Sometimes, These F*ckers Lose

27:33Todd Blanche was the man who so bungled the release of the Epstein files that survivors were compelled to protest his nomination and confirmation process. He is the man who, at the president's request, agreed to settle a case that the president as a private citizen brought against the IRS, a federal agency that the president as a president oversees. And that's not even all. He's the man who, as part of that settlement, agreed to establish a quote-unquote anti-weaponization fund that would disperse taxpayer money to January 6th insurrectionists, among others, and agreed to give the president, his failed sons, and his company tax immunity.

28:11So I would think that all of those things in the aggregate would make Todd Blanche the third rail, like genuinely unconfirmable. But what do I know? Is he, though? Is he genuinely unconfirmable by these pathetic I'm like, bootlicking Republican senators. Really? I thought this guy was like, there's no way. I was like, there's no way this guy is getting through. Like, what am I smoking? Why am I not vaping? Because you were thinking that he was Matt Gaetz. And the thing about Matt Gaetz that makes him different than most of these other Republican. Is that Matt Gaetz is a frat paddle turned into a real life boy?

28:55Is that he gave up? Matt Gaetz gave up. Matt Gaetz decided he didn't want that smoke. But if you want that smoke, if you're willing to stand there and be humiliated for long enough in the name of Trump, eventually you'll win. And stamina and staying power, Todd Blanche's willingness to sit up there and be humiliated for days is all it took for him to eventually get confirmed. Well, I think it took a little bit more. It did take outwitting Tom Tillis and John Cornyn, which I have to say probably didn't take a lot of work. I could come up. You have to outwit like, you know, a bale of cabbage to do that.

29:38Right. Here's how it went down. Listeners, as you know, Donald Trump basically ended Tillis and Cornyn's political careers when he backed their primary challengers. And so for a while, Tillis and Cornyn seemed like they were in full DGAF mode. Right. When it came to the president, they were in YOLO mode. They were like full on Virgos, vengeful, like they looked like they were going to bring the noise. And I was here for it. Right. And in fact, Tillerson Cornyn gave Todd Blanche the business during the confirmation process, right? Take a listen to Cornyn pressing Blanche on whether the weaponization fund is really dead.

30:21I believe you have said that the weaponization fund is a moot issue. Is that your position? Yes, it is a moot issue, meaning there is no weaponization fund. The weaponization fund is dead. It's not moving forward. Well, I would refer you to the settlement agreement. Do you have a copy of that in front of you? I do not. Okay. Well, you probably know what's in it. I'm familiar with it, yes. I'm sure you are. On page four, this settlement agreement may be modified only upon the written agreement of the parties. Has there been a written agreement of the parties to modify the settlement fund? No. The settlement fund is just not moving forward.

31:01There's no modification. It never started. No money went from the Treasury to any other account. There's no commissioners. It's not moving forward. Well, so the settlement agreement remains as it was originally, but I hear what you're saying. Is the settlement agreement enforceable as a contract by the parties? Well, yes, it's an enforceable document. So I suppose if President Trump's counsel sought to enforce it, they potentially could. Um, including, including the weaponization fund. Well, they could try to enforce the contract. They can't force the Department of Justice to move forward with the weaponization fund.

31:44They could potentially say that, I suppose, that we breached by not moving forward. They haven't done that. And I'm not aware that they're planning on doing that. All right. Let me just, like, break this down. John Cornyn is a lawyer, right? He's a lawyer twice over. He has a JD from St. Mary's School of Law, and he has an LLM from the University of Virginia, Wahoo Wah. He knows that Todd Blanche can't do shit around this settlement agreement, that he cannot unilaterally stop this settlement agreement. Like he's talking about, is the settlement an enforceable contract? If it is an enforceable contract, then the parties to the contract are the ones that have to agree not to do it.

32:26And that's Donald Trump, his failed sons and the Trump organizations. He knows that Todd Blanche cannot independently just address this and kill the fund dead. This is a man who is not just a U.S. senator. He is a former justice of the Texas Supreme Court. He knows the law. And that whole colloquy with Todd Blanche made clear that he knew that Todd Blanche could not unilaterally kill this fund. And yet. He was using it to put his foot up Blanche's ass, right? Like he wanted to bring that out into the public, just how dirty this man was. But I think it also shows, Melissa, something that Republicans only seem to get when they're out of office or when they're almost out of office, that they don't trust the administration as far as they can throw them.

33:16Which they shouldn't. Which they shouldn't. But they only remember that when they're halfway out the door. All right. So I'm just going to say in this moment, it seemed very clear that John Cornyn knew the score. He was up Todd Blanche's ass and he was not going to go quietly into this. And that was meaningful for Todd Blanche because with the Senate so closely divided, Blanche needs the whole Republican caucus to back him in order to have a chance at confirmation on the Senate floor. So he needs Tillis and Cornyn to sign off just to get out of the committee and then get to the Senate floor. So he's got to figure out a way to mollify the concerns that Tillis and Cornyn have.

33:57And as you say, Todd Blanche doesn't mind being humiliated. He doesn't mind auditioning and he doesn't mind saying what he has to say. But I think what he didn't count on was that Tillis and Cornyn would literally fold like folding chairs on an Alabama riverboat dock. Right. That's a deep cut. It's a deep cut in honor of August 5th. Not everyone will get it, but I'm glad you did. But the ones who did got a nice Easter egg there. Yeah. So, yeah, so you're exactly right. But they did fold. No, I mean, like, right. That's like he wasn't counting on them folding. So the heart wants what it wants. And Todd Blanche's heart really wanted to be attorney general for real, for real.

