Will Trump Succeed in Rigging the Midterms?

Strict scrutiny is brought to you by Americans United for separation of church and state. It's everywhere right now, the celebration of America's 250th, and we're in the thick of it this month. Christian nationalists are using this milestone not to unite, but to divide. They're pushing the lie that America was founded to be a Christian nation, where just one religious movement gets to decide who fully belongs. Instead of the truth that America was founded as a democracy, committed to liberty and justice for all. That's propaganda, not patriotism. It's a dangerous lie meant to justify censorship, discrimination, attacks on public schools, assaults on LGBTQ plus rights, restrictions on... reproductive freedom and government favoritism toward one extremist version of Christianity. Americans United for separation of church and state is here to fight back against this dangerous and egregious misinterpretation of our founding documents. AU fights daily for everyone's ability to live as themselves and believe as they choose so long as they don't harm others. Novel idea in the day and age when almost every day we're seeing Christian nationalism weaponize a faith to attack individual freedoms across the country. Do something patriotic this summer as you're dodging the propaganda. of flying at you from all angles. Become a member of Americans United. By supporting AU, you're committing to stand up and protect church-state separation in every area of life. Learn more about how you can support and how AU protects everyone's rights at AU.org slash crooked. Hi, I'm Alex Wagner. I do not need to tell you that being an American right now is a wild ride. But as a longtime journalist, I am not interested in the noise or the fearmongering. I'm interested in the stories at the heart of the headlines. That is why every week on my show, Runaway Country, I'm joined by folks in the middle of the crossfire. from disillusioned Maha moms to newly fired immigration judges to Epstein victims themselves, to understand what it means to live through this political chaos as an actual human being. And now I'm excited to tell you that Runaway Country is available ad-free to Friends of the Pod subscribers. Friends of the Pod is the subscription that supports the work Crooked does as an independent media company and gives you a ton of great bonus and ad-free content. With the midterms approaching, you are going to need more content to keep you sane, and now you can find runaway country right there. Subscribe now at crooked.com backslash friends. Mr. Chief Justice, may it please support. It's an old joke, but when I argue, man argues against two beautiful ladies like this, they're going to have the last word. 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 legs.

Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today. I'm Kate Shaw. And I'm Leah Littman. As you can tell, we are continuing our summer of rotating responsibilities, but fear not, you will get Melissa back next week. And before you know it, the three of us will be back in the usual swing of things. But here's what we've got in store for you today. We are going to start with the week's big legal and law adjacent news. We're then going to have a conversation about what exactly the president is trying to do and what he has gone running to the Supreme Court to ask for its blessing to do when it comes to voting and in particular voting in the fast approaching midterm elections. For that conversation, we will be joined by UCLA's Rick Hassan, friend of the show, and one of the nation's leading experts on election law. And finally, we will bring you a conversation Kate recently had with the legal director of the organization if, when, how, about what they are seeing and working on when it comes to the use of criminal law to target both abortion and people who experience pregnancy loss in the wake of Dobbs. So stay tuned for that. Okay, but before we get to the substance of the show, we have some exciting news. Leah mentioned this last week. I am excited to talk about it, too, because we're working on this for a while. If you are a lawyer looking for fun, new ways to get your CLE credits, you can now get those by listening to our podcast. We just launched our first course that's eligible for CLE credit. It is our SCOTUS term recap episode. It came out in the first week of July, and it is now approved in California, New York, Texas. Wow, this is more than last week. This is exciting. Pennsylvania. Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon. And we'll keep you posted as more states are added. This is... an experiment. This is something new we're trying. And if enough people sign up, we will hopefully get to maybe add some more states and definitely add more episodes in the future. So to listen to the show for CLE credit, if you haven't had a chance to listen to it or if you did, but we talk so fast, you probably wanted to listen to it a second time anyway. You can do that and get some CLE credits when you do. So you can go to crooked.com slash strict underscore CLE. Again, crooked.com slash strict underscore CLE. And you can learn more and buy the course there. Once you have purchased, you will head over to our partners at Law Line, which is an accredited CLE provider responsible for CLE administration to access it for course credit. So happy continuing educationing. I love that it's now available for CLE credit in Texas. I just think this is the best thing to do. It feels a little trolley, doesn't it? CLEC credits by listening to strict scrutiny. But now on to the news. So we're going to start with an important... piece of good news. And there have been some bright spots recently. So I guess this is one of them. And that piece of good news is the announcement that the Paramount Warner Brothers merger is on hold. So this is a huge victory, although at least right now it may be a temporary one. And it's a victory that could have significant consequences for both news and entertainment. And honestly, that means for democracy, which is obviously very much impacted by the information environment that we all live in. And the fact that this merger is on hold is a huge credit to the state attorney.

General that spearheaded the litigation, as well as the attorneys and Hollywood figures who really built a constituency and put pressure on states to make this move. Federalism for the win. Indeed. Just the background here at issue is the effort by Paramount, which is technically now Paramount Skydance after a 2024 merger, to acquire Warner Brothers. And Warner Brothers includes CNN and HBO and Warner Brothers pictures and just tons of other really important entities. So back in 2025, Warner Brothers was looking for a merger. And initially it looked like Netflix was going to be the lucky winner. But Paramount, which is run by the billionaire Trump buddy David Ellison, ended up topping the Netflix bid and emerging Victoria. paramount already includes CBS, Paramount Plus, tons of other properties, and this acquisition slash merger would make it an absolute behemoth in the news and entertainment space and possibly one with a very particular orientation since Ellison is a well-known supporter of Trump. And we've all seen what's happened to CBS News, aka now Free Press or the Federalist but on TV, under Ellison's stewardship. Last month, the Trump DOJ, not surprisingly, gave its blessing to the merger, despite what struck some people as pretty serious potential problems under federal antitrust laws, which are, among other things, supposed to protect against too much consolidation in any particular industry. Side note, this is part of why the loss of agency independence is a problem, or at least an illustration of the problem, because a formerly independent agency, the Federal Trade Commission, FTC, also has authority over antitrust enforcement, now that the Supreme Court has solved the separation of powers by giving the president control over the administrative state, except the Federal Reserve Board, the president can impress demands on the Federal Trade Commission more easily as well. Right. So this wholly controlled federal government of one Donald Trump, again, not surprisingly, blessed this merger. But a group of state attorneys general, which included California Attorney General Rob Bonta, former guests at our San Francisco Live Show, filed a lawsuit raising their own antitrust concerns. They argued that allowing the deal to go forward would, quote, extinguish competition in big parts of Hollywood, and it would harm consumers, particularly moviegoers and cable customers, really across the United States. So they pointed out that this proposed deal would combine. two of the five Legacy Hollywood Studios, two of the five providers of basic cable, two of the five major film distributors, really reducing competition in all of those areas. They also noted that Paramount and Warner Brothers, right, the would-be mergers have long been competitors, and that kind of competition has actually been good for the industry and for consumers. So they say in their complaint, basically, like, this is why the stakes are so high. And I want to quote from it here, quote, Film and television are not commodities. They are a principal means by which Americans encounter stories, ideas, and perspectives beyond their own experience. The competitive health of markets, where professionally created media is produced, distributed, and exhibited, determines not only price quality and output, but the breadth of voices and viewpoints that reach the public. Close quote. Like we said, like genuine democracy implications. The states asked for a TRO, a temporary restraining order.

