, you know, starts making it harder to prove a Section 2 case. Then we get another decision where the court says, Also, there's nothing we can do about partisan gerrymandering. We don't think that there's any historical role for federal courts in policing partisan gerrymandering. So that's fine. Perhaps not like a good look, but nothing legally problematic about it is what the court tells us.

Never mind the fact that there's racially polarized voting in this country. So it's okay to suppress the votes of people of color so long as you're saying it's because they're Democrats, not because they're people of color. So all of that sort of lays the groundwork for Kelly. Because your book is about the utter silliness and fatuousness of originalism, I just want you to take a run at explaining the use of history. by these guys who are purportedly devoted to originalism and dictionaries at the time and the intent and original public meaning and blah, blah, blah. In terms of guns or abortion, history is the only load start. It's the only thing that matters. And then somehow when you're talking about affirmative action or voting rights, now you get to do the thing where you're just like, bang. Like it's a Pop-Tart. Like, well, the problems are over and we've decided that history ended today. And that is, as you said, in 2013, that's kind of the core idea behind Shelby County. You know, Bing! racism is over. And then again this week, here's Samuel Alito writing like he feels fine about racism being behind us and racist voting practices being behind us. Can you help me understand, and I know this is unfair, can you help me understand how we are wedded to history and yet there is this just very strange. Underarching theory that to the majority goes the shot clock, they get to decide when the timer goes. Right. Yeah. And I appreciate that you pointed out affirmative action cases as well. It's like any case involving. policies meant to remediate past harm. The court does this, you know, are we there yet? Are we done yet? This can't possibly continue. Things are so different now. We got to stop looking at the past. You're relying on, you know, the history of discrimination, but, you know, I'm looking at the future. I'm looking ahead. Things are different today. This is fully ignoring what's going on around them today. And so at odds with the... devotion and obsession with history that they display in these other cases. Originalists will swear to you that... tying the meaning of the Constitution to history is like the only way to be objective. And yet, when you look at these so-called originalist rulings, it's wildly flexible. The judges are like not constrained in any way. They're picking and choosing when they will use history, what parts of history they will use, how they will use that history. None of it actually...

matters in any sort of sense about like, you know, objectivity and neutrality. It just gives them a nice mutual sounding cover to do horrible things. I want you to take one more beat with this and talk about the utter insanity of the court dismantling a system that does the thing and then saying, we don't need the system that does the thing because from here on in... it's just going to work. And this is, of course, you know, here we have Samuel Alito asserting his opinion. Again, out of nowhere, quote, vast social change has occurred throughout the country and particularly in the South, which has made great strides in ending entrenched racial discrimination. Like, what would you know about entrenched racial discrimination, Sam? Like, what's the basis of that? But like, what's amazing is this is. The same thing, you know, Justice Ginsburg in her famous dissent in Shelby County was like, this is like putting away your umbrella because you're not getting wet. Like the thing that you are taking apart is the thing that got us here and saying like it's working, I guess we'll chuck it, is just this most strange move. And we see it again this week in Calais. Again, I'm amazed that this entire... thing comes under the guise of judging. Yeah. The claim that we don't need this because things are different now makes even less sense here than it did in Shelby. Because in Shelby, at least the court could say, oh, you know, there was this formula that the law depends on that was made like decades ago. And things have changed so much that the formula no longer accounts for that. But Section 2 of the Voting Rights Act. does. Section 2 literally has a part that says to consider the totality of the circumstances, to look at present conditions. So all of the things Samuel Alito is saying about, oh, things have changed, like we don't need this anymore. Any judge, honestly, applying Section 2 is looking at how things have changed. They are looking at what is going on right now. They are looking at current conditions. So Samuel Alito is making up a law to get mad at. and then writing a new law in its place. We will talk in the bonus episode about the temporary protected status cases heard at the court just minutes after Calais was handed down on Wednesday on any normal week that would have been the main show. But before we do that, I need to give you a chance, Mediba, to listen to Justice Samuel Alito. Just... very shortly after Kelly comes down, talking about how yucky he feels when he has to think about race in the context of temporary refugee status. I thought we were friends, Dahlia. Why are you making me listen to San Bolito? I'm sorry. Don't shoot the questioner. If you put Syrians, Turks, Greeks. and other people who live around the Mediterranean in a lineup. Do you think you could say those people are, all of them? Are they all non-white? Mediba, again, we'll talk about this in the plus, but...

I guess it's quite a trick to not want to see race, both in the context of two and a half centuries of race-based discrimination and race-based vote suppression in the United States, but also in the context of the president's really recent remarks about refugees coming from what he deems to be shithole countries. Like, his sweep of not seeing race is quite astounding, really. So Samuel Alito says that, you know, he doesn't see race, that he doesn't like dividing up people of the world into racial groups. But all that is really doing is allowing him to not see and not address racism. It's allowing him to let Trump and other people do the dividing and, you know, to oppress those groups. And then he can choose not to do anything about it because, whoa, you want him to consider race. That's so inappropriate. That's such a distasteful thing to do. He's relieving him. of any responsibility to actually do something about the racist laws and policies that people are dealing with because he can just say, I don't think about such things. I'm above race. I don't look at that. I mean, I guess if racism is over for purposes of voting, it certainly must be over for purposes of Donald Trump. I guess that's the... Theory here, but oh boy, it is a head snapper. Thank you, Mediba. You're going to head over now to the smokeless cigar bar for our bonus episode. We're going to talk about this oral argument in depth. It does look like the reactionary majority is inclined to greenlight at least parts of Trump's lawless and sudden stripping of legal status from hundreds of thousands of people fleeing armed conflict, fleeing natural disasters because... In his words, they come from shithole countries. Visit slate.com slash amicusplus to join us for that conversation by becoming a Slate Plus member. You support our work and you get loads of extras and add free listening and paywall free reading at slate.com. You can also subscribe to Slate Plus directly from the Amicus show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. That's all for this episode. Thank you so much for listening. And thank you so much for your letters and your questions and your comments. Please keep them coming. We love to hear from you. We are always reachable by email at amicus.com. You can find us at facebook.com slash amicus podcast. You can also leave a comment if you're listening on Spotify or on YouTube or you can rate us and review us on Apple Podcasts. Sarah Burningham is Amicus' supervising producer. Our producer is Sophie Summergrave. Hilary Fry is Slate's editor-in-chief, Susan Matthews's executive editor. Mia LoBell is executive producer of Slate Podcasts and Ban Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.

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