34:45And so he decided, I guess, to give Tillis and Cornyn what they said they wanted. Or did he, right? So early last week, Todd Blanche released two statements. The first, which was a memorandum that Todd Blanche signed, said that the anti-weaponization fund would be rescinded immediately. The second statement, which was unsigned and released by the Department of Justice, clarified that the terms of the tax immunity for the president, his failed sons, and his companies would be retrospective, as opposed to retrospective and prospective, which was originally the concern. So that's an important limit, but all of this is still a significant stop to the president.

35:19It also doesn't address the concerns that John Cornyn was airing in that colloquy that Todd Blanche really doesn't have the authority to do anything, right? That you need the parties to agree to this and they won't. And you know who does have the authority? That's President Donald Trump. And it wasn't clear that Blanche had actually asked his daddy, Donald Trump, and run any of this up the flagpole. Here's the president fielding questions about Todd's assurances and the modifications to the settlement terms. So did you sign off on Todd Blanche? I didn't look at it. All I know is that Todd Blanche is great.

35:58He's going to do a great job. Everybody knows it. And I understand there's been a sign off. But I don't know what they agreed. I think Todd Blanche agreed to reconfirm things that he's already said. And what he said was OK.

36:16All right. So this is amazing, right? He has no idea. And like ostensibly, he wouldn't have signed off if Todd Blanche had actually done anything to really kill the fund. And he has no idea what's going on. It's like Todd Blanche is basically talking out of his ass. And everyone knows it. Immediately, reporters, many of whom do not even have law degrees, begin pointing out that there are numerous loopholes in the two statements. Some noted that even before the anti-weaponization fund was a glimmer in the president's eye, the DOJ had already begun dispersing taxpayer funds to convicted anti-abortion protesters, Trump campaign allies and others, and that the Department of Justice could continue to negotiate those kinds of taxpayer-funded settlements even if there wasn't an anti-weaponization fund.

36:58So killing the fund probably wouldn't matter. And it was also clear that the statements that Todd Blanche was making were not necessarily legally binding. The settlement terms were negotiated between the IRS, the president as a private citizen, his failed sons and his company. This was the point of the colloquy with John Cornyn. And none of this made any sense that Todd Blanche by himself could modify the settlement without the agreements of the parties. And then there's a whole thing that the quote unquote settlement proceeded from an actual lawsuit that may not have been able to be in federal court in the first instance, given that the president was on both sides of the V.

37:35So there are still these open questions about whether the effort to settle this case constituted a fraud on the court itself. And yet. Yes. But again, all you had to do was outwit a head of lettuce. Right. because despite those very serious questions, Blanche's assurances seem to mollify Tillis and Cornyn, both of whom happily cast their votes to advance Blanche's nomination to the full Senate for confirmation. In case you were wondering, the vote was a party-line vote, very close because the Senate is closely divided, but it was 12 to 10. Here's Senator Cornyn commenting on his cowardice. I mean, on the situation.

38:19I was saying as recently as yesterday. likes the idea of this fund, that he wants to find some way to pay these people. Does that concern you as someone who's tried to fight against getting this anti-weaponization fund in place? Well, there's nothing we could do to to to rein in the president when he said he likes the fund and he wishes still exists. But the fact of the matter, it's dead. And that's all we could do under these circumstances. All right. Wrong. Wrong. What? Go. I'm sorry. We're talking. Cornyn is the guy in Pulp Fiction who says, I'm not a hero. I'm just a coffee shop manager. Like, he's that guy.

39:00He's just a coffee shop manager. He is not a hero. He does not have a spine. He is a coward. And he showed us all right there. Again, I come back to, like, John Cornyn knows that these statements that Todd Blanche has made to mollify him and Tom Tillis are basically meaningless. He knows this and he still voted anyway. He also knows that one way that they all could have made sure that this fund was dead was for Congress to pass legislation killing the fund. Right. Yeah. I mean, they all know that they all know that. So this whole idea, like there's nothing we can do to rein in this president. Article one would like a word.

39:39What like what are we talking about? Like the whole idea of separation of powers would like a word. Is it just it's so gross. It's just so gross. But here's the thing, Lisa. We have to stop thinking that Republicans will ever grow a spine and stand up to this president, right? Even the ones that the president has humiliated, even the ones that the president has kicked out of his inner circle, even the ones, as in the case of Tillis and Cornyn, that the president has literally taken their jobs away. They'll never grow a spine. If they had a spine, if they had a conscience, if they had decency, they wouldn't be Republicans in the first place.

40:17You don't become a Republican because you have decency. You don't become a Republican because you have a spine, because you have commitment to the people. You become a Republican because you are a spineless coward who lives to lick boots. and that's who Cornyn is and that's who Tom Tellus is and that is who they will always be regardless of what this particular president does to them. Strict Scrutiny is brought to you by Z-Biotics. Between work, family responsibilities and everyone needing something from me all day, getting together with friends is a form of self-care for me. Whether it's a glass of wine at dinner or a long overdue girls' night out, I make sure to drink Z-Biotics pre-alcohol before alcohol so I can enjoy the evening and still feel ready for whatever tomorrow can bring.

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43:32All right. So that's not even all to say about the prospect of Todd Blanche going from auditioning attorney general to attorney general for real for real. Politico broke a story about a conference call that Todd Blanche participated in. In this conference call, Blanche, it is reported, promised anti-abortion activists who were part of the group of faith leaders on this telephone conference call. He promised them that he would make Dobbs permanent in every state. What does that even mean, given that, as we have discussed, Dobbs is supposed to allow political processes, democracy, the people, to decide whether to make abortion available in their states?

