Will Trump Succeed in Rigging the Midterms?

25:36I 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 it might be the chronology in the Broadview 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. The other. Yeah, yeah. That's definitely right. So I think it could be, we get, why not both? Yeah, 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.

26:14And that's the Trump administration admitted to canceling federal grants to Democratic-leaning, 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.

26:58These 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 this is what you often refer to as just he admitted. OMG, 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 what now are like mere pennies to gin up dirt on political opponents.

27:43And now you have Donald Trump literally canceling energy-sustaining grants to states and programmatic grants. And it's just appalling. 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. In the House, right. She was testifying in the House at that time. That was an amazing testimony. 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?

28:22What 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. And I'm sure it's also prescient. Yeah. So last piece of big news we wanted to cover was a Blanche confirmation question mark update. So AG nominee, acting attorney general, Todd Blanche, aka I'm his lawyer or was his lawyer.

29:08That guy is right now facing sort of uncertain prospects in his quest to become the actual Senate confirmed attorney general of these United States. So we're recording this episode on Thursday afternoon. And as of now, there is a real question whether Trump has the votes to get him confirmed. Now, there should be many, many reasons not to confirm Todd Blanche, but we don't want nor do we have time for a four-hour episode. So we will just focus on what seems to have the most legs, which is the appalling slush fund slash immunity deal that purported to, quote, settle the$10 billion lawsuit that Trump filed against his own IRS.

29:44Recall that as the initial pushback to the announcement of that deal got steam, Blanche went before Congress, this is an earlier testimony, not his confirmation hearing, and he assured them that the fund was not going forward. Then, jump ahead to the actual confirmation hearing, outgoing Texas Senator John Cornyn seemed less than fully satisfied by just taking Todd's word that the fund wasn't happening and made clear that he wanted something in writing to that effect. Well, it seems the administration, or maybe just one Donald Trump, does not want to provide that. So we may be at kind of an impasse.

30:21Now, I'm not totally sure about the math, but I think with Mitch McConnell out and not voting, and every Democrat presumably voting against Blanche, if you don't have Collins, who I think needs to vote against Blanche to have a chance to win her Senate seat, and Murkowski, who seemed to have some real doubts anyway, then Blanche absolutely needs both Cornyn and Tillis, the two outgoing Republican senators who are pretty clearly on the fence. So I don't know. Seems like a real question. And on Wednesday night, we learned that the committee vote that had been scheduled had been delayed. And that is likely because, seems to be because, there just were not the votes.

30:57So it's not clear that Blanche is going to get a vote before August and the ultimate fate of his nomination isn't clear. This cancellation, of course, was followed by a Trump truth post on Thursday. I am just going to quote it, quote, Todd Blanche is a star and everyone knows it. He has the potential to go down as one of the greatest attorney generals of all time. That's obviously capitalized. However, John Cornyn of Texas and Tom Tillis of North Carolina, both of whom I refuse to endorse, also capitalize, and whose political careers have been ended by my action are refusing to vote for this great nominee, who will remain in any event as acting.

31:34Remember, both Cornyn and Tillis voted for Merrick Garland, blah, blah, blah, blah. I have no objection to temporarily withdrawing Todd's name if they do not do the right thing and putting him back after Cornyn and Tillis are out of office. What that seems to suggest to me is that Donald Trump is so attached to his dead slush fund that's supposed to be dead and the promise of immunity that he's willing to throw his attorney general nominee and nomination under the bus over it. Like he would rather withdraw the nomination and keep the prospect of this deal and hopefully count on a different constituted Republican-controlled Senate after the midterms because you know Kent Paxton would be down with that and whatnot.

32:19I am so – can I say – I am – yeah. It does seem like he – you know, that Blanche was literally up there saying, no, it's dead, dead, dead in order to get confirmed. And Trump may just not agree with that. It may have just been entirely self-serving. I'm also, though, I'm so curious about Cornyn and his motivations and his expectations here. So, like, was he just making a kind of pro forma 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 Blanche?

32:58Or 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 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 it actually turns out maybe it's not. Yeah. No, I agree. I'm also kind of curious what Cornyn wanted and might expect. But who knows? like maybe his vote 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.

33:49We'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. So if you read 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, RFK Jr., is reportedly going to be hosting a cooking show.

34:24This 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. Yes. This reminds me of 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 listened to an episode or two anyway. So – and for the team, these are the things we do. So, Leah, thank you very much for volunteering as tribute. He posted this episode on YouTube and I haven't watched it yet.