to prevent the deal from closing. And in July, a California district judge granted that request for two weeks. And then last week, Paramount announced that it would be pausing the deal pending the outcome of the trial that is now scheduled for next June. It's possible that as negotiations unfold, pre-trial, CNN could be spun off. And that would be huge. It's also possible other changes could be made or... the deal might fail completely. But what looked like a fate accompli is very much not. And that's because of a bunch of hardworking lawyers devising a serious legal challenge and filing it in the lower federal courts where law still happens. Once again, the lesson is if you fight, you will sometimes win. Indeed. So next piece of news we wanted to mention is the arrest last week of the Brothers Tate, that is Andrew and Tristan. If you... are fortunate enough not to know anything about these guys. These are Manosphere figures who glorify and encourage, including broadcasting these views to millions, tens of millions of boys and men, a violently toxic brand of masculinity and misogyny. So that's them. And these brothers found themselves arrested in Florida on charges of rape and sex trafficking in the UK. And just a quick digression. So I said, maybe you haven't heard about the Tates. I actually had heard about them a little bit. The first time I really encountered them was a few years ago when I was unfortunate enough to spend some time reading about them in conjunction with a book review that Leah and Melissa and I wrote of Josh Hawley's manhood. That's the title of his book. Subtitle is The Masculine Virtues America Needs. And in that review essay for the Michigan Law Review, which... was titled, and I think, am I remembering correctly this was entirely credit to Melissa for this excellent title? Absolutely, yes. Of might and men. We referred to Holly as an aspiring thinking man's Andrew Tate, which I think I still stand by, although he does in the book go out of his way to criticize some of Tate's violence and explicit misogyny. But anyway, my point is I distinctly remember that. kind of like research jaunt being my first exposure to both the term and the place of the manosphere. And again, that's a few years back. It has been regrettably much harder to avoid since then. Yeah, that was a formative experience, I would say. And in some ways, it's led me that I have a Manosphere adjacent slash Manosphere-related project or at least a project that touches on the Manosphere that's in the works that I hope to be able to announce next month. And that is how I came across the Bill Pulte, with a swinging. emblazoned with Bill Pulte fucks clip. Be very glad you were not hosting with me that week, Kate, as I sprung that one on Melissa with zero warning. I was not on that episode, but I of course listened to it. I remember Melissa. Like listening and then saying something like, what the fuck did you just make me listen to? Basically speechless, I would have melted into the floor. I am not sorry that I was not co-hosting that episode. I'm sort of sorry that I had to kind of listen to it. But I also really can't wait because I also know nothing about this project. And I am excited for you to announce it to the world and also to us. Yeah. So anyways, back to the Tates. Yes.

These vile figures are extremely well connected in Trump world. Earlier in the administration, according to reporting by the New York Times, Megan Tui and Isabella Kwai, lobbying by the Trump administration led to the lift of a travel ban in Romania, where the brothers were living at the time and where they were under investigation for coercing women into pornography and in one case, allegedly raping and beating a 15-year-old girl. After the travel restrictions were lifted, the Tate's return to the U.S. where they've been in Florida and D.C. moving about freely, including in MAGA circles. There have also been more allegations of abuse here, though these arrests don't grow out of those allegations. Instead, the 38 new charges filed in the United Kingdom, bringing the total number of U.K. charges to 59. The Tates are in federal custody in Florida as the U.K. extradition process plays out. I believe as part of that process, a judge is going to have to determine they're eligible for extradition and then Britain, you know, that they have enough to actually extradite them. Right now, it seems that the Tate's one-time friends in the administration, Donald Trump Jr., Baron, Alina Habba, they're staying quiet. As the tates are held in custody, Karoline Leavitt has also said from the White House podium last week that the White House would not interfere in the extradition process, but we will see if that holds. Strict scrutiny is brought to you by Wild Alaskan Company. We only cook fish for meat at home, but sometimes it's really hard to count on the grocery stores, at least here in Michigan, to have the fish I want. And I'm me, so I want what I want, and nothing else will do. Because buying stinky fish are not the right kind of fish, that never works. Wild Alaskan Company offers the best way to get wild caught high-quality seafood delivered to your dorm. on your schedule. So every box comes with individually portion fillets, vacuum sealed, easy to prep, and great for any meal, which is super convenient and useful for me because I don't actually like preparing the filets. I just like having them on the ready to stick in the... oven or the pan. Plus, all their fish is quick frozen fresh from the Alaskan waters, which helps lock in the freshness, texture, flavor, and key nutrients like omega-3s. And freshness means there are no GMOs, antibiotics or other additives. It's so wholesome, it's even good for the earth. Every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and practice. So we got our first box from Wild Alaskan Company. It might have been last summer, I think. Anyways, we were so excited to try the varieties. My favorites ended up being the Pacific Halibate, which offers a nice firmer fish and the Pacific Rockfish, which is super good but offers a softer variety. So I use the halepid in the sheetpan tica fish that I make and the rockfish in the miso marinate fish that I use. Wild Alaskan Company is so confident that their fish is the best that they offer a 100% satisfaction and money-back guarantee. So you can try your first box.

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One other piece of news we wanted to mention Leah actually mentioned this briefly last week, but we wanted to spend another minute on the withdrawal of the subpoena. The administration issued to the New York Times over the Times as reporting on security concerns about the Qatarie jet that is maybe the new Air Force one. I feel like now there are some doubts about that. Anyway, as Leah recounted with guest host Emily Amick, the withdrawal of the subpoenas came after a truly unbelievable hearing at which DOJ lawyers acknowledged. All kinds of things lawyers don't typically do, like omitting the fact that at issue were journalist records. That was in one request. They also mistakenly included reporter's spouses and, in one case, a parent in a records request. And they just generally made a hash of procedures and protocols and the rule of law. So fortunately, after being basically filleted by the district judge during this hearing last week, the government voluntarily withdrew the subpoenas. But as one of the times lawyers noted in the hearing, these kinds of... of efforts can have chilling effects on vigorous reporting whatever the ultimate legal disposition. And that seems to be the point. So while we obviously, you know, celebrate the withdrawal of these subpoenas, it is an outrage that they were issued at all. And as a postscript to the episode involving these subpoenas, the White House has now announced that Qatari Force One will actually be offline for a stretch for some security upgrades. Karoline Leavitt referred to this as plain maxing. I mean, this is just the worst timeline. I know. But anyway, the point here is that that seems to fully vindicate the Times' reporting about the security concerns that were what prompted these short-lived subpoenas in the first place. We also have some developments in the seashells by the seashore Instagram James Comey post 8647 case. And yes, that is the description. So on the topic of government misconduct, there were some big developments this week in the case against former FBI director James Comey for his Instagram photo of some seashells spelling out 8647. James Comey, represented by legendary Chicago lawyer and former special counsel, Pat Fitzgerald, is trying to get the case against him dismissed on the ground. of selective prosecution and vindictive prosecution. And in support of that motion, Fitzgerald filed an affidavit on Wednesday walking through a lot of the events in the case and they are wild. So just a few highlights. First, Trump is all up in this investigation begging for details of the FBI's James Comey interview from Air Force One, obviously a presidential priority, not like anything else is happening right now. Second, the feds allegedly tracked the location of James Comey's phone despite people inside the Secret Service saying it was, quote, a bad idea and legally dubious to do that. And to get authorization to do this, they told a judge that such surveillance, quote, related to an emergency involving danger of death or serious physical injury to a person, necessitating disclosure without delay of information relating to that emergency. I'm sure that representation is going to go over super well with a federal judge, as we saw from the New York Times hearing. And especially where you literally have communications in writing where you have members in Secret Service saying that this is legally dubious. Exactly. Then they just go ahead and did it.