44:16Why does Todd Blanche seem to think that he has the authority, given Dobbs and the fact that Dobbs committed this question to the people and the states, why does Todd Blanche think he has the authority to do anything here? How would he do this? Well, listeners, luckily, Melissa and I speak Republican. And the reason why Blanche thinks that he can do this is because he's probably envisioning one of two possibilities. All right. One of the things is that he alluded to revisiting the FDA and HHS's regulations on Mithopristone. Right. Something that he said he's in the process of doing. And we know that there are cases and issues and attacks on the abortion pill that have been ongoing since the moment Dobbs dropped.

45:00So that's one way to significantly restrict access to abortion. The second is that he said he was also looking into your favorite law, whether medical abortion can be distributed via the mail, which is a reference to the Comstock Act, which has still not been repealed despite it being a 19th century law. Right. So the Comstock Act was passed in 1873. It remains on the books like a zombie law. There have been tons of people who have sort of floated the idea that the Comstock Act could be used to prohibit the distribution of medication abortion through the mails, including Justice Thomas in a number of separate writings.

45:44He has made mention of this. This seems to be a real bugaboo with Republicans. They talk about it in Project 2025. All that would be required here is a Department of Justice willing to enforce the Comstock Act in this way. You don't need a new Congress to pass a ban. You don't need anything. You just need a willing DOJ. And it seems that Todd Blanche has stepped up. We should also note that this phone call was supposedly off the record, but one of the groups who participated posted a recording to their YouTube website. So some geniuses, like I love it when Pete Hegseth is handling your comms like that's good stuff.

46:27But it's all it shows their hubris. Right. That's what you do when you're winning. That's what you do when you're winning and you don't think anybody can stop you. I mean, well, there we are. Speaking of winning and thinking no one can stop you, it's time to talk about our favorite U.S. attorney slash box of Franzia. While I'm apologizing to all of you about my naivete over Todd Blanche's AG prospects, let the record reflect that I was today years old when I realized that Jeanine Pirro might actually be the moral compass of this administration. We called her a box of wine. She said, no bitches.

47:04I'm a box of spine. Here's how it went down.

47:15I'm sorry. I'm sorry. Go on. Go on. Sorry. It's my fault. I'm like, I'm like. No bitches. No bitches.

47:27Oh, God. All right. Here's how it went down. Listeners, as we discussed on our live NYC show back in June, the Department of the Interior never solicited competitive bids on the Reflecting Pool resurfacing project. Instead, the job went to a Trump donor and a Mar-a-Lago neighbor. What could go wrong? Algae? Bee? What could happen? Apparently, a lot. The pool's new surface immediately began peeling. And rather than admit that maybe this had something to do with the resurfacing and those in charge of it, the president and his pals insisted that the peeling was the work of vandalizing thugs. And the U.S.

48:15attorney for the District of the District of Columbia, Janine Pirro, secured an indictment against former Olympian David Hearn on charges of vandalizing federal property. So basically, Hearn was captured on camera, putting his hand in the pool. And there it was. And then all of a sudden, he catches a federal case. Hearn, who was represented by, among others, friend of the pod, Norm Eisen, immediately hit back, providing photographic evidence that the pool had been peeling before and after he stopped and put his hand in the water. I mean, real, you know, detective work going on here. It's just insane.

48:56Hard-hitting forensic evidence. And it seems like that kind of detail was enough to get U.S. Attorney Pirro to reconsider whether this was a fight she wanted to have in open court before a federal judge that she would likely have to be before again and again and again. So Pirro, late on a Friday evening when all the hot mess news is released, announced that she would be dropping the charges against her. Okay, so to be fair, this is exactly the right outcome. But does Janine Pirro, as she is becoming a box of spine, know who she works for? Because her daddy, the president, was not having it at all.

49:42Take a listen. Instead of going after the people that did it, the judge went after her and went after her department. And I guess she choked. I was disappointed with Janine Biorg, really disappointed with Janine Biorg. She folded like an umbrella. Such a missed opportunity to use the August 5th folding chair as a metaphor and to reach Black audiences. I mean, truly. Folded like an umbrella. Does an umbrella fold? I mean, it just collapses, I think. You have to finish the analogy. Folded like an umbrella in the wind, right? Yeah, yeah. Umbrellas don't fold on their own. There's a force there that has, whereas a chair can just fall over.

50:25or if too many white people try to gang up on a boat captain. That's what can happen to chairs. Right. I'm told. I'm told. Legally. Right. So Janine Pirro collapsed like an umbrella in the wind, and Kel Suprise, there were reports that the president was considering firing her. Shocking, I know. Ellie, what do you make of this? Is Pirro just over this whole job? She was such a Trump loyalist for so long. Why is she now finding religion? And is she actually going to get fired? Honestly, Melissa, this is the most shocking thing that's happened this week. When you brought this up to me, I would not believe that this actually happened.

51:12Like, listeners, I texted Ellie, we're going to have to talk about the Janine Pirro thing. And Ellie wrote back, did she die? I was like, what? Like, where are you? It's easily more likely that she just keeled over than that she actually did the right thing legally. Like, that is shocking. And so, because I am so surprised, I am forced to pull out my tinfoil hat and really imagine what other things can be going on here. Look, my antennae are raised. The only thing that I can think is that she found something real about the reflecting pool. Like there's a deep, dark secret at the bottom of the reflecting pool.