35:02Oh, 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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39:29And now, the president's Hail Mary application to the Supreme Court to allow him to enforce his voting-slash-anti-voting executive order. And for this conversation, we are delighted to be joined by our friend Rick Hassan, professor and founding director of the Safeguarding Democracy Project at UCLA. Rick, welcome to the show. It's great to be back with you. So, Rick, we want to talk to you about the application that Trump filed last week in the Supreme Court in Trump versus California. So at issue in that application is the March executive order that would largely assert presidential control over federal elections, which, just as a reminder to our listeners, under the Constitution are the province of the states, subject to congressional but very much not presidential override.

40:11Okay, before we get into the details of the application that's pending before the Supreme Court, can you just remind us what this executive order purports to do? So this is Trump's second executive order. There was an earlier one on voting in 2025. Parts of that were put on hold or killed by courts, finding that the president didn't have authority to do certain things. The key parts of the second executive order relate to, in one bucket, non-citizen voting and another bucket, rules for mail-in ballots. So let me talk about the non-citizen voting piece first. So federal law says that non-citizens can't vote.

40:45This executive order purports to direct parts of the federal government to assure that non-citizens are not voting, and it does so in three ways. First, it tells the Department of Homeland Security to create a list of citizens who are at least 18 years old and provide those to states. Second, it says that the United States Postal Service has to come up with a rule where they're going to get states to opt in to provide their own citizenship lists to the USPS. If they don't, USPS won't deliver mail ballots. And third, it directs the Department of Justice to criminally prosecute election officials who don't adequately police non-citizen voting.

41:32So reading between the lines, it seems to be saying if a state doesn't match its list to the DHS list or doesn't sufficiently explain why someone's on their list but not the DHS list, they could be criminally liable. So that's the citizenship piece. Yeah. And then there's also, you know, the implicit threat of, and we won't deliver your ballots if you don't do what we want as well. But there's also kind of a broader attack on mail-in voting in the executive order as well, right? So, yes, so the executive order purports to require new security measures on mail-in ballots, including something called an intelligent barcode, which allows for better ballot tracking.

42:10Some 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.

42:48What 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.

43:34They'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.

44:11The 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 list, 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 EEO haven't yet been promulgated. So that is sort of the strangeness of the posture right now.

44:44Okay. So district court says, notwithstanding the fact the rules are not there, this is already burdening the states. You know, there is 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.

45:24It'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 they 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.

46:02And 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.

46:48So 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 SCOTUS and say, look, now we see what the rules are. Here's our concrete injury. So Justice 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.

47:28circuit. 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 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.

48:15So, 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. And that would be kind of maybe, you know, I can imagine a Roberts-Kagan compromise behind the scenes, like express real reservations about the merits, but say no stay just yet. But the fact that Justice 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 justices and they agree.

48:56I 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.

49:38And 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, 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.

50:21So 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.

50:54But 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 that 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.

51:31And 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. It reminds me of the birthright citizenship case. Yes. Where it was really all about, you know, the CASA case, not the Barbara case, but the earlier case where the question was, you know, can you issue a universal injunction?

52:09Like a procedural thing, they went all in on procedure and they won on procedure and then ultimately lost on the merits nine months later. 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 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.

52:46Like 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 court 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.

53:30Can 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 all rulemaking to be done in accordance with law.

54:17And so I'm also very worried that there's going to be this two-step where they give the administration this maybe 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.

54:55Like 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 is 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.

55:35So 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.

56:19Yeah. So it adds to the 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.

56:57All of this is being dismantled. So Trump fired the commissioners on the Election Assistance Commission. It's a question of 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 he's 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.

57:43And I should say, voter ID laws have not all proven to be so disenfranchising. There's a lot of counter-immobilization 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 disenfranchised than 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.

58:18There 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 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.

58:56The 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 should 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.

59:29No, I know it does, but it can't hurt to say it again. But yes, also maybe 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 Xochitl 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.

1:00:01He 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 Goligowski, Can Ballet Help in the Fight Against Alzheimer's? 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 Jerry Machaw's masterful Creating the Administrative Constitution, And I'm just getting enraged afresh over the abomination that is the opinion in slaughter.

1:00:39Like 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 madder about slaughter or just because it's an excellent book and you haven't read it, pick up. Jerry Mishaw is Creating the Administrative Constitution. So my recommendations, I've got some music. Charlie XCX, new album, music, fashion, film. Ben described as slacker girl rock. I like that.