Yes. And then part of what they did was surveillance that was conducted. And that included a visit that James Comey and his wife paid to the grave of their deceased son. I know. That was one of many truly stunning details in this like 20 plus page affidavit. Okay. But. The maybe best part, I thought, I don't know if you read this entire affidavit with your jaw on the floor on Wednesday the way I did. I think I read it Thursday, but yeah. Okay. But this was, this was just like truly wild, but this detail in particular. So basically, the feds are so desperate to corroborate this notion that is obviously at the heart of their theory of the case that 8647 conveys a threat of violence that they... paid a visit to one Sammy the Bull Gravano, a former New York Mafia underboss who eventually turned cooperator and finally helped the feds bring down legendary mob boss, John Gotti of the Gambino Crime Family. This is an enormous event in like the history of New York City in the 1980s. And one fun fact that I did not know about Sammy the Bull Gravano is that so he turns state's witness. He really does bring Gotti down. And in the course of his really critical testimony, he is asked how many murders he participated in during the course of his involvement in organized crime. And the answer he gives is 19. 19 murders. Okay. So this is the guy. Great witness. Government. goes to to help shore up their case against former FBI director, James Comey. So Gravano had been in witness protection for a while, but I think, you know, very shortly thereafter emerge. And it's like now just back in the general public. And I gather is now like kind of a maga guy. And so he was, I guess. happy to receive a visit for 25 minutes of conversation with some agents and basically said to them, uh, yeah, 86. That generally means to get rid of someone. Um, and as a gangster, he was providing his expert opinion that it means to kill. Okay, this. I shit you not, is who is shaping up to be the star witness against James Comey. You truly cannot make this up. It turns out that despite the unimpegible testimony of The Bull, running searches of FBI records of like various mafia cases that the FBI and DOJ handled turned up zero references to 86, which again, the theory that... is being advanced here and that Gravano was seem to be trying to corroborate is that James Comey, as a former mob prosecutor, among other things, would have to be familiar with this in-group use of 86 and thus knew that he was conveying a threat to President Trump when photographing and posting the photograph of the seashells. Anyway, in addition to that episode, which again is my favorite, there also is, I think, some pretty...

compelling evidence of selectivity, which is that Amazon vendors sell a lot of items of various sorts that have 8645, 8646, 8647. So Trump, and then Biden, and then Trump again. And the number, I gather, is if you add all of those different 86s together, like north of 200,000, and there have been zero, count them zero law enforcement inquiries to Amazon over a single one of those products. I'm shocked. So this is the pending motion to dismiss the current prosecution against James Comey on the grounds that the prosecution is selective and vindictive. There's also a motion to dismiss the prosecution on the grounds that the indictment is facially insufficient and a violation of the First Amendment protections for speech. There's also a pending motion to unseal the grand jury transcripts. And we know those grand jury transcripts sometimes go kaboom, as we saw on the Broadview Six case and many others. So this particular motion is on the grounds that the known irregularities in the old case against James Comey out of Virginia, that was the perjury case that Lindsey Halligan bungled, including through some pretty wild misconduct before the grand jury. That included vouching, misstating the law, you know, fairly normal fare for these Trump folk. And together with some of what's come out in. discovery here, you know, they are asking the judge to authorize James Comey to have access to the transcripts. That may never happen because the case might be dismissed first, but I'm flagging that for now, that we are going to need to set aside a lot of time for it if we do get those transcripts because my guess is they are going to be really epic. I feel very cross-pressed here because I do think that this is a ridiculous bogus case that should be dismissed at the earliest possible juncture. On the other hand, I think that both like the kind of prurient entertainment value, but also like maybe the shaming value of shaming the Justice Department officials who, whoever they were and whatever they did in front of the grand jury, I just think we know that there's a lot of dodgy stuff happening in these grand juries. I feel like there could be some real utility in seeing that. So I don't know what to root for. So remind me of the chronology in the Broadway 6 case because there was a hearing at which the judge basically got the prosecution to agree to withdraw charges. But then I thought the transfers were released. So I'm not sure one's necessarily. You're totally right. Yeah. Yeah. That's definitely right. So I think it's it could be we get why not both. Yeah, exactly. You're totally right. Okay. Some other news, I don't know if this is exactly news, but the formal announcement of it or making it explicit is news. And that's the Trump administration admitted to canceling federal grants to democratically in democratic voting states. This, of course, is another abuse of government power, and this is just bombshell reporting that confirms something that, as I was suggesting, had been pretty clear already, but is now beyond dispute. And that is when the administration canceled hundreds of grants last fall for clean energy projects, it targeted...

Blue states or states that voted for Kamala Harris. The government admitted that the terminated grants, with one exception, all, quote, had a recipient location and or at least one place of performance in a state that awarded its electoral votes to Kamala Harris in the 2024 election and has two Democratic caucusing senators, end quote. These terminations the government noted were not, quote, based on any programmatic statutory cost reduction or performance-based factor, i.e., they just did it for... This is what you often refer to as just he admitted. Oh, G, he admitted. Yes, exactly. Nailed that, Nailed that, Kate. Thanks. And this, again, should be a presidency ending scandal. that the president is withholding, canceling federal funds, not for any reason related to the actual substance or use of those federal funds, but just to penalize people who did not support him politically. Again, I just go back to the small scandal of Richard Nixon having, you know, what now are like mere pennies to gin up dirt on political opponents. And now you have Donald Trump literally canceling. Energy sustaining grants, two states, and programmatic grants. And it's just appalling. Yep. Yeah. Wanted to. Remind everyone that one Pam Carlin professor at Stanford Law School tried to warn us. So she testified at Donald Trump's impeachment. Oh, that was in the house. Right. She was testifying in the house. Exactly. Exactly. And during that testimony, she said, quote, imagine living in a part of Louisiana or Texas that's prone to devastating hurricanes and flooding. What would you think if you lived there? And your governor asked for a meeting with a president to discuss getting disaster aid that. Congress has provided for. What would you think if that president said, I would like you to do us a favor? Now, she was talking about the... possible favor of beginning an investigation into a political opponent, but the point still stands. We knew he was going to do this because he already did it. And that should have been disqualifying. It is. And it has just only exponentially increased this second time around. I'll be honest, I'd forgotten about that testimony, but it was great then. Seared into my mind. So last piece of big news we wanted to cover was a Todd Blanche confirmation. Question mark update. So AG nominee, acting attorney general, Todd Blanche, aka I'm his lawyer, er, was his lawyer. That guy is...

gesture of principle and actually expected some paper to emerge that would give him the cover that he felt he needed, you know, in terms of his conception of self and standing and whatever else, to vote yes on Todd Blanche. Or did he actually realize he was going to throw a wrench in the whole thing? I am genuinely unsure. But this is incredibly revealing that this... fairly straightforward ask, which is to just formalize what Todd Blanche has always said, I don't need to formalize it. I've said it in sworn testimony. That's as good as a written document. But I actually turns out maybe it's not. Yeah, no, I agree. I'm also kind of curious what John Cornyn wanted and might expect. But who knows? Like maybe his phone alone. might not be enough. We shall see. Yeah. And this news item, right, so that this potential nomination going down in flames over this IRS lawsuit and deal. is a nice opportunity for us to note that the article that we author, the two of us and Melissa, titled Unsettling the Presidency and Forthcoming in the Northwestern University Law Review is now up on SSRN. We've mentioned it a couple times in the show. We have now finally posted it. And it talks at length about the president's abuse of judicial and quasi-judicial processes, of which this whole IRS episode is really just the most egregious example. Anyway, it's up there. You can read it if you'd like to. It's still in edits with Northwestern. it and you have feedback for us, please feel free to let us know. Yes. One other update on the liquor cabinet, someone who's actually in the liquor cabinet, and that is Secretary whale juice, bear caucus raw milk, Robert F. Kennedy Jr.., is reportedly going to be hosting a cooking show. This cannot be true. This is like an onion piece. No? No, it was recorded in The Hill. And I will try hate watching it once, and that will probably be it. But I am curious. This reminds me if I once or twice took one for the team and listened to an episode of, I think, the now defunct Ted Cruz podcast called Cruise Control. Do you remember he had a podcast? He co-hosted somebody. I forget who. And I don't think he does anymore. But I listen to an episode or two anyway. And for the team, these are the things we do. So, Leah, thank you very much for volunteering as tribute. He's posted this episode on YouTube and I haven't watched it yet. Oh, there's one actual episode. Oh, yeah. Oh, yeah. We don't know what he cooks, do we? I don't because I haven't watched it. All right. Well. Next episode. I don't think it's, I don't know, like raccoon penis or something, but I don't know. Can't rule it out. Yeah. Anyway, well, we will revisit on a future episode what exactly the recipes are. But in the meantime, stay tuned for our conversation with Rick Hassan about the president's effort to undermine the midterm elections.

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So, yeah, so the executive order purports to require new security measures on mail and ballots, including something called an intelligent barcode, which allows for better ballot tracking. Some states already do this. Not all states do. The 23 states and District of Columbia that are the plaintiffs in the California versus Trump case, a lot of them don't do this, and they've already purchased their envelopes. for use in November. Yeah. So at every stage, opportunities abound for huge amounts of disenfranchisement, which is probably the point. And so unsurprisingly, a number of states whose election administration would be impacted by the implementation of this executive order filed suit in late June. There was a decision out of a Massachusetts district court in joining parts of the executive order. What did that district court opinion say, Rick? So what makes this... case weird procedurally is that the executive order says USPS and DHS, you need to start a rulemaking process and your rules need to say X. Well, the rules have not come out yet. Now, we're, you know, getting into August here when states are heavily into actually getting their elections running. So we're really running up against the clock here, but there's no rule yet. from DHS or from USPS. And I believe that the USPS was supposed to have that rule out by July 29th, and it's not out. And so what the district court said was, this is already hurting the states. They've got to divert resources to prepare for the possibility that this rule is going to require what the... executive order says should be required. And that's costing them money. It's costing them time. They have uncertainty. They've got standing. No more rulemaking. This can't go forward in time for this election. But maybe we'll see what happens later on. Once the rule comes out, as to future elections, that's a subject for a different day. Right. So, yeah, this is what's so sort of strange about the posture of this case, and we'll talk about the application in a second. But everything you're describing, as Leah just mentioned, seems like it has the potential for enormous disenfranchisement. The federal government, like this federal government, which we've just talked about, is like a clown show in all kinds of ways, is supposed to produce the authoritative list of voters, which states already have on their own, and then provide that to states, and states then have the burden. of explaining any divergence between their lists, which are probably much better, and the federal list, which are cobbled together from federal data. But it's there. It's enormous potential for destabilization. But as you said, the rules that are directed by the EO haven't yet been promulgated. So that is sort of the strangeness of the posture right now. Okay. So district court says, notwithstanding the fact the rules are not there, this is already burdening the states. You know, there's a controversy here. They're standing here. We can enjoin at least for... this election cycle, the implementation of these new rules. The appeals court declined to stay, that district court order. And I was going to ask, what did the administration do then? But of course, that's a rhetorical question because what it always does is it runs to SCOTUS to ask SCOTUS to bail it out. And that's what it did with the application that it filed. But as we were just sort of alluding to, the application actually isn't.

squarely about the underlying legality of the executive order, right, or about the president's authority to make these sweeping changes to federal elections. It's mostly an argument that the suit is premature. So can you elaborate a little bit on that? Yeah, I go even further than your question. I'd say that they don't defend the order at all, except at the most general level to say that... The president has an interest in assuring that laws are followed and there's election integrity, which is true as far as it goes. So the argument is no standing. It's not ripe yet. You can't really sue because we don't know what the rules are going to be. So I say some weird things. They say, well. The executive order only directed what should be in the proposed rulemaking, as opposed to what's in the final rule. And that rulemaking has to be, according to the executive order, consistent with law. So maybe the postal service is not going to come up with a rule at all. So let's let this process go forward. And as to the questions of... the list that DHS is going to come up with with the non-citizens, it says, well, you know, it's really speculative to think that there's going to be criminal prosecutions. This doesn't direct anybody to do anything. You create a list, we create a list. There's a bunch of lists out there. That's all. No harm. Now, What's really, I think, interesting here is the injunction issued by the district court and the order that failed to stay at the First Circuit says, you know, this is only for the 23 states and D.C. So the other states are still potentially bound by this. Nothing's stopping these rules from coming out and they're not out yet. So it would be nice to know what the rules are. I'm wondering if they're just holding those rules so that... The plaintiffs in this case can't go to Scots and say, look, now we see what the rules are. Here's our concrete injury. Wow. So Ketanji Brown Jackson has ordered a response to this application. It's due this week. I know predictions are always hazardous, Rick, but when do you think the court might likely rule? And do you have any predictions for how the court might rule? So let me step back for a second and talk about that other case that's happening in the D.C. circuit. So this was a case brought by political organizations, and the district court, Judge Nichols, said, you know, you, Democratic organizations, you haven't shown you're facing any harm yet. We don't know what the rule looks like yet. Unlike the election officials who have to prepare ballots, you don't have to do anything. And the D.C. Circuit in a... a panel opinion, I think it was a Biden judge, an Obama judge, and a Trump judge. They all agreed, this is premature, but they dropped a little hint there, and they said, of course, if the government comes through and they actually have a rule and it's really burdensome on the states, that would be a pretty good reason for us to act expeditiously and maybe stop that rule from going into effect. So...

You know, I could easily see the Supreme Court doing the same thing, saying, hey, it's premature for states to bring this, but come back in a week. So that could happen. That would be kind of maybe, you know, I can imagine our John Roberts Elena Kagan compromise behind the scenes, like express real reservations about the merits. but say no stay just yet. The fact that Ketanji Brown Jackson has done this before, the fact that she gave up what I would consider a more leisurely time, a full week to respond, maybe indicates that she doesn't think that this is so urgent for the federal government, or maybe she's shared the timeline with the justice and they agree. I mean, this is a key point. the Solicitor General asked for an immediate administrative stay. And just to explain that, he wanted to be able to keep going forward with the rulemaking while the justices continued this. And the court said no. So that's kind of a very small, thin read on which to say, maybe the court's going to deny this. But the bottom line is, even if the court says, government, you can go forward and come up with your rule. That's just kind of punting this down the line for a week. And I think there's going to be a very strong case to enjoin the final rules if there's a reversal here. And that's because aside from the disenfranchisement point, It's too late. Kate, you mentioned, you know, how good a job is the government going to do in coming up with these lists. The USPS has never had to decide which mail it gets to deliver. It's never administered elections. We know the THS's list is full of false positives and missing people and people who are naturalized and people with same names. And so it's just a, you know, I think the Latin term is a shit show of what we would end up seeing. if this was actually tried to be implemented for November. So even when this came out in the spring, I thought there's no way, even if courts allow this, that it could actually happen in time. So you did say, I think, Rick, initially, that you wouldn't be that surprised if the court does stay the district court injunction, which would be, even if not a sign that ultimately they're going to be able to implement these crazy provisions for November, that at least for now, they can move forward. And what does that mean? in terms of the burden on states to begin to think about how they would come into compliance if the Supreme Court does allow the implementation of this order before November. It seems insane to contemplate, but I think we have to. Well, I think they have to prepare as though it may come out. But there's going to be a point in time where this can't be. So ballots need to be printed. They need to be put into envelopes. There need to be return envelopes, printed, right? And I think maybe it was Massachusetts. One of the states had spent $3 million on envelopes. You know, it's like it's expensive to run an election. And there's these tremendous reliance costs. And so they would have to keep incurring those costs, which is a reason why the court might just decide this is.

too close to the election, it should not happen. But I think the standing arguments are not frivolous. The rightness arguments are not frivolous. And so it's possible the court looks for a compromise here. But the telling point that they kind of back away from what the orders are going to do, you know, and they don't defend on the merits what those proposed rules would do. They don't even mention what they would do. They say, oh, the president wants certain things to be done and doesn't explain what even those things are. So, I mean, that really is a tell, I think, that they know that there's weakness on the merits. So it reminds me the birthright citizenship case, where it was really all about, you know, the Casa case, not the, not the Barbara case, but the earlier case where the question was, you know, can you issue a universal injunction? Like a procedural thing, they went all in on procedure and they won on procedure and then ultimately lost on the merits nine months late. Right. And I had the same thought. It does feel like they are running that playbook again, coming up to the Supreme Court with a. basically purely procedural argument that doesn't really focus on the substantive, you know, underlying substantive legality. And maybe this ends up the same way. Maybe they get a short-term procedural win. They ultimately lose on the substance. But just as having this uncertainty out there with respect to the meaning of the citizenship clause of the 14th Amendment, I think did real damage. In even more concrete terms here, like the protracted uncertainty has real costs. And so I just, it makes me very nervous to hear you say, like, yeah, the administration might notch a short-term victory here. And so, you know, I think that it would be crazy for them to win at all. And I think it's really, I guess, important for us to underscore the two things. One, the courts should be criticized forcefully if it allows even a week or two of. implementation. I mean, not, again, rulemaking implementation. It's not that the states have to do anything immediately, but they do have to engage in readiness immediately. So that that's something that we should criticize forcefully, but also understand that that does not mean ultimately that this executive order actually goes into effect. Can I add one other example to the mix? And it's not just the birthright kind of process that... This was calling to mind for me where the administration got a short-term procedural written that allowed them to come up with some guidance for how it would implement this wildly illegal order that it was then never given the chance to implement, which I think could be the same here. It was also reminding me of the challenge to the mass firings and agency reorganizations where the Supreme Court also granted a stay application after a lower court hadn't joined an executive order. And it did so partially on the ground that that executive order asking for these. mass layoffs and reorganizations had directed everything to be done in accordance with law. Just like this executive order directs, you know, all rulemaking to be done in accordance with law. And so I'm also very worried that there's going to be this two-step where they give the administration this may be temporary win.

There are some noises about what the administration might do. That creates chaos that I don't know if it all can just be put back in the bottle if and when the court goes ahead and blocks the order and the relevant rules later on. Totally. And one more thing just as a former White House lawyer, can I just say that as consistent with existing law or that kind of thing is like pro forma for executive orders? They always say that. So that's not like. any kind of concession that they're going to pull back on like the full maximalist implementation of what they're trying to do. Like, that's just always in the orders. Okay, so Rick, can we ask you to situate this executive order and the fight against it in the larger context of this administration's efforts to interfere with slash undermine the upcoming midterm elections? This is not like a one-off. Yeah, that's true. Let me just go back for a second and respond to your earlier point. Yeah. The kind of delay that we might see. in the context of this executive order, it's going to be much shorter than what we saw in the birthright citizenship case. Because the rule's going to have to come out within a couple of weeks. And... It's even in the papers, the application. They say by mid-August, we need to know what the rules are. So it's not going to be a very long delay. If it happens, that that might militate the Supreme Court just putting the stay in now because they know it's coming back to them on an even shorter fuse in a couple of weeks. The other thing I would say is that for the remaining states, the 27 remaining states, they're going to have to hustle too. And I think they're not going to want to have to do this. either to get their mail-in ballots out. And so I wonder if behind the scenes, this rule is not even going to come out. So, you know, I just can't see how it's actually going to get implemented. So as much as I share with you disdain for what the administration is trying to do, I'm a little bit less concerned that it's actually going to lead to these lists coming out and actual disenfranchisement. Yeah, so it now has to the kind of bigger picture, yeah. Yeah. So I think we need to understand the unique point we are in American history where the greatest threat to the integrity of American elections is the federal government. So the federal government that was the one that came in and sent registrars down to Alabama to assure that black voters could be enfranchised in the 1960s, and that observed elections, and the federal government that has been doing cybersecurity assistance for states and localities, and that has been providing guidance on the best voting machines through the Election Assistance Commission. All of this is being dismantled. So Trump fired the commissioners on the Election Assistance Commission. It's a question whether that's allowed or not. Is this a slaughter case or a cook case or something else? He's decimated CISA, which is the agency that deals with cybersecurity. So if it was actually serious about dealing with election problems, he would do something positive to try to help states.

have secure elections. He's doing the opposite. He's using his bully pulpit, this is one of the most important things, to undermine confidence in the fairness and integrity of the process. And he's just trying at every stage to get the Senate to pass the Save America Act, which would be hugely disenfranchising. And I should say, voter ID laws have not... all proven to be so disenfranchising. There's a lot of counter-mobilization things that take place. But documentary proof of citizenship laws, which require you to produce a birth certificate or a naturalization certificate and maybe a marriage license in order to register to vote, those would be hugely disenfranchising. We know. from experiences in Kansas and elsewhere. So he's trying the full court press. And I'm worried after the election, there are all kinds of things that he could try to do if it's a close election for control of Congress, including trying to seize ballots, including trying to lean on election officials. There was just a poll that came out from Gallup where I think over a majority of Americans are worried that there's going to be pressure on election officials to do the wrong thing. I mean, so it is just, we are in a terrible state where the federal government is. of the greatest threat to the integrity. The good news is there are three bulwarks against interference. There are the courts who've done a pretty good job so far against election subversion, even as they've done a horrendous job on voting rights more generally. The states, because we have this diffused power. Trump can't just go in and cancel elections if he wants, declare some emergency, like some people are worried about. The states and localities run elections. And then ultimately, it's the people. So if Trump is stupid enough to try and send ICE agents to the polls, I think you're going to see people. forming human chains and getting, you know, they will crawl over glass to vote. And I think it would actually have the opposite effect. And I just say many of the disenfranchising things that Trump is trying to do are most likely to hurt the base of Trump's support. And it's really counterproductive. And I think it just shows it's not very smart political strategy. In addition to a moral abomination. Moral constitutional, legal. No, I know it does, but it can't hurt to say it again. But yes, also may be counterproductive for him politically. Yes. Rick Hassan, always great to learn from your expertise before we let you go. Can we ask you to stick around and join us for recommendations or your favorite things of the past week? Sure. Awesome. Okay. So I will kick it off. I am finally reading the novel that's a couple years old now. Olga dies dreaming by Shoshal Gonzalez about halfway through and really, really enjoying it. I want to shout out Michelle Goldberg's column from last week on the blocking of the Paramount merger, which we talked about earlier in the episode. He says a great shout out to our friend Norm Eisen, who's dubbed, I think it's the Attorney General of the legal response to Trump. Anyway, really like that. Mark Ruffalo makes a cameo. Anyway, very good column. Also, on a more serious note, a wonderful piece by Emily Golagowski.

can ballet help in the fight against Alzheimer's? A beautiful piece about dementia and Alzheimer's and movement and embodied kind of practice is actually maybe a way to stave that off. And then finally, I am rereading Jeremy Shaw's masterful creating the administrative constitution. And I am just getting enraged afresh over the abomination that is the opinion in slaughter. Like this austere conception of presidential power and control that is the slaughter majority opinion just could not be less faithful to the actual reality of the standing up of the federal government and personnel within the federal government that the first decades of our history reflect. So if you want to get even matter about slaughter or just because it's an excellent book and you haven't read it pick up. Jerry Meshaw is creating the administrative constitution. So my recommendations, I've got some music. Charlie XX, new album, music, fashion film, Ben described as slacker girl rock. I like that. Also, Audrey Hobart, who's The Clown, not as new, but just gotten into it recently. And then Ben Wickler's recent book, This Is the Plan. And Jamal Bowie's column, why do we tolerate Elon Musk's racist commentary? Great question. He's got some important analysis. And finally, a recent Gallup survey shows that the Supreme Court's approval has sunk to a record low, 33%. Lower than Trump, by a couple points, right? That's really saying something. I think Trump... I think he's around the same. Yeah, I don't know. Yeah. All right. Sorry, Rick. Over to you. So when I'm trying to not think about Donald Trump, I've been watching Detective Halee on Netflix, which is kind of a Norwegian noir serial killer type escapist thing. And lucky. on Apple TV, which is a pretty good distraction. I've been writing a book for the last couple of years on American democracy from 1964 to 2024. I'm working the first draft of the last chapter on the 2024 election. I've been reading a couple of books to explain Trump's hostile takeover the Republican Party. One is by Seth Maskett called The Elephants in the Room. That is a great book. which includes surveys of Republican, local Republican party officials and what they think, and just, you know, how much Trump has been able to get around the traditional Republican hierarchy. The other book is by Julia Azari, who's a political scientist as well. She's at Marquette, and she wrote a book called Backlash Presidents, which is, it goes back, you know, a long time, back to Lincoln and Johnson talks about, you know. when a president tries to achieve racial justice, whether that's Abraham Lincoln or Barack Obama, that are often met in response with a backlash president, whether that's Andrew Johnson or Donald Trump. And that often leads to impeachment. And it's kind of cycle in American history. And it kind of puts the current moment into a broader historical American perspective. All right. Well, those are great recommendations. Rick, thank you so much again for joining us.

We're going to take a quick break, and after the break, my conversation with Farah Diaz Teo, senior counsel and legal director for the organization if, when, how. Strict scrutiny is brought to you by Honey Love. So one of my co-hosts, I'm not sure if I'm allowed to say which one, didn't ask for permission. Anyways, they were a huge Honey Love fan. So I was super excited to get to try a product and came in with high expectations. And I was not disappointed. The Honey Love bra is awesome. I have the Cloud Embrace one, and it's an everyday one that kind of functions as activeware, but also provide shape. Like both and, that's what you get in the Cloud Embrace. And it's comfortable enough for all day. They're perfect for summer office work days when I'm more on the go or summer weekends when I'm similarly out and about, but also need to look more profession case, you know, I run into people. I am an associate dean now after all. Anyways, I also feel great about supporting Honey Love. Honey Love is an independent female founded brand. Women supporting women. Think about that one for a second. All Honey Love products are intelligently designed by women who actually wear them, including founder Betsy, who is highly involved in the development of each product. We also deserve to treat ourselves and support ourselves because comfort isn't a luxury. It's a non-negotiable. And support shouldn't mean sacrificing how you feel in your own skin. At the end of the day, this isn't about changing your body. It's about supporting it in a way that actually feels good. And Honey Love delivers that at every stage. Treat yourself to the most advanced bras and shapewear on the market. Use our exclusive link to save 20% off Honeylove at Honeylove.com slash strict. That's honeylove.com slash strict. After you check out, they'll ask where you heard about them. Please support our show and tell them we sent you. Experience the new standard and comfort and support with Honey Love. Hi, my name is Mitch Landrie. My name is Jennifer Palmary, and we're hosting a new series called Long Play. The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South too. I mean, the South has always shaped American politics. We know that. The stakes could not be higher, but to win the South, you have to understand it. People in the South feel really misunderstood, left behind, put down on, and they want to explain that to somebody. We're traveling across six southern states to explore the people, the issues. the assumptions that no longer hold, and what the rest of us are missing about a region that will shape the future of our politics and our country. From left, right, and crooked media starting July 27th, watch longplay series on YouTube at YouTube.com slash longplay series or listen wherever you get your podcasts.

Welcome back to strict scrutiny. I am your lone host for this segment, Kate Shaw, and I am delighted to be joined by Farah Diaz Teo, who is the Senior Council and Legal Director at If When Howe, Lawyering for Reproductive Justice. She works there on strategic litigation, policy advocacy, and applied research to end reproductive criminalization and ensure liberty and dignity during pregnancy and all of its outcomes. Farah, welcome to strict scrutiny. Hi, glad to be here. Okay, we're really happy to have you here because every summer since 2022, when the court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, we've done deep dives on various aspects of the post-Dobbs landscape. We've had guests from other organizations working on various aspects of reproductive rights and justice, so places like the Center for Reproductive Rights and... ACLU and Planned Parenthood and National Women's Law Center. For folks who don't know your organization, if when, how, can you start by just telling us a little bit about it? What's its background? And what sort of work did you primarily do before 2022? So we do direct legal services and strategic advocacy in service of reproductive justice to end state violence in people's reproductive lives. So we want to ensure that people are able to make decisions about their bodies and their families and whether they carry pregnancies to term or not and the ability to do so with dignity. And be able to do that without interference or violence from the state. We use all the tools of lawyering to do that. including criminal defense and civil rights litigation. We run the repro legal helpline, which serves as a direct source for people to get legal assistance and legal referrals. We run a bail fund that helps people who are ensnared in criminalization and policy advocacy. And we do all of this also with a network of law students and lawyers and legal advocates across the country who can be mobilized in service of ensuring that. people's reproductive lives are free from state violence. And so The organization has been around for a while now. It's a little over 20 years and it's been through multiple iterations. And when we first started out, it was really an organization that was about organizing on law school campuses to get more classes about reproductive rights to really train lawyers in reproductive rights issues. It was law students for choice at the beginning. And through various evolutions, it was law students for reproductive justice, reflecting and understanding that True freedom isn't just about abortion rights, but it was really about the full spectrum of people's ability to make decisions about their lives and their bodies. And in 2019, I joined the organization. I was with a group called the SIA legal team, which is the self-induced abortion legal team, which was, I guess, a sort of repro legal startup addressing criminalization of self-managed abortion.

And we joined If One How and brought litigation and policy advocacy to an organization that had mostly been organizing among the legal profession. And so now we do all of those things together and really try to use all of the tools at lawyers disposal to help improve people's lives in these really critical moments where we see, unfortunately, they're increasingly facing violence by the state. Okay, so that's a great sort of history of the trajectory of the organization. I think I, like many people who went to law school, first became aware of it, I think maybe just after I was in or at the end of my time in law school, as, you know, kind of chapters cropped up all over the country of students who are interested in. abortion, reproductive justice more broadly. And there are still chapters on lots of, and I don't know about all, but at least many law school campuses. Okay, but this is sort of implicit in what you said at the end, but maybe starting in 2019 and I think increasingly in the wake of Dobbs, you all have pivoted to providing various kinds of legal services. And one... kind of critical aspect of your work, as I understand it now, is actual criminal defense. And so before Dobbs, there was still criminalization of various aspects of pregnancy, of drug use during pregnancy, right? So the criminal law did not just spring to life after 2022 when Dobbs removed constitutional protections for abortion. But there has certainly been much more serious efforts to criminalize because you don't have the constitutional backstop of Roe versus Wade as imperfect and flawed in so many ways as it was. It did act as something of a shield against certain kinds of criminalization. And of course, in the wake of Dobbs, many states move to restrict or prohibit virtually entirely or entirely abortion within their borders. So what does kind of abortion criminal defense look like in the wake of Dobbs and today? Tell us about that work and maybe tell us about a couple of the representations that you all have handled. I think it's great. It's important that you mentioned that this is something that was going on before Dobbs. And even within the history of the organization, the SEAL legal team was founded in 2015, was working on these issues. We started taking on cases when I joined in 2016. This is work that I've been doing myself since 2009. And so I think that's surprising to a lot of people who really think of criminalization of abortion and of abortion seekers is something that really emerged from Dobbs. And certainly. It's something that has intensified since then. We have seen the nature of the types of charges that are used really change. We've seen prosecutors evolve what they're doing. So what reproductive criminal defense looks like. I mean, it looks a lot like criminal defense that you see across the country in courtrooms every single day. But it raises some particular issues. And, you know, this is... a situation that's unique because it is one in which people are being charged with a crime for something that they did with their own body, which is typically not something that our law allows.

You know, in the pantheon of things, it might be surprising to people about this. It might be surprising to most people to find out that ending one's own pregnancy actually isn't a crime in any state in the country but Nevada right now. Nevada is the only state that still has a crime on the books that penalizes people, charges them with a felony actually for ending a pregnancy after 24 gestational weeks. In many other states, it is a crime to facilitate or to perform an abortion, but actually criminalizing. the individual who seeks to end a pregnancy, that is something that you're saying is actually far more rare. It's really just the state of Nevada that at least on the books has a specific crime for doing that. Exactly. That's right. And that's something that goes back, you know, all the way to the common law. That when we say abortion is a crime or we're criminalizing abortion, we mean something that a person does to the body of another person, not something that a person does to their own body. And so what that means is that prosecutors really have to contort the law and contort the facts. to punish somebody for having ended their own pregnancy. And so it's really using the legal system as a tool to enact abortion stigma and go after people using crimes. You know, for instance, one of the crimes we see used frequently is concealing birth, which is these laws. A little more than a dozen states have such laws on the books that stem from laws from the 1700s and the 1800s that were intended to criminalize how to wedlock births. And this was based on a theory that somebody who had given birth out of wedlock was more likely to kill an infant. And so essentially the state can do an end run around the necessity of proving that a person actually did homicide. You know, that's the fundamental tenet of the criminal law, right? proved beyond a reasonable doubt that the person did to think they're accused of doing. Well, a sort of neat patch for that that they thought up back in the 1800s, some genius thought up back in the 1800s was, you know, to say, well, we're just going to charge you with a crime whether or not this, you know, an infant was born alive. And so these laws remain on the books, you know, a lot of times the laws, you know, they just. languish there until some creative prosecutor decides that they want to dredge these laws out of antiquity and use them to punish somebody for something. There's no other law at their disposal to do so. And then other types of crimes that we see. laws that prohibit abuse of a corpse or you know the laws that are about really about desecrating bodies and that are intended to you know hand-fistedly admittedly rectify the harm that comes to the families of people who are deceased the harm that they experience from having their

loved ones' body mistreated and desecrated. And instead, that's being used against people, you know, for instance, for experiencing a pregnancy loss and then privately disposing of the remains, like, on their own property, or, you know, we've seen situations where law enforcement have gone in and yanked the toilet and, you know, sort of excavated somebody's plumbing to pull fetal remains out to charge them a crime after the experience a pregnancy loss. So this is one of those things that really evolves in the aftermath of Dobbs is that, you know, as there's a sort of a paradox in policy, which is after Dobbs, the loss of that constitutional backstop meant that states were racing to put in the most draconian abortion bans that they could. And many of them had this political compromise that said, we're going to make it a... crime to do an abortion. We're going to put you in prison for 99 years. It's going to be tantam out to homicide. We're going to, you know, really throw the book of people who do abortions. But we're going to put in their provisions that say that the abortion seeker can't be charged with a crime, can't be charged as an accomplice, isn't in a face of liability, all of these things so that they can say. Oh, no, we would never. We would never criminalize somebody who has ended their own pregnancy. But then what you see on the ground is prosecutors using these other types of laws and saying, no, this isn't about punishing abortion. We would never. What we're doing is we're punishing somebody because they behaved incorrectly. And so that not only sweeps in people who ended their pregnancies, but people who have lost pregnancies as well. And so, I mean, a case that really sticks out to me, it breaks my heart, is the, woman whose case we worked on who was ambivalent about pregnancy, as many people are for a lot of legitimate reasons. She had a lot of legitimate reasons to be ambivalent about a pregnancy. She was already living in poverty, doing her best to take care of the children she already had and just could not carry this pregnancy to term. And the things that she tried to do in order to end the pregnancy are things that would not end a pregnancy. She took cinnamon pills, hoping that that would end the pregnancy. You know, they advise pregnant people don't lift heavy things. So she was lifting heavy objects, right? And all the hoping and praying in the world is not going to end someone's pregnancy, right? Or else if it did, if it were that easy as lifting heavy objects, we wouldn't be in the crisis that we're in today. Then she experiences soulbirth. And because of the fact that she had been ambivalent about that pregnancy. prosecutors, well, this case was really actually driven by a police officer who had a personal vendetta. This is like very clear. This person had a personal vendetta and, you know, kept approaching the prosecutor's office to get them to charge her with a crime. And, you know, the way that she was caught was because she had buried the remains of her baby, whom she gave a name. buried on private property and had erected across and had posted on Facebook, because she had been encouraged by people in a pregnancy loss support group to like create a place where she could go and memorialize her loss. And so like, I mean, I think this is the most human thing in the world is that even even when a person feels ambivalent about a pregnancy, when they lose that pregnancy, they still.

mourn that and grieve that. And her grief was used to punish her, really robbing her of the dignity of that grief. Her story fortunately has a happy ending. You know, she pleaded guilty and that was set aside on the basis of ineffective assistance of counsel, which is extraordinarily rare, which goes to show like what a tremendous miscarriage of justice this was. No pun intended. God. And, you know, eventually she received restitution from the state because of this wrongful incarceration. Wow. Wow. Prosecution. So, okay, well, that is obviously a very upsetting story. And it's so you said Nevada is the setting. And I think that in the kind of, in particular in the post jobs. landscape, we have this sense that there are awful things like you're describing happening, but that they're happening in Texas and Georgia and like a handful of other places. Is that accurate? Or are these prosecutor targeting using these like really old statutes of women who either have induced abortions or have just had pregnancy losses? Like how broadly are we seeing this happen? Yeah. So. There are definitely clusters, and I would say the clusters align with where people are less likely to have access to health care systems, where people are less likely to be able to access abortion care, where people are less likely to be able to access pregnancy-related care. And states where we hear from the most on our helpline are the states that you would expect, you know, states like Texas, Georgia, Florida, North Carolina, right? States where people's access. to care even prior to Dobbs was pretty abysmal and now is virtually non-existent. But, I mean, I will say, like, this is something it can happen anywhere over the course of my career. You know, I've definitely, I've worked on cases in New York. I've worked on cases in California. I think it's important to remember that a prosecutor's fidelity of their idea to law and order isn't necessarily something that's dictated by politics. And, you know, we've had prosecutors who say, I'm pro-choice. My, you know, my wife held a fundraiser for Planned Parenthood. This is not about criminalizing abortion. This is about somebody who did something wrong. And, you know, the state needs to respond to that. And so, I mean, I think it really speaks to the fact that we have to be continually vigilant everywhere we are. And also just... I think that's maybe that's one of the lessons from Dobbs too is that like, you know, stare decisis can be yanked out from under you. The opposition wishes and works hard enough. And so that means that we cannot afford to be asleep at the wheel in any way, right? It means that we can't afford to have laws like the types of laws that are used against people.

now to punish them in the aftermath of an abortion or a pregnancy loss. There's no excuse to continue to have these laws on the books when we know exactly how they're used against people. Right. I think that's such a broad, important point, which is I think that, right, while Roe was the law of the land, legislators in a lot of states just didn't think they needed to repeal a lot of the laws that were, you know, impossible to actually enforce under Roe. There's obviously an argument that Congress should have. codified a federal protection for abortion, but again, in the kind of world of row, it didn't seem to a lot of people necessary. And I think both repealing the kind of damaging and destructive laws and codifying either by statute or in constitutions protections while you have political power is critical because the judicial wins can and do change quickly. So I do think that's a really important takeaway. And it sounds like in a lot of the cases that you're seeing, the cost of just not worrying about cleaning up statute books that contain these like really appalling, you know, once dormant laws is sort of being born by the individuals that are reaching out to you guys for legal help. Okay, so two other things I wanted to ask you about. One, you mentioned the hotline. Can you tell us a little bit about your hotline? And then bail is something that I know that individuals charged with different kinds of reproductive crimes have had to come up with. What is your role in bail funds? I love to talk about the helpline because I am really part of the work that my colleagues on the helpline do. So they, essentially, they provide legal services for any variety of issues that a person might have related to their abortion, their pregnancy loss, their birth. When the helpline first started out in, I think in 2018, was when we. took our first call, it was really created to address people's concerns about criminalization for self-managing abortion. And especially in the aftermath of Dobbs, when you have a name that is as broad as the repro legal helpline, you're going to get a lot of different types of repro legal issues that people have. So it wasn't just people who were concerned about. ending a pregnancy, whether they could get in trouble for ordering abortion pills, you know, those sorts of questions that people have, just the general, is abortion even legal in my state, right? But we were hearing from people who were being denied care, people who were really struggling to figure out, you know, what even was available to them in their state, people who were being sent into the parking lot to bleed out until, you know, they could qualify for miscarriage management. So recently, We spoke to abortion every day about a case that came up where a person was pursued by the state for trying to help her daughter access abortion care and the fee state violence from the family regulation system. And the young person wasn't able to get the abortion that she did because of the state's interference. So really the variety of... issues that we see, you know, is not just restricted to people unable to access abortion care of being criminalized for doing so. It's people who are afraid that they're, you know, people whose immigration status is now being called in a question because of decisions that they've made in their reproductive lives. People who are, you know, losing their children, right? Like this is, these are all.

reproductive justice issues. It's not it's not just about abortion care. So you can handle you you take calls and you can provide people with some guidance or direction sort of for problems or questions running kind of the gamut that you just sort of walked through. Yeah. So they're able to provide rapid legal response. They may refer. folks for criminal defense to our litigation team, or they may also draw upon our network of lawyers, law students, and advocates to place people, refer them out to cases because we have lawyers across the country. So if it's an issue, it's not specifically something we work on, something that's within our capacity. We can help them find a lawyer who's going to understand the issues underlying this, right? Because it's... Not all lawyers are the same. And so our team that runs our network does a really good job of ensuring that people are going to, if we refer somebody from the repo legal helpline, they're going to be met with somebody who's going to take their case and is going to deal with them with compassion without stigma or judgment. Yeah. And so, I mean, the numbers of calls really exploded after 2022. I think that since jobs, they've answered. more than 12,000 calls. And, you know, calls from all across the country. They're able to answer people's legal questions across the country and in U.S. territories. And they've supported over 2,500 callers from Texas alone. I pick on Texas because it's my home state. But, yeah, and so the work is... is really critical work so that people know that they're not alone. And I think that that's one of the most important things is that like, you know, fundamentally, nobody should need a lawyer to get an abortion. But if people are having an issue, the state, you know, if they are facing state violence, they should be able to have a lawyer who's going to, who's going to understand them, meet them where they're at, and provide rapid support. And so that's what they do. Okay. Well, we will, of course, include a link to the repo helpline in our show note. So people are able to access that if they meet it. And for the bail fund. So if people are targeted for any of this conduct, find themselves actually incarcerated and needing to post bail, I gather you guys are also able to help there. Yes, yes, absolutely. And this is something that's really critical in these cases. So across the board, people are more likely to... stay out from behind bars if they are banking their communities while they're waiting for their case to be resolved. And, you know, in some of the cases that I've worked on, from the time of arrest to the time that their case is resolved, I've had clients who've been incarcerated for... three years more, right? Like, this can take a very long time. Somebody's not able to afford the costs of their own freedom. And so that's why the Repro Legal Defense Fund exists. In 2025, alone, they paid out $2.3 million in bail and bond. I mean, our system of cash bail is one that's really...

designed to extract money from people who can least afford it. So we stand with them and provide more than just that as well because there are many other costs that are associated with being involved in the criminal legal system, in the family regulation system. Very often, you know, people need things like money for their cell phone to be able to like talk to their attorney and raise their defense or they may have to pay for the costs of being under. community supervision, so having to pay for the cost of an ankle monitor, having to pay, you know, pay fees related to drug tests, other things like that. And these are the things that the Repro Legal Defense Fund helps people, helps people bear those costs so that they're more likely to be able to fight and win the case against them. Okay, what in this really difficult line of work that you do is giving you hope right now? I feel like we all. Need places to look for hope because the work is essential and it's helpful if we can find these points of light. So what gives you hope? Yeah. One of the things that's giving me a lot of hope right now is the real... groundswell of support and the outpouring of solidarity that we've seen from people in other countries being a Mexican descent myself and having grown up in Texas, the cross-border solidarity between activists in Texas and activists in Mexico and, you know, especially in a moment where We were facing such retroaggression and they had made so much progress in the law and sort of the, you know, the message of solidarity that's like we have. We have been where you are. We have solutions. We have support. And we're not going to let borders stop us. Abortion is something that has always happened since before the law had anything to say about it. And it's unstoppable. And, you know, we're there for you. I think that's something that's been really incredibly moving. And I think, you know, that's something that wasn't. restricted to them, it continues to the present day, and seeing, you know, the ways in which our movements have learned and evolved and really sort of reached out. I think, you know, there is nothing that is good about Roe being overturned. They're like, I'm not going to be one of those people who's like, well, you know, there's a silver lining there. But what it did do was it forces to look for other solutions and really look beyond American exceptionalism. see what other worlds are out there. And so, you know, the fact that we are now really contending with that in a serious way, I think that's, that's something that gives me hope, especially in the moment where, you know, I mean, the rise of fascism, like all the many, the parade of horribles that we're seeing right now, seeing that.

we can envision other futures, I think is really giving me help. Right. I think it is true that the attacks on all the freedoms are connected on democracy, on liberty, on autonomy, on reproductive freedom, and that that's true here and that that's true elsewhere. And there are places that feel like they are on the other side of something truly horrifying, and we are on the wrong side of it. And yet, like, learning about how one makes a path out from sort of other traditions is incredibly helpful and important right now. So that kind of cross. Border solidarity, I think, is a lesson about kind of repro, justice, and also a broader kind of lesson. Maybe the last tiny question is how can people who are hearing about the work that you all are doing help? So there are lots of ways folks can help. If you are interested in this, if you feel like this is the work for you in your life, please come join us. We have a network that includes law school chapters. I'm sure probably you have a lot of legal nerds. listening right now. I think, you know, your constituency and ours are there's a, there's a overlap. So if there's a chapter on your law school campus, join it. If there is not, you can start it. We can help you do that. If you are a lawyer or even an advocate, you don't have to be a lawyer. You can join our network so that you can help. You can be one of the people who provides direct support when people need it. And then, you know, certainly I always have to make a plug for just supporting the work of the Repro Legal Defense Fund. Donate to the defense. That's, you know, your dollars are extraordinarily important. The person who directs it says it costs the state nothing to ask for $2 million. It costs us $2 million. And so certainly, like if you want to provide that support, that is something we're certainly, it. is deeply meaningful to the people who receive that help. So. Great. And on the student chapter point, shout out to the Penn student chapter. They've been doing these regulatory comments for the last year or two. And they've done like incredible comments when the administration is proposing various kinds of measures to kind of push back and help create a record for litigation, really important work. And yeah, so find your chapter or start one if there isn't, if you are a law student or on campus at a law school. All right. We'll have to leave it there. Farah Diaz-Tayo, thank you so much for the work that you do and for joining me for this conversation. Such a pleasure. That's all for this week. Stay tuned. We'll be back in your earholes next week with Melissa in the chair. Strict scrutiny is a crooked media production. Our show is produced by Melody Raoul and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroate, Ben Heathcote, Johanah Case, Kenny Moffitt, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.

Hi, my name is Mitch Landrie. My name is Aaron Haynes. My name is Jennifer Palmerie, and we're hosting a new series called Long Play. The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South too. I mean, the South has always shaped American politics. We know that. The stakes could not be higher, but to win the South, you have to understand it. People in the South feel really misunderstood, left behind, put down on, and they want to explain that to somebody. We're traveling across six southern states to explore the people, the issues, the assumptions that no longer hold, and what the rest of us are missing about a region that will shape the future of our politics and our country. From left right and crooked media starting July 27th, watch Longplay series on YouTube at YouTube.com slash longplay series or listen wherever you get your podcasts.