51:55Like the reflecting pool is the portal to Epstein Island or something. Some issue where she knew that if she pushed it in court, things would come out. Information would be revealed that like can't be revealed. It's disclosure day or something. I can only imagine that there's something way, way more sinister going on that she did not want people to find out because the idea that she just independently decided that this was a dog shit case that shouldn't be taken. Like, that's not something I see Republicans do. So it's hard for me to accept that. It's hard for me to Occam's razor razor it. Right.

52:36to just accept that the most obvious answer, dog shit case, don't bring it, was the answer she arrived to independently and of her own free will. So again, maybe I am horribly naive. Maybe I'm Kate Shaw. I don't know. But I genuinely just thought she's the U.S. attorney. Like, D.C. is a small legal community. She's got to come before these judges all the time. She can't be trying to convict an Olympian of vandalizing the reflecting pool when everybody knows, like, the reflecting pool is hot buttered garbage right now. Like, this resurfacing was hot buttered garbage and everyone knows it. That's what I thought.

53:14But, again, I also love this hell portal to Epstein Island theory could also be the case. Yeah. To put joking aside for a second, at some level, this is all you want from the Department of Justice. This is all you want from the U.S. attorneys. This is all we wanted from Tom Tillis and John Cornyn. Like, just, like, grow a pair. Apparently, Janine has all of them. Right? Just follow the law. That's all people need. Just do the right legal thing. You're working for Trump. He's going to win most of the time when he has a case. He's going to lose most of the time when he doesn't have a case. Just play it straight.

53:56That's all anybody's ever asked and that Jeanine Pirro in this one instance may have done that. It shouldn't be so shocking, but it is. I will watch the space to see if our newfound box of spying continues to be the U.S. attorney for the District of Columbia. In other news, while the president continues to fight a non-existent battle against the vandalism of public sites, his Department of Justice continues the administration's assault on the free press. Last week, in the wake of the Department of Justice withdrawing subpoenas directed to three New York Times journalists, it was revealed that in February, the Justice Department issued a subpoena to a Times freelancer in order to compel that journalist to reveal confidential sources and conversations that underlay a story about a failed top-secret mission in North Korea.

54:48Now, just to emphasize, it is not unusual for the government to issue subpoenas to elicit information from media outlets. But typically, government investigations of leaks will initially focus on the government agency where the leak likely occurred. After that initial attempt at cleaning your own house, then the government may choose to subpoena the media. And they usually direct the subpoena to the media organization, not to the individual journalist responsible for the story. I'm saying all of this to emphasize that issuing subpoenas directly to journalists and then going to their homes to deliver said subpoenas is a bit aggro.

55:27Right. It's almost like the goal isn't actually. It's way harsh, Ty. Wow, Dion. Wow. Wow. Ellie, it almost feels like the goal isn't actually to get information about leaks or how the media actually came about this information about the failed North Korea mission. It seems like the goal is scaring the shit out of individual journalists and their families in the hopes that that fear will deter the journalists from accurately reporting what the administration is doing and how clumsily they are doing this. Again, this was about a failed mission in North Korea. It's so weird because in a world where Bari Weiss exists, like the idea that you still have to pressure like the one or two journalists left that aren't licking your boots every day.

56:17It's just like y 'all have already won. Why do you have to go after, you know, the one or two people who are still doing actual journalism? Right. But that's what they're doing. I also want to note that while The Times is providing the freelancer with a legal defense, not every news outlet has the considerable resources of The New York Times or The Wall Street Journal or the Jeff Bezos posts or other, you know, other big legacy outlets. smaller news outlets will not be able to defend themselves or their people, which means that they will be forced to be more and more cautious in their coverage of the administration for fear of catching a lawsuit.

56:58And this is a strategy that we know works. I always want to remind people about what happened to Gawker, right? If you look at what happened to Gawker, if you look at how Peter Thiel destroyed Gawker, it wasn't through the big Hulk Hogan lawsuit. Like that was the That was the proximate cause. The ultimate cause was the threat of the lawsuit, the constant threat. We're going to see you for this. We're going to see you for that. Remember, when Peter Thiel forces Terry Bola, Hulk Hogan to bring that lawsuit, they don't think they're going to win. The goal wasn't to win the lawsuit. The goal was to drain Gawker of resources fighting the lawsuit.

57:41And that is the real threat to every non-legacy organization out there. It's not winning or losing the lawsuit. It's the threat of the lawsuit. I used to work for the blog Above the Law, which is really great if you haven't read it and still operating. And it's awesome. But at one point when I was there, my boss says to me, you know, going over one of my stories or whatever, Ellie, we can't get sued. Ellie, we just we can't get sued. I was like, boss, I can't promise you that. Right. I can promise you that if we get sued, they won't win. Right. I know defamation law. I know libel law. I can promise you that if we get sued, they won't win.

58:23But I can't promise you we won't get sued because this is America. You can sue anybody for anything. And my boss was like, you don't understand. We can't get sued because we can't afford the insurance liability if we get sued all the time. And that is the chilling effect. That is the you take that out of your story. You take that out of your you take you don't use that quote. Right. It restricts what you are able to say, not because you're in the legal wrong. because if you're even in the legal gray area, you can't afford to do it. Right. No, it's such a good point. And I mean, I think about this.

59:02I think about the EEOC suit against The New York Times. It's not about The Times. Like, they don't expect to win against The Times. What they want to do is prevent other smaller newsrooms from doing what The Times is doing. And in that case, it was sort of trying to insert some kind of gender and racial balance in the newsroom, mostly for coverage to ensure that stories that mattered to different constituencies were accurately and adequately covered. But again, it's not about the New York Times. It's just the biggest marker that's meant to be a deterrent to other smaller news organizations to get in line.

59:35And, you know, there it is. 100%. All right, folks, it's August. That means school is about to start soon. So that pains me. Well, for the kids. Yeah. I got to go actually teach. Whoo. I've been on sabbatical. It's going to be a hard reentry for me. No, no. I feel you on the parents. I feel you on the parents. Yeah. I'm with you there. But like, I also have to go back to school. And after a sabbatical, like this is going to be a hard reentry for Melissa Murray. I'll just say that. But we need to do a quick pivot to talk about a developing story from legal academia. So listeners, you know that this administration hates DEI.

1:00:20And I should be clear, they hate the old DEI, diversity, equity, and inclusion. They actually love the new DEI, which is dudes, ex-husbands, and imbeciles, right? In any event, the administration's overwhelming antipathy for the old DEI has prompted calls for the American Bar Association, a professional accreditation organization for the legal profession, to eliminate one of its accreditation requirements for law schools, Standard 206. Standard 206 requires law schools, in order to be accredited, to maintain diverse faculties, and to actively demonstrate a commitment to diversity and inclusion for underrepresented groups.

1:00:58To be very clear, Standard 206 can basically be boiled down to four words. Don't do Jim Crow. That's it. But alas, the Trump administration, in its zeal to make America great again, or at least white America great again, may be seeking a return to 1953. Since the inauguration, the Department of Education, despite being allegedly dismantled, issues guidance that challenged the legality of this modest commitment to fostering inclusivity in law schools. And it has threatened to limit the ABA's role in accrediting law schools. Accreditation is a big deal because most states require attendance to an ABA-accredited law school in order to qualify for the bar exam and professional licensing.

1:01:44And the ABA, in an effort to stay out of the administration's crosshairs and maintain its lucrative status as an accreditation organization, suspended Standard 206 so it could debate its use going forward. And at its recent annual meeting, there was a pitched debate over whether to maintain Standard 206 or to scrap it and keep a low profile with this administration and Stephen Miller. The ABA's House of Delegates ultimately voted to maintain Standard 206, rejecting a proposal that would eliminate it amid growing political and legal pressure. The decision preserves the current rule for now, although the debate over its future is not over.

1:02:25The ABA's Independent Accreditation Council still holds the final authority over accreditation standards and plans to reconsider the issue later this month. Basically, the ABA was like, should we be Paul Weiss or not? And decided not, at least for now. I mean, this is just bonkers to me. Again, standard 206 is just like literally like don't be racist. Don't be obviously racist. That's basically what it is. Right. I mean, I don't know. I mean, I just go back to the fact in 2006 when I was hired at the University of California at Berkeley, I was only the second black woman ever hired on the faculty.

1:03:04Right. I mean, in 2006, I mean, that's Berkeley, like allegedly a liberal bastion. And like law school faculties are not necessarily hotbeds of diversity. Law schools, again. How many black law professors did you have in law school? Three years, two semesters of peach. How many black law professors did you have? I had two. I had three and one was a visitor. I had two. One per year. Basically one per year. Yeah, one per year. I had to take her. I had to like go seek out her seminar, right? Like there was only one that was like. naturally served up to me, right? And while I can understand people's, why should that matter?

1:03:46It matters a great deal. It matters a great deal when you are a student trying to learn about some of the racist ass shit this country has done, and you want to ask a question. It matters if you feel like you're going to be able to ask that question in a supportive and safe environment, right? When you have to ask a white law professor, why is this case so racist? That question hits differently than if you ask it to a black law professor, even if their answers are going to end up being the same. And in most cases, their answers are going to end up being the exact same. But it matters a great deal.

1:04:26It matters to me. I've told this story before, but I had Justice Elena Kagan in law school. She was my SIPPRO professor, and I ended SIPPRO. And so, you know, I went to office hours basically to complain about how much I hated their class, which was a choice that I regret. But in her office hours, Kagan used to clerk for Thurgood Marshall. And while she was trying to explain to me the importance of civil procedure, she was using stuff from Thurgood Marshall. Yeah. Which she knew, you know, not incorrectly, I was going to pay a little bit more attention to. I was going to take a little bit more consideration of than if she was quoting me stuff from Hugo Black.

1:05:13Yeah. Right. She understood that. And that that, you know, Kagan, obviously not black, but that is the importance of having diversity and inclusion in an educational environment. Different students are going to respond to different things. And you should be able to have a law school that addresses everybody, not just white folks. It's a really good point. I think standard 206 is not long for this world. You know, I never thought it was especially toothy, but it was something was like a guideline, I guess, a mark in the sand. But that's too much even for these guys. And, you know, it's so weird to watch this assault on DEI while you're watching an administration with a cabinet that literally is inferior to stuff I would see at IKEA.

1:06:05So, all right. Ellie, before we wrap up the news, I have one final note. As you know, I just got back from vacation. I went to London where I was allowed to talk like this all the time. It was absolutely wonderful. I had the best time. And, you know, I talked about my schedule and all of that. So I love that part. That was great. The other thing I loved, you know, true highlight of the trip was that I had the opportunity to eat leafy greens and berries with abandon, secure on the knowledge that I would not be gripped by explosive diarrhea because the United Kingdom engages in regular food inspection and regulation protocols.

1:06:48So I love that for them and for me. Anyway, as I was headed back to America and the prospect of no longer being able to eat salad, the news coverage was absolutely fixated on an interview that CNN's Dana Bash conducted with Secretary Bericarkis slash whale juice slash raw milk Robert F. Kennedy, a.k.a. Cheryl Hines's husband slash maybe Olivia Nuzzi's boo thing, allegedly. Maybe. Maybe. Maybe. I don't know. I think we're right past maybe. Maybe. I don't know. In any event, Dana Bash asked the secretary some questions about the recent measles outbreaks and his responses were genuinely unhinged.

1:07:34So I'm just saying this because as we're talking about DEI in law schools and whether standard 206, which is just a modest instruction to not engage in rank discrimination, is on the table to be eliminated. This man gets to be the Secretary of Health and Human Services. Take a listen. Before becoming HHS Secretary for years, you have been one of the leading voices questioning the efficacy of vaccines. Do you accept some responsibility for this measles outbreak? Absolutely not. First of all, this is an international outbreak. And we're doing better at handling it than any country in the world. Mexico has 15 times the amount of measles per capita that we have.

1:08:22Canada has four times the amount of measles. England has two times the amount of measles. Did I cause those measles outbreaks? You're the most famous. Did I cause 137 ,000 cases? You're the most famous vaccine skeptic on the planet. Let me tell you, because actually Anthony Fauci in his diaries answers the question about why we're having a measles outbreak right now. The reason we're having a measles outbreak is because of the COVID lockdowns. All right. Thoughts? We're all going to die. We're all going to die. And on purpose, right, I always think, can you imagine how people react? If RFK Jr.

1:09:05was a black man, right? Can you imagine how people would react if that was Terry Crews talking about measles? Just like that. Like, people wouldn't stand for it. Not Terry Crews. There would be a riot, right? President Hector Elizondo Mountain Dew Camacho would not be allowed to say that without a mass right over our collective health. yet this beer-eating fool bear-eating fool, I mean is out here just wilding on all of our health and people just stand for it it's insane, it's dangerous I don't understand how people allow this to happen my kids the other day asked me what if aliens came to earth what would be the thing they would be most surprised about, right?

1:10:06And it turned into a very deep philosophical conversation. You know, I mentioned racism would be like, you're all earthlings, how could you be? Right? But one of the things that we were able to kind of hit upon was our lack of care for ourselves in our environment. Right? Like, I would imagine that an advanced intelligent race would look at our self-destruction, you know, as one of the most insane things out there, right? Like, and I tell my kids, like, if you think about it, like, even gorillas practice good hygiene, right? Like, they take care of each other's health, right? And we don't. We don't care for our own health when we let it become politicized.

1:10:57And that is insane. and I think it would be insane to any intelligent species besides ours. I mean, I think the aliens would want to know, like, why we decided to entrust our health to this man, like, who has admitted to snorting cocaine off a toilet seat. Yes. They would want to know that, and they would want to know what we did to all the rhinos, right? Like, like... All right. No, it's... It's too... It's a huge problem. But again, like, it's beyond a health problem, though. It is a straight-up political problem. It is what people are voting for when they show up to the polls in November. They're voting for this guy.

1:11:35And they understand that and they do it anyway. Obviously, there are other people to blame for this. I think we should also blame the Supreme Court. I mean, the the courts bent on deregulation, which has been led largely by Justice Neil Gorsuch, I think is also to blame for why there are irregular inspections of food safety at these large industrial farms. We could also put the blame, I guess, on DOJ antitrust for allowing the consolidation of these various farms, which, again, makes it easier for these broad outbreaks to happen because they're all coming from like a large source. This is what happens when you deregulate.

1:12:11This is what happens when certain providers have so much market power that they can basically dictate the terms of regulation. And, I mean, it's just so unbelievable. Like, you cannot literally eat berries. right i mean can i just like like it was so honestly relaxing to be in the uk and not worry about this like to just like i was literally on a fucking cabbage binge just eating every leafy green i could i was snorting iceberg lettuce like i was just like just with abandon like you went full peter rabbit i sure did i sure did please uh may i have another have another head of lettuce please i was just like and then i came home and like and now i'm like roasting all my vegetables like it's just it's like i cannot believe we're in this hellscape anyway my kids are happy because we're like no no yeah yeah yeah like the kids are like i vote for RFK is the greatest.

1:13:14Good stuff. I love deregulation. Like my son is like, best decision ever. Loper bright. So listeners, when Ellie and I recorded this episode on Thursday morning, we obviously recognize that the Trump administration is going to Trump administration and we would probably be back in the studio to record an update. And lo and behold, on Thursday afternoon, President Trump signed two executive orders targeting birthright citizenship. Again, this is just weeks after the Supreme Court concluded that an executive order could not be used to unilaterally rescind the 14th Amendment's grant of birthright citizenship.

1:13:55The two new executive orders take a very narrow tack. They focus on what the administration has termed, quote unquote, birth tourism. The first order excludes from birthright citizenship children born in the United States to members of foreign terrorist groups or, among others, employees working for foreign governments. That might include consular employees, ambassadors, or even low-level people working in embassies and consulates. With respect to that latter group, the children of individuals who are employed by foreign governments, foreign ministers, the children of ambassadors and things like that, technically, and I think historically, they have already been excluded from birthright citizenship under the terms of Section 1 of the 14th Amendment, because Section 1 of the 14th Amendment specifically excludes from birthright citizenship those who are not subject to the jurisdiction of the United States.

1:14:53And historically, that has always meant the children of ambassadors or high-level consular employees. This seems to open the door even more broadly to exclude the children of individuals who work in the consulate but are not those high-ranking officials who are clearly subject to the jurisdiction of some other foreign entity. Yeah, so I did a shorter YouTube segment on this that will be out, and then also a conversation with Rachel Cohen on this, But I wanted to just kind of highlight what you were saying in that what the administration seems to be trying to do is take a well-recognized but extremely narrow exception to birthright citizenship and just blow a hole through it and expand it beyond recognition.

1:15:40Because, of course, birthright citizenship did not apply to children of foreign ambassadors. And now the administration is saying, well, it doesn't apply to children of anyone who works at an embassy or is an employee of a foreign government. And, you know, taken seriously, would this mean that the children of someone who, I don't know, cleans the bathrooms at a foreign embassy or the United Nations is not a birthright citizen? Like, that's the question. And, you know, the exception for people born to parents who are, you know, members of a foreign terrorist organization that's obviously extrapolating from the exception for people born to, you know, occupying or invading armies.

1:16:20And the person who invited the administration to do this, say his name, it's Brett Kaffanow, who wrote that separate opinion in Trump versus Barbara saying, well, of course, the Constitution's principles have to be applied to new circumstances. and that means not just the rules themselves, but also their exceptions. And that is what the administration is doing. So the second executive order you mentioned there are two. The second one is entitled Ending Birth Tourism. It excludes from birthright citizenship the children of, quote, birth tourists, that is individuals who visit the United States while pregnant for the purpose of delivering the child on U.S.

1:16:57soil so that the child will be eligible for U.S. citizenship. The first order also excluded children of non-citizens who enter into a surrogacy agreement. Like if green card holders use a surrogate, is there a child potentially? Not a citizen. Like it's just truly deranged, unhinged stuff, which means it came from the mouth of, I don't know, senior White House advisor, deputy White House chief of staff, Stephen Miller, who was present at the signing of these executive orders and had this to say upon their announcement. The president is using his authority as commander-in-chief to sign first an executive order using the new ruling the Supreme Court issued to expand the definitions of people who are ineligible for birthright citizenship.

1:17:39That includes, for example, alien enemies in the United States, members of foreign terrorist organizations, and large categories of people who lobby and act on behalf of foreign governments. And so with taking this action, it ensures that large numbers of people who wrongly would be getting birthright citizenship will no longer be eligible for those benefits. So just for some context, listeners, about the so-called birth tourism, around 3.6 billion babies are born in the United States each year, according to the Centers for Disease Control and Prevention. In 2024, fewer than 10 ,000 babies who were born in the United States were born to foreign residents.

1:18:19So obviously, this is a problem that I guess is important enough for this administration, but it doesn't seem like it's the kind of massive influx of people that they're making it out to be. It certainly doesn't seem like it's as important as other challenges facing us right now, like the Iran war, our water supply, the ability to eat. Diarrhea with the bandit, I was going to say. And, you know, the Strait of Hormuz would like a word. So there's that. Many things. Speaking of the kind of additional developments, the Trump administration and the federal courts were definitely going to Trump admin in federal courts because also since you recorded, the D.C.

1:19:00Circuit came out with their decision in which they said, buy a two-to-one vote because this is the federal courts, that of course the president destroying the White House, a.k.a. the People's House, in order to build a ballroom without congressional authorization is illegal. The majority opinion said, quote, we are aware of no instance in American history in which a president unilaterally and using privately collected funds demolished substantial portions of the White House that Congress authorized to be built and American taxpayers paid for until now. End quote. Decision two to one. Of course, a Trump appointee to the D.C.

1:19:34Circuit, one Naomi Rao, dissented since auditions for a Supreme Court seat are still ongoing, even though there is not as of yet a vacancy. The D.C. Circuit stayed their opinion for several days to allow the administration to run off to Daddy Supreme Court to ask for a stay on the shadow docket. The president said on Truth Social they would be doing so. We will see whether that materializes. One other development in the federal courts, a Trump-appointed judge declined to dismiss the indictment against the Southern Poverty Law Center, which had argued the indictment was brought against them vindictively and selectively.

1:20:12The Trump-appointed judge even denied the request for discovery. That is the ability to ask questions, collect evidence, and look into whether this indictment was sought selectively and vindictively. So that is an unfortunate development, and we will see how that case plays out. That case, of course, is related to the Florida Attorney General's demand for an impeachment inquiry into 11th Circuit Judge Nancy Abudu, which Ellie and I talked about earlier in this episode. So that is a full rundown of the news. Thank you, Leah, for joining us. We are going to take a break. And when we come back, Ellie and I will share our favorite things.

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1:23:06Ellie, thank you so much for joining us to run down the legal news and for helping me fill out the empty void created by the absence of Leah and Kate. I think you did admirably here. We always close out our show by offering our listeners something uplifting, our favorite things, things that we look forward to, things that we experience that brought us joy that might bring them joy. So I'm going to invite you to share with us what your favorite things were from this week. Oh, you shouldn't have asked me. All right. So the Supreme Court granted cert in a case called Jopi versus Alaska. And I love this case.

1:23:48Jopi is an Alaskan bush pilot, meaning that he owns and operates his own private air service, has his own plane, flying people to weird ass places across. let's not forget our nation's largest state, Alaska, right? Now, some of the counties in Alaska are dry counties, which means you cannot sell or transport alcohol to them. Something, something Puritan, something I don't really understand it, right? Long story short, one of his passengers, one of Jopi's passengers brought a six pack, like literally just a six pack of beer to one of these dry counties, right, on Jopi's plane. A trial court ruled that Jopi could have or should have noticed the six pack and that therefore he was in violation of the county's dry laws so that Jopi could be fined, right?

1:24:39So the jury... Wait, wait, can I ask a question? Yeah. What, did the passengers like walk on with a six pack or was it in his carry-on? Apparently, and don't ask me why I know this because I really went deep on this case. So So apparently it was like in the passenger's carry-on bag, but the carry-on bag wasn't fully zipped. So you could have seen as you're getting onto the plane, if you looked at this bag, there was like a six-pack kind of sticking out of the carry-on package. And look, unlike the Supreme Court, I'm going to take the trial court's rule as fact, right? I'm going to do what you're supposed to do and say there was a whole trial here and a jury said he should have known that there was a six-pack on his plane.

1:25:20Okay. So you get a fine for that. Right. So the fine is fifteen hundred dollars. And that's a perfectly reasonable fine. It's a deterrent. Now you're checking all the bags before you load your right. If you want to hold people accountable, fifty hundred dollars. All right. But part of the violation here includes taking away the man's plane. So the punishment that the district court imposed was to give him a fifteen hundred dollar fine and to take away his plane. And to take away his blame. So this is obviously an Eighth Amendment challenge. And so, yes, exactly, Jopi. You're exactly right. Boom.

1:25:59Jopi appealed the ruling against him on an Eighth Amendment cruel and unusual punishment challenge. And the Supreme Court actually granted cert on this case. So sometime next year, we're going to hear this case. And man, I hope he wins. Because like in my mind, Jopi is now like Han Solo, right? He is just out here. He is just doing his job. He is smuggling raptars and six packs. And now you're going to take away his Millennium Falcon on some bullshit. Right. But the other thing that's really interesting here is that Neil Gorsuch is an Eighth Amendment hard ass. He doesn't think the Eighth Amendment applies to like he will he will string you up by your genitals if under the Eighth Amendment.

1:26:39He doesn't care. So how is a person like Gorsuch, who also loves the West and loves freedom and loves liberty, like how is Neil Gorsuch going to deal with a freedom loving American having his plane taken away by the government over a six pack of beer versus his antithope towards the Eighth Amendment? I could not be more excited for this goddamn case. Wait, wait. So are you optimistic about Jopi's chances? Because I'm not. No, no, I'm not. Not optimistic. I'm not optimistic, given the makeup in this court. But but I want to see him. I want to see him do it. I want to see these conservative Republican libertarian ass people take away this man's plan because because they want to his livelihood and the ability to kill people.

1:27:36I want them to have to go through that thought process. I want to kill people so badly, I'm going to take away this man's plane. I want to see him do it. I cannot wait. That's good news, by the way. That was my happy place. Okay. Your happy place is a dyspeptic dystopia. But I do love that in your happy place, if Jopi is Han Solo, the court is Jabba the Hutt. Yep. Yep, that's exactly what's happening. That seems right. That seems right. So my favorite things this week are, one, being able to eat leafy greens with Abandon, to just like have a lettuce binge. That was a lettuce bender. It was amazing.

1:28:20Thank you to the good people of the UK for providing me with that experience. I also love, love, love meeting Stricties in the wild. So I ran into Jeff Canyon on the New York City subway, and he is not only a fan of public transportation, He is a fan of the podcast as well. So great to meet you, Jeff. And Leah texted me to let me know that she ran into Nathan on a Delta flight, and she reports that Nathan loves the pod and is absolutely delightful. And obviously, the two things are related. So Nathan, glad you and Leah had that meet cute. My other fave from this week is I just finished Robin Lee's Crash Into Me.

1:29:01This is a book, and it was awesome. I literally, again, kind of put my life on hold so I could finish it. It is sexy, propulsive, just a great, great read. Gen X, you will remember Robin Lee because she is a former actress. She was in the 1990s movie Have Plenty. Did you see this, Ellie, Have Plenty? Do you remember that movie? Probably. I don't remember it, but I probably saw it. It's kind of a black Gen X favorite. That's a deep cut for you. She's also the author of The Idea of You, which was made into, I think, a Netflix movie starring Anne Hathaway and the very delectable Nicholas Galzatine.

1:29:40She's just a great author, and she's a Columbia Law grad. And this book was great. So highly, highly recommend Robin Lee's Crash Into Me. Also, the title comes from a Dave Matthews song, and I do like the DMV. UVA, always. All right. So that's all we have for you today. Thanks so much to our guest host, Ellie Mistal. Always a pleasure to have you on the pod. I think you're the first guest host who's ever vape continuously during the podcast. So thank you. I just want to remind our listeners again to be on the lookout in your feed for the first of our summer bonus episodes. This one about Know Your Rights.

1:30:23It's going to be dropping on Thursday. Take a listen. It'll be really important, really informative. And that's all we have. We'll see you next week. Peace.

1:30:36Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Our music is by Eddie Cooper. Our team includes Matt DeGroat, Ben Hethcote, Johanna Case, Kenny Moffat, Adam Lippert, and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America East.

1:31:05Hey, so listen, whether you're in the States, across the pond, or somewhere on the other side of the world, We love that you tune into Crooked for US News. But did you know we also have a UK news show? Yes, that's right. It's called Pod Save the UK. Pod Save the UK is a no bullshit, unabashedly progressive conversation about politics focused on the issues that matter most to the people of Britain. With all the changes in our government, including the fun revolving door of prime ministers we have here, there's always lots to talk about. And there's lots of fabulous guests to talk to. Journalists, politicians, experts, comedians and activists.

1:31:39Yeah, we've had great comedians on as well, like Rosie Jones, Stuart Lee, Aisling B. We've also had Tommy Vitor on, who may be our boss. We still don't know. We're not quite clear on who our boss is. I thought it might be Tommy Vitor. I thought it might be Jon Favreau. I don't know if it's Jon Lovett. It's hard to say. It's not clear to us who our bosses are. Some of our listeners call us irreverent but not stupid. I object to that. I'm deeply stupid. It doesn't sound too bad. So look, come check us out. Come join us. Pod Save the UK every Thursday, wherever you get your podcasts.