1:01:12Also, Audrey Hobard, 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%. Wow. 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. Yeah. All right. Sorry, Rick. Over to you. So when I'm trying to not think about Donald Trump, I've been watching Detective Hole on Netflix, which is kind of a Norwegian noir serial killer type escapist thing.

1:01:55and 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 of 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.

1:02:39She's at Marquette. And she wrote a book called Backlash Presidents. It's great. Which is, it goes back, you know, a long time ago, 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 cycling American history. And it kind of puts the current moment into a broader historical American perspective. All right. Well, those are great recommendations.

1:03:10Rick, 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 Honeylove. 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 Honeylove fan. So I was super excited to get to try a product and came in with high expectations. And I was not disappointed. The Honeylove bra is awesome. I have the Cloud Embrace one, and it's an everyday one that kind of functions as active wear but also provides shape.

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1:04:54Welcome 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 Counsel and Legal Director at If When How 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.

1:05:31We'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.

1:06:18We use all the tools of lawyering to do that. We do litigation, 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.

1:06:59It'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.

1:07:34And in 2019, I joined the organization. I was with a group called the SIA Legal Team, which was 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.

1:08:16Okay, 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.

1:08:53And 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, 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 v. 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.

1:09:27And of course, in the wake of Dobbs, many states moved 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.

1:10:03This 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 as 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, you know, across the country in courtrooms every single day. But it raises some particular issues.

1:10:39And, 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. And, 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.

1:11:10In 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.

1:11:41And 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. For instance, one of the crimes that 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 out of 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.

1:12:27And 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? You have to, like, prove beyond a reasonable doubt that the person did the thing 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. A lot of times the laws 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.

1:13:10There's no other law at their disposal to do so. And then, you know, 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, ham-fistedly, admittedly, rectify the harm that comes to the families of people who are deceased, the harm that they experience from having their loved one's 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 on their own property.

1:13:49Or, 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 the crime after they experience a pregnancy loss. And so this is one of those things that's really evolved in the aftermath of Dobbs is that, you know, as there's 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.

1:14:30We're going to put you in prison for 99 years. It's going to be tantamount to homicide. We're going to, you know, really throw the book at people who do abortions. But we're going to put in their provisions to say that the abortion seeker can't be charged with a crime, can't be charged as an accomplice, isn't going to face civil 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.

1:15:00We would never. What we're doing is we're punishing somebody because they behaved incorrectly. And so that not only sweeps in people who've 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.

1:15:35And 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 advised 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 stillbirth. 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.

1:16:13This 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 um and had erected a cross and had posted on on facebook death people she 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.

1:17:00And 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, 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-Obs 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.

1:17:55Is 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 that 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?

1:18:39States 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 that can happen anywhere over the course of my career. You know, I've definitely 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.

1:19:16This 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 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.

1:19:58There is 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 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 Roe, 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 winds can and do change quickly.

1:20:42So 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 really appalling, once dormant laws, is sort of being borne 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?

1:21:18I love to talk about the helpline because I am really proud 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.

1:21:58So 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.

1:22:46And the young person wasn't able to get the abortion that she needed because of the state's interference. So really the variety of issues that we see is not just restricted to people unable to access abortion care or being criminalized for doing so. It's people whose immigration status is now being called into 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 we really, you can handle, 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.

1:23:30Yeah. 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 that's not specifically something that 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 not all lawyers are the same. And so our team that runs our 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.

1:24:22Yeah. 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 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, so the work 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.

1:25:07But 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 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 Repro Helpline in our show note so people are able to access that if they meet it. And Farrah, the bail fund. So if people are targeted for any of this conduct or 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.

1:25:43So across the board, people are more likely to stay out from behind bars if they are back in 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.

1:26:35So 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. And 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 Legal Defense Fund helps people bear those costs so that they're more likely to be able to fight and win the case against them.

1:27:18Okay. 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 been where you are.

1:28:15We 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. And 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.

1:28:56But what it did do was it forced us to look for other solutions and really look beyond American exceptionalism and 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 hope. 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.

1:29:38And 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.

1:30:14We have a network that includes law school chapters. I'm sure probably you have a lot of legal nerds sitting right now. I think, you know, your constituency and ours, 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.

1:30:53Donate 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 where certainly it is deeply meaningful to the people who receive that help. 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.

1:31:35really 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, well, we'll have to leave it there. Farah Diaz-Teo, 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 ear holes next week with Melissa in the chair.

1:32:03Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Music 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.

1:32:24I'll Boston Hauptstop. Four揚 